Full opinion text
MEMORANDUM OPINION ROBERT E. PAYNE, Senior District Judge. This matter is before the Court on DEFENDANTS’ RENEWED MOTION FOR JUDGMENT AS A MATTER OF LAW OR, IN THE ALTERNATIVE, MOTION FOR A NEW TRIAL (Docket Nos. 114 and 115). The Defendants are: R & L Carriers Shared Services, LLC (“R & L”), Frank Dominic Finley (“Finley”), James Lee Bullard, Jr. (“Billiard”), and David John McGinnis, Sr. (“McGinnis”), (collectively “the Defendants”). If their motion is not granted, they seek a remittitur. For the reasons set forth below, the motion will be granted in part and denied in part. BACKGROUND I. Factual Background R & L operates a commercial shipping service that includes trucking transportation services. In so doing, R & L maintains various trucking terminals across the United States, including a terminal in Colonial Heights, Virginia (“the Richmond Terminal”). In March 2006, Plaintiff Clyde Lawrence Bennett (“Bennett” or “the Plaintiff’) was employed by R & L at the Richmond Terminal as the out-bound night shift supervisor earning $41,600 annually. Trial Tr. at 241:8-15, 631:19-21. In his capacity as supervisor, Bennett was responsible for supervising the dockworkers during the unloading and loading of truck trailers. Trial Tr. at 241:17-18. At the time, Bennett had a money market account with Wachovia worth $81,222.48, Pl.’s Ex. 17 at 1, and an annuity worth $28,000, Trial Tr. at 618:12-14. On March 3, 2006, thirteen laptop computers were shipped from R & L’s Newark, New Jersey terminal to the Richmond Terminal en route to a final destination in Miami, Florida. Trial Tr. at 371:1-3, 373:1-12. The Richmond terminal was designated as a “break” terminal, meaning that the trailer would be opened in Richmond, and items would be moved from one trailer to another. Trial Tr. at 373:12-15. Conan Spangler (“Spangler”), who was employed by R & L as a dockworker in the Richmond Terminal, was working as a “breaker” on March 3, 2006, meaning that he was responsible for unloading the inbound trailers. Trial Tr. at 373:16-22. Spangler unloaded the trailer that was supposed to contain the shipment of 13 laptop computers and marked, on the shipping manifest, that the shipment was a “no freight,” thereby indicating that the laptops were not on the trailer. Trial Tr. at 373:22-374:1. Joseph Mitchell (“Mitchell”), who was also employed by R & L as a dockworker in the Richmond Terminal, was working as a “loader” on March 3, 2006, meaning that he was responsible for loading the outbound trailers. Trial Tr. at 374:4-7, 373:19-21. Mitchell indicated, in the shipping manifest, that he loaded the 13 laptop computers onto the Miami-bound trailer. Trial Tr. at 374:6-7. En route to Miami, the trailer stopped in Jacksonville, Florida at another “break” terminal, and the Jacksonville terminal discovered that the 13 laptop computers were not on the trailer. Trial Tr. at 374:10-14. Two weeks later, on Friday, March 17, 2006, a shipment of six Hewlett Packard (“HP”) tower computers arrived at the Richmond Terminal. Trial Tr. at 371:3-7, 376:25-377:6. Each of the HP computers was worth approximately $800 to $1,000. Trial Tr. at 133:14-16. These six computers had been “returned,” not because the computers were themselves damaged, but because the “boxes were busted or crushed a little, and customers would not purchase th[em].” Trial Tr. at 377:4-8. An R & L employee placed the six computers on a skid, and the skid was placed in the middle of the shipping dock in an area known as the “Overage, Shortage, and Damages” section, or “OS & D.” Trial Tr. at 377:16-19. The OS & D area is an open area delineated by stanchions and rope. Trial Tr. at 443:3-7. On Sunday, March 19, 2006, three of the six computers were missing. Trial Tr. at 377:23-25. Promptly thereafter, the manager of the Richmond Terminal, Finley, advised R & L’s Director of Operations for the Southeastern United States, Bullard, that R & L was “missing some computers.” Trial Tr. at 143:1-9, 138:6-7. Bullard already was in Richmond at the time assisting in the restructuring of R & L’s northeast shipping line. Trial Tr. at 138:11-13. Once Bullard learned that there were possible missing computers, he directed Finley to “review the process” and “[g]o through [R & L’s] OS & D checklist and verify if [R & L] could find the shipment within [the R & L] network, or if it had been cross delivered.” Trial Tr. at 138:23-139:4. When that effort was unsuccessful, Bullard, on March 22, 2006, called McGinnis, R & L’s regional security investigator, and informed him that computers were missing from two different shipments in the Richmond Terminal. Trial Tr. at 369:22-370:3, 371:1-4. McGinnis, who had worked for 21 years with the Atlanta Police Department, was hired by R & L initially as a tractor trailer driver. Trial Tr. at 364:2-3, 365:3-14. After serving approximately two years as a driver, McGinnis was made the regional security investigator for the South, a position for which McGinnis received no training from R & L. Trial Tr. at 365:16-17, 366:8-9, 367:1-12. Before 2006, McGinnis had been involved in 700 or more R & L investigations, about fifty percent of which were related to theft. Trial Tr. at 369:8-14. McGinnis arrived at the Richmond Terminal on Monday, March 27, 2006 at around 3:00 p.m. Trial Tr. at 371:13-18, 425:22-426:1. His purpose was to “look into a possible theft situation involving computers.” Trial Tr. at 372:16-18. McGinnis began his investigation by discussing with Finley the specific circumstances surrounding the disappearance of the computers at the Richmond Terminal. Trial Tr. at 376:1-2. He then went through all of the relevant paperwork with Finley and decided that the freight at issue had not been shipped erroneously to another terminal. Trial Tr. at 376:2-6. Having determined that the freight was not misshipped, McGinnis asked Finley if he knew of someone who might have “a lot of computer knowledge,” and Finley, based on “[w]ord of mouth from the [employees on the] dock,” gave McGinnis three names, Spangler, Mitchell and another dockworker named David Lowrey (“Lowrey”). Trial Tr. at 376:7-11; Pl.’s Ex. 2 at 4. McGinnis then began to interview various R & L employees as part of a “preliminary ‘fact finding’ examination.” Trial Tr. at 302:24-25; Pl.’s Ex. 2 at 3. McGinnis was immediately suspicious of both Spangler and Mitchell because of the inconsistencies in their shipping manifest entries related to the March 3, 2006 shipment of laptops. Trial Tr. at 374:14-15, 374:20-21. During McGinnis’s first interview with Spangler on Tuesday, March 28, 2006, Spangler was “real[ly], real[ly] evasive” and “real[ly] arrogant.” Trial Tr. at 382:22-25, 383:10-13. McGinnis interviewed Spangler a second time later that evening because he “didn’t like [Spangler’s] responses on the first interview,” and McGinnis “was more intense with him” this second time around. Trial Tr. at 388:12-14, 386:9-13. Both interviews related only to the 13 missing laptops from the March 3 shipment. Trial Tr. at 388:2-5. As with Spangler, McGinnis also suspected that Mitchell was involved in the theft of the 13 laptop computers when Mitchell was first interviewed. Trial Tr. at 169:14-17. McGinnis explained that Mitchell “could not explain” the inconsistencies in the shipping manifest entries, and McGinnis “felt that Mitchell was being deceptive in his answers.” Pl.’s Ex. 2 at 5. Mitchell’s mannerisms also led McGinnis to believe that he was “not being truthful.” Pl.’s Ex. 2 at 5-6. Lowrey was another of the nine employees McGinnis interviewed as part of his investigation. McGinnis’s first interview with Lowrey lasted about 10 minutes, and Lowrey said that he did not know anything about the missing computers. Trial Tr. at 379:14-16, 379:21-22. McGinnis then interviewed Bennett for 10 or 15 minutes, and Bennett also said that he did not know anything about the theft. Trial Tr. at 168:9-13, 380:9-18. Bennett offered “direct answers to questions asked,” but McGinnis “felt that Bennett also knew more than he would admit....” PL’s Ex. 2 at 5. McGinnis believed that Lowrey’s and Bennett’s mannerisms were suggestive that they, too, were “not being truthful.” PL’s Ex. 2 at 5-6. This would be the only time that McGinnis would interview Bennett. Trial Tr. at 168:9-13. On Wednesday evening, March, 29, 2006, Spangler’s wife (“Mrs. Spangler”) called McGinnis, Trial Tr. at 389:12-14, and told him that her husband had come home from work and was worried that he might get in trouble for stealing three Hewlett Packard computers. Trial Tr. at 389:20-23. Spangler reportedly told his wife that he did not steal the three computers, but that he knew who did steal them. Trial Tr. at 398:22. Therefore, McGinnis told Mrs. Spangler to have Spangler call McGinnis. Trial Tr. at 394:14-15. Spangler then called McGinnis, who iiistructed Spangler to meet him at a Pilot truck stop down the road from the Richmond Terminal, which Spangler did. Trial Tr. at 393:15-394:6. For approximately the next 30 minutes, McGinnis conducted a third interview with Spangler. Trial Tr. at 396:21-22. According to McGinnis’s trial testimony, Spangler told McGinnis in this third interview that, on Friday, March 17, 2006, Spangler and Mitchell were together in the parking lot of the Richmond Terminal and “observed Clyde Bennett take three Hewlett Packard tower computers out the front door ... while David Lowery ... was down at the guard building distracting the guard.” Trial Tr. at 394:25-396:3. That version of Spangler’s story, however, is not in McGinnis’s report. Trial Tr. at 425:5-7. McGinnis also testified at trial that Spangler said that he “[s]aw both Mr. Bennett and Mr. Lowrey down at the OS & D section around the six computers.” Trial Tr. at 396:11-12. That aspect of Spangler’s story was contained in McGinnis’s report. Trial Tr. at 424:23-24; PL’s Ex. 2 at 6. Records and testimony reflect, however, that Spangler did not even report for work at R & L on March 17, the night on which he allegedly observed Bennett milling around the OS & D section and/or taking three computers out of the front door. Trial Tr. at 147:8-148:5, 258:3-11. McGinnis would not, however, ascertain during the course of his investigation whether Spangler had actually been at work on March 17. Trial Tr. at 432:1-4. Before concluding his March 29 meeting with Spangler, though, McGinnis did ask Spangler to prepare a written statement for him related to Spangler’s alleged observations. Trial Tr. at 162:16-19. Following the third interview with Spangler, McGinnis returned to the Richmond Terminal and decided to question Lowrey again. PL.’s Ex. 2 at 7. McGinnis’s second interview with Lowrey took place at 9:00 p.m. that Wednesday evening, March 29, and lasted about 45 minutes. Trial Tr. at 400:1-14, 401:3-8. Finley and Bullard sat in on the interview, but McGinnis did all of the questioning. Trial Tr. at 401:17-18. McGinnis first “confronted [Lowrey] with the information [McGinnis] had” by “giving [Lowrey] information about what others had told [McGinnis] that Bennett had done.” Trial Tr. at 406:2-7. In other words, McGinnis was “[t]elling [Lowrey] what [McGinnis] heard” from Spangler. Trial Tr. at 406:4-6. After Lowrey initially denied the veracity of Spangler’s version of the facts, “the conversation got a little heated,” and Lowrey “finally broke down” and agreed with Spangler’s story, saying that was “the way it happened.” Trial Tr. at 406:15-17, 402:4-5. According to McGinnis, Lowrey also added the following to Spangler’s story: Lowrey told McGinnis that Bennett had told Lowrey shortly before it was time for their shift to end on March 17, 2006 that he needed “to get something.” Trial Tr. at 402:12-13; PL’s Ex. 2 at 7. Lowrey said that he did not know to what Bennett was referring, so Lowrey exited the terminal and began talking to the guard at the guard shack. Trial Tr. at 402:7-9; PL’s Ex. 2 at 7. Then, when Bennett later walked by the guard shack, Lowrey said he asked Bennett if he got what he needed, and Bennett replied that he had. Trial Tr. at 402:13-18; PL’s Ex. 2 at 7. The following morning, according to Lowrey, Bennett called Lowrey about purchasing an HP tower computer for $250. Trial Tr. at 402:19-22. Lowrey said that he met Bennett at a 7-11 store and purchased the computer for $250. Trial Tr. at 420:20-22; PL’s Ex. 2 at 7. Lowrey told McGinnis that he did not know the computer was stolen. PL’s Ex. 2 at 7. That, of course, flatly contradicts what Spangler told McGinnis that Lowrey was distracting the guard while Bennett stole the computers), a story which Lowrey adopted by saying that was the way it happened after McGinnis fed Spangler’s story to Lowrey. Lowrey also said that he did not know where the other two missing HP computers were. PL’s Ex. 2 at 7. McGinnis believed that Lowrey was lying about that too and that he knew both that the computer was stolen and where the two other missing computers were. PL’s Ex. 2 at 7. Though not mentioned in his report, McGinnis testified at trial that he also asked Lowrey “why he paid $250 for a computer that had been stolen by Clyde Bennett,” and Lowrey told McGinnis that “the computer was worth a thousand dollars ... [and] was well worth the $250.” Trial Tr. at 402:22-25. Lowrey then told McGinnis that the computer he had allegedly purchased from Bennett was still in the box at Lowrey’s house. Trial Tr. at 403:1-4. McGinnis asked Bullard to accompany Lowrey and him to Lowrey’s house to recover the computer, and Bullard agreed. Trial Tr. at 403:8-11. Before leaving the Richmond Terminal, McGinnis told Finley that “[he] would like for [him] to call the police and have them [t]here when [he] c[a]me back” because McGinnis “was going to press charges against Mr. Lowrey for theft.” Trial Tr. at 403:12-19. Lowrey, McGinnis, and Bullard then went to Lowrey’s house, but Lowrey refused to let McGinnis or Bullard accompany him inside the home. Trial Tr. at 403:24-404:1; Pl.’s Ex. 2 at 7. Lowrey went into his house by himself and returned with an HP tower computer in a box. Trial Tr. at 404:3-5, 404:9-10; Pl.’s Ex. 2 at 7. The trio then returned to the Richmond Terminal with the computer. By then, Chesterfield County Police patrol officer Jeffrey M. Deveney (“Officer Deveney”) had already arrived at the terminal in response to Finley’s call. Trial Tr. at 404:15-17, 343:16-17; Pl.’s Ex. 2 at 8. McGinnis explained to Officer Deveney “what had transpired and notified [Officer Deveney] that [R & L] wanted to press formal charges against both Lowrey AND Bennett.” Pl.’s Ex. 2 at 8 (emphasis in original). In the meantime, Finley was able to confirm, by checking the serial numbers, that the computer recovered from Lowrey’s home was in fact one of the three HP towers stolen from the OS & D area. Trial Tr. at 172:6-12. Officer Deveney, another officer, Finley, Bullard, McGinnis, and Lowrey then went into Finley’s office wherein Officer Deveney conducted an audio-taped interview with Lowrey for approximately 54 Lowrey and Bennett. At trial, Bullard testified that, before the police arrived, “McGinnis made the decision to have Bennett arrested.” Trial Tr. at 130:18-25. Thus, Bullard knew that McGinnis planned to have Bennett arrested before the police were ever on the scene. Indeed, the Defendants admit that “McGinnis had made the decision to press charges against both Lowrey and Bennett at the time that he asked Finley to call the police.” Defs.’ Reply at 5 n. 4. However, the record is devoid of any indication that either Finley or Bullard actually told the police that R & L wanted to press charges against Bennett. minutes. Trial Tr. at 59:14-15, 131:13-20, 143:16-21, 407:12-17. Lowrey relayed to Officer Deveney the same story that he had told McGinnis earlier that evening indicating that Bennett had stolen the computers and sold him one for $250. Trial Tr. at 347:14-17; Pl.’s Ex. 10. Although McGinnis was present for this interview, it appears that McGinnis did not tell Officer Deveney that he previously had concluded that both Lowrey and Spangler had lied to McGinnis. The police officers determined that Lowrey could be charged with “Theft by Receiving Stolen Property,” and asked Lowrey if he would consent to the search of his home without a warrant, which he did. PL’s Ex. 2 at 8. Lowrey and a Chesterfield County Property Detective then went back to Lowrey’s home, and the home was searched. PL’s Ex. 2 at 8. Officer Deveney then conducted an audio-taped interview with Bennett for approximately 12 minutes. Trial Tr. at 59:14-15, 347:19-22. McGinnis, Finley, and Bullard were present at the interview. Trial Tr. at 408:12-21. Bennett continued to deny having had any involvement in the disappearance of the computers. PL’s Ex. 9; PL’s Ex. 2 at 8. After the interview, Officer Deveney called his supervisor and spoke with the Property Detective at the Richmond Terminal. Trial Tr. at 350:10-17. Then, according to Officer Deveney, he and the Property Detective “made the decision to arrest Mr. Bennett,” testifying that no R & L employees “ma[d]e any effort to influence anything [he] did in [his] investigation.” Trial Tr. at 349:8-12, 350:24-25. Officer Deveney then placed Bennett in handcuffs, took him out of the building, walked him by his coworkers who were eating lunch, placed him in Officer Deveney’s patrol vehicle, and transported him to the magistrate’s office. Pl.’s Ex. 2 at 8; Trial Tr. at 264:5-10, 351:2-7. On his way out of the terminal, Bennett was stopped by Finley who said, “Clyde, you no longer have a job with R & L.” Trial Tr. at 263:24-264:3. R & L did, in fact, terminate Bennett. Trial Tr. at 145:4-6. Once Officer Deveney and Bennett were with the magistrate, Officer Deveney “summarized the interviews that [he] had with Mr. Lowrey and Mr. Bennett and presented that information to the magistrate.” Trial Tr. at 353:11-14. Officer Deveney was the only person who spoke with the magistrate. Trial Tr. at 351:17-19. He did not play either of his audio-taped interviews with Lowrey or Bennett. Trial Tr. at 355:3-6. The magistrate, of course, was not told that McGinnis had decided that Lowrey was a liar or that Lowrey had implicated Bennett only after McGinnis had fed to Lowrey a story told by Spangler whom McGinnis also thought to be a liar. The magistrate then issued a felony embezzlement warrant. Trial Tr. at 353:16-19. Officer Deveney served the warrant on Bennett and turned him over to the Sheriffs department for processing. Trial Tr. at 353:22-24. Bennett was then processed by the Sheriffs department and released on personal recognizance bond. Trial Tr. 265:14-266:2. The following morning, Thursday, March 30, 2006, Mitchell called McGinnis, and McGinnis advised Mitchell to meet him at the Pilot truck stop down from the Richmond Terminal, which Mitchell did. PL’s Ex. 2 at 9. During this conversation, Mitchell reversed his previous statements and reportedly told McGinnis “verbatim” the “[e]xaet same story that Spangler” previously had told to McGinnis. Trial Tr. at 397:4-6. Mitchell explained that “Spangler convinced [him] to come to talk to [McGinnis].” Trial Tr. at 397:20-21. This was the first time McGinnis had spoken to Mitchell since his initial interview with him on Monday, March 27. Thus, Mitchell had never “admitted” anything to McGinnis or given any statement incriminating Bennett until after Bennett was arrested. Trial Tr. at 424:8-11. Moreover, when Mitchell spoke, he acknowledged that he had first spoken to Spangler whose story Mitchell adopted. Also, after Bennett was arrested, but before McGinnis left Richmond on Friday morning March 31, McGinnis received the written statement that he had requested of Spangler. Trial Tr. at 411:16-20, 162:16-25. The handwritten statement reads as follows: “Dave Lowery has told me that he goes to the guard shack and distracts the guard while Clyde takes stuff out the front door & to the vehicles.” Pl.’s Ex. 3 at 1. This statement, wherein Spangler indicates that Lowrey told Spangler that Lowrey and Bennett stole the computers, directly conflicts with what Spangler told McGinnis in his third interview at the Pilot station — that Spangler had actually seen Lowrey and Bennett steal the computers. It is undisputed that McGinnis never gave Spangler’s handwritten report to the police, the magistrate, the state prosecutor or the state court nor that he never directed to their attention the disparity in Spangler’s statements. Trial Tr. at 173:19-22. Months later, on November 6, 2006, Bennett reported for his preliminary hearing for a determination of probable cause. Trial Tr. at 285:24-286:1. McGinnis, Finley, and Lowrey also were present under subpoena and all three testified. Trial Tr. at 266:7-8. The audio tapes of the interviews with Lowrey and Bennett were not played. Trial Tr. 266:9-14. Spangler’s handwritten statement was not presented. Trial Tr. 266:15-17. Nor was the state judge ever told that McGinnis had declared Lowrey to be a liar or that Lowrey’s testimony simply was the adoption of a story Spangler (whom McGinnis also had declared to be a liar) had told to McGinnis which McGinnis fed to Lowrey. Melissa Hoy (“Hoy”), Assistant Commonwealth’s Attorney in Chesterfield County, was the sole prosecutor assigned to the embezzlement case against Bennett and also was present at the hearing. Trial Tr. at 358:24-359:4, 359:14-24. After the probable cause hearing, the case was certified to the Chesterfield County grand jury and set for trial in circuit court. Trial Tr. at 360:2-6. The case against Bennett, however, was never tried. Hoy ultimately nolle prossed the case because Lowrey, the testifying co-defendant, did not appear for his own trial which was set for the same day as Bennett’s trial. Trial Tr. at 360:15-20. When Lowrey, “a material witness” in Bennett’s case, failed to appear, Hoy “had to nolle pros[s]e the case and then issue a [capias for Lowrey’s arrest] for his failure to appear.” Trial Tr. at 360:20 -361:6. Bennett has never been recharged with a crime related to the missing R & L computers. Bennett paid his criminal defense attorney, Frank Hall (“Hall”), $7,019 in legal fees. As of the date of the trial of this action, Bennett had been unable to secure full-time employment notwithstanding that he had contacted approximately 100 employers in and around Richmond, Virginia. Trial Tr. at 622:8-623:15, 634:11-14; Pl.’s Ex. 16 at 1-16. Bennett also attempted to start his own business while continuing to contact possible employers in and out of the freight industry, but that attempt failed. Trial Tr. at 623:16-624:15. In April 2009, Bennett obtained part-time work with his brother’s business earning about $8 per hour, twenty hours per week. Trial Tr. at 625:11-25, 640:19-21. The Social Security Administration calculates Bennett’s normal full retirement age at “66 years and two months.” Trial Tr. 631:1-8. As a direct consequence of the inability to obtain full-time employment, Bennett exhausted completely the $81,222.48 money market account and the $28,000 annuity. Trial Tr. at 618:15-24. The loss of those savings “tore [Bennett] apart” because he “had worked hard all [his] life to save this money.” Trial Tr. 619:9-13. Bennett no longer has medical benefits, so he does not see physicians for medical conditions because he cannot afford to pay for medical services. Trial Tr. at 620:7-18. He thinks about his arrest “daily” and feels “betrayed.” Trial Tr. at 619:14-19. He worries “all the time” about what will happen if he gets sick and whether he will have food and shelter. Trial Tr. at 633:18-25. Bennett, however, is “not aware of anyone who will say [his] reputation has been damaged.” Trial Tr. 639:4-8. Bennett’s family, a few friends, his girlfriend, his coworkers, and all of the approximately 100 prospective employers knew about Bennett’s arrest. Trial Tr. at 632:17-21. As a result of his changed financial position, Bennett suffered the embarrassment of having to move out of the apartment he shared with his girlfriend and her daughter and into his father’s home. Trial Tr. at 632:25-633:8. Until this time, he had not lived at home since approximately age twenty. Trial Tr. at 633:10-15. Before his arrest, Bennett had never had to search for a job for “more than a few months at most.” Trial Tr. at 636:6-8. Bennett’s brother, Billy J. Bennett, Jr. (“Billy”), testified that Bennett was “very happy,” “easy going,” and “fun to be around” prior to his arrest and prosecution. Trial Tr. at 615:3-7. After the arrest and prosecution, however, Billy described his brother as being “secluded,” “isolated ... from his family,” “quiet,” and “pretty devastated].” Trial Tr. at 615:8-13. Bennett’s other brother, Michael Wade Bennett (“Michael”), agreed that Bennett had always been a “happy, jovial person” who “liked to talk to people” and “[e]njoyed conversation” before his arrest and prosecution. Trial Tr. at 616:17-22. Michael testified that, after the arrest and prosecution, Bennett has been “very subdued” and “very withdrawn.” Trial Tr. at 616:23-617:2. II. Procedural Background Bennett filed a malicious prosecution action on June 11, 2008 in Chesterfield Circuit Court, naming as defendants (1) R & L Carriers, Inc., (2) Finley, (3) Bullard, (4) Lowrey, and (5) McGinnis. The action was timely removed based on diversity jurisdiction. The claims against Lowrey were abated and dismissed on February 27, 2009 for failure to serve. Subsequently, Bennett filed a first, and then a second, Amended Complaint in which he substituted R & L and Greenwood Motor Lines, Inc. (“Greenwood”) for R & L Carriers, Inc. In his Second Amended Complaint, Bennett also added a racial discrimination claim under 42 U.S.C. § 1981 (“Count II”) to go along with the state malicious prosecution claim (“Count I”). Before commencing the trial, the Court granted Bennett’s motion to dismiss Greenwood with prejudice, thus leaving only R & L, Finley, Bullard, and McGinnis as defendants. The Defendants filed a motion for summary judgment which was denied, and, thereafter, the Court granted the parties’ joint oral motion to bifurcate the trial. The liability phase of the trial began on November 30, 2009. At the close of the Plaintiffs case on December 1, 2009, the Defendants moved for judgment as a matter of law pursuant to Rule 50(a) as to both Counts I and II. The motion was denied as to Count I and granted as to Count II. At the close of the liability phase of the trial, the jury returned a verdict in favor of Bennett against all of the Defendants. Following the damages phase of the trial, the jury awarded Bennett $1,716,920 in compensatory damages, and punitive damages in the sum of $1,500,000 against R & L, $3,000 against Finley, $15,000 against Bullard, and $30,000 against McGinnis. On December 30, 2009, the Defendants renewed their motion for judgment as a matter of law pursuant to Rule 50(b), and moved, in the alternative, for a new trial and remittitur pursuant to Rule 59. The parties submitted memoranda in support of their respective positions, and presented oral argument. Accordingly, this matter is ripe for decision. LEGAL STANDARDS Pursuant to Rule 50, a party who has moved for judgment as a matter of law at trial may, within twenty-eight days of the entry of judgment, renew the request for judgment as a matter of law, which may include an alternative request for a new trial. Fed.R.Civ.P. 50(b). In ruling on a renewed motion for judgment as a matter of law, a court has several options and may: (1) allow judgment on the verdict; (2) order a new trial; or (3) direct the entry of judgment as a matter of law on the claims. Fed.R.Civ.P. 50(b)(l)-(3). It is well-established that a “Rule 50(b) motion should be granted if a district court determines, without weighing the evidence or considering the credibility of the witnesses, that substantial evidence does not support the jury’s findings.” Konkel v. Bob Evans Farms, Inc., 165 F.3d 275, 279 (4th Cir.1999) (citing White v. Cnty. of Newberry, 985 F.2d 168, 172 (4th Cir. 1993)). In other words, a district court may grant judgment as a matter of law “if there is no legally sufficient evidentiary basis for a reasonable jury to find for the [non-moving] party....” Cline v. WalMart Stores, Inc., 144 F.3d 294, 301 (4th Cir.1998) (quoting Abasiekong v. City of Shelby, 744 F.2d 1055, 1059 (4th Cir.1984)). More specifically, a renewed motion for judgment as a matter of law is properly granted “if the nonmoving party failed to make a showing on an essential element of his case with respect to which he had the burden of proof.” Wheatley v. Wicomico Cnty., Md., 390 F.3d 328, 332 (4th Cir. 2004) (citing Singer v. Dungan, 45 F.3d 823, 827 (4th Cir.1995)). Unlike a motion made under Rule 50, a motion made under Rule 59(a) permits the Court to weigh the evidence and to consider the credibility of witnesses. Cline, supra, 144 F.3d at 301 (citing Poynter v. Ratcliff, 874 F.2d 219, 223 (4th Cir. 1989)). A new trial is to be granted under Rule 59(a) if: “(1) the verdict is against the clear weight of the evidence, or (2) is based upon evidence which is false, or (3) will result in a miscarriage of justice, even though there may be substantial evidence which would prevent the direction of a verdict.” Id. (quoting Atlas Food Sys. & Servs., Inc. v. Crane Nat’l Vendors, Inc., 99 F.3d 587, 594 (4th Cir.1996)). The decision to grant or deny a new trial is within the sound discretion of the district court. Id. DISCUSSION I. The Defendants’ Rule 50 Motion for Judgment as a Matter of Law The Defendants advance five arguments in support of their Rule 50(b) motion. The first four arguments relate to the elements of Bennett’s malicious prosecution claim, and the fifth argument relates to the punitive damages award. Each argument will be addressed in turn. A. Elements of the Malicious Prosecution Claim In Virginia, a plaintiff in a malicious prosecution case must prove “by a preponderance of the evidence that the prosecution was: (1) malicious; (2) instituted by, or with the cooperation of, the defendant; (3) without probable cause; and (4) terminated in a manner not unfavorable to the plaintiff.” Hudson v. Lanier, 255 Va. 330, 497 S.E.2d 471, 473 (1998). While “[ajctions for malicious prosecution are not generally favored in law, ... when the requirements have been met and the proper elements to support the action have been presented, the action will be readily upheld.” Wiggs v. Farmer, 205 Va. 149, 135 S.E.2d 829, 831 (1964). In their Rule 50(b) motion, the Defendants attack all four elements of a malicious prosecution claim as having been unproven at trial. (1) Instituted by, or with the Cooperation of, the Defendants The Defendants contend that Bennett failed to establish that his prosecution was “instituted by, or with the cooperation of,” defendants Finley or Bullard. The Defendants do not argue that this element was not satisfied as to McGinnis, and consequently, R & L. The Court will treat this element, therefore, as conceded by the Defendants as to McGinnis and R & L. The jury was instructed on this element that: “A person institutes criminal proceedings against another by: (1) bringing the criminal charge; or (2) cooperating actively in bringing the criminal charge.” J.I. No. 20. The parties and the Court agree that, on the record made at trial, “the institution of the criminal proceedings was the arrest process[.]” Trial Tr. at 460:18-21. Thus, the relevant inquiry is whether Bennett’s amst was “instituted by, or with the cooperation of,” Finley and/or Bullard. Neither party suggests that a single, specific rule exists in Virginia for how a court determines whether a criminal proceeding was “instituted by, or with the cooperation of,” a defendant. Indeed, a review of Virginia malicious prosecution decisional law indicates that there is no one articulated rule. Bennett did not offer any authority on the issue, and the Defendants offer two cases as authority: (1) King v. Martin, 150 Va. 122, 142 S.E. 358 (1928) and (2) Brice v. Nkaru, 220 F.3d 233 (4th Cir.2000). In King, the Supreme Court of Virginia reversed the trial court’s decision not to set aside a jury verdict returned in favor of a malicious prosecution plaintiff where the defendant, “as a matter of law, was not responsible for the [plaintiffs] prosecution,” explaining that: the defendant “left the matter entirely in the hands of the police department.” King, supra, 142 S.E. at 359-60. He “did not request that [the plaintiff] be arrested or held.” Id. In fact, “[n]ot one single active or voluntary step was taken by him at any stage of the proceedings.” Id. at 360. Finding that “as a matter of law, [the evidence] failfed] to show that the defendant instigated or caused or had anything to do with the prosecution except to appear as a witness when summoned,” the Court entered judgment for the defendant. Id. at 361. Similarly, in Brice, the Fourth Circuit reversed the district court’s denial of a malicious prosecution defendant’s motion for judgment as a matter of law following a jury verdict in favor of the plaintiff because, “as a matter of law,” the defendant “did not institute or procure the prosecution of [the plaintiff].” Brice, supra, 220 F.3d at 241. The Fourth Circuit explained that “[t]he police independently investigated the case [and] identified [the plaintiff] as a suspect.... ” Id. at 238. Further, “[t]he police — not [the defendant] — sought and obtained the warrant that ultimately led to [the plaintiffs] prosecution.” Id. With respect to the defendant’s having reported the occurrence of the crime to the police and responded to police requests to verify a suspect’s identity, the Fourth Circuit explained that “the critical question is whether the witness provided the police with his honest or good faith belief of the facts.” Id. In Brice, the Fourth Circuit also cited a number of other authorities analyzing the issue of the “instituted by, or with the cooperation of,” element of a malicious prosecution claim. The Court of Appeals noted American Law Reports’ explanation that “normally a malicious prosecution plaintiff must show that defendant did more than merely give information that included an identification, e.g., that he requested the initiation of proceedings, signed a complaint, or swore out an arrest warrant against plaintiff.” Id. at 239 (citing 66 A.L.R.3d Summary 10 § 3 (1975)). Additionally, the Court of Appeals noted the Ninth Circuit’s explanation that a private party does not proximately cause injuries from an arrest “absent some showing that [the] private party ‘had some control’ over [the] state officials’ decision.” Id. (quoting King v. Massarweh, 782 F.2d 825, 828-29 (9th Cir.1986)). Two other decisions from the Supreme Court of Virginia also help to define the “instituted by, or with the cooperation of’ element of a malicious prosecution case. In Am. Ry. Express Co. v. Stephens, 148 Va. 1, 138 S.E. 496 (1927), the Court held that the trial court erred in not setting aside the jury’s verdict for the plaintiff and entering judgment for the defendant because “[t]he prosecution was not instituted by [the defendant].” Am. Ry. Express Co., supra, 138 S.E. at 501. The Court explained that “there [wa]sn’t a line of testimony in the whole voluminous record that indicate[d] that any of the [defendant’s] officials ever urged or even suggested to the Commonwealth’s attorney that he prosecute the plaintiff.” Id. at 500. The record indicated that “the Commonwealth’s attorney personally conducted the investigation of the case from the very beginning.” Id. at 501. Therefore, “as a matter of law the prosecution was instituted by the Commonwealth’s attorney,” not the defendant. Id. at 500. In Clinchfield Coal Corp. v. Redd, 123 Va. 420, 96 S.E. 836 (1918), the Court explained that: There can be no malicious prosecution without the machinery of the law, and it is therefore, of course, true that the officers of the law must be the final and effective actors. The question in every case is: Was the prosecution instigated or brought about by the cooperation of the defendant? Such instigation or cooperation may be chargeable to the defendant from original steps taken by him to incite the prosecution, or from subsequent adoption and ratification by him of steps which have already been taken or instigated by others. Clinchfield Coal, supra, 96 S.E. at 839 (internal citations omitted). Thus, reconciling the relevant case law, to find that the “instituted by, or with the cooperation of’ element has been satisfied, the Court must ascertain whether a defendant affirmatively, actively, and voluntarily took steps to instigate or to participate in the arrest of the defendant, and whether the defendant exercised some level of control over the decision to have the plaintiff arrested. A defendant instigates or cooperates in the proceedings by either taking the original steps to initiate the proceeding (here the arrest) or by subsequently adopting and ratifying the steps that others have already taken to initiate proceedings. On the other hand, where a defendant’s involvement in a prosecution is to appear as a witness when summoned, he may not be held civilly liable for “instituting” or “cooperating” in the prosecution of the suspected criminal. Similarly, if a defendant simply reported the occurrence of events to the police, gave information to the police, and responded to police requests to verify a suspect’s identity, then that individual cannot be held hable for malicious prosecution so long as the information provided was with an honest or good faith belief of the facts reported. Additionally, if the police or the Commonwealth’s attorney conducted the investigation of the case from the very beginning, a private individual cannot be liable. These generally applicable principles guide assessment of the motions made by Finley and Bullard. (a) Finley Finley was the manager of the Richmond Terminal at all relevant times. After three computers mysteriously went missing from the Richmond Terminal within two weeks of the unexplained disappearance of thirteen other computers, Finley relayed the problem to his superior, Bullard. He later met with McGinnis, at McGinnis’s request, to discuss which R & L employees might have a special interest in computers. He was present at the McGinnis (R & L) and police interviews of Lowrey and Bennett, though he did not speak. When Bullard and McGinnis left the Richmond Terminal to retrieve the computer from Lowrey’s house, Finley, at McGinnis’s direction, called the police and asked them to come to the terminal. Finley met with Bullard and McGinnis about the identification numbers of possible stolen computers and confirmed that the computer recovered from Lowrey’s house was one of the computers missing from the March 17 shipment. Months later, Finley testified under subpoena at Bennett’s probable cause hearing. As a matter of law, Finley’s actions do not constitute the affirmative, active, and voluntary involvement required to satisfy the “instituted by, or with the cooperation of’ element of a malicious prosecution claim. Though Finley was present at the two interviews with Bennett and Lowrey, he did not actively participate in them in any way. Finley had little, if any, control over the investigation or the ultimate decision to have Bennett arrested. He answered questions about possible suspects with an interest in computers because McGinnis posed the questions to him. He placed the phone call to the police because McGinnis directed him to do so. More importantly, the record does not indicate: (1) that Finley actually requested Bennett’s arrest on the initiation of the criminal proceedings in his phone call to the police; or (2) that he even knew that McGinnis would ultimately make a request for Bennett’s arrest. Nothing was presented at trial that indicates that Finley did anything other than simply place the call to put the investigation entirely in the hands of the police department. Virginia law does not place an affirmative burden on an inferior employee to challenge the decisions and actions of his superior to avoid malicious prosecution liability. Nor does his conduct constitute adoption or ratification of McGinnis’s decision to have Bennett arrested. Accordingly, without weighing the evidence or considering the credibility of the witnesses, it is clear that there is no legally sufficient evidentiary basis for a reasonable jury to have found in favor of Bennett against Finley because Bennett failed to make a showing on an essential element of that claim against Finley. Therefore, the Court will grant the Defendants’ Rule 50(b) motion in part and will direct the entry of judgment as a matter of law in favor of Finley on that claim. (b) Bullard Whether Bullard’s actions constitute the affirmative, active, and voluntary involvement required for malicious prosecution liability is made on a record reflecting his somewhat different involvement. At all relevant times, Bullard was R & L’s Director of Operations for the Southeastern United States. Bullard was present at the Richmond Terminal in March 2006 for reasons unrelated to the computer theft investigation. After Finley reported the missing computers to Bullard, and R & L was unable to identify them as having been cross-shipped or otherwise misplaced, Bullard voluntarily placed the call to McGinnis to begin the theft investigation. Bullard was likely present at both the R & L and police interviews with Bennett and Lowrey, but he did not actively participate in either interview. Bullard also later accompanied McGinnis, at McGinnis’s request, to Lowrey’s home to recover one of the stolen computers. Bullard believed that he had the authority to end the investigation and thus prevent Bennett’s arrest; however, McGinnis did not believe that Bullard had such authority. While the record does not indicate that Bullard actually requested that the police initiate criminal proceedings, Bullard admitted to knowing that McGinnis, before Officer Deveney’s interview with Bennett, intended to make such a request. Whether or not Bullard actually could have ended the investigation prior to Bennett’s arrest, he believed that he had that authority. Thus, believing that he had that authority, and knowing that McGinnis planned to press charges before the police were ever involved, Bullard allowed the police to arrive at the Richmond Terminal and arrest Bennett. Therefore, it appears that Bennett’s theory is, and the evidence suggests, that Bullard, an employee with more authority and higher corporate standing than Finley, tacitly adopted and ratified the steps taken by McGinnis. However, even so, Bullard cannot be liable as a matter of law. The relevant Virginia decisional law explains that liability for adoption and ratification requires that a malicious prosecution defendant possess both: (1) full knowledge of the background steps taken by others; and (2) subsequent individual, active participation in continuing the prosecution or seeking the arrest or conviction of the plaintiff. See Va. Elec. & Power Co. v. Wynne, 149 Va. 882, 141 S.E. 829, 834 (1928); see also Clinchfield Coal, supra, 96 S.E. at 841; Manuel v. Cassada, 190 Va. 906, 59 S.E.2d 47, 52 (1950). While Bullard appears to have had full knowledge of the background steps and McGinnis’s intention to press charges against Bennett, Bullard did not actively adopt McGinnis’s previous actions by requesting Bennett’s arrest himself or by actively voicing his agreement with McGinnis’s decision to press charges. Virginia law does not require Bullard to actively voice disagreement with, or disapproval of, McGinnis’s decision to avoid malicious prosecution liability. Only a malicious prosecution defendant’s active and voluntary actions can expose him to liability, and Bullard, who was cumulatively involved in the investigation only two-and-one-half hours, simply was not actively or affirmatively involved in instituting Bennett’s arrest. Accordingly, without weighing the evidence or considering the credibility of the witnesses, it is clear that there is no legally sufficient evidentiary basis for a reasonable jury to have found in favor of Bennett against Bullard because Bennett failed to make a showing on an essential element of his case with respect to which he had the burden of proof — the element that Bennett’s criminal proceedings were instituted by, or with the cooperation of, Bullard. Therefore, the Court will grant the Defendants’ Rule 50(b) motion in part and will direct the entry of judgment as a matter of law in favor of Bullard on the malicious prosecution claim. (2) Probable Cause The Defendants argue that Bennett failed to establish that the Defendants lacked probable cause at the time they instituted criminal proceedings against Bennett. In Virginia, in the context of a malicious prosecution action, probable cause is defined as “knowledge of such facts and circumstances to raise the belief in a reasonable mind, acting on those facts and circumstances, that the plaintiff is guilty of the crime of which he is suspected.” Andrews v. Ring, 266 Va. 311, 585 S.E.2d 780, 786 (2003). “The determination whether a defendant had probable cause to believe that a crime was committed is judged with reference to the time the defendant took the action initiating the criminal charges.” Stanley v. Webber, 260 Va. 90, 531 S.E.2d 311, 314 (2000). Thus, the relevant inquiry is whether the Defendants had probable cause to believe that a crime was committed by Bennett at the time McGinnis told Officer Deveney that “[R & L] wanted to press formal charges against both Lowrey AND Bennett.” Pl.’s Ex. 2 at 8 (emphasis in original). (a) Probable Cause Based on Informant “Accomplice” The Defendants argue that, as a matter of law, their probable cause determination was sound because it was based on the confession of an alleged accomplice of Bennett’s — Lowrey. The Defendants correctly state that “information received from one admitting his participation in a crime is sufficient to create probable cause for prosecution, if there is no reason to doubt its truth.” So. Ry. Co. v. Mosby, 112 Va. 169, 70 S.E. 517, 521 (1911). Indeed, in Mosby, “there [wa]s no ground upon which it could be fairly concluded that [the investigator for the railroad whose shipments had been stolen] knew that the sources from which he got his information were not reliable before he instituted th[e] prosecution.” Id. The Western District of Virginia, citing Mosby, echoed this proposition, explaining that, “[i]f there is no reason to doubt the truthfulness of the accomplice when the prosecution was initiated, there is still considered to be probable cause sufficient to negate a malicious prosecution claim even if the witness was later shown to be unworthy of belief.” Caldwell v. Green, 451 F.Supp.2d 811, 818 (W.D.Va.2006). Bennett does not challenge that this is indeed the law in Virginia, but, instead, he emphasizes correctly that ‘Virginia courts will find probable cause only if the informant is reliable and trustworthy,” and he contends that the alleged informants— Lowrey, Spangler, and Mitchell — “do not pass the reliability requirement.” Pl.’s Mem. in Opp’n to Def.’s Mot. to Dismiss (“Pl.’s Mem. Opp’n”) at 14. The discussion of Spangler and Mitchell under Mosby, however, is misplaced because neither Spangler nor Mitchell implicated themselves as Bennett’s accomplices. Instead, Spangler and Mitchell implicated only Bennett and Lowrey, and, therefore, Spangler and Mitchell did not “confess” to anything that would make a probable cause determination sound under the “informant accomplice” principle upon which the Defendants rely. Accordingly, statements from Spangler and Mitchell do not fall under the “informant accomplice” probable cause rule. Nevertheless, Bennett’s discussion of the application of the principle as to Lowrey under Mosby is on point. McGinnis noted no less than four times in his investigation report that, by the time prosecution was initiated, there was serious reason to doubt Lowrey’s truthfulness. Specifically, McGinnis noted that “the mannerisms of ... Lowrey ... left [him] with a feeling that [he was] not being truthful.” Pl.’s Ex. 2 at 5-6. McGinnis noted also that “Lowrey was lying ... to take the heat off of him.” Pl.’s Ex. 2 at 7. Additionally, when Lowrey told McGinnis that he did not know that the computer he allegedly purchased from Bennett was stolen, McGinnis noted that “this was another lie.” Pl.’s Ex. 2 at 7. Similarly, when Lowrey told McGinnis that he did not know where the other two computers were, McGinnis noted that this, too, was “another lie.” Pl.’s Ex. 2 at 7. At trial, McGinnis tried to soften his previously recorded statements by saying that Lowrey was “deceptive in some of his answers.” Trial Tr. at 160:6-8. But, McGinnis did not deny that, before he decided to press charges against both Lowrey and Bennett, he actually believed that Lowrey was an established liar and that the lies related to important matters coming from the person who was the key witness implicating Bennett in the theft. More troubling still, Lowrey did not implicate Bennett until McGinnis effectively fed Lowrey the information that he had received from Spangler-a man whom McGinnis also believed to be untruthful — and only then did Lowrey implicate Bennett. Therefore, Lowrey, the alleged informant accomplice, appears only to have “confessed” and “informed” on Bennett once McGinnis led him in that direction. Moreover, even when Lowrey finally implicated Bennett by agreeing with a story given to McGinnis by Spangler, and then by McGinnis to Lowrey, McGinnis still did not believe that Lowrey was telling him the truth. Accordingly, McGinnis had every reason to, and did in fact, “doubt the truthfulness of the accomplice when the prosecution was initiated.” Caldwell, supra, 451 F.Supp.2d at 818 (emphasis added). Therefore, the information received from Lowrey, the “one admitting his participation in a crime,” was unreliable and was not legally sufficient to create probable cause for prosecution. Indeed, under the circumstances, Lowrey’s statement was so tainted and unreliable that it was of no real probative value even when considered with the other information known to McGinnis. (b) The Defendants’ Knowledge at the Time of the Probable Cause Determination Even without the aid of the “informant accomplice” rule, the Defendants assert that McGinnis had probable cause when he “asked Finley to call the authorities and/or at the time he said R & L would press charges.” Defs.’ Mem. in Supp. of Defs.’ Mot. to Dismiss (“Defs.’ Mem. Supp.”) at 17. The Defendants argue that the following facts known to McGinnis at the time he decided to have Bennett arrested gave him probable cause to initiate Bennett’s arrest: (1) Bennett, a supervisor, was responsible for theft prevention. (2) Lowrey and Bennett were the last to leave [so] Bennett had access to the stolen computers. (3) The OS & D was open [so] the three bulky boxes were likely in OS & D prior to the time that Lowrey and Bennett left. (4) [According to Spangler and Lowrey,] Lowrey was talking with the guard while Bennett took the computers out the front door.... (5) [According to Lowrey,] Lowrey had paid $250 to Bennett for one of the stolen computers and that it was at his house. (6) Spangler had also implicated Bennett. Defs.’ Mem. Supp. at 17. These points, individually and collectively, misapprehend in a material way the evidence adduced at trial and the inferences which the jury was entitled to draw from that evidence about what the Defendants knew at the time they request the police to arrest Bennett. Thus, the evidence proved at trial that Bennett was first implicated in the theft of the March 17, 2006 tower computers by Spangler, a man whom McGinnis believed to be deceptive and untruthful from the very beginning. Second, from the outset, McGinnis strongly suspected that Spangler had been involved in the theft of the March 3, 2006 shipment of 13 laptops. Then, too, Spangler only came forward to implicate Bennett in the March 17, 2006 theft after Spangler believed (as relayed to McGinnis by Spangler’s wife), from his two heated interviews with McGinnis, that he, himself, would be going to jail for theft. The jury thus reasonably could have found that McGinnis was not entitled to, or, indeed, did not, rely on what Spangler, whom McGinnis believed to be a liar, told him in the third interview when he recited a story implicating Bennett. McGinnis fed Spangler’s story to Lowrey, a man McGinnis had also believed to be a liar from the very beginning, and Lowrey, after a heated conversation, agreed with the third Spangler story, simply by saying that it was “the way it happened.” McGinnis, believing that Lowrey was continuing to lie and that he also knew where all three of the missing HP tower computers were, then accompanied Lowrey to Lowrey’s home where Lowrey refused to allow McGinnis into his home and produced only one of the three missing tower computers. McGinnis returned to the Richmond Terminal from Lowrey’s home and immediately asked to press charges against Lowrey and Bennett. In simple terms, then, McGinnis knew the following when he made the decision to press charges against Bennett: a liar, likely involved in a recent company computer theft, who was admittedly concerned about his own penological interests, changed his story and told a company investigator that the liar’s shift supervisor was involved in a second, more recent company computer theft. Later that night, the investigator deliberately fed a second liar the first liar’s story, and this second liar, who was also implicated in the story, ultimately adopted the story, but deflected all criminal blame onto the shift supervisor. The second liar then, after refusing to allow the investigator into his home, produced from his home one of three missing computers, but the investigator believed the second liar also knew where the other two missing computers were located and was continuing to lie on that point. Based on the first and second liars’ stories, and a single ten minute interview with the shift supervisor wherein the supervisor protested his innocence, the investigator decided to have the shift supervisor arrested. A jury reasonably could have concluded from this record that there was a lack of probable cause to believe that Bennett committed the crime. The Defendants argue that “[w]hat McGinnis did not know, even if from Bennett’s perspective he should have known, is implicitly immaterial [to the probable cause inquiry].” Defs.’ Mem. Supp. at 17. To that end, the Defendants, though unarticulated precisely as such, pose the following question to the Court: “Does determining whether the Defendants had probable cause to initiate the Plaintiffs arrest include any consideration of that which the Defendants did not know or do, but purportedly should have known or done?” Defs.’ Mem. Supp. at 2-3. While the Supreme Court of Virginia has already answered this question in the negative, the inquiry is irrelevant to this case because a reasonable jury could have determined that McGinnis did not have probable cause to have Bennett arrested without consideration of facts that he arguably should have discovered. In any event, the Defendants’ argument is misdirected because the four items of evidence to which it is directed are probative respecting the element of malice and the propriety of a punitive damage award. However, as to the Defendants’ argument, they are correct in stating that, at the time the arrest decision was made, they did not yet know that: (1) Lowrey was a convicted felon, (2) shortly after the arrest, Spangler would write a contradictory statement, (3) Spangler had not worked the night he claimed to have witnessed the theft, or (4) Bennett was financially comfortable. And, the Defendants are correct that such knowledge could not be considered by the jury in deciding the element of lack of probable cause. Indeed, the jury was properly instructed on this point by Jury Instruction 25. There is no reason to believe that the jury disregarded the instruction. While this knowledge certainly would have further informed the determination that probable cause did not exist, the record about knowledge that McGinnis did possess at the time of the arrest decision, as detailed above, without weighing the evidence or considering the credibility of the witnesses, clearly provided a legally sufficient evidentiary basis for a reasonable jury to find for Bennett as to the probable cause element of his malicious prosecution claim. Thus, Bennett did not fail to make a showing on this essential element of his case. (c) Officer Deveney’s, the Grand Jury’s, the Prosecutor’s, and the Preliminary Hearing Judge’s Alleged Findings of Probable Cause The Defendants argue that probable cause existed as a matter of law because Officer Deveney, the preliminary hearing judge, the grand jury, Bennett’s defense counsel at the preliminary hearing, and the prosecutor believed that there was probable cause to proceed with Bennett’s prosecution. In support of their argument that the probable cause determinations of these officials constitute the existence of probable cause as a matter of law, the Defendants cite Westreich v. McFarland, 429 F.2d 947, 949 (4th Cir. 1970), Brodie v. Huck, 187 Va. 485, 47 S.E.2d 310 (1948), and In re Trammell, 388 B.R. 182 (E.D.Va.2008). None of those decisions aid their position. In Westreich, the Fourth Circuit 'stated unambiguously that “Virginia has not expressly held that an indictment furnishes prima facie evidence of probable cause.” Westreich, supra, 429 F.2d at 949. The Court of Appeals reasoned that whether an indictment is prima facie evidence of probable cause is irrelevant because the law “places such a heavy burden on the plaintiff in a malicious prosecution suit that the presumption is unnecessary.” Westreich, 429 F.2d at 949 (citing Wiggs v. Farmer, 205 Va. 149, 135 S.E.2d 829, 831 (1964)). As “the burden is always on the plaintiff to negative the existence of’ probable cause, a presumption that probable cause exists is immaterial. Id. (quoting Clinchfield Coal, supra, 96 S.E. at 843). Therefore, a grand jury indictment is simply “pertinent evidence tending to show probable cause.” Id. The Defendants cite Brodie for the proposition that “[t]he prosecutor must believe in the guilt of the accused and there must be reasonable grounds on which to base the belief.” Brodie, supra, 47 S.E.2d at 311. In so citing Brodie, the Defendants argue that the opinions and determinations of Assistant Commonwealth’s Attorney Melissa Hoy, along with those of the magistrate, the preliminary hearing judge, and the Grand Jury, “are admissible in support of McGinnis’ determination.” Defs.’ Mem. Supp. at 18. The argument lacks merit. First, just before the start of the trial, counsel for the Defendants agreed on the record that Melissa Hoy’s and Officer Deveney’s opinions that probable cause existed to arrest Bennett were inadmissible. Trial Tr. at 50:20-53:3 (Melissa Hoy and Officer Deveney “[cjan’t give opinions, I agree with that.”). Second, a careful reading of Brodie reveals that the Defendants’ reliance on the case is wholly misplaced. The language in Brodie is a direct quotation from another work: Pleading and Practice in Actions at Common Law, Martin P. Burks 198 (2d ed.1921). A review of Pleading and Practice shows clearly that the terra “prosecutor” in this context is used not to refer to a government prosecutor, such as an Assistant Commonwealth’s attorney, but rather to the malicious prosecution defendant, i.e., the person who initiated the proceeding. See Pleading and Practice at 196 (“It matters not who is the party on the rec