Penzo v. Consolidated Edison Co. of N.Y.: Pretrial Authentication of Medical Records Under FRE 902(11) and No New Trial Without Concrete Prejudice from Alleged Trial Misconduct

Introduction

In Penzo v. Consolidated Edison Co. of N.Y. (2d Cir. Apr. 2, 2026) (summary order), Plaintiff-Appellant Emily Penzo, a former employee of Consolidated Edison Company of New York, Inc. (“ConEd”), pursued discrimination and retaliation claims under the Americans with Disabilities Act, the Family and Medical Leave Act, the New York State Human Rights Law, and the New York City Human Rights Law (“NYCHRL”). She alleged that after taking leave related to breast cancer (and separate leave after a car crash), ConEd underpaid and mistreated her, retaliated after she filed an EEOC charge, and ultimately terminated her because of disability/leave and/or retaliation.

After a jury trial, the jury found ConEd liable only on the NYCHRL retaliation claim and awarded $203,951.35 in back pay, denying other relief. Post-judgment, Penzo moved for a new trial (or to amend the judgment) under Federal Rule of Civil Procedure 59 based on (i) exclusion of medical records and (ii) alleged witness tampering; she also moved for attorneys’ fees and costs. The district court denied the new-trial motion and awarded reduced fees and costs. The Second Circuit affirmed both orders.

Note on authority: The disposition is a “SUMMARY ORDER” and “DO[ES] NOT HAVE PRECEDENTIAL EFFECT,” though it may be cited as permitted by rule. Its practical significance lies in its application of established standards to recurring trial-management and fee-shifting disputes.

Summary of the Opinion

  1. No new trial for exclusion of medical records: The Second Circuit agreed the records were not properly authenticated because Penzo neither presented a qualified custodian/witness nor provided a timely Rule 902(11) certification. The court also agreed any error would not warrant a new trial absent an effect on a substantial right.
  2. No new trial for alleged witness tampering: The Second Circuit rejected Penzo’s argument that the district court used the wrong legal framework by addressing the misconduct theory through Rule 60(b)(3)-type standards. The court found no reversible error because (a) the standards overlap materially and (b) under any standard Penzo failed to show sufficiently supported misconduct or that it affected the fairness of the trial outcome.
  3. Fee and cost award affirmed: Applying highly deferential review, the Second Circuit upheld the district court’s reductions (including denial of some fees after counsel withdrew, adjustments to hourly rate, across-the-board reductions for billing issues, and a reduction for limited success).

Analysis

Precedents Cited

A. Standards of Review and “Range of Permissible Decisions”

  • Legg v. Ulster County, 820 F.3d 67 (2d Cir. 2016): Cited for abuse-of-discretion review of Rule 59 new-trial denials. This framing matters because evidentiary and trial-management decisions are rarely reversed absent clear legal error or serious prejudice.
  • Zervos v. Verizon N.Y., Inc., 252 F.3d 163 (2d Cir. 2001): Provides the Second Circuit’s core articulation of abuse-of-discretion review, including the “range of permissible decisions” concept. The court used this to uphold both trial rulings and the fee award.
  • Restivo v. Hessemann, 846 F.3d 547 (2d Cir. 2017): Quoted for the harmless-error principle in evidentiary rulings—new trial is warranted only if a substantial right is affected and the error would materially sway the jury.
  • Citigroup Glob. Markets Inc. v. Abbar, 761 F.3d 268 (2d Cir. 2014): Cited for de novo review of the selection of legal standards (here, the Rule 59 vs. Rule 60 framing question).

B. Authentication of Medical Records: Business Records + Self-Authentication

  • Loginov v. Sheridan Mem'l Hosp., No. 24-8032, 2025 WL 1904470 (10th Cir. July 10, 2025), cert. denied, No. 25-556, 2026 WL 79605 (Jan. 12, 2026): Used as a general proposition that medical records are routinely admitted under the business records exception, underscoring that exclusion here was procedural/authentication-based, not because medical records are categorically inadmissible.
  • Perpall v. Pavetek Corp., No. 12-CV-0336, 2017 WL 1155764 (E.D.N.Y. Mar. 27, 2017): Reinforces that medical records are admissible as business records if the Rule 803(6) prerequisites are met.
  • Mercado v. ChoYang Med. Co., No. 07-CV-3563, 2011 WL 13323649 (E.D.N.Y. Oct. 3, 2011), R&R adopted, 2012 WL 13135370 (E.D.N.Y. Sept. 24, 2012): Cited for the practical rule that a plaintiff typically cannot authenticate her own medical records; a knowledgeable custodian/qualified witness is required.
  • Michaud v. United States, No. 15-CV-1418, 2017 WL 4581791 (D. Conn. Oct. 13, 2017): Identifies the typical routes for admitting medical records—stipulation, certification, or testimony from the treating provider—supporting the court’s view that Penzo used none of the accepted routes in a timely way.

C. Procedural Regularity and Timing; “Merits” Preference Has Limits

  • Enron Oil Corp. v. Diakuhara, 10 F.3d 90 (2d Cir. 1993): Cited for the Second Circuit’s preference to resolve disputes on the merits rather than technicalities. The panel used it to frame, but not accept, Penzo’s equity argument; the Rules of Evidence still control.
  • Harris v. Bowden, 349 F. App'x 601 (2d Cir. 2009): Supports exclusion where notice/pretrial identification requirements are not met.
  • Farkas v. Farkas, 168 F.3d 638 (2d Cir. 1999): Confirms that excluding evidence not properly disclosed/listed can be within discretion.

D. Trial Misconduct / Witness Tampering and New Trials

  • Thomas v. City of New York, 293 F.R.D. 498 (S.D.N.Y. 2013), aff'd sub. nom. Thomas v. McAullife, 691 F. App'x 671 (2d Cir. 2017): Illustrates that a new trial may be ordered under Rule 60(b)(3) for egregious trial misconduct, but only on a strong evidentiary showing.
  • Jeanty v. City of Utica, No. 23-369, 2024 WL 4429417 (2d Cir. Oct. 7, 2024): Reinforces the “clear and convincing evidence” burden for Rule 60(b)(3) fraud/misconduct claims.
  • Fleming v. N.Y. Univ., 865 F.2d 478 (2d Cir. 1989): Cited for the clear-and-convincing requirement under Rule 60(b)(3).
  • State St. Bank & Tr. Co. v. Inversiones Errazuriz Limitada, 374 F.3d 158 (2d Cir. 2004): Adds the requirement that the misconduct must have prevented the movant from fully and fairly presenting the case.
  • Manley v. AmBase Corp., 337 F.3d 237 (2d Cir. 2003): Rule 59(a) new trial standard—verdict must be “manifestly erroneous” even where substantial evidence supports it.
  • Ali v. Kipp, 891 F.3d 59 (2d Cir. 2018): Rule 59(a) new trial is appropriate only where the jury reached a “seriously erroneous result” or the verdict is a “miscarriage of justice.”
  • 28 U.S.C. § 2111: The harmless error statute, relied on to emphasize that even if the district court’s doctrinal label were imperfect, reversal is unwarranted absent effect on substantial rights.

E. Attorneys’ Fees Review Deference

  • Alderman v. Pan Am World Airways, 169 F.3d 99 (2d Cir. 1999): Cited for abuse-of-discretion review of fee awards under fee-shifting statutes.
  • Lilly v. City of New York, 934 F.3d 222 (2d Cir. 2019): Emphasizes “highly deferential” appellate review due to district courts’ institutional advantages in managing fee disputes.

Legal Reasoning

1) Excluding Medical Records: The Court Enforced the Authentication Prerequisites

The panel treated the issue as a straightforward application of Federal Rules of Evidence 803(6), 803(6)(D), and 902(11): business records must be authenticated either through a qualified witness/custodian at trial or through a compliant certification provided before trial. Penzo did neither.

Two attempted “fixes” failed:

  • Self-authentication through the patient (Penzo): The court reasoned that a patient generally lacks the knowledge required to establish the Rule 803(6)(A)-(C) elements (made at/near the time, kept in course of a regularly conducted activity, regular practice).
  • Belated certifications during trial: The court enforced the rule’s timing requirement (“[b]efore the trial”) and held the district court was not obligated to accept last-minute certifications once trial was underway.

The court also endorsed the district court’s alternative harmlessness reasoning: even if exclusion were erroneous, a new trial is warranted only if the error affected a substantial right by materially swaying the jury.

2) Witness Tampering Allegations: Labeling (Rule 59 vs Rule 60) Did Not Drive the Outcome

Penzo argued the district court wrongly evaluated her “new trial” request through a Rule 60(b)(3) lens (clear-and-convincing evidence) despite her labeling it a Rule 59 motion. The panel emphasized that:

  • The rules overlap in substance: Rule 59(a) allows new trials for traditional grounds; Rule 60(b)(3) explicitly covers “misconduct by an opposing party” and can result in a new trial.
  • Practical equivalence of the showing: The court compared “clear and convincing” to Rule 59’s requirement that the judge be convinced the verdict was “manifestly erroneous”/a “miscarriage of justice,” concluding it was not obvious that using a clear-and-convincing formulation was legal error in this context.
  • Harmless error backstop: Even if the standard were misstated, 28 U.S.C. § 2111 and the record indicated the result would not change.

On the facts, the district court considered multiple affidavits; only the rebuttal witness’s affidavit supported Penzo’s account, while other affiants did not. The district court also observed the witness testified and answered both sides’ questions, including responding fully on direct. The panel found no basis to disturb the conclusion that Penzo failed to meet her burden—and additionally noted that Penzo did not identify specific, missing testimony that would likely have changed the verdict.

3) Fee and Cost Reductions: Deferential Review Controlled

The Second Circuit upheld the district court’s suite of reductions and determinations (post-withdrawal work, hourly rate, across-the-board percentage cuts for billing issues, and an additional reduction for limited success), emphasizing that fee determinations are reviewed with substantial deference and the district court’s reasoning fell within the permissible range.

Impact

  • Trial practice—medical records: The order reinforces that parties should treat medical-record authentication as a pretrial obligation. Waiting until trial to produce Rule 902(11) certifications is a high-risk strategy; exclusion is a foreseeable consequence.
  • New-trial motions based on misconduct: Allegations of witness tampering must be supported with concrete evidence and a persuasive showing of prejudice—i.e., what testimony was lost or altered and why it matters to the verdict.
  • Fee petitions in partial-success civil rights/employment cases: The order confirms that district courts may apply layered reductions (rates, hours, billing practices, and success-based adjustments), and that such judgments are difficult to overturn on appeal.
  • Doctrinal modesty: Because the disposition is nonprecedential, its primary “impact” is persuasive: it signals the Second Circuit’s tolerance for district-court enforcement of evidentiary timing rules and its reluctance to order new trials absent a clear showing of outcome-relevant harm.

Complex Concepts Simplified

Business records exception (FRE 803(6))
A hearsay exception allowing admission of records created and kept as part of a routine business practice (including medical providers), but only if foundational conditions are shown.
Self-authentication by certification (FRE 902(11))
A shortcut allowing business records to be admitted without live testimony—if a proper certification is provided to the other side before trial.
Authentication
The requirement to show evidence is what the proponent claims it is. For medical records, this is usually done through a custodian/qualified witness, stipulation, or 902(11) certification.
Rule 59(a) new trial
A mechanism to seek a redo of all or part of a trial when serious error or injustice occurred—typically requiring a showing the verdict is seriously erroneous or a miscarriage of justice.
Rule 60(b)(3) relief for misconduct
A post-judgment remedy for fraud or misconduct by the opposing party; often requires clear and convincing evidence and a showing that the misconduct impaired a full and fair presentation of the case.
Harmless error (28 U.S.C. § 2111)
Even if the trial court made a mistake, appellate courts will not reverse unless the mistake affected substantial rights—i.e., it likely mattered to the outcome.

Conclusion

Penzo v. Consolidated Edison Co. of N.Y. affirms (1) strict enforcement of the foundational and timing requirements for admitting medical records as business records—particularly the “before trial” notice component of FRE 902(11); (2) the practical convergence of Rule 59 and Rule 60(b)(3) concepts when a new trial is sought based on alleged trial misconduct, coupled with a strong insistence on proof and prejudice; and (3) the Second Circuit’s highly deferential approach to district-court fee determinations, including success-based reductions. Even as a nonprecedential summary order, it provides a clear cautionary roadmap for evidentiary preparation, misconduct-based post-trial motions, and fee petition strategy.