Opinion
No. C-86-20613-WAI.
December 16, 1998
MEMORANDUM OF DECISION
INTRODUCTION
This qui tam case, filed in 1986, came on for trial before a jury duly empaneled on January 20, 1998, and concluded on April 14, 1998. After twelve days of deliberation the jury found in favor of the Relator on four claims: the Hull Leakage Claim, the Electrical Components Claim, the Water Entry Speed Claim, and the Technical Manual Claim. While the jury found Defendant liable on all four of those claims, it assessed damages on only two of them — the Hull Leakage Claim and the Technical Manual Claim. The jury awarded on the Hull Leakage Claim the total sum of $25,796,570.00 and on the Technical Manual Claim the total sum of $99,319,101.00. The jury found in favor of Defendant on the Safe Firing in Water Claim and on the Bilge Pump Claim.
Now pending before the court are the following motions:
1. Relator's Motion to Strike Certain Material included as exhibits or cited in argument in connection with Defendant's post-trial motions enumerated below.
2. Defendant's Motion to Dismiss all Claims for Lack of Jurisdiction under 31 U.S.C. § 3730(b)(4) (1982).
3. Defendant's Renewal Motion for Judgment as a Matter of Law under Fed.R.Civ.P. 50(b).
4. Defendant's Motion for New Trial under Fed.R.Civ.P. 59 on grounds that material errors were committed by the court, that jurors engaged in prejudicial misconduct in the course of deliberations, and that the jury verdict was against the weight of the evidence.
5. Relator's Application to Enter Judgment Against FMC Corporation.
The court commenced its consideration of the motions on October 16, 1998, by making its determination of Relator's Motion to Strike before embarking on its consideration of any of the other motions.
DECISION
Relator's Motion to Strike Certain Materials from Defendant's moving papers herein is granted in part and denied in part as specifically set forth hereinafter.
Defendant's Motion to Dismiss for Lack of Jurisdiction is denied.
Defendant's Motion for Entry of Judgment as a Matter of Law is granted in part and denied in part as follows:
— Hull Leakage Claim — Denied.
— Electrical Components Claim — Denied.
— Water Entry Claim — Denied.
— Technical Manual Claim — Denied as to liability issues; granted as to damages alone.
Defendant's Motion for New Trial is granted in part and denied in part as follows:
— Hull Leakage Claim — Denied.
— Electrical Components Claim — Denied.
— Water Entry Claim — Denied.
— Technical Manual Claim — Denied as to liability issues; alternatively granted as to damage issues alone.
Relator's Application for Entry of Judgment — Granted in part and denied in part as specifically set forth hereinafter.
I. MOTION TO STRIKE
This is the ruling on Relator's Motion to Strike Material Included in Defendant's Moving Papers Supporting its Motion to Dismiss for Want of Jurisdiction and for Judgment as a Matter of Law Under Rule 50(b).
(1) Tab 11 of Defendant's Exhibit Excerpts. This comprises an excerpt from an April 24, 1987, congressional subcommittee hearing report.
Motion Denied but material may not be considered in any way in support of Rule 50(b) motion.
(2) Tab 1 of Defendant's Exhibit Excerpts. This comprises three pages: cover sheet for congressional subcommittee hearing dated April 24, 1987; title page of "Logistical Management Analysis Summary," dated July 31, 1986; sheet headed "Recommendation and Actions" and which includes discussion of electrical components.
Motion Denied but material may only be considered, if at all, in support of Motion to Dismiss and not in support of Rule 50(b) motion.
(3) Tabs 19 and 20 of Defendant's Exhibit Excerpts. Tab 19 consists of excerpts from Defendant's Interrogatory Responses. Tab 20 is testimony received in Relator's 1992 wrongful termination suit. Motion Granted.
(4) Tab entitled "Rel. Ex. 94" of Defendant's Exhibit Excerpts. This tab consists of a Memorandum of Brian Gillenwater.
Motion to Strike Denied but it may be considered by the court only in support of the Motion to Dismiss and not in support of the Rule 50(b) motion.
(5) Reference to "thousands of swims" purportedly conducted with Bradley vehicles.
This contradicted assertion may be considered, for whatever probative value it has, in connection with jurisdictional motions and for no other purpose.
II. MOTION TO DISMISS FOR LACK OF JURISDICTION
This motion goes to the subject matter jurisdiction of the court and may be presented at any time even after verdict. Emrich v. Touche Rosse Co., 846 F.2d 1190, 1194 (9th Cir. 1988.)
Defendant presents it with respect to each of the four claims which are the subject of these motions. In presenting the motion Defendant relies upon this court's previous orders of May 16, 1990, July 27, 1994, and December 1, 1997, in which this court considered and denied this same motion. Defendant relies on the materials presented by it in support of each of the motions underlying those orders together with designated evidence presented at the trial contending that the entire quantum of evidence entitles it to prevail upon this motion.
31 U.S.C. § 3730(b)(4) (1982) states
. . . the court shall dismiss an action brought by [a relator] on discovering the action is based on evidence or information the government had when the action was brought.
Section 3730(b)(4) is a jurisdictional limitation on a court's ability to hear a case. Pettis ex rel. United States v. Morrison-Knudsen Co., Inc., 577 F.2d 668, 674 (9th Cir. 1978). Such a motion to dismiss may be presented upon extrinsic materials outside the pleadings and upon evidence elicited at an evidentiary hearing like the trial of the instant case. Thornhill Pub. Co., Inc. v. General Tel. Electronics Corp., 594 F.2d 730 (9th Cir. 1979); Pettis, supra.
The standard to be employed in determining this motion is whether the movant defendant has shown "that evidence and information in the possession of the United States at the time the False Claims Act suit was brought was sufficient to enable it adequately to investigate the case and to make a decision whether to prosecute." 31 U.S.C. § 3730(b)(4).
In its Order of May 16, 1990, this court discussed the Motion to Dismiss Relator's Claim With Respect to Electrical Components. The court considered the Declaration of Allan F. Paquin, finding that the Army clearly knew of some electrical component problems revealed by Defendant's testing; the Declaration of Swope concerning meetings between Defendant's employees and Army representatives concerning electrical equipment failures; a report published by the Army concerning its monitoring of problems with electrical components demonstrated in field operations; and descriptions of electrical equipment failures.
The Motion was denied as set forth in the Order of May 16, 1990, the court commenting that evidentiary inquiry was necessary in order to determine the credibility of Relator's assertions, depending on the degree of Boisvert's involvement with testing, and to determine the extent to which Defendant provided accurate information to the Army.
In its Order of July 27, 1994, the court considered the issues of the dismissal of the claims involving water entry speed, electrical components, hull leakage, and technical manuals.
With respect to water entry speed, the court considered a 1983 report of driving a vehicle into water at speeds between 4 and 21 miles per hour which stated:
Results of these tests . . . do not suggest that the currently specified 5 m.p.h. entry speed should be increased.
Another test report from October 1979 suggested two miles per hour as the safe maximum speed, (Decl. Of Joyal). Relator's operation test of 1986 was before the court as was Relator's recommendation for the safe speed to be included in the technical manual. The court found that Relator's test results and recommendation was not transmitted to the government.
The court found that the only evidence produced by Defendant showing that the entry speed allegation is subject to the jurisdictional bar is the 1979 test which caused the test engineer to recommend a maximum safe entry speed of two miles per hour. There was no evidence of transmission of this evidence to the government other than the Declaration of Joyal that it was Defendant's custom to submit all technical reports to the Government, (Joyal Decl.). The court found that there was no evidence that the Government had information which would allow it to determine for itself whether that result was correct.
In its Order of December 1, 1997, the court held inter alia that the evidence proffered by Defendant on the issues of entry speed and electrical components did not demonstrate the level and quality of knowledge which would have led the Government to investigate and discover the particular frauds alleged.
The court now undertakes to determine whether the evidence proffered by Defendant at trial, taken together with that proffered previously in connection with the pretrial motions, supports Defendant's contention that this court lacks jurisdiction.
CLAIM 1. HULL LEAKAGE
Defendant has cited a number of exhibits and transcript references in support of its Motion to Dismiss the Hull Leakage Claim for Want of Jurisdiction.
(1) Testimony of Glowaki, (R.T. 3234).
For the first two or three years of the project FMC and government inspectors worked together in two person teams. These teams functioned during the assembly welding process and during the final inspection. In the latter process 100% of the inspection record was performed by the two person teams.
During the manufacturing or welding process government inspectors performed in-process reviews. They would examine the function of a particular station and validate that the manufacturing process was being followed. Government inspectors also performed the final inspection on "blue lined" vehicles. Blue lined vehicles are those in which prior deficiencies had been corrected, and which had been found finally acceptable by FMC inspectors.
(2) Testimony of Lilly, (R.T. 2960-2968).
This witness heard his FMC superior state, in general meetings attended by government representatives, that the hulls of the vehicles leaked in a volume which exceeded contract specifications. Adjustments were made to the ramp, locking mechanism, and to get a tighter seal on the rubber gasket on the ramp locking mechanism. The witness did not know of any instance wherein FMC notified the government in writing of leakage in excess of contract specification, (R.T. 2960:20 — 2965).
The normal method and procedure of recording and documenting test failure was to note it on the inspection sheet of the vehicle book. The amount of the excessive water leakage was not provided in the inspection sheet. The government did not require FMC to provide that data, (R.T. 2968).
Government inspectors were not formally involved in the red line or blue line process but they are aware of it — "They are on the shop floor at all times." (R.T. 2763, 2767.)
(3) Testimony of Marconcini, (R.T. 3033).
Government inspectors had access to areas in which they would be able to see red line and blue line process. In some cases they would come in after the process and verify the findings.
(4) Testimony of Sherman, (R.T. 3519, 3711, 3753-54, 4032-34).
Brent Sherman, trained as an engineer, spent his entire career as an employee of the United States Army Tank Automotive Command He retired as Deputy Project Manager for the Bradley Fighting Vehicle Project. He worked for the Tank and Automotive Command in excess of 38 years. (R.T. 3519.)
On cross examination Mr. Sherman testified as follows:
Q. Was it common knowledge that the Bradleys leaked?
A. To some degree, yes.
Q. How much?
A. How much they leaked?
Q. Yes.
A. It depended on the age of the vehicle when it went in, how old it was, what it had been subjected to, what kind of use the vehicle had when it swam, after, you know, so many months of operation on land, et cetera.
Q. Brand spanking new Bradleys, how much did they leak?
A. Well, you know the spec, it was 15 gallons for 15 minutes in 48 inches and 20 gallons in 20 minutes when you were floating, that was the requirement to meet before it went out the door.
Q. All right. So it's your testimony that when the Army bought Bradleys, they were not — you did not know that they leaked more than specification; right?
A. We — our inspectors out at the plant and our people in our West Coast office, we accepted the vehicles that met that requirement.
Q. You did not accept vehicles that leaked more than that; right?
A. Knowingly, yes, we did not.
Q. Not knowingly; right?
A. That's correct.
(R.T. 4032:14 — 4033:25.)
Mr. Sherman testified further that no one told him that after acceptance brand new Bradleys leaked in excess of the quantities contained in the specifications, (R.T. 4034).
He said that when floating and swimming tests were conducted, there was an initial operation of the vehicle in a fording basin to ascertain whether or not there were major leaks, (R.T. 3711).
(5) Testimony of Harnish, (R.T. 4204-05).
He said that a field manual in use, Relator's Ex. 42, states that all vehicles must be pre-dipped prior to negotiating a water obstacle.
None of the evidentiary exhibits or cited testimony supports the notion that at the time of the filing of this case, the government knew or had sufficient information to cause it to investigate hull leakage and to make a prosecution decision, particularly with respect to leakage caused by inadequate welding — a foundation relied upon by Relator in both the liability and damages aspects of this case.
One of the contentions relied upon by Relator concerns the use of caulking compounds and materials such as rope to plug leaks in the hulls of Bradley vehicles. With respect to this, Lilly, an employee of Defendant at the time in issue, testified concerning the use of a compound known as RTV for that purpose, (R.T. 2932:25 — 2944:13). He testified that he would not expect on-site government inspectors to independently discover the use of caulking compounds, (R.T. 2936:8-18). The court finds no evidence one way or the other with respect to whether or not notification of these alleged caulking practices was forwarded to the government.
Acts of concealment described by Dokter included the instructions given him by Pat Quinn, his superior at FMC, to establish a separate internal computer system for the tracking of welding defects to which government inspectors would not have access. (R.T. 823:7-15.) Dokter testified that on an occasion when government auditors were at Defendant's manufacturing facility, the computer system which he developed was locked up in a closet, (R.T. 832:14-25;834:12-21).
Smith testified that a procedure to avoid government inspectors while using Vaseline as a caulking agent was used by Defendant's employees, (R.T. 921:25 — 925:20).
Lee testified that an unnamed x-ray department employee of Defendant stated in his presence that x-ray examination performed on one Bradley hull was used as an examination of other hulls. He stated that he reported this to Westcoat, a welding group leader, who "told me to keep my nose out of his group." (R.T. 684:15 — 685:25.)
Rockwell testified that when he prepared a report on an incident when water entered the hull of a Bradley in a large amount over the vehicle's swim curtain, his superior took the information out of the report, saying:
We don't want to give the government any information that they can use against us.
(R.T. 413:22 — 414:11.)
There is no evidence of governmental knowledge of purported acts of concealment or falsification on the part of Defendant or its employees.
Accordingly, the Motion to Dismiss for Lack of Jurisdiction With Respect to the Hull Leakage Claim is denied. CLAIM 2. ELECTRICAL COMPONENTS
The court has previously in 1988 considered a Motion to Dismiss the Electrical Components Claim for Lack of Jurisdiction on the basis that as of the September 9, 1986, date of filing of this action the government had sufficient information concerning the test failures of the electrical components to enable it to conduct its own investigation and to make its decision to prosecute or not. That motion was supported, inter alia, by the Declaration of Allan F. Paquin containing as exhibits test results of various of the electrical components showing frequent failures and successful completions. Allan F. Paquin is an FMC engineer.
The court considered the exhibits before it, including the Declaration of Robert L. Heihn, Exhibits 5-8, and the Declaration of Paquin. The court in its Order of May 16, 1990, found that the Army knew of some of the problems with Bradley electrical components, (citing Paquin Declaration), and that the Army published its own report on field operations which included numerous failures of electrical components. Relator's principal contention on the motion was that the Army was aware only of minor problems and that major systems failures were concealed, and that Relator was excluded from meetings in which he could have informed the Army of major failures. Finding that the Army's report just referred to "does not conclusively demonstrate that the Army knew of `major system failures' generally and vaguely alleged by Boisvert," the court denied the Motion to Dismiss the Claim for Want of Jurisdiction, noting:
Thus determining whether the allegation should be dismissed on jurisdictional grounds depends on the extent to which FMC provided accurate information to the Army.
The court in that Order indicated that it required an evidentiary hearing to determine the credibility of Relator's assertions concerning major electrical systems failures. No such hearing was ever requested prior to trial.
On the present motion, Defendant presents the same evidence as that previously before the court on kindred motions, and in addition relies specifically upon the Heihn Declaration of January 20, 1988, (Ex. A), which is an Army report to Congress that vehicle distribution boxes had problems which caused them systematically to fail, together with trial testimony of Sherman and Glowaki.
Mr. Sherman states at R.T. 4002:13-16:
Q. But you didn't expect to find electrical problems with the vehicle, did you?
A. We usually found some, but we didn't expect to find a lot of them, let's put it that way.
And at pages 4002:25 — 4003:10:
Q. . . . is this what you were getting was Bradleys with electrical problems?
A. That's why we ran the test to determine if we had these kinds of problems. We would have liked not to get them, but we were running a special test to see if we were going to have problems.
Q. And you said, yeah?
A. The test had some problems, yes.
Q. And what electrical problems can do is just stop you dead in your tracks, right?
A. Sometimes.
In his deposition taken on October 17, 1997, Mr. Sherman testified:
Q. Were you ever aware of any questionable tests procedures concerning the electrical components that were conducted at FMC?
A. Can you define questionable exactly what you mean, or would you.
Q. Yeah, I will. I'll try. Did you ever have a concern that FMC managers were ordering the tester, I'm talking about now testers of the electrical components, to circumvent established testing procedures and falsify test results?
A. I was never aware of it.
Q. Okay. Did you ever hear or have any knowledge that managers at FMC within FMC might be requiring testers to make multiply final electrical test printouts on Bradleys that had passed their electrical tests and then duplicating those printouts to attach to Bradleys that had failed the test?
A. No, I wasn't aware of any. I was never aware of it.
Q. I take it that would have caused you concern if you had been aware of it?
A. Certainly would.
Q. Did you ever hear that untested electrical boards remained on Bradleys which had been falsely designated as having been passed electrical testing?
A. I wasn't aware of anything like that. I never heard of — never came to my attention that something like that was going.
Q. If it had, that would be cause for concern?
A. Certainly.
With respect to the activity of Relator in the electrical component testing and the purport of his testimony at this time it is necessary to examine the court's Order of May 16, 1990, page 27, in which the court found that an evidentiary inquiry was necessary to determine whether Relator had more than a minimal involvement with electrical components testing and whether his contentions that FMC withheld important test results from the Army were credible. No evidentiary hearing was ever requested or conducted but Relator did testify at length at trial with respect to electrical component testing. Commencing at R.T. 1823:14 — 1843:16, Relator indicated that he had worked for a period of months in the testing of electrical components and that on no occasion did any of the tested components pass the high temperature, low temperature, or humidity tests. Following failure to pass the tests, each component would be returned to the FMC manager for repair and the manager would then enter into the computer system a notation with respect to the test results. Relator testified that on each occasion the manager made an entry indicating that each of the components had passed the tests. Relator thereafter requested a transfer because of what he characterized as bogus tests and thereafter was transferred pursuant to his request.
This testimony, if believed, indicates an affirmative effort to misrepresent the test results and the record does not indicate that the manager, Mr. Cope, was called to contradict the testimony of Relator.
The Motion to Dismiss the Electrical Components Claim is denied because there is an insufficient showing of governmental knowledge with respect to that testing.
CLAIM 3. WATER ENTRY AT FIVE MILES PER HOUR FROM THIRTY PERCENT SLOPE
In its Order of July 27, 1994, this court stated at 14:1-4:
If Defendant can show that the government possessed sufficient information to determine for itself whether the BFV could safely enter the water at 5 miles per hour, this allegation [Complaint paragraph 15(H)(1)] should be barred.
Evidence then before this court included the Declaration of Arnold Joyal citing reports which stated severally:
1. BFV driven into water at speeds between 4 and 21 miles per hour. (Report given government in March 1984).
2. Entry speed of more than 5 m.p.h. should not be suggested. (March 1984.)
3. 2 m.p.h. is maximum safe entry speed. (October 1979.)
4. 5 m.p.h. is safe entry and exit speed. (June 1981.)
This court concluded that the report setting safe speed at two miles per hour was the only evidence that Defendant produced in support of its Motion to Dismiss which would be subject to the jurisdictional bar but there was no definitive evidence, other than Joyal's statement of custom and practice, that it was ever transmitted to the government.
Relator's test results and report finding 1-3 m.p.h. to be safe was submitted in support of the Motion to Dismiss, but admittedly was not transmitted to the government prior to the filing of this action.
There was found to be no showing that the government possessed information which would allow it to determine whether 5 m.p.h. was a safe entry speed, and the motion was denied.
In the present motion Defendant relies upon a Declaration of Joyal, (Ex. 2 of June 16 motion), which recounts the report of 2 m.p.h. as maximum safe speed; upon Army Field Report 1980 stating that BFV was damaged by water entry speed of 12 m.p.h., Chubb Decl., (Ex. 1 — June 16, 1993, motion.); that soldiers since 1981 were taught to enter water at "creep speed," not at 5 m.p.h. (Testimony of Harnish, R.T. 4180-86; 4227-28; 4234-5; Testimony of Sherman, R.T. 3827-28.)
Sergeant Harnish testified at R.T. 4227:2 — 4229:14; and 4234:2-24 that the creeping entry into water was done for the purpose of acclimating persons who had not used the BFV before to the sensation of water entry. The slow speed allows the driver of the vehicle to acclimate to driving without being able to see. The "creeping speed" described by Harnish has nothing to do with the capability of the Bradley to enter water at 5 m.p.h.
The Motion to Dismiss the Water Entry Speed Claim for lack of jurisdiction is denied. CLAIM 4. TECHNICAL MANUAL
Defendant's Motion to Dismiss the Technical Manual Claim for Want of Jurisdiction is premised on the contention that the court has no jurisdiction over the relevant constituent parts of the manual, i.e., hull leakage, entry speed and electrical components. Since the court has found that it does have jurisdiction over those claims, the Motion to Dismiss the Technical Manual Claim is likewise denied.
EFFECT OF JURISDICTION OVER POST-1986 CLAIMS OF RELATOR'S COMPLIANCE WITH 31 U.S.C. § 3730(b)(2)
Defendant contends that, in addition to arguments concerning each of the individual claims in this case, the court's jurisdiction with respect to alleged violations which occurred after October 27, 1986, the effective date of the amendment of the False Claims Act, is impaired because of Relator's adequate compliance with the provisions of 31 U.S.C. § 3730(b)(2). That section provides in pertinent part:
A copy of the complaint and written disclosure of substantially all material evidence and information the person possesses shall be served on the government . . .
Defendant contends that after compliance with that section by Relator, the government considered the materials produced by Relator, conducted its own investigation, declined to intervene in this action, and continued to purchase Bradley vehicles on the same basis that it had done prior to Relator's disclosures.
Relying on U.S. v. National Wholesalers, 236 F.2d 944 (9th Cir. 1956), the government's factual determination that certain goods were "equal" to certain other goods, the sale of which had been falsely represented to the government, acceptance of those "equal" goods precluded liability under the False Claims Act, even though fraudulent claims had been in fact made.
In this instance the facts of Relator's disclosure to the government pursuant to § 3730(b)(2) are not before the court. Neither are the particulars of the government's investigation. The government cites the testimony of Sherman that the government conducted a "full inquiry." At R.T. 3867:23 — 3868:16, Mr. Sherman testified in substance that when his office received copies of Relator's claims he put together a team which assembled a report on Relator's claims. As the result of the investigation so conducted, Mr. Sherman does not recollect that any changes were sought by the government.
The record contains no detail as to the nature of the government's investigation or to the conclusions to be drawn therefrom other than the fact that following the investigation the government declined to intervene.
Defendant has cited materials concerning congressional inquiry and other materials which may be considered on the jurisdiction issue and not otherwise, but which are of little help because of the absence of cross examination and the usual evidentiary indicia of reliability, such as adequate foundation.
The court finds that the material furnished to the government by Relator (which is not in evidence) or the conduct of an investigation by the government, the nature and extent of which is not in evidence for the sole purpose of this Motion to Dismiss, does not require a finding that the court has no jurisdiction over false claims allegedly made after the filing of this action and the concurrent disclosure of Relator's evidence.
III. MOTION FOR JUDGMENT AS A MATTER OF LAW
STANDARD
This motion is made pursuant to Fed.R.Civ.P. 50.
Rule 50 motions do not contemplate a weighing of the evidence, evaluating the credibility of witnesses, or the substitution of the court's conclusions relating to the evidence for those reached by the jury.
The issue before the court on a Rule 50 motion is whether the evidence proffered by the party bearing the burden of proof is so lacking in probative force on material issues that no reasonable juror could find in favor of the proffering party on such issues. The question to be answered is: "Could a reasonable jury reach a conclusion only in favor of the party invoking relief under Rule 50?" Donoghue v. Orange County, 848 F.2d 926 (9th Cir. 1987); Borunda v. Richmond, 885 F.2d 1384, 1390-91 (9th Cir. 1988). All evidence considered by the court in determining the motion must be viewed in the light most favorable to the non-moving party and the court must draw all possible inferences in favor of the non-moving party. Borunda, supra.
Put another way, the question is: Does substantial evidence support the jury's verdict, or, on the contrary, is the only reasonable conclusion that can be drawn from the evidence that the moving party is entitled to judgment as a matter of law? Los Angeles Memorial Coliseum Commission v. National Football League, 791 F.2d 1356, 1360 (9th Cir. 1986).
This motion will be considered as it relates to each of the four claims upon which the jury returned a verdict of liability as well as, in addition, each of the two claims upon which damages were found by the jury.
Without recounting or discussing each item of evidence relied upon by the parties, the court will briefly refer to each claim and to especially significant evidence which in the court's view prevents a finding that a reasonable jury could have only found in favor of Defendant. Borunda, supra. By citing less than all of the evidence relied on by the parties, the court does not diminish the legal effect, or lack thereof, of evidence not cited, but seeks only to resolve the issues presented as briefly as possible.
CLAIM 1. HULL LEAKAGE
A. Liability
The court has examined carefully all of the evidence cited by the parties in support of and in opposition to this motion, and is of the opinion that on issues of liability on the hull leakage claim a reasonable jury could reach a conclusion in favor of Relator.
A number of transcript references to the testimony of Messrs. Glowaki and Gillenwater were cited by Relator concerning the leakage of Bradley vehicles and to the belief that such leakage was common knowledge to FMC and to the Army, and Relator is entitled to every intendment connected to that testimony, including the benefit of the inference that the Bradley leaked before, during, and after acceptance testing.
Glowaki: R.T. 3433:9-15.
Gillenwater: R.T. 1147:4 — 1153:11; 1156:19 — 1157:13; 1163:24 — 1164:18; 1162:10 — 1163:23; 1190:11 — 1192:11; 1271:22 — 1273:20; 1277:4 — 1278:24; 1280:16 — 1282:14; 1160:14 — 1161:20; 1162:1 — 1164:18.
There was evidence of concealment of excessive leakage of Bradley vehicles. (Testimony of Boisvert, Rockwell, Lilly, Fredell.) Brent Sherman testified that the Army had no notice of the leakage rate of Bradley vehicles in excess of specifications.
There was evidence of concealment of stopgap measures, rope and caulking materials to stop leakage, in that Mr. Smith was instructed to cease such work when government inspectors were in the area. (Testimony of Smith, R.T. 922:22 — 925:20.)
During the welding process Defendant allowed welders more time than that allotted to other Bradley vehicles to conduct the welding of vehicles destined for x-ray and other testing. (Testimony of Herrera, R.T. 502:20 — 503:25; 510:24 — 511:2.) There is evidence that FMC employees used x-rays of one hull as being x-rays of multiple other hulls. (Testimony of Lee, R.T. 683:25 — 685:25.)
A separate data base for welding defects was concealed during a government audit. (Testimony of Dokter, R.T. 823:7-12; 830:4 — 832:25.)
While Defendant contends that government knowledge of hull leakage forecloses liability on the hull leakage claim, there is testimony which, if believed, shows areas where FMC knowledge of relevant matters related to hull leakage was actively concealed. (Testimony of Smith, Lee, Boisvert.)
B. Damages
The award of approximately $25,000,000 is supported by the testimony of Mr. Feakins, (R.T.16:2344-2448). The basic standard employed by that witness was well within the court's instructions on the measure of damages and his methodology was clearly explained for the consideration of the jury, (R.T. 2362:9-25). If the jury accepted Feakins' testimony, together with that of Fredell, Rockwell, Herrera, Mendoza, Lilly, and Boisvert, the conclusion reflected in their verdict could well result. For purposes of Rule 50 analysis it cannot be said that the zero amount advocated by Defendant is the only verdict which a responsible reasonable jury could have reached.
Judgment as a Matter of Law denied on issue of hull leakage damages.
CLAIM 2. ELECTRICAL COMPONENTS
There is sufficient evidence to support a verdict on this claim other than one in favor of the Defendant Moving Party. That evidence includes:
Relator Boisvert conducted environmental tests of vehicle distribution boxes (VDB), turret distribution boxes (TDB) and turret relay assembly (TRA) for a period of approximately five to six months. (R.T. 1826:7-11; 1837:25 — 1838:3.) During that time he tested to determine whether those components complied with the specifications requiring functioning at high temperatures, low temperatures, and high humidity. None of the boxes ever passed the tests. (R.T. 1838:4 — 1840:21.)
In the course of the trial Defendant offered DEX A010327 which is a report of the U.S. Army Test and Evaluation Command covering testing of Bradley vehicles conducted at Aberdeen Proving Ground between June 1982 and July 1983. That report indicated, in marked contrast to Relator's tests and testimony, that the "electrical systems as tested the vehicle generally met the requirements of the system specification," (Page 010337). The report, however, does not discuss the methodology of the test, or whether it included environmental components. It does, however, present evidence going to the jural resolution of facts which cannot of necessity inevitably lead to but one form of verdict in the hands of a reasonable jury.
Furthermore, Defendant raises the issue of the credibility of Relator's Declaration concerning "major systems failures" in the electrical system made in connection with an earlier motion to dismiss for want of jurisdiction. Although Relator did not use the term "major systems failures" in his trial testimony, he did testify that all of the electrical boxes tested, VDB, TDB, and TRA, failed environmental testing, and that the result was incorrectly reported. (R.T. 1841:13 — 1842:9.)
It appears true, as Defendant suggests in its brief, that there is no evidence that Relator's test results and Cope's computer entries indicating that all components passed the tests, were ever forwarded to the Army giving rise to an inference that no fraud was perpetrated at all on the one hand, and/or that Cope's conduct amounted to a concealment of adverse test results on the other. However, on this motion no favorable inference may be drawn in favor of Defendant Movant.
Clearly, this is not an area in which a verdict in favor of Defendant is the only one which could reasonably result in the hands of a reasonable jury.
Motion for Entry of Judgment for Defendant As a Matter of Law denied as to the Electrical Components Claim.
CLAIM 3. WATER ENTRY SPEED
The court has reviewed carefully the evidence as marshalled by the parties in their respective briefs and memoranda and concludes that Defendant is not entitled to Judgment as a Matter of Law Pursuant to Rule 50(b) on the water entry speed issues.
The parties have carefully set forth the evidence and their arguments based thereon. The court's task at this juncture is to review the evidence with a view to determining whether a reasonable jury could have returned a verdict in favor of a party other than Defendant, the moving party herein. In so doing the court does not undertake to review conflicts in the evidence, or which evidence has the greater probative force, as these are jural tasks.
Relator's case includes significant items from which inferences can be drawn favorably to his case. Among these are:
— Testimony of Bagneshi, (Military Standard 882).
— Safety Assessment Reports, (Ex. 39, Ex. 67, Ex. 476).
— Testimony of Sherman with respect to safety assessment reports.
— Inferences to be drawn from comparison of the contents of Exhibits 103 and 105.
— Gillenwater: Lack of identification of tests.
— Joyal: lack of identification of tests.
— Testimony of Norrish (R.T. 2579:5 — 2581:8; Ex. AA347).
— Technical Manuals, (Exs. 43, 163).
— Testimony of Boisvert re April 1986 test, (alteration in test work request form).
— Testimony of Rockwell on corporate policy with respect to reports of testing failures.
All of the above comprise a sufficiently sound predicate to justify a denial of the Motion for Entry of Judgment as a Matter of Law.
CLAIM 4. TECHNICAL MANUAL
The Motion for Judgment as a Matter of Law on the issue of liability is denied.
The Motion for Judgment as a Matter of Law on the issue of damages is granted.
A. Liability
An examination of the oral arguments of the parties on this motion, (R.T.80:16-20), leads the court to conclude that the Relator construes the technical manual to be a 31 U.S. § 3729 (a)(2) statement and in considering the issue of damages as it pertains to the technical manual, the court will consider the manual in that capacity.
The evidence clearly supports the conclusion that more than one form of verdict was available to a reasonable jury in determining whether the technical manual constituted a false statement made for the purpose of procuring payment of money from the government within the meaning of the False Claims Act.
A comparison of Exhibits 103 and 105 can readily permit inferences favorable to Relator's contention. As an example, Exhibit 103, Figure 4.2.2, indicates that ingress at maximum safe speed, a classification for safe water operation under FMC Policy 3-3 4201, was not tested at all, perhaps because facilities were not available at FMC's water test basin, (Ex. 103 at 4-13). Relator Boisvert's testimony concerning tests conducted by him at the San Jose basin on entry capacity leads to further inferences relevant to Relator's case. Under the strictures of Rule 50 analysis, no inferences favorable to Defendant Movant are permissible, Borunda, supra. The Safety Analysis Review of which Exhibit 103's Figure 4.2.2 is a part did not find its way into the Report of Special Task Force, Exhibit 105.
The jury was presented with the further issue as to whether the technical manuals "were accurate and contained all necessary safety information for the user in the field concerning one or more of . . . claimed deficiencies." The manuals do not contain reference to hull leakage in listing hazards associated with water entry and usage. (Exs. 43, 163, 253.)
Defendant is not entitled to Judgment as a Matter of Law as to liability under the False Claims Act.
B. Damages
There is no evidence how a breach of a contractual duty to warn of safety hazards translates to a diminution in the value of the vehicle to the purchaser. There is no evidence at all which aid the trier. The argument of counsel does not help specifically except to remind the jury of its duty to be just and reasonable, (R.T. 4762:20-24), and to invite the jury to predicate its verdict upon the expectations of Captain Beach to be transported safely, (R.T. 4881:2-10).
Defendant is correct in its observation that there is no monetary evidence with respect to the difference in value between a manual that contains false statements, and one that does not, and in its observation that Relator's damage expert, Mr. Feakins, did not have much to say about the technical manual.
Relator does not take issue with those observations but argues that the role of the technical manual, pursuant to MILST 882 and its contractual purpose, is to advise the users of the correct usage of the Bradley vehicle, which is consistent with safety. He contends that if the manual does not do that the overall value of the purchased vehicle to the government is diminished because the government did not receive a vehicle containing an operating manual which correctly instructed in the use of the vehicle, and contained information with respect to entry speed into water which was inaccurate and false together with no mention of hull leakage and precaution prior to water use.
There is a danger that the elements of the jury award may contain an award of consequential damages. Relator claims that this should not be a factor because he did not offer evidence of consequential damages in accordance with the court's in limine order. That is generally correct. However the closing argument of counsel invites the jury to return damages which may be construed as consequential, (R.T. 4881) in that the expectation of safe transport and the disappointment thereof appears to the court to be a consequential result which does not flow directly from the submission of a false claim or representation but rather from a consequence which itself arises from such submission. The jury was only tersely instructed on the issue of consequential damages.
As suggested in Relator's Opposition Brief on this issue, (36:25-28), what was before the jury was how, if at all, the false claims included in the Technical Manual, or excluded therefrom, rendered the vehicle itself worth less than the government paid for it. This consideration is necessarily confined to the Hull Leakage, Water Entry and Electrical Components claims only. The jury awarded damages on the Hull Leakage Claim and declined to do so on the other two. The jury's verdict on the issue of damages only is not supported by substantial evidence and judgment must be entered upon that issue in favor of the Defendant as a matter of law. Los Angeles Mem. Col. Comm., 791 F.2d 1356, 1360, supra.
IV. MOTION FOR NEW TRIAL
STANDARDRule 59 gives the trial judge the power to prevent miscarriage of justice. It is the judge's duty to grant a new trial whenever, in his sound discretion, it is in the interest of justice to do so. See, e.g., Moist Cold Refrigerator Co. v. Lou Johnson Co., 249 F.2d 246 (9th Cir. 1957), cert. denied 356 U.S. 968, 2 L.Ed.2d 1074; Globe Liquor Co. v. San Roman, 332 U.S. 571, 92 L.Ed. 177 (1948); Natural Resources, Inc. v. Wineberg, 349 F.2d 685 (9th Cir. 1965), cert. denied 382 U.S. 1010; 151 L. Ed.2d 525.
Moist Cold appears to be the leading case in the Ninth Circuit. The appellate court approved the trial court's application of the "weight of the evidence" rule in granting a new trial and held that the trial judge had the duty to weigh the evidence as he saw it and to set aside the jury verdict, "even though supported by substantial evidence, where, in his conscientious opinion, the verdict [was] contrary to the clear weight of the evidence, or [was] based upon evidence which is false, or to prevent . . . a miscarriage of justice." Moist Cold, supra, 249 F.2d at 256. This standard has been reiterated recently in Murphy v. City of Long Beach, 914 F.2d 183 (9th Cir. 1990).
Defendant's Motion for New Trial is based upon four predicates:
1. The court erred by giving improper or incomplete instructions.
2. The court erred by making several incorrect and highly prejudicial rulings on the admissibility of evidence.
3. The jury deliberated improperly in at least three different respects.
4. The verdicts in favor of Relator were against the great weight of the evidence.
A. INSTRUCTIONS
1. Scienter
Defendant in its Motion for New Trial has not identified the specific instruction to which it objects. After the jury retired, but before it commenced deliberations, the court called upon counsel to make any objections, exceptions or request for further instructions. Counsel for Defendant at that time excepted to instructions numbered 5.4, 5.6 and 5.7 which were given by the court on the scienter issue. (R.T. 4927:14 — 4928:6). The claimed error is the court's failure to instruct the jury that the knowledge with which Defendant undertook to knowingly act in its making of claims which violate the False Claims Act prior to October 27, 1986, must include proof of a specific intent to defraud the government. It is the position of Defendant that the holdings of the Ninth Circuit in U.S. v. Mead, 426 F.2d 118 (9th Cir. 1970), and U.S. v. National Wholesalers, 236 F.2d 944 (9th Cir. 1956), require this court to instruct the jury on the need for proof of specific intent.
Both Mead and National Wholesalers do define the necessary knowledge as required by the Act to include specific intent to defraud. Neither have been squarely overruled. It is the position of Defendant that they constitute settled Ninth Circuit precedent which must prevail over later holdings permitting a different, less stringent determination of the quantum of knowledge required by the False Claims Act.
Relator contends that Defendant waived its contention that a specific intent instruction was necessary to evaluate pre-1986 conduct because Defendant proposed the instruction which the court gave. However, that instruction was not proposed until the court refused Defendant's proposed specific intent instruction. Defendant properly lodged its exception prior to the commencing of jury deliberations, (R.T. 4927-4827).
The Relator argues that if U.S. v. Mead, supra, be construed as requiring proof of specific intent as distinguished from proof of actual knowledge, then it is in conflict with the holding of the United States Supreme Court in Rainwater v. U.S., 356 U.S. 590, 592 (1958), holding that constructive knowledge of the defendant is sufficient to impose liability under both the criminal and the civil False Claims Act.
Although the False Claims Act nowhere, either before or after the Amendment of 1986, mentions specific intent as an element of a violation of the False Claims Act, the Ninth Circuit in Mead and in National Wholesalers used the term "specific intent" in describing requisite intent for a violation of the Act. Within the Mead decision itself, however, the term specific intent and knowledge of falsity are used interchangeably, Mead, supra, at 123; and in U.S. v. Ehrlich, 643 F.2d 634 (9th Cir. 1981), the government's burden is described as requiring proof that defendant caused false claims to be filed with the knowledge that such claims were false, (citing Mead). In a criminal False Claims Act case the Ninth Circuit held that proof of specific intent is not required. U.S. v. Milton, 602 F.2d 231 (9th Cir. 1979). The Milton court, Blaine Anderson, J. noted the interchangeable use of the terms of knowledge of falsity and of specific intent commenting that either quantum of proof might satisfy the requirements of former 31 U.S.C. § 231. Leaving aside its language with regard to retroactivity, this court considered also U.S. ex rel. McCoy v. Cal. Med. Review, Inc., 723 F. Supp. 1363 (N.D. Cal. 1989). The court reached its decision to reject the proffered instruction requiring inclusion of specific intent as an element of both pre-1986 and post-1986 false claims. This court shares that position and now denies the Motion for New Trial based upon scienter instructions.
In U.S. ex rel. Newsham v. Lockheed Missiles Space Co., 907 F. Supp. 1349 (N.D. Cal. 1995), the District Court cited Mead for its holding on specific intent, but also found not inconsistently with McCoy that the requisite specific intent can be inferred from actual knowledge.
2. Reliance
This aspect of the motion relates to the concept of reliance with regard to the issue of liability.
Defendant contends that in a situation where the government pays an allegedly false claim, it must be shown as an element of liability that in making the payment the government relied upon the representations of the false claim. Defendant relies upon U.S. ex rel. Hopper v. Anton, 91 F.3d 1261 (9th Cir. 1996), cert. denied, 117 S. Ct. 958 (1997). In that case the Ninth Circuit said:
Two major questions relating to liability in these cases are (1) whether the false statement is the cause of the government's providing the benefit; and (2) whether any relation exists between the subject matter of the false statement and the event triggering the government's loss.
Defendant relies also on U.S. v. Hill, 676 F. Supp. 1158 (N.D. Fla. 1987), involving a fraudulent loan guarantee application.
On this basis Defendant objects to Instruction No. 5.4 and to Instruction No. 5.5 setting forth the elements of a violation under § 3729(a)(1) and § 3729(a)(2) of the Act.
Relator's position is that the government need not rely on, believe, or make payments to establish a liability under the Act. He relies upon Ehrlich, supra, 643 F.2d 634; U.S. ex rel. Hagood v. Sonoma County Water Agency, 929 F.2d 1416 (9th Cir. 1991); and U.S. ex rel. Schumer v. Hughes Aircraft Co., 63 F.3d 1512 (9th Cir. 1995), vacated on other grounds, 117 S. Ct. 1871 (1997).
Relator distinguishes the cases cited by Defendant on the basis that neither of them involved any claim for payment, and both arose in contexts not involving the alleged making of a false claim for payment, and in which the applicability of the False Claims Act existed in a context wholly unlike cases such as this involving claims made in the course of a contractual arrangement between a contractor entity and the government.
The court concludes that the position of Relator is correct, and that the court was correct in refusing any instruction which included reliance as an element of liability under the False Claims Act.
3. Government Knowledge
Defendant excepts to the court's instruction on government knowledge. It agrees that the court properly instructed the jury that government knowledge "may negate the intent to defraud" but argues that the court should have instructed the jury that government knowledge "may negate the element of falsity." It objects to the court's instruction that
A false or fraudulent statement or claim does not become "true" even if it is shown that some government official knew or suspected the falsity of the statement or claim. Instruction No. 5.6, R.T. 4903.
In support of its position Defendant relies upon U.S. ex rel. Kreindler v. United Technologies Corp., 985 F.2d 1148, 1157 (2nd Cir. 1993). Citing language to the effect that government knowledge of a false claim does not "automatically" bar the qui tam action, Relator contends that government knowledge is not a factor to be considered in determining falsity, and in fact is not relevant at all to that determination, citing United States ex rel. Hagood v. Sonoma County Water Agency, 929 F.2d 1416 (9th Cir. 1991), holding that knowledge of falsity of government officials is not in itself a defense.
The court finds that its refusal of the proposed instruction that government knowledge may negate the element of falsity was properly refused.
4. Available Waiver and Estoppel Defenses
There is insufficient evidence in the record and/or showing of prejudice to justify the giving of the proffered instructions on governmental waiver and estoppel.
5. Consequential Damages
The instruction was proffered by Defendant originally, and the court added the phrase "with respect to the Bradley's electrical component claims" because the only area of evidence in the case where a cautionary consequential damage instruction was needed was the subject of electrical components.
The giving of Instruction 6.2 does not necessitate a new trial of this case.
6. Permitting Jury to Double Count Claims
Instructions 5.3, 5.3(A), 5.4, and 5.5 were properly given. U.S. ex rel. Butler v. Hughes Helicopter Co., 71 F.3d 321 (9th Cir. 1995), and Ab-Tech Construction, Inc. v. U.S., 31 Fed. Cl. 429 (1994), and do not necessitate the granting of the Motion for New Trial.
B. INADMISSIBLE AND PREJUDICIAL EVIDENCE
Violation of Ruling In Limine on Termination
The first two instances of testimony concerning Relator's termination by Relator prompted no objection by Defendant. (R.T. 1381, 1595-1598.) No one requested that the testimony be stricken or that the jury be admonished. A third instance occurred at a subsequent time, (R.T. 2110), and Defendant moved for mistrial which the court denied, (R.T. 2133). Relator contends that the failure to object on the first two occasions waives subsequent objection, citing Reagan v. Brock, 628 F.2d 721 (7th Cir. 1980), which allowed a hearsay answer to stand where it was preceded by a number of other questions which called for hearsay answers and were not objected to. The court, in allowing the answer to stand, surmised that the objecting party may have lost its bet that the testimony might be favorable and therefore overruled the tardy objection to the answer. Relator also cites U.S. v. Drake, 932 F.2d 861 (10th Cir. 1991), holding to the same effect on timeliness of the objection, saying
The damage had already been done by the time counsel raised the objection now on appeal.
Defendant notes that it did not object to the first reference to termination because it did not have any reference to the cause of termination and did not constitute a violation of the in limine order. (R.T. 138:20-22.) Reference is made to another objection in an off-the-record "sidebar." It is difficult to find waiver in these circumstances and the court will not do so.
However, the court does not discern prejudice any more now than it did then, and the Motion for New Trial on the termination testimony issue is denied.
C. JURY DELIBERATIONS
The Motion for New Trial based upon the jury's use of transcripts and videotapes is denied. The court's admonition was sufficient and in any case no prejudice is identified.
The Motion for New Trial based upon exposure to extrinsic evidence is denied. There is no showing of prejudice and no request for a hearing.
D. JURY VERDICT AGAINST WEIGHT OF EVIDENCE
The court finds alternatively to its entry of Judgment as a Matter of Law on the damage issue that the verdict of the jury is not against the weight of the evidence on any claim except the verdict on damages alone on the Technical Manual Claim.
The Motion on the ground of insufficiency of the evidence is therefore denied as to the Hull Leakage Claim, the Water Entry Claim, the Electrical Components Claim and the liability verdict on the Technical Manual Claim.
The Motion is granted as to the damages verdict alone on the Technical Manual Claim because the amount of damages therein awarded is clearly excessive under the evidence.
The verdict returned by the jury on the Technical Manual Claim is clearly excessive under the evidence now before the court and a new trial is therefore granted on the issue of damages alone on that claim. This grant is alternative to the Rule 50 grant of judgment on this issue, and is effective only if the Rule 50 grant is rendered inoperative after appellate scrutiny.
The criteria of jural consideration should be limited to the question of the monetary difference between what the government paid and what it should have paid absent the false claims and to the overpayment by the government for the Bradley vehicle to the extent that the statements contained in the technical manuals contributed to that result, and should not be predicated in any degree upon the expectations of individual soldiers, such as Captain Beach.
Motion for New Trial granted on issue of damages on the Technical Manual Claim. The Motion is otherwise denied.
V. APPLICATION FOR ENTRY OF JUDGMENT
The current version of the False Claims Act requires the trial court to treble all actual damages awarded by the jury and to assess a statutory penalty of between $5,000 and $10,000 for each violation found by the jury. The earlier version required that the damages only be doubled and that a penalty of $2,000 be applied to each violation. Since this case involves violations which occurred under both versions of the Act and because there is some discretion in the application of the later version, both parties have filed briefs on these issues.Relator urges that the court find the enhancement and penalty provisions of the amended Act to be retroactive and triple all actual damages and impose the maximum $10,000 penalty to each of the 13,591 violations found. In the alternative, he suggests that the court at least apply the maximum penalty to the 6,466 post-amendment violations if it intends to only double the earlier damages and award only $2,000 for the 7,125 pre-amendment violations.
FMC requests that the court not only keep the pre- and post-amendment violations separate for enhancement purposes (rejecting the retroactivity argument) and to apply the minimum $5,000 penalty to the later violations, but it also exhorts the court to decrease the total number of penalties found by the jury before applying any fine. It maintains that the number of penalties cannot exceed the number of total claims made and that, since only 6700-odd Bradleys were shipped, only that many violations may be found. Furthermore, it argues, no evidence justifies the application of the upper range of the discretionary penalty and that only a $5,000 fine should be imposed for each of the post-amendment violations.
A. Retroactivity
Relator's arguments that the penalty provisions of the new Act should be imposed on pre-1986 conduct can be rejected out of hand Indeed, Relator himself recognizes that this would be a bold move for this court to make and against the reasoning of the governing precedents. Under Landgraf v. USI Film Products, 511 U.S. 244 (1994) and Hughes Aircraft Co. v. United States ex rel Schumer, 138 L. Ed. 2d. 135 (1997) the court declines to follow this course.
B. Reduction of Violations Found
This is the area of greatest controversy. The court tends to agree with cases such as BMY — Combat Systems Div. of Harsco Corp. v. United States, 38 Fed. Cl. 109 (1997) and United States v. Board of Educ. of City of Union City, 697 F.Supp 167 (D.N.J. 1988) in their conclusions that separate liability should attach for each violation of the act found and does not comprehend what Congress might have intended by including section (a)(2) at all if no violations could be found in excess of the number of (a)(1) violations. Furthermore, the court is loathe to tamper with the jury's factual findings especially under the circumstances here, where it is entirely unclear precisely how the jury reached its final figure of 13,591. However, the court finds itself bound by the Ninth Circuit's opinion in United States v. Woodbury, 359 F.2d 370 (9th Cir. 1966) and therefore the court hereby finds that the number of statutory violations cannot exceed 6785 total.
C. Amount of Discretionary Penalty
There is scant law guiding the court in its determination of what amount of penalty to apply. Upon review of the existing authorities however, the court believes that the ultimate purpose of the penalties is to make the government whole and to "do justice." See, e.g., United States v. Murphy, 937 F.2d. 1032 (6th Cir. 1991); United States v. Stocker, 798 F. Supp. 531 (E.D. Wisc. 1992); United States v. Perez, 839 F. Supp. 1992 (D.P.R. 1992); United States v. Fleigler, 756 F. Supp. 688 (E.D.N.Y. 1990). In this case, where the actual damages are so substantial, justice would not be furthered by an additional forfeiture beyond the minimum. Thus, the court will apply the minimum $5,000 penalty to each of the post-amendment violations.