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McKENNA v. CITY OF PHILADELPHIA
Dispositions of Petitions for Allowance of Appeals Denied.
In English, an African American corrections officer alleged that his termination for allegedly having sexual relations with an inmate was a pretext for racial discrimination and that his employer's investigation into the incident was conducted in a racially biased manner. The English court upheld the grant of summary judgment to the employer, holding that even if the court accepted the plaintiff's allegation that the investigation was racially biased, the decision to terminate was made by an administrator who gave the plaintiff an opportunity to present evidence rebutting the investigator's findings. Id., 248 F.3d at 1004-06, 1011.
Applying Abramson here, the Court finds that the plaintiffs presented sufficient evidence for the jury to have found that Carnation's termination was the result of retaliation. The plaintiffs presented evidence from which a reasonable jury could have found both that Captain Colarulo harbored retaliatory intent toward Carnation and that this intent had a substantial influence on the PBI's decision to recommend that Carnation be terminated over his actions surrounding Memorial Day 1998.
Carnation testified that Colarulo made a direct threat to retaliate against him. He testified that, in a meeting on February 6, 1998, at which Carnation, Colarulo, Lieutenant Bachmayer, and Sergeant Moroney were present, Colarulo said he would make Carnation's life a "living nightmare" if he filed an EEOC complaint. Colarulo and Moroney gave a different description of the February 6 meeting in their testimony, both testifying that Colarulo offered to call the EEOC himself if Carnation felt that Moroney was being unfair. The jury, however, was entitled to believe Carnation and find that the threat was made. Carnation filed an EEOC complaint, along with other officers, on April 29, 1998, approximately two months after the threat and one month before the Memorial Day incident for which he was terminated. 5/7/08 N.T. at 175-79; 5/9/08 N.T. at 38-39; 5/13/08 N.T. at 93.
In their trial testimony, Colarulo and Carnation gave conflicting versions of the Memorial Day incident. Both agreed that, at Carnation's request, Colarulo spoke with Carnation on the Thursday before Memorial Day and discussed Carnation's relationship with Sergeant Moroney. Carnation testified that Colarulo told him that, if he had difficulties with Moroney, he should speak with him directly. In contrast, Colarulo testified that Carnation asked to have a meeting with him and Moroney and that he responded by saying that any initial meeting should not include Moroney and by instructing Carnation to contact his aide to arrange the meeting. 5/7/08 N.T. at 180-81, 210-11; 5/8/08 N.T. at 161-64; 5/13/08 N.T. at 105-06.
It is undisputed that the Friday before Memorial Day, Carnation, who at this time was out on extended leave, called the 25th District at least twice asking to speak to Sergeant Moroney. Testimony differed as to the specifics of the messages Carnation left at the district on Friday. Carnation testified that he asked to speak with Moroney. Colarulo testified that he learned from Moroney that Carnation had said that Colarulo wanted Moroney to set up a meeting with Carnation and to have an officer take Carnation's paycheck to his house. Colarulo testified that he told Moroney that both statements were false and that Moroney was not to call Carnation back. Instead, Colarulo called Carnation and told him not to call Moroney again. Carnation testified, however, that he understood this as an instruction not to call again that day. Colarulo testified that he had been clear that Carnation was not to call Moroney again at all. It is undisputed that, the next day, Carnation called the 25th District again and spoke to Moroney. Carnation testified that he called only once; Colarulo testified that he understood Carnation did so a number of times. 5/7/08 N.T. at 181-85, 207-10; 5/8/08 N.T. at 165-69; 5/13/08 N.T. at 105-06.
Moroney's trial testimony concerning these messages supported Colarulo in part. Moroney testified that Carnation called the station three times on Friday and left messages asking to have his check delivered to his house. He did not say anything in his testimony about Carnation telling him that Colarulo wanted him to set up a meeting. 5/9/08 N.T. at 66-68.
It is undisputed that, on the Sunday of Memorial Day weekend at around 8:30 in the morning, Carnation called Colarulo at his vacation home. According to Carnation's testimony, he called to let Colarulo know that, as a result of his conversation with Moroney the day before, he had resolved several of his issues with Moroney but still wanted to meet with both Colarulo and Moroney. According to Colarulo, Carnation was rambling and angry and admitted that he had called Moroney in violation of Colarulo's order. Colarulo also testified that Carnation said he was "tired of all this shit" and that he agreed with what "Bill McKenna had said about Moroney" that he "should be shot in the head." 5/7/08 N.T. at 185-186, 209-12; 5/8/08 N.T. at 169-71; 5/13/08 N.T. at. 106-07, 176.
Colarulo testified that after that telephone call, he contacted Carnation's active supervisor and the Employee Assistance Program about Carnation's behavior, and on the first day that he went back to work after the holiday, he started an investigation and requested that disciplinary action be taken against Carnation. In mid-July, Colarulo personally served Carnation, who was at that time no longer under his command, with notice of disciplinary action charging him with two counts of insubordination and one count of neglected duty. These charges were then the subject of the PBI hearing on January 19, 1999, and, ultimately, after the PBI added another charge, the basis for the PBI's recommendation that he be discharged. 5/7/08 N.T. at 188-89; 5/8/08 N.T. at 171, 177; 5/13/08 N.T. at 107-08.
Taken as a whole, this evidence would give a reasonable jury a legally sufficient basis to find Carnation's termination to be the result of Colarulo's retaliation. In reaching this conclusion, the Court, as it must, "disregards all evidence favorable to [the City] that a jury is not required to believe" and "gives credence to all evidence favoring [Carnation], as well as that evidence supporting [the City] that is uncontradicted and unimpeached, at least to the extent that it comes from disinterested witnesses." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 151 (2000).
The jury was entitled to believe Carnation and disbelieve Colarulo and Moroney about the events of the weekend of Memorial Day 1998. The jury could therefore have found that Colarulo's order requiring Carnation to stop calling the station was unclear, that Carnation understood it to require him only to stop calling that day, and that Carnation therefore did not knowingly violate the order by calling the station the next day. The jury could also have found that, when Carnation called Colarulo on Sunday morning, he never admitted violating the order and never expressed agreement with William McKenna's wish to shoot Sergeant Moroney.
If the jury believed Carnation and disbelieved Colarulo, then it could reasonably infer that Colarulo's version of the events of the Memorial Day weekend were untrue and motivated by his expressed intent to retaliate against Carnation. Because the events of that weekend formed the grounds for the disciplinary charges against McKenna and the proceedings before the PBI, a reasonable jury could find that Colarulo's animus played a substantial role in the ultimate decision by the PBI to recommend Carnation's termination, which under Abramson is sufficient for the jury to impute Colarulo's retaliatory animus to the PBI.Abramson, 260 F.3d at 286; see also Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1400 (7th Cir. 1997) ("the prejudices of an employee, normally a subordinate but here a coequal, are imputed to the employee who has formal authority over the plaintiff's job . . . where the subordinate, by concealing relevant information from the decisionmaking employee or feeding false information to him, is able to influence the decision.").
2. The Motion for a New Trial
The City has moved for a new trial as to all three plaintiffs on all issues. The City does so on two grounds. It contends that the jury's verdict was improperly swayed by passion, prejudice, and confusion because of improper conduct by the plaintiffs' counsel, the plaintiffs, and the plaintiffs' spouses. It also seeks a new trial on the ground that the verdict was against the weight of the evidence, and in the alternative, seeks a remittitur of the verdict to an amount of $75,000 per plaintiff.
The standard for awarding a new trial differs for each of these two proffered grounds. A trial court is "entrusted with wide discretion" in determining whether to grant a new trial on the basis of attorney misconduct, but should do so only where it is "reasonably probable" that the verdict was influenced by prejudice resulting from the misconduct. Forrest v. Beloit Corp., 424 F.3d 344, 351 (3d Cir. 2005); see also Fineman v. Armstrong World Indus., 980 F.2d 171, 207 (3d Cir. 1992) (citingDraper v. Airco, Inc., 580 F.2d 91, 97 (3d Cir. 1978)).
A trial court has less discretion in determining whether to grant a new trial because the verdict, as to either liability or damages, is against the weight of the evidence. To ensure that a district court does not substitute its judgment of the facts and the credibility of the witnesses for that of the jury, a trial court "ought only to grant a new trial on this basis where a miscarriage of justice would result if the verdict were to stand.'" Fineman, 980 F.2d at 211 (quoting Williamson v. Consolidated Rail Corp., 926 F.2d 1344, 1352 (3d Cir. 1991). A trial court has less discretion to grant a new trial on this basis in a case where "the subject matter of the litigation is simple and within a layman's understanding" than in a case that "deals with complex factual determinations." Williamson, 926 F.2d at 1352.
a New Trial Based on the Misconduct of the Plaintiffs' Counsel, the Plaintiffs, and the Plaintiffs' Spouses
The City points to numerous instances during the trial of what it characterizes as misconduct. These instances group into three broad categories: repeated references by counsel and witnesses to claims and evidence previously excluded in pre-trial rulings; disrespectful and contemptuous behavior by the plaintiffs and their counsel; and inflammatory and confusing references by the plaintiffs' counsel in closing argument to the movie A Few Good Men (Castle Rock 1992) and to the "C Word."
(1) References to Non-Triable Issues
Prior to trial, the Court issued an order setting out the specific triable issues that it determined had been remanded by the court of appeals. Order of May 1, 2008 (Docket No. 131 in Case 98-5835; No. 150 in Case No. 99-1163). One issue deliberately not included in the order was the plaintiffs' claim that they had suffered actionable retaliation from their harassment by fellow officers who had described them in radio comments and bathroom graffiti as "rats" and "snitches." In remanding the case for trial, the court of appeals specifically held that the plaintiffs had failed to make out a prima facie case of retaliation with respect to those co-worker actions: "[T]he record does not support a reasonable conclusion that the plaintiffs' supervisors failed to take adequate remedial action in response to the `rat' and `snitch' graffiti and comments."Moore, 461 F.3d at 350.
In a separate pre-trial order on the parties' motions in limine, the Court considered the plaintiffs' request to be permitted to introduce evidence concerning acts of racial discrimination of which the plaintiffs were unaware and which, therefore, could not have formed a basis for their complaints to their supervisors. The Court ruled that such evidence was generally not relevant and, if the plaintiffs wished to present some specific evidence in this category, they should first present it to the Court. The Court cautioned the parties that the trial should not become a "generalized discussion of discrimination by the police against African-Americans," which would be confusing and misleading to the jury and whose probative value would be outweighed by prejudice. Instead, the Court exhorted the plaintiffs to focus their testimony on "their own experiences: what they saw and what they knew about that formed the basis for their complaints." Order of May 1, 2008 (Docket No. 132 in Case 98-5835; No. 151 in Case No. 99-1163).
(a) References By Counsel to Non-Triable Issues
Beginning with his opening statement, the plaintiff's counsel repeatedly referred to issues beyond those the Court had specified could be tried to the jury. In his opening, the plaintiffs' counsel, in describing adverse actions directed to the plaintiffs, at three points referred to the word "rat" being written on the wall of the station bathroom, being written on the plaintiffs' time cards, or being said on the police radio. 5/5/08 N.T. at 39-40, 43, 44. The plaintiffs' counsel also referred to events that occurred to Michael McKenna after he was transferred from the 25th District, including the department's decision to remove his service weapon for safety reasons and its subsequent search of his house and his son's being stopped by the police. Id. at 51-52.
At the reference to Michael McKenna's son, the counsel for the City objected to the mention of events beyond those at issue in the trial. After a sidebar, the Court sustained the objection, specifically cautioning counsel that the references to "rats" concerned actions taken by co-workers that had been held to be non-actionable by the court of appeals. Id. at 53. The Court then sustained subsequent objections by the City to plaintiffs' counsel's references to the department's sick checks of Raymond Carnation and to the department's alleged contact with Carnation's subsequent employer after his termination. At a side bar to discuss the second objection, the Court alluded to the possibility that the trial might have to "start again." Id. at 60.
After both sides' opening statements, in dismissing the jury for the day, the Court emphasized to the jury that the statements of counsel were not evidence. Id. at 72. After the jury was dismissed, the Court then engaged in a lengthy discussion with counsel concerning its evidentiary rulings. The plaintiffs' counsel noted that there were many incidents that might not rise to the level of an actionable adverse action under the Court's rulings, that might need to be mentioned as "context." The Court agreed that things might need to be put in context but that it did not want the jury confused and that it was "afraid it could be," particularly with respect to the City's responsibility for the "rat" comments. Id. at 75. As part of this discussion, the Court stated it was open to giving curative instructions concerning statements made in both sides' openings, including an instruction concerning the City's lack of responsibility for co-worker harassment. Id. at 74, 76.
The next day, testimony began with plaintiff William McKenna. The plaintiffs' counsel elicited without objection testimony from McKenna that a poster in the station had been vandalized to link him and Raymond Carnation with a picture of a piece of cheese, suggesting that they were "rats." 5/6/08 N.T. at 48-49. The plaintiffs' counsel then asked McKenna about one of his time sheets, and McKenna testified that someone had written on them the words "Rat No. 1," and that, when he complained to Sergeant Moroney, Moroney told him, with several expletives, to get it out of his face. Id. at 50. After this, the defense counsel objected on the ground that the testimony was "out of context." Id. at 51.
At sidebar, the Court stated that the testimony went well beyond context and was "unfair and confusing." 5/6/08 N.T. at 51. The Court indicated that it thought a curative instruction was necessary, and the City's counsel then moved for one. The Court recessed the jury to discuss the issue with counsel. The Court reemphasized to counsel that, based on the court of appeals decision in Moore, incidents of coworker harassment such as the references to "rats" and "snitches" were not in the case. The Court also noted that, although defense counsel had not objected, the plaintiffs' counsel's questioning had been improperly leading and directed the plaintiffs' counsel not to lead his witness. The Court commented that it understood the defense counsel's dilemma in not wanting to make too many objections, but that the leading testimony was improper. Id. at 52-53.
The Court then recalled the jury and gave them the following curative instruction:
The issue in this trial, as you know, is whether the supervisors, the leadership of the police department, retaliated against the plaintiffs for the plaintiffs['] protesting racial discrimination. The case is not about the conduct of fellow officers towards the plaintiffs. I instruct you that whether or not particular coworkers used the word rat or did other things, such as not providing back up to the plaintiffs, it's not to be considered by you as evidence of retaliation by the City of Philadelphia.Id. at 54.
Despite the colloquy and the curative instruction, a few minutes later, plaintiff's counsel directed William McKenna's attention to a meeting with his brother Michael in January 1998 and asked whether anything occurred. McKenna responded that his brother had told him about graffiti on the bathroom walls that named both of them. The City's counsel objected. The Court sustained the objection and instructed the jury to ignore the comment. Id. at 57.
At the end of the same day of testimony, at the start of Michael McKenna's direct examination, the plaintiffs' counsel asked McKenna if his fellow officers treated him differently after he reported to Sergeant Moroney that some officers were filing false reports to obtain extra pay. McKenna responded by mentioning the bathroom graffiti calling him a rat or a snitch. The Court sustained the defense objection and called a side bar at which it cautioned plaintiffs' counsel that this subject was excluded and announced that it would recess for the day to allow counsel to clear the issue up with his witness. Id. at 225.
The next day, before recalling the jury, the Court held a colloquy with counsel to discuss the repeated references to coworker harassment. The plaintiffs' counsel argued that such evidence was relevant because, even if the City was not directly responsible for harassment by coworkers, it could be liable for its supervisors' inaction, such as for failing to clean up the "rat" graffiti. The Court explained that the court of appeals had specifically rejected this argument in Moore. 461 F.3d at 350. The Court then instructed counsel that the continued references to "rats" ran the risk of confusing the jury and that they should stop:
Look, I'm going to rule that the rat stuff — I was allowing it in for background context. I think the jury gets it at this point . . . a fair amount of time was spent on that and I think its going to confuse [] them at this point. So in view of the summary judgment decision and the danger of what's happening, confusing, misleading. I'm going to rule no more rat testimony.
5/7/08 N.T. at 13.
After this instruction, there were no more references to rats or other coworker harassment during Michael McKenna's testimony. There was one reference to coworker harassment in Raymond Carnation's direct examination. The plaintiff's counsel asked Carnation an open-ended question as to whether there was anything else that he viewed as "different treatment" in February of 1998, and Carnation answered "[j]ust no relief, no backup, no breaks, writing on the bathroom walls, posters hanging within the Districts, being surveillance by the supervisors." The Court sustained the City's objection to the response and ordered it stricken from the record. The Court then asked Carnation not to discuss that subject and instructed the jury to "ignore that about posters and the like[;] I've already given you an instruction on that." 5/7/08 N.T. at 173.
The City also complains that Michael McKenna was allowed to testify concerning events that occurred after his transfer from the 25th District. Both the court of appeals and this Court found that these post-transfer actions were not themselves actionable.See Moore, 461 F.3d at 351 n. 10; Order of May 1, 2008 (Docket No. 131 in Case 98-5835; No. 150 in Case No. 99-1163). The Court allowed a limited amount of testimony concerning the department's post-transfer actions in investigating McKenna's assault by Officer Seeger, but sustained the City's objection and cut the testimony off when it extended beyond context into an account of persecution. 5/7/08 N.T. at 69-73.
In addition to eliciting testimony concerning coworker harassment, plaintiffs' counsel also attempted to elicit testimony concerning acts of discrimination allegedly taken against other officers. In his examination of Sergeant Moroney as on cross, the plaintiffs' counsel questioned him about whether he had ever assigned Michael McKenna to work with Officer Myrna Moore or assigned them to "stand a block corner" together. Moroney said that he had not and could not have assigned the two to work together because McKenna and Moore were not in the 7-squad at the same time while he was supervisor. The plaintiffs' counsel then asked Moroney "[s]o [Moore] would have had no reason ever to state a complaint against you for racism." The City's counsel objected to the question and the Court sustained the objection. 5/9/08 N.T. at 52-53. Six short questions later, when the plaintiffs' counsel directed Sergeant Moroney's attention to the transcript of an interview he had with the department's Equal Opportunity Office ("EOO"), the Court called a short sidebar with counsel to clarify how the plaintiffs' counsel intended to use the document and to make clear that the plaintiffs' counsel was not to ask questions concerning Officer Moore: "[Y]ou're not supposed to ask about Myrna Moore. You know that. So stay away from it." Id. at 54-55.
The issue also arose in the plaintiffs' counsel's examination of Captain Colarulo as of cross, when the plaintiffs' counsel sought to question Colarulo concerning a 71-page statement that he had given to Internal Affairs. The statement concerned both actions he had taken with respect to the three plaintiffs and actions taken with respect to the African-American plaintiffs who had settled their cases with the City. The City objected to the testimony and to the relevance of the statement to the extent it concerned other officers, and the Court sustained the objection. 5/8/08 N.T. at 52-57.
Although the plaintiffs' counsel did not elicit further testimony concerning Officer Moore in the rest of his examination of Sergeant Moroney as on cross, he raised the issue again in a colloquy with the Court during his re-cross examination of Moroney after the City's direct. Outside of the presence of the jury, the plaintiffs' counsel told the Court that he believed the City's direct examination had opened the door to questioning Moroney about Moore's complaints against him. On direct, Moroney had been asked whether, during the time that he was supervisor of the 7-squad, any African American officers had complained to him about unfair treatment or about feeling isolated in the squad, and had said that they had not. 5/9/08 N.T. at 83-84.
Both Sergeant Moroney and Captain Colarulo were called in the plaintiffs' case as on cross. With the agreement of counsel, after the plaintiffs' on-cross examination of each witness, the City conducted a direct examination, not limited to the scope of the on-cross testimony, and the plaintiffs then conducted a re-cross examination.
During the colloquy, the Court indicated that this testimony might permit the plaintiffs to ask Moroney about complaints against him by Officer Moore and other African American officers, but that the Court first needed to make sure that there was a good faith basis for finding the accusations to be impeaching. The Court explained that, before any such evidence could be used, the plaintiffs' counsel would have to identify with precision exactly what accusations by African American officers against Moroney he wanted to use, so that the Court could assess them. 5/9/08 N.T. at 111-13. The Court also stated that it was concerned whether there was a basis for using Moore's statements to impeach because the City had introduced record evidence indicating that Moore was not transferred to the 7-squad until after Michael McKenna had been transferred out. Id. at 114-15.
The Court returned to the issue after a recess. During another lengthy colloquy outside the presence of the jury, the Court denied the plaintiffs' counsel's request to impeach Moroney with Moore's statements in her EEO complaint and Fraternal Order of Police grievances that Moroney had used racial epithets. The Court found that, in those filings, Moore did not say that she had heard Moroney use racial epithets, but only that she had heard the McKennas say that Moroney used those words. The Court also found that her complaints about discrimination concerned events that occurred before her transfer to the 25th District. The Court therefore refused to allow the plaintiffs' counsel to impeach Moroney with Moore's statements or with the fact that she had joined in filing complaints against him. The Court did allow the plaintiffs' counsel to ask Moroney whether another African-American officer, Richard Safford, had ever accused him of using racially offensive language. 5/9/08 N.T. at 122-129.
After the Court had ruled Moore's complaints inadmissible as impeachment, the plaintiffs' counsel continued to argue the issue and complain about the ruling for several minutes, outside the presence of the jury. Among other comments, counsel said that the ruling was "not fair," that he was "hamstrung," that the witness was now "free to lie all he wants," and he was being "barred from doing the most basic impeachment." 5/9/08 N.T. at 122, 124, 127, 128, 129. The colloquy concluded with the plaintiffs' counsel saying he would not seek to introduce impeachment on Moroney's statement that no one ever complained to him of being unfairly treated or of being isolated, but instead he would "take [his] appeal." Id. at 129. The plaintiffs, however, did not include the Court's ruling on this issue as one of the claims of error in their post-judgment motion.
The plaintiffs' counsel also attempted to introduce testimony concerning complaints of racism by other officers in his examination of Rochelle Bilal, a police officer and a member of the Guardian Civic League, an organization for the support of African American police officers. Officer Bilal was called by the plaintiffs to rebut testimony by Captain Colarulo that Bilal had approached him in June of 1998 to apologize to him for having supported the McKennas and to tell him that after looking into their allegations, she believed them to be false. 5/8/08 N.T. at 59-60. The plaintiffs' counsel, however, began his examination by asking her if she had ever contacted the police department concerning any complaints of racism at the 25th District in 1997, 1998, or 1999. The defense objected and the Court sustained the objection and limited the questioning of the witness to whether she had ever apologized to Colarulo for anything she had done with respect to the McKenna brothers. Officer Bilal denied any apology. 5/12/08 N.T. at 35-40.
(b) References By Plaintiffs and Their Spouses to Non-Triable Issues
In addition to what it contends was improper questioning by the plaintiffs' counsel, the City also contends that the plaintiffs and their spouses committed misconduct by volunteering answers concerning irrelevant and inadmissible issues. William McKenna, in responding to questioning from his counsel concerning his confrontation with Deputy Commissioner Norris over his wife's arrest for trespassing at the house of another deputy commissioner, said that he told Norris that he wanted to know "the status of [his] wife" because "she just had a miscarriage." The City objected and the Court sustained the objection. 5/6/08 N.T. at 113-114.
William McKenna's wife also mentioned her miscarriage in testimony describing the things she told officers who came to her house to perform sick checks. 5/12/08 N.T. at 62.
Later in William McKenna's direct testimony, in response to a series of questions concerning how the City's alleged retaliatory actions affected his life, McKenna said that they, among other things, limited what he could do with his daughter. Asked to explain, McKenna began an emotional stream-of-consciousness monologue about his poverty, his inability to give his daughter what she wanted, and the City's actions in conducting sick checks, during which he at one point appeared to dare the City's counsel to object:
Keep in mind my daughter was eight years old. I'm sure if everybody has an eight-year old, you want to do things with your kid. This kid wasn't able to get anything. We were poor. We were poor. All we did was pay a mortgage, put gas in the car, go to the doctors, not even visit my mom, the person who you're supposed to love. You couldn't, when you lay in that fetal position, who wants to go. You can't go anywhere. So you just felt like a prisoner in your own home because they — go ahead object — they loved it. Every day they would come to the house and just knock on the door, knock on the door, harass my daughter, harass my wife. We couldn't tolerate it. My wife did what she did to stop that because desperate people do desperate things. How else could we get them to stop coming to the house. What else [do] they want you to do. They want you to come out the door and physically fight with them. They'd tell me, "come on, come at me" because they're the police, the police can do what they want. And they've done it and they're . . .
5/6/08 N.T. at 119-20 (emphasis added). Although the City's counsel did not make an objection, the Court interrupted the monologue, thanked the witness, and called a side bar to explain that it stopped the testimony because the response had gone "way beyond what is appropriate." Id. at 120.
The wives of the McKenna brothers also volunteered irrelevant and inadmissible evidence in their testimony. Michael McKenna's wife, Beth McKenna, asked how her family's life had been after Michael's assault by Officer Seeger, said that they had been "emotionally, financially, and spiritually devastated" and then added that "[t]here was a death threat to have Mike murdered that Capt. Colarulo knew about." The City objected, and the Court sustained the objection and ordered the testimony stricken. 5/12/08 N.T. at 131-32.
William McKenna's wife, Cynthia Palamone, was asked to describe the department's sending officers to her home to conduct sick checks on her husband. She began her response by saying that the sick checks started in November 1998, but then said that her brother-in-law Michael McKenna had filed a federal lawsuit against the City and "the very same day" her husband was "tossed out" of his assignment at the police academy and was "told . . . to go home and run out his sick time." 5/12/08 N.T. at 46. The City objected and the Court sustained the objection, striking the testimony and instructing the witness not to give hearsay testimony but to testify only as to what she herself knew.
In further questioning, Palamone was asked whether, prior to the sick checks, she had had concerns about her husband's well-being. She testified that she had concerns around the time her husband made the statement on February 13, 1998, that Sergeant Moroney deserved to be shot. She testified that she went to speak to Captain Colarulo because: ". . . we had other weapons in the home and I was concerned that why they were doing what they did to him [sic]. Why Captain Colarulo would do that." 5/12/08 N.T. at 49. The Court sustained the City's objection to the testimony and instructed the plaintiffs' counsel to question the witness only as to what she saw.
The plaintiffs' counsel then asked Palamone whether her husband was doing anything at home to cause her concern, and Palamone responded by saying that her husband had told her what was happening in the district. The Court then interrupted the witness's testimony to instruct her not to say what her husband had told her. Id. at 50. The plaintiffs' counsel then questioned Palamone about the subject of her conversation with Captain Colarulo and she responded that, although she had not been able to speak with Colarulo, she spoke with a Lieutenant Krauss and raised her concerns about "reports of racism going on in the police district." Id. at 51. The City objected, and the Court sustained the objection. The Court instructed the jury to ignore Palamone's statement and instructed the witness again not to "tell us anything that you were told by other people." Id. The Court then called a sidebar to instruct the plaintiffs' counsel that his witness would not be allowed to continue to attempt to offer hearsay testimony about facts outside her personal knowledge. Id. at 51-52.
(2) Disrespectful Conduct by the Plaintiffs and their Counsel and References at Closing to A Few Good Men and to the "C word"
In addition to basing its new trial motion on references to excluded claims and inadmissible evidence, the plaintiffs also point to disrespectful and inflammatory conduct by the plaintiffs and the plaintiffs' counsel and to certain objectionable references made by the plaintiffs' counsel in closing arguments.
The most serious misconduct occurred during the testimony of the City's witness, former Deputy Commissioner Nestel. Deputy Commissioner Nestel had testified on direct concerning an incident in which William McKenna's wife, Cynthia Palamone, came to his house at 10:00 at night to complain about sick checks being performed on her husband. Nestel testified that Palamone banged on his door, rang the doorbell, and yelled, saying she was here to harass him and his wife until the department stopped harassing them. Nestel testified that he then grabbed Palamone and arrested her. 5/13/08 N.T. at 53-54.
The plaintiffs' counsel then began an aggressive cross-examination. After the City objected to a question as beyond the scope of cross, and the Court sustained the objection, the Court called a sidebar and told counsel that it had observed the plaintiffs, particularly Raymond Carnation, "smirking" at the ruling and looking at the jury. 5/13/08 N.T. at 62-63. The Court stated that this behavior was sufficiently severe that the Court was concerned that the jury had been "tainted" and warned the plaintiffs' counsel that he faced the possibility of a mistrial if the defendant were to move for one: "Do you want to try this case again? You may have to if I get a request from the defendants." Id. at 64. Shortly afterward, the Court declared a recess.
Before the jury returned, the Court held a lengthy sidebar with counsel to discuss the plaintiffs' behavior. The Court expressed concern that the conduct that the Court had seen was so "breathtaking" that it called into question how the plaintiffs had been behaving during sidebar discussions when the Court and counsel's attention were focused elsewhere. The Court also expressed its astonishment at the level of disrespect shown by the plaintiffs' conduct and told counsel that, during the recess, it had seriously considered ordering the plaintiffs removed from the courtroom. The Court emphasized that it understood that plaintiffs' counsel had been trying to control his clients and that he was not to blame for their misconduct, but stated that it did not want to see the plaintiffs looking at the jury or doing anything to potentially influence them. 5/13/08 N.T. at 68-71, 73. The plaintiffs' counsel told the Court that he had not been aware of the behavior, but had discussed the issue at length with his clients during the recess, telling them that, if such behavior was occurring, it had to stop in order for them to get through the trial. Id. at 72-73.
During the discussion, counsel for the City indicated that he had not personally seen the behavior referred to by the Court, although he had questioned his staff and they had confirmed having seen some inappropriate conduct. The City's counsel stated that he was concerned that the jury might have been tainted but, instead of moving for a mistrial, stated only that "if the Court thinks that it's time for a mistrial, I would certainly defer to the Court's judgment." 5/13/08 N.T. at 69. The City's counsel also suggested that the plaintiffs might intentionally be seeking to "derail the whole process" and stated that he was unsure of what to do. The Court also admitted uncertainty as to how to proceed, but suggested going forward to see "where the whole case goes," while permitting the City to reserve its right to ask for a mistrial or a sanction of dismissal. Id. at 73-74.
In its motion, the City does not contend that there were any subsequent incidents of similar misconduct by the plaintiffs. The City does point to one incident of disrespect by the plaintiffs' counsel. During plaintiffs' counsel's redirect of William McKenna, on the second day of trial, the Court sustained an objection to a question regarding the contents of McKenna's PHRC complaint as beyond the scope of cross. The plaintiff's counsel then said, in the presence of the jury, "I beg to differ." The Court immediately called a side bar to remind counsel that objections were to be argued only at sidebar and directing him not to make speeches in front of the jury. 5/6/08 N.T. at 224-25.
The City also points to several instances during the trial where the plaintiffs' counsel's questioning of the City's witnesses was sarcastic or argumentative. In each, the Court sustained the City's objection to the improper question. 5/8/08 N.T. at 183, 186; 5/9/08 N.T. at 58; 5/12/08 N.T. at 186. The Court also cautioned the plaintiffs' counsel at side bar on at least two occasions that the tone of his questioning was unduly ridiculing or improperly implied a contradiction in testimony where there was none. 5/8/08 N.T. at 55; 5/12/08 N.T. at 186.
The City argues that the plaintiffs' counsel made several improperly inflammatory and confusing references in his closing argument. The plaintiffs' counsel began his closing with a confusing description of the movie A Few Good Men, which counsel described as a movie about "code reds, a secret discipline, things like that" and "two marines who follow an order but don't do the right thing" and another marine, "a private named Santiago who is killed by a code red," which is a "discipline that's supposed to not exist, but the Marines use it to bring the Marine into good order [and] discipline and keep morale high." 5/14/08 N.T. at 67-68. Counsel described the movie as standing "for doing the right thing," which was what his clients had done in standing up against racism in the police department. The plaintiffs' counsel summarized the issue for the jury as whether they accepted the evidence that his clients opposed racism and whether the things that happened to them afterward occurred because of their opposition. Id.
The plaintiffs' counsel briefly referred to the movie again in describing Michael McKenna's transfer from the 25th District, saying that the incident reminded him of A Few Good Men where "they were transferring Private Santiago for his safety." He then began giving the jury "a little background" into Private Santiago's predicament, at which point the Court interrupted to suggest that he return to discussing his client's case. Id. at 87.
The City also claims misconduct in the plaintiffs' counsel's misleading reference to the "C word." In his closing, the plaintiffs' counsel referred to Sergeant Moroney's use of both the "N word" and the "C word," in one instance referring to his use of the word to describe Officer Myrna Moore. 5/14/08 N.T. at 71, 81. The "C word" to which counsel was referring was not the vulgarity for female genitalia usually associated with that phrase, but the word "critter," which Moroney had been accused in trial testimony of using to describe African American officers.Id. at 106.
The plaintiffs' counsel stated in his closing that Moroney had used the "C word" — "critter" — in referring to Moore during the incident in which Moroney ordered her and Michael McKenna to stand in the rain. 5/14/08 N.T. at 81. This mischaracterized the testimony at trial, although in a way favorable to the City. The testimony concerning this incident by Michael McKenna was that Moroney used the word "nigger," not "critter," in referring to Moore. 5/7/08 N.T. at 24.
The City also complains that the plaintiffs' counsel's closing argument improperly suggested that the City could be found liable for William and Michael McKenna's terminations. In closing, the plaintiffs' counsel noted that "all of the bad things that happened to the plaintiffs" were not in dispute: "They don't tell you we didn't suspend him. They don't tell you we didn't fire him. They didn't tell you he didn't get permanently injured." 5/14/08 N.T. at 104. Counsel for the City objected in a sidebar after the argument, and the Court responded that its instructions would make clear that the jury was not to award damages to either of the McKennas resulting from their terminations. Id. at 142.
(3) Whether the Misconduct Warrants a New Trial
As set out above, the City has identified numerous incidents of putative misconduct on the part of the plaintiffs and their counsel. These can be grouped into three broad categories: references to excluded issues, such as coworker harassment, or to inadmissible evidence; disrespectful conduct on the part of the plaintiffs and their counsel; and improperly confusing and inflammatory references at closing argument. Taken individually, none of these categories of misbehavior is sufficient to warrant the grant of a new trial.
The repeated questioning and testimony concerning coworker harassment was of concern to the Court throughout the trial. As the Court explained in sidebars with counsel, although it did not order all mention of coworker harassment excluded from trial, such testimony was permissible only to the extent that it provided context to the other events at issue.
The Court policed the issue throughout trial, both sustaining the City's objections and, at its own suggestion, giving the jury a curative instruction that "the conduct of fellow officers towards the plaintiffs," including the use of the word "rat" or lack of back-up, was not to be considered as evidence of retaliation by the City. 5/6/08 N.T. at 54. The Court also sought to counteract any taint from the references to irrelevant and non-actionable incidents in the plaintiffs' counsel's opening statement by reminding the jury as it was discharged on the first day of trial that statements of counsel are not evidence. 5/5/08 N.T. at 72.
The Court also carefully monitored any attempt to introduce evidence concerning allegations of racially discriminatory treatment made by other officers. The Court sua sponte called a sidebar to ensure that the plaintiffs' counsel did not ask about other officers' allegations in questioning Sergeant Moroney about his interview with the department's EEO office. The Court also circumscribed the plaintiffs' counsel's use of such evidence to impeach Moroney. 5/9/08 N.T. at 54-55, 111-15. The only example in the City's motion of testimony concerning other officers' allegations of racism reaching the jury is Cynthia Palamone's hearsay outburst mentioning "reports of racism going on in the police district," which the Court immediately instructed the jury to disregard. 5/12/08 at 51.
The Court was also conscious throughout the trial of the impact of excessive sidebar conferences on the jury and attempted to hold conferences with counsel during recess. The Court specifically instructed counsel at the beginning of the third day of testimony to limit their objections and to raise evidentiary issues during recesses, rather than requesting sidebars. See, e.g., 5/8/08 N.T. at 10.
Although some improper references to excluded issues reached the jury despite the Court's efforts, the Court does not find that these references, even considered collectively, justify a new trial. Whatever impact these references might have had on the jury was mitigated by the Court's curative instruction and by the format of the jury's verdict sheet, which required the jury to make findings as to the City's responsibility for each of the separate actionable adverse events that the Court had found triable under the Moore decision. The structure of the jury sheet necessarily channeled the jury's deliberations to only those incidents at issue in the case, diminishing the effect of any references to non-actionable incidents.
Of greater concern to the Court during the trial was the improper behavior of the plaintiffs, and to a lesser extent, of the plaintiffs' counsel. As the Court set out on the record at trial, the plaintiffs' misbehavior during the testimony of former Deputy Commissioner Nestel, looking at the jury while making contemptuous faces in reaction to the Court's adverse rulings, was astonishing in the level of disrespect it showed to the witness and to the proceedings. As reflected in the record, the Court was, and remains, concerned that the plaintiffs' behavior could have affected the jury.
At the time this misbehavior occurred, when the Court had the opportunity to observe first-hand the effect on the jury, the Court declined sua sponte to sanction the plaintiffs or hold them in contempt. Nor did the City request an immediate mistrial in response to the Court's inquiry at the time. Instead, after the Court severely cautioned counsel about the seriousness of his clients' behavior, the behavior did not reoccur.
Having received no motion for a mistrial at the time of the incident, and having seen no repeat of the misbehavior, the Court is reluctant to grant a mistrial on this basis now. The Court also notes, in potential mitigation of the misconduct, the plaintiffs' long history of mental health issues, extending back before the events at issue in the trial. In particular, the plaintiff whose behavior most disturbed the Court, Raymond Carnation, has a history of severe depression beginning in the mid-1990s and continuing through the time of trial. 5/7/08 N.T. at 191-92, 196-97; 5/18/09 Tr. at 89-90.
The May 18, 2009, Notes of Testimony are from the evidentiary hearing held on Carnation's equitable damage claim.
The Court finds that the plaintiffs' misconduct does not, by itself, warrant the grant of a new trial. The Court reaches the same conclusion with respect to the other inappropriate conduct by the plaintiffs and their spouses identified by the City. The various outbursts by the plaintiffs and their spouses concerning irrelevant issues, most of which were cut off by the Court, were not so pervasive as to require that the case be retried.
The challenged statements in the plaintiffs' counsel's closing argument similarly do not rise to the level that would warrant a new trial. The reference to the movie A Few Good Men was inappropriate. The movie concerns a marine killed by his fellows upon the orders of a superior. This case involves similar issues, in particular whether Michael McKenna's assault by his fellow officer was instigated by Sergeant Moroney, but does not involve a death. The plaintiffs' counsel's use of the movie, however, was relatively brief, and counsel was cut off by the Court when he attempted to mention it a second time. In addition, the plaintiffs' counsel's discussion of the movie was disjointed and confusing and more likely to lose the jury's attention than to inflame it.
The reference by plaintiff's counsel in closing arguments to the "C word" was confusing, but in the context of this case, the Court cannot find that it caused the defendant prejudice. In this context, both meanings of the phrase, the "C word," are highly offensive. The usual meaning, not applicable here, is to a vulgar sexual term. The meaning as used by plaintiffs' counsel was to testimony that Sergeant Moroney used the word "critter" to refer to African American officers. Given that the issue for the jury was whether the plaintiffs were retaliated against for opposing racial discrimination, the possibility that the use of the "C word" may have confused the jury into thinking Sergeant Moroney used a sexually-offensive term rather than a racially-offensive one did not necessarily prejudice the jury.
Although none of the different categories of misconduct referenced by the City is alone sufficient to require the grant of a new trial, the Court must consider whether all of the instances of misconduct, considered in their entirety, so undermines the jury's verdict as to make a new trial necessary.See Draper v. Airco, Inc., 580 F.2d 91, 97 (3d Cir. 1978). The Court finds this to be a close question. Viewing all the instances of misconduct as a whole, the Court finds that there is certainly a possibility that the prejudice resulting from the misconduct by the plaintiff's counsel, the plaintiffs, and their spouses influenced the verdict. This is particularly so given the brevity of the jury's deliberations and the large amount of the verdict. The grant of a new trial, however, requires more. It requires that the Court find it to be "reasonably probable" that the jury's verdict was influenced by the prejudice caused by the misconduct. Forrest v. Beloit Corp., 424 F.3d 344, 351 (3d Cir. 2005) (holding that although counsel "crossed the line," in referring to excluded demonstrative evidence in closing, his conduct was not "so severe as to warrant a new trial.").
After much consideration, the Court finds that this standard is not met and declines to order a new trial based on the misconduct of the plaintiffs and the plaintiffs' counsel. In reaching this conclusion, the Court has considered the cumulative impact of the misconduct upon the jury and the effectiveness of the Court's efforts throughout the trial to curb and correct it. Although the Court was both disturbed and discouraged by the behavior of both the plaintiffs' counsel and the plaintiffs and their spouses, the Court does not find that the prejudice caused by their conduct was so great as to make it reasonably probable that it affected the verdict.
In reaching this decision, the Court has kept in mind the important and countervailing interests implicated by the motion. The City has a strong interest in having its liability determined by a jury that is unaffected by misconduct or prejudice. The plaintiffs have a strong interest in upholding a verdict received after ten years of litigation and avoiding the expense and delay of a retrial. The standard for granting a retrial on the basis of misconduct balances those interests in the slight favor of the verdict winner by requiring a "reasonable probability," not just a possibility, that a verdict was tainted before a new trial can be ordered. Applying that standard, the Court declines to award a new trial on the basis of misconduct.
b New Trial on the Ground that the Verdict Was Against the Weight of the Evidence
The City also moves for a new trial on the ground that the verdict was against the weight of the evidence. In the alternative, the City seeks a remittitur of the verdict. The Court will deny both the request for a new trial and the remittitur, but denies the remittitur based only on the fact that the verdict has been reduced by the statutory cap for Title VII claims.
The showing necessary to receive a new trial on the basis of the weight of the evidence is very high. A Court is permitted to grant a new trial on this basis only if the verdict is tantamount to a miscarriage of justice. Fineman v. Armstrong World Indus., 980 F.2d 171, 211 (3d Cir. 1992). The Court has already rejected the City's arguments that it was entitled to judgment notwithstanding the verdict on some of the plaintiffs' claims and that it was entitled to a new trial because the verdict was tainted by prejudice from the plaintiffs' misconduct. Having found that there was legally sufficient evidence for the jury to have reached its verdict and that it is not reasonably probable that the verdict was swayed by prejudice, the Court finds that the plaintiffs' verdict does not amount to a miscarriage of justice and does not warrant a new trial.
The Court will similarly deny the City's request for a remittitur. To disturb a jury's damage award, the damages assessed "must be so unreasonable as to offend the conscience of the Court." Motter v. Everest Jennings, Inc., 883 F.2d 1223, 1230 (3d Cir. 1989) (internal quotation omitted). The jury's compensatory damage award in this case was capped under Title VII at $300,000 per plaintiff, with plaintiff Carnation also receiving an award of $208,781 in back pay and $46,560 in pre-judgment interest on the back pay award. Given the plaintiffs' emotional testimony concerning the physical and psychological effects they suffered from the City's retaliation, all of which the Court must find credible in considering a request for a new trial, the Court does not find these damages so unreasonable as to warrant a new trial. See, e.g., Ridley v. Costco Wholesale Corp., 217 Fed. Appx. 130 (3d Cir. 2007) (non-precedential) (upholding an award of $200,000 in damages for pain and suffering in a wrongful discharge case).
The Court's denial of the City's request for a remittitur, however, is based solely on the verdict as capped under Title VII. If, for whatever reason, the statutory cap were found not to apply to the plaintiffs' claims so that the plaintiffs' damage award would be the uncapped amounts awarded by the jury — $2,000,000 for Raymond Carnation, $3,000,000 for William McKenna, and $5,000,000 for Michael McKenna — then the Court would find those amounts sufficiently unreasonable to require a remittitur to the amounts of the statutory cap.
An appropriate Order will be issued separately.
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