MEMORANDUM OPINION
JAMES GALLAS, Magistrate Judge
Sheryl Howell filed this appeal seeking judicial reversal under 42 U.S.C. § 405(g) from the administrative denial of disability insurance benefits. The parties consented to the jurisdiction of the Magistrate Judge for all further proceedings including entry of judgment in accordance with 28 U.S.C. § 636(c) and Rule 73 of the Federal Rules of Civil Procedure.
At issue is the ALJ's decision denying disability insurance benefits dated January 29, 2009, which stands as the final decision of the Commissioner (Tr. 15-24); and see 20 C.F.R. § 404.981. For the reasons that follow, the Court affirms the administrative denial of benefits.
Howell was 49 years of age at the time of the administrative decision, has a high school degree and had worked as an office manager and receptionist. Ms. Howell contends that she is disabled due to lumbar degenerative disc disease and small fiber peripheral neuropathy. The ALJ found that Howell had not engaged in substantial gainful activity since December 1, 1999 through March 31, 2003, the date her insured status expired, but that she could continue performing her past relevant work as a receptionist.
Standard of Review:
Judicial review is limited to "whether the ALJ applied the correct legal standards and whether the findings of the ALJ are supported by substantial evidence." Blakley v. Comm'r of Soc. Sec., 581 F.3d 399, 405 (6th Cir. 2009). Substantial evidence is more than a scintilla of evidence, but less than a preponderance. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). "Substantial evidence is `such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Lindsley v. Comm'r of Soc. Sec., 560 F.3d 601, 604 (6th Cir. 2009) (quoting Richardson v. Perales, 402 U.S. at 401). "The substantial-evidence standard . . . presupposes that there is a zone of choice within which the decisionmakers can go either way, without interference by the courts." Blakley, 581 F.3d at 506 (quoting Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986). Accordingly, the Court must defer to the ALJ's determination "even if there is substantial evidence in the record that would have supported an opposite conclusion." Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 1997); and see Barker v. Shalala, 40 F.3d 789, 794 (6th Cir. 1994) (court may "not inquire whether the record could support a decision the other way").
Sequential Evaluation and Meeting or Equaling the Listing of Impairments:
The Commissioner follows a 5-step review process known as the sequential evaluation. This evaluation begins with the question whether the claimant is engaged in substantial gainful activity and then at the second step whether there is a medically severe impairment. See § 404.1520(a)(4)(i) and (ii) and § 416.920(a)(4)(i) (ii). At the third step of a disability evaluation sequence the issue is whether the claimant has an impairment which meets or equals a listed impairment from the Listing of Impairments of Appendix 1. See 20 C.F.R. § 404.1520(a)(iii) and (d); § 416.920(a)(iii) and (d). If an impairment exists which meets the description from the listing or is its equivalent, the claimant is deemed disabled at that point without consideration of age, education or prior work experience. See Bowen v. Yuckert, 482 U.S. 137, 141, 107 S.Ct. 2287, 2291, 96 L.Ed.2d 119 (1987); Sullivan v. Zebley, 493 U.S. 521, 532, 110 S.Ct. 885, 107 L.Ed.2d 967 (1990) (Once a claimant has met this burden that ". . . his impairment matches or is equivalent to a listed impairment, he is presumed unable to work and is awarded benefits without determination whether he can perform his prior work or other work."). "At the fourth step of the sequential approach described in 20 C.F.R. § 404.1520, it is the claimant's burden to show that [he] is unable to perform her previous type of work." Dykes ex rel. Brymer v. Barnhart, 112 Fed. Appx. 463, 467, 2004 WL 2297874, at *3 (6th Cir. 2004); Studaway v. Sect'y of Health and Human Services, 815 F.2d 1074, 1076 (6th Cir. 1987). Once the administrative decision-maker determines that an individual cannot perform past relevant work, then the burden of going forward shifts to the Commissioner at the fifth step to demonstrate the existence of types of employment compatible with the individual's disability. Allen v. Califano, 613 F.2d 139 (6th Cir. 1980); Cole v. Secretary, 820 F.2d 768, 771 (6th Cir. 1987); Abbott v. Sullivan, 905 F.2d 918, 926 (6th Cir. 1990); Her v. Comm'r of Soc. Sec., 203 F.3d 388, 391-92 (6th Cir. 1999).
Credibility:
Howell relies on her assertion that she suffers upper extremity neuropathy combined with vocational expert testimony from the administrative hearing that an individual limited to only occasional fingering would not be able to perform most office jobs as they are performed today (Tr. 337). Her sole contention is that the ALJ erred in failing to devise a proper residual functional capacity, which resulted in an ultimate disability determination which lacked the support of substantial evidence.
As a simple matter of the presence of evidence supporting the ALJ's decision, the ALJ did have the residual functional capacity assessment of the non-examining state agency physician Dr. Holbrook. His assessment was essentially that Howell could perform light work with no manipulative limitations, or restrictions on the use of her hands or feet. (Tr. 194-97). He noted fibral neuropathy, but found this resulted in restriction against work around hazardous machinery. (Tr. 198). This physician also noted that findings indicated decreased sensation in both upper and lower extremities, but his opinion was that Howell could, nonetheless, perform light work, and had no manipulative limitations. (Tr. 195, 197). His opinion provided the ALJ with half the substantial evidence needed to support his decision.
The other half depended on rejection of Howell's allegation of manipulative limitations due to neuropathy. This is essentially a matter of whether the ALJ applied the correct procedure. The ALJ reviewed the medical record and concluded that Howell was exaggerating. (Tr. 18-20). In doing so, the ALJ acknowledged the correct procedure to evaluate pain allegations as found in Social Security Ruling (SSR) 96-7p. (Tr. 18-22). The question becomes whether the analysis was supported by substantial evidence. The role of the court is not to examine the credibility of claimant's testimony or resolve conflicting evidence but rather to determine whether substantial evidence supports the Commissioner's determination of disability within the meaning of the Social Security Act. See Foster v. Halter, 279 F.3d 348, 353 (6th Cir. 2001).
Credibility determinations track pain analysis. See Felisky v. Bowen, 36 F.3d 1027, 1038-39 (6th Cir. 1997); McCoy v. Chater, 81 F.3d 44, 47 (6th Cir. 1995), cert. denied, 518 U.S. 1022 (1996); Walters v. Comm. of Soc. Sec., 127 F.3d 525, 531-32 (6th Cir. 1997); and see Saddler v. Commissioner of Soc. Sec., 173 F.3d 429, 1999 WL 137621 (Table 6th Cir. March 4, 1999); 20 C.F.R. § 404.1529(c)(3); § 416.929(c)(3). The ALJ's discussion of this issue must contain clearly stated reasons. Felisky v. Bowen, 35 F.3d at 1036 (citing Auer v. Secretary of Health Human Servs., 830 F.2d 594, 595 (6th Cir. 1987)). The Commissioner has elaborated on this point requiring that the administrative decisions, "must contain specific reasons for the finding on credibility, supported by the evidence in the case record, and must be sufficiently specific to make clear to the individual and to any subsequent reviewer the weight the adjudicator gave to the individual's statements and the reasons for that weight." SSR 96-7p, 1996 WL 374186 *1-2; Saddler at *2.
The format set forth in SSR 96-7p outlines the administrative evaluation process beginning with traditional two-prong Duncan pain analysis plus the additional regulatory considerations under 20 C.F.R. § 404.1529(c)(3) and § 416.929(c)(3). See Duncan v. Secretary of Health Human Services, 801 F.2d 847, 853 (6th Cir. 1986); Rogers v. Commissioner of Soc. Sec., 486 F.3d 234, 247 (6th Cir. 2007). Under the two-prong pain analysis, there first must be a determination whether there exists an underlying medically determinable physical or mental impairment followed by the question whether the impairment would be reasonably expected to produce the individual's pain or other symptoms. SSR 96-7p, 1996 WL 374186 at *2.
The ALJ found that small fiber peripheral neuropathy "could reasonably be expected to have caused some of the symptoms she complained of such as pain and numbness in the back and upper and lower extremities." (Tr. 19-20). The ALJ pointed to the neurological reports of normal findings, which indicated a lack of objective evidence. (Tr. 21). However, the ALJ did not stop there, but proceeded into the multi-step analysis required under SSR 96-7p and the regulations for discussions on pain. (Tr. 19, 22). Howell criticizes the ALJ's analysis, but does not establish that these findings were not supported by the record. The ALJ applied the correct legal standards and his findings were supported by substantial evidence.
CONCLUSION
The issues before this court must be resolved under the standard of whether the determination is supported by substantial evidence of record. "Under 42 U.S.C. § 405(g), the ALJ's findings are conclusive as long as they are supported by substantial evidence." Duncan v. Sec'y of Health Human Servs., 801 F.2d 847, 851 (6th Cir. 1986) (stating that this court's review "is limited to determining whether there is substantial evidence in the record to support the findings")." Foster v. Halter, 279 F.3d 348, 353 (6th Cir. 2001). Based on the arguments presented, the record in this matter and the applicable law, the undersigned finds that the Commissioner's determination denying disability insurance benefits followed the correct procedure and was supported by substantial evidence. Accordingly, the decision must be affirmed. This is not to say that the Commissioner's decision is the more correct view of the record. But as stated earlier, substantial evidence is a low threshold, and the denial of benefits was supported by substantial evidence. "Only when the law permits it may we use our writ to assuage the hurts that come unbidden to our fellow human beings." Lane v. Gardner, 374 F.2d 612, 618 (6th Cir. 1967).
laintiff was `hiding the truth' from them [the jury]" during this questioning. Franks clearly was less focused on testifying about admissible evidence than she was intent on portraying Plaintiff in a negative light before the jury. In doing so, Franks' testimony contributed significantly to the pervasive misconduct on the part of the case presented by the FAR Defendants, which resulted in unfair prejudice to Plaintiff.
14. "FAR Counsel's Repeated Improper Questioning and Sanction"
Plaintiff asserts that when FAR began its case-in-chief, its counsel posed questions that were "unbelievably objectionable — particularly because the same kinds of improper questions were posed repeatedly." Plaintiff references approximately seven instances when this type of questioning transpired, then claims that such practice "ultimately led this Court to sanction FAR's counsel" and cites the following trial transcript:
[BY MR. SCHWARTZ]: What did Royal Caribbean do when you reported the activities at Park West?
MR. YOUNG: Objection, your Honor. Hearsay and it's become so common I respectfully request the Court for a sanction against Mr. Schwartz.
THE COURT: Sustained.
Contrary to Plaintiff's interpretation of the foregoing ruling by the Court, the Court did not sanction Schwartz on the basis of that question or any questioning of that witness (the Court did sanction Schwartz and his law firm for two questions he asked later that day, as discussed in Section V.C. below). The question does, however, epitomize the overall questioning technique of Schwartz in this case, a technique which far too often injected non-admissible information into the record. Moreover, even when asked appropriately, many of his questions called for hearsay answers and, as such, were appropriately objected to under the Federal Rules of Evidence. For example, Schwartz asked the following questions on April 15, 2010, the same day as, and immediately preceding, the question about Royal Carribean set forth earlier in this section:
A. On re-direct examination of Richard English during FAR's case-in-chief, Schwartz asked: "Okay. Now were you aware that the signatures on your prints are the exact crude forgeries that are on the Sharon Day set?" After Plaintiff counsel's objection, Schwartz indicated that he would strike the question and was done with the witness. The Court then stated: "The jury should disregard that question. Please let's not have any questions like that anymore, counsel."
B. On direct examination of Samantha Algar, a short-term customer service representative for Royal Carribean, during FAR's case-in-chief, Schwartz tried three different times to ask the witness about art work that was sold to "the Hendersons." Each time, Plaintiff objected to the question based on hearsay, and the Court sustained the objection. After the first attempt, which simply called for a hearsay answer, Schwartz asked: "Did the Hendersons have a problem with the art work that they were sold by Park West?" and "They didn't call you because they liked the art work and nothing was wrong." Shortly thereafter, Schwartz then
asked the question about Royal Carribean set forth above.
Once again, the Court finds that this method of questioning did, in fact, improperly and regularly put inadmissible information before the jury. The Court also finds that such information tended to influence the jury in a way that was highly and unfairly prejudicial to Plaintiff.
15. Failure by FAR's Counsel to Control Logan Franks
Plaintiff cites the intentional physical contact made by Logan Franks, the husband of Theresa Franks and an owner of FAR, with Young as the fifteenth example of the pervasive misconduct of defense counsel and Defendants. Following the incident, the Court reviewed video of the incident, concluded that Logan Franks made intentional physical contact with Young and barred Logan Franks from the courtroom for the duration of the trial. Although neither of these events transpired in front of the jury, the jury immediately noticed that Logan Franks was absent from the courtroom, as evidenced by one of the first questions the jurors asked the undersigned after the trial: "Where was/what happened to Logan Franks?" As Logan Franks was in the courtroom for every minute of trial prior to the incident, and had sat at counsel table as an owner and party representative for FAR, his absence was significant. In fact, notwithstanding the inexplicable and wholly unacceptable nature of Logan Franks' actions in a U.S. District Court courtroom, the juror sentiment, at least prior to rendering the verdict and talking to the undersigned, appeared to favor Logan Franks and FAR because of his absence.
16. April 9, 2010 — Reference to Other Legal Disputes by a FAR Witness
During Schwartz's direct examination of Martha Szostak ("Szostak"), Szostak stated that she learned about FAR from a website that "talked about class action suits and complaints." As Plaintiff asserts, the Court finds that this statement: (1) exposed the jury to FAR's involvement with a class action suit against Plaintiff, and (2) forced Plaintiff to again object to a violation of an in limine order by the FAR Defendants, in this case by a witness they called. As such, once again Plaintiff appeared to be hiding information and evidence from the jury, even though its objections were appropriate and it was the FAR Defendants who were in violation of orders of the Court.
Accordingly, once the jury had been dismissed for the day, the Court addressed this significant violation as follows (emphasis added):
THE COURT: We have a couple more defense issues that we need to take up. It seems that that is what I'm doing most of my time. First of all, this last witness, Mrs. Szostak, mentioned class action lawsuits in violation of a Court Order. I want to know what we are going to do about this?
MR. SCHWARTZ: Your Honor, if I could add, Mrs. Szostak was specifically instructed not to say that. * * * I would hate to see my clients penalized for something they had no control over.
THE COURT: Somebody had some control over this. I thought we had an order in place and I was advised by Mr. Payton that he had advised people ad nauseam, I think that's the word he used, that this was a subject matter was not to be touched on because it was a subject matter of a prior court record. Now we get here, again and it happens again.
MR. SCHWARTZ: Your Honor, Mrs. Szostak was explicitly told not to do that. I think it was totally unintentional. My sincere apologies. And I didn't elicit that kind of testimony.
THE COURT: What do we do about it?
MR. SCHWARTZ: Your Honor, if I could suggest an instruction to the jury possibly to disregard the testimony. I
don't know that they picked up on it. I tried to move on.
THE COURT: There was an objection to it.
MR. YOUNG: Your Honor, I was going to bring that up to the Court. A lay witness gets on the witness stand who has never been on the witness stand before and blurts pas[t] a question and used a technical word like class action. It is obvious to us that these witnesses are being locked and loaded to spit this out and to talk past questioned. And I share the Court's concern. There is no excuse for this. And I don't know who is instructing these witnesses and who is locking them and loading them but somebody is doing it.
* * *
THE COURT: What are we going to do about it? Now its out in the courtroom.
* * *
MR. PAYTON: . . . She has never been on the witness stand before. * * * I don't think she connected up with the fact that we told her —
THE COURT: It doesn't matter if she connected it up or not, if she read it or made it up, whatever it is. And
I have instructed you that if you put a witness on, you are taking this risk. And if the witness talked about things that are prohibited it's going to be a consequence on the defendant. There is a risk when you put somebody on and it this happens and it has happened then there is a problem.
MR. PAYTON: I understand that, your Honor.
THE COURT: I know you understand that. * * * My question is what do we do about it?
* * *
THE COURT: Let's think about it over the weekend. I want counsel for the plaintiff to tell me what they want to do. I want counsel for the defense to tell me what they want to do and
Mr. Young, I want your team to keep track of how many of these instances we have. . . .
The next trial day, prior the jury being brought into the courtroom, Plaintiff's counsel reported that there had been nine violations of the Court's rulings on motions in limine (as of that time). The Court then cautioned counsel for th FAR Defendants: "If it happens again . . . maybe ten strikes is enough."
17. April 14, 2010 — Franks' Violation of Orders/Repeated Comments that Materials Were Withheld from Jury
When cross-examined by Plaintiff's counsel upon being called as a witness during FAR's case-in-chief, Franks continued to testify that "she was forbidden from telling the jury everything that she had discovered about [Plaintiff,]" as follows (emphasis added):
[BY MR. YOUNG]: Do you have any more evidence today than you did the last time you were on the witness stand . . .
A. As a matter of fact, I do.
Q. What is it, madame?
A. All right. Since I can't show any of the evidence we did in the past on our investigation of Rembrandt plates, Mr. Shapiro who brought in a Rembrandt plate to show the jury. . . .
* * *
[BY MR. YOUNG:] We are here today, ma'am, to determine whether you have any evidence that anybody produce[d] more than 2500 [Rembrandt plates], and I submit the answer is no. Would you agree with that?
A: No. I don't agree at all. Not at all. If I were to show you the evidence and jury were presented with the evidence I have, I think they would come to the same conclusion, Mr. Young. They have not even seen a scintilla of the evidence that we have.
* * *
[BY MR. YOUNG]: Ma'am, I am assuming that after everything you heard in this courtroom, you still maintain that everything you, Mr. Phillips, farandaway and Fine Art Registry said about Park West is true. Do I have that right?
A: It's without a doubt, and so much more truth that this jury has not heard. So much more.
Franks' testimony on this day exemplified the nature of the FAR Defendants' approach to trying this case. They tried to put as much information before the jury as possible (whether it was admissible or not as offered) and, at the same time, they sought to indicate to the jury that Plaintiff was trying to hide information from the jury. While doing so, they had absolutely no concern about complying with many of: (1) the rules and orders that govern the proceedings of the Court, generally, or (2) the Court's rulings that were specific to this case.
C. Other Misconduct
Plaintiff also identifies misconduct it believes: (1) occurred during Defendants' opening statements, (2) was reflected in the Court's imposition of sanctions against counsel for the FAR Defendants, and (3) transpired in relation to post-verdict jury activities. Together with the misconduct identified in Section V.B., Plaintiff contends that these instances of misconduct contributed to the proceedings being so influenced by prejudice or bias as to require a new trial.
1. Opening Statements
Plaintiff first focuses on the fact that Payton mentioned 15 newspapers and television stations that had written articles or aired shows about Plaintiff's art cruises. When Plaintiff objected, Payton stated that he was referencing such media outlets to establish "notice that [others besides Defendants] have written stories about [Plaintiff.]" On that basis, the Court allowed Payton to continue. Plaintiff insists that reading this laundry list poisoned the jury against Plaintiff, especially as the jury was looking for more information about the media reports and the "Park West abuses" referenced by FAR counsel. Despite Payton being unable to admit any such media reports, Plaintiff maintains that it was Plaintiff who suffered the stigma in the jury's eyes each time Plaintiff had to object to FAR's reference to such media reports. Although the Court agrees that Plaintiff suffered the stigma in the jury's eyes each time Plaintiff had to object to such reports during testimony (as discussed herein) and that the reading of the media reports was improper in light of the manner in which the FAR Defendants subsequently attempted to introduce them, the Court is not persuaded that Plaintiff was unfairly prejudiced by Payton's reference to the media reports during his opening statements.
Plaintiff also challenges Simpson's reference to the "Dali affidavit" and Simpson's promise that the Dali affidavit would be introduced into evidence. The Dali affidavit was a document that Simpson (and subsequently FAR counsel) represented was an English translation of a notarized Spanish affidavit, allegedly signed by Salvador Dali, wherein Dali disavowed the Albarettos, one of three primary sources of Plaintiff's Dali artwork. Plaintiff suggests that Simpson's promise to admit the Dali affidavit also poisoned the jurors against Plaintiff, such that Plaintiff looked like it was trying to "hide" evidence every time Plaintiff objected to the Dali affidavit. The Court addresses this matter in more detail in Section V.E. below. 2. Sanction of Counsel for the FAR Defendants
On April 16, 2010, the Court sanctioned Schwartz and the law firm that employed him ( i.e., counsel for the FAR Defendants). The Court's sanctions were predicated on questioning of Sharon Day ("Day") conducted by Schwartz on April 15, 2010, the previous day of trial:
[QUESTION BY SCHWARTZ]: Are you aware that if Park West wins this trial, Fine Art Registry is done?
THE COURT: Wait a minute. Wait a minute.
[MS. JAYE QUADROZZI, co-counsel for Plaintiff]: Objection.
THE COURT: That is totally, totally inadmissible and it's inexcusable.
MR. SCHWARTZ: I apologize.
THE COURT: The jury is to disregard that question totally.
* * *
MR. SCHWARTZ: Ms. Day, what would you think if Fine Art Registry went out of business?
MS. QUADROZZI: Objection, your Honor.
THE COURT: You are violating my orders, counsel. You are violating my orders.
Before the jury was brought into the courtroom on April 16, 2010, the Court explained the basis for the sanctions, as follows:
THE COURT: This is, of course, not the first time I have had difficulties with defense counsel and it's a very, very unfortunate situation. I was telling a colleague the other day, when I started this case I thought it was going to be a very pleasant experience. * * * And it turned out to be this total disaster that we are dealing with today. And its basically on the part of the defense. As I pointed out. They are refusing to honor the decisions that I have made. They are refusing to abide by the rules that I have made
regarding the motions in limine. I still have Mr. Young's ten or twelve page violations, I'm still considering what to do with that. And in no way what I'm going to do now has anything to do that. I'm reserving the right to take additional action on that.
But it seems to me that this action is intentional. I just can't believe it is unintentional. To ask this kind of a question and get it before the jury is just totally unacceptable. I've give[n] the jury a curative instruction but I don't know how they can ignore this. I mean, it's just totally, totally inappropriate.
I am going to give the defense one more benefit of the doubt. I am imposing a fine on Mr. Schwartz and his law firm in the amount of $5,000. That is to be paid by Monday. . . . I don't know what else can go wrong. Now we have had a plaintiff's attorney assaulted. I have had to remove somebody from the courtroom. So, it's at your peril, Mr. Payton, as to what you want to do with Mr. Schwartz. Anymore — any further violations, all I can say is that the consequences will be extremely severe.
3. Jury Activities
After the verdict was read, the Court stated to all persons still in the courtroom ( i.e., everyone present for the reading of the verdict, except the jurors) that "interviewing of . . . jurors in this courthouse" is not permitted and that "I don't want anybody pestering or talking to these jurors." Plaintiff asserts that, based on a post-trial video produced by Franks and broadcast on the FAR website, two jurors "waited for Ms. Franks to leave the courtroom, at which time she spoke at length with these jurors and permitted them to `autograph' one of her trial exhibit boards." Plaintiff thus believes, after having watched the videos, that Defendants were successful in their "attempt to `sway' the jurors with [Franks'] `story' and her attempt to `get the truth out there'."
Although the conversation between those jurors, Franks and counsel for the FAR Defendants technically violates the directive of the Court not to talk to the jurors, the Court shall not rely on any post-verdict misconduct in deciding Plaintiff's motion for a new trial. First, and most significantly, the jury was not privy to any post-verdict activity when deciding this case and rendering its verdict. Second, the jurors: (a) initiated the conversation, (b) clearly desired to talk to Franks, and (c) likely would have contacted FAR, Franks and/or counsel for the FAR Defendants anyway.
D. New Trial Warranted on Claims Against the FAR Defendants and Counter-claims by FAR and Phillips
Contrary to the FAR Defendants' response, the trial in this case did not involve "a few insignificant violations of this [C]ourt's limine orders by defense counsel and/or a couple of their witnesses[.]" The foregoing statement by the FAR Defendants ignores the many admonitions of Franks and/or counsel for the FAR Defendants by the Court throughout the trial. Moreover, many of the Court's admonitions were not made only one time. Rather, as is evident from many of the admonitions, the Court repeatedly admonished Franks and/or counsel for the FAR Defendants because they had disregarded prior warnings and/or orders of the Court. The many admonitions by the Court included the following:
1. On March 16, 2010 (the second day of trial), after Payton asked whether a person at a Park West event was from the FBI, the Court said to Payton, "I am not going to touch on this subject again except to say that if it's brought up in this forum or any other forum[,] there are going to be some serious consequences."
2. On March 17, 2010 (the third day of trial), after Payton asked about an investigation by German police, the Court stated:
Mr. Payton, we are having some difficulty with, as I understand it, your understanding of my orders.
I gave you a warning yesterday with respect to referring to any criminal matters. You again today mentioned that. This is the second time it's happened. I believe it's intentional. And you are violating a direct order of the court. And I am warning you for the second and last time that if it happens again there are going to be some serious problems. I'm telling Mr. Schwartz, you should be prepared to take over the defense of this case if this happens again.
3. On March 22, 2010 (the sixth day of trial), the Court "counseled" Payton for a second time regarding extraneous remarks Payton uttered following responses by witnesses:
Mr. Payton, I counseled you before about the manner in which you have been handling this case and I am afraid I have to counsel you again. You continue to make improper, inflammatory remarks during the course of this trial. I asked both counsel to read the civility principles. You keep commenting on what a witness has testified to. And these remarks are improper and I am going to ask you again to stop them. You made a remark to brother counsel when he made an objection in front of the jury. You said you asked him if he is testifying now. After a witness has made a response you made the remarks that you would be surprised to the witness. You made a remark to the witness that you don't understand. You talked about a crack team of research. All of these, in my opinion, sir, are improper. I am going to ask you to make a specific effort not to do this again.
4. On March 29, 2010 (the eleventh day of trial), at the close of testimony for the day, the Court stated:
THE COURT: . . . You may be seated, ma'am. What is the Florida litigation?
* * *
MR. YOUNG: Something that should be excluded, your Honor, that she [Franks'] intentionally brought up for the purpose of trying to bring it to the jury's attention.
THE COURT:
This is three times that that has been brought up. And what is the investigation that your client [Franks'] is talking about?
MR. PAYTON: That's the problem. I mean, there is a criminal investigation.
THE COURT:
That is the problem. I specifically ruled on this. You are again, your side is purposely putting this in evidence before this jury. And I'm going to tell you one more time. That if there are any further violations of my orders, I'm going to strike your pleadings. And then the Plaintiff can have a default judgment. I am not going to sit here and watch my orders be violated. And they are being violated. So you better have a conversation with your client over the evening hours. I am not going to put up with this.
5. On March 30, 2010, before the jury was brought in fortwelfth day of trial, the Court stated:
Before we begin with the jury I want to reiterate what I said yesterday about what this court perceives to be a violation of its court orders especially the orders in limine.
* * *
In addition to that the attorneys for the defense are ignoring my evidentiary rulings and acting in my opinion with disrespect toward the Court. When I make an evidentiary ruling they seem to ask the same question over and totally ignore it.
6. On April 9, 2010 (the twentieth day of trial), after Szostak testified about class action suits and complaints against Plaintiff, the Court stated:
THE COURT:
We have a couple more defense issues that we need to take up. It seems that that is what I'm doing most of my time. First of all, this last witness, Mrs. Szostak, mentioned class action lawsuits in violation of a Court Order. I want to know what we are going to do about this?
* * *
MR. PAYTON: . . . She has never been on the witness stand before. * * * I don't think she connected up with the fact that we told her —
THE COURT: It doesn't matter if she connected it up or not, if she read it or made it up, whatever it is. And I have instructed you that if you put a witness on, you are taking this risk. And if the witness talked about things that are prohibited it's going to be a consequence on the defendant. There is a risk when you put somebody on and it this happens and it has happened then there is a problem.
7. On April 12, 2010 (the next trial morning, the twenty-first day of trial), the Court told FAR's counsel, "If it [a violation of one of the Court's motions in limine] happens again . . . maybe ten strikes is enough."
8. On April 15, 2010 (the twenty-fourth day of trial), the Court made the following pointed rulings and comments regarding the wholly inappropriate questioning conducted by Schwartz as to the viability of FAR in the event Plaintiff prevailed at trial:
[QUESTION BY SCHWARTZ]: Are you aware that if Park West wins this trial, Fine Art Registry is done?
THE COURT: Wait a minute. Wait a minute.
* * *
THE COURT: That is totally, totally inadmissible and it's inexcusable.
* * *
THE COURT: The jury is to disregard that question totally.
* * *
MR. SCHWARTZ: Ms. Day, what would you think if Fine Art Registry went out of business?
* * *
THE COURT: You are violating my orders, counsel. You are violating my orders.
9. On April 16, 2010 (before the jury was brought in for thetwenty-fifth day of trial), the Court stated:
This is, of course, not the first time I have will difficulties with defense counsel and it's a very, very unfortunate situation. I was telling a colleague the other day, when I started this case I thought it was going to be a very pleasant experience. * * * And it turned out to be this total disaster that we are dealing with today.
And its basically on the part of the defense. As I pointed out. They are refusing to honor the decisions that I have made. They are refusing to abide by the rules that I have made regarding the motions in limine. I still have Mr. Young's ten or twelve page violations, I'm still considering what to do with that. And in no way what I'm going to do now has anything to do that. I'm reserving the right to take additional action on that.
But it seems to me that this action is intentional. I just can't believe it is unintentional. To ask this kind of a question and get it before the jury is just totally unacceptable. I've give[n] the jury a curative instruction but I don't know how they can ignore this. I mean, it's just totally, totally inappropriate.
I am going to give the defense one more benefit of the doubt. * * * So, it's at your peril, Mr. Payton, as to what you want to do with Mr. Schwartz.
Anymore — any further violations, all I can say is that the consequences will be extremely severe.
To summarize, during the course of the trial, the Court threatened to: (a) impose "serious consequences"; (b) remove lead counsel for the FAR Defendants from the case; (c) strike pleadings and enter default judgment for Plaintiff; (d) implicitly, enter judgment for Plaintiff upon another violation of a motion in limine order because "ten strikes is enough"; and (e) impose "consequences [that] will be extremely severe." Furthermore, on March 30, 2010, which was the twelfth day of trial ( i.e., approximately halfway through the evidence presented in this case), the Court stated:
Incredibly, as exemplified by: (a) parts 5-8 of this Section V.D., (b) parts 13-17 of Section V.B., and (c) part 2 of Section V.C., Franks and counsel for the FAR Defendants not only continued to engage in such deliberate, intentional and highly and unfairly prejudicial conduct, the severity of their transgressions actually increased following the Court's March 30, 2010, comments and admonitions.
This is all going to stop. And as I indicated, I believe that these violations [of my orders in limine] are intentional and I have no reason, I don't know why they are.
I never had a case like this where this is going on but this is my belief. I have been on the bench thirty-two years and I have never seen anything like this.
As the foregoing admonitions reveal, the Court: (1) found the transgressions of Franks, FAR counsel and one of FAR's witnesses to be egregious and, in most cases, deliberate and intentional,and (2) communicated to all counsel and parties exactly how significant, inappropriate and inexcusable the Court considered the misconduct of Franks and counsel for the FAR Defendants to be.
Accordingly, the FAR Defendants' response that there were but "a few insignificant violations of this [C]ourt's limine orders by defense counsel and/or a couple of their witnesses" is: (1) disingenuous, (2) misplaced, and (3) not supported by the record. Their response is also wholly consistent with, and ironically reflective of, the approach Franks and counsel for the FAR Defendants employed in trying this case, i.e., without respect for or conformance with the rulings and orders of the Court.
Notwithstanding all of the unfairly prejudicial misconduct of Franks and counsel for the FAR Defendants during the course of the trial, the Court did not remove FAR's lead counsel, strike the pleadings of or enter default judgment against any Defendant or impose any consequences against Franks, FAR, Phillips, Payton or Schwartz (other than the imposition of monetary sanctions against counsel for the FAR Defendants). In other words, the Court did not take any action that it threatened or which could have inhibited the FAR Defendants' ability to defend the claims against them and/or prosecute their counter-claims. On April 16, 2010 (the last full day of testimony), however, the Court expressly stated that it was "reserving the right to take additional action on" the multitude of orders in limine violations committed by Defendants, defense counsel and their witnesses.
After reviewing: (1) the case file (including the pre-trial Opinions and Orders issued by the Court, including the orders pertaining to the 27 motions in limine filed in this case, and in excess of 250 pages of handwritten notes taken down by the undersigned during trial), (2) the post-trial motions and briefs filed by the parties, (3) the transcripts of trial testimony, and (4) many cases where a court ruled on the propriety of granting a new trial on the basis of misconduct by counsel and/or party(ies), the Court concludes that additional action is necessary to ensure the fair administration of justice in this case. As set forth above, the misconduct of Franks and counsel for the FAR Defendants was egregious, frequent and ongoing. Their misconduct permeated the entire trial. The misconduct commenced with Payton's cross-examination of the first witness and it continued up to Schwartz's questioning of Day on the twenty-fourth day of trial, and, unfortunately, occurred with regularity during trial, including on both occasions that Franks testified.
In considering whether to take additional action and, ultimately, to grant Plaintiff a new trial, the Court has reviewed and considered all of the factors set forth in Peter Kiewit, supra, at Section V.A. Specifically, the Court finds:
a. Nature of the comments. As discussed above, the comments and actions of Franks and counsel for the FAR Defendants were deliberate, intentional and calculated to improperly get inadmissible information before the jury for the purpose of unfairly prejudicing the jury against Plaintiff.
b. Frequency of the comments. The comments and actions occurred frequently, repeatedly, consistently and throughout the course of the trial, such that the effect of their misconduct was that there was never an opportunity for the jury to escape, forget or overlook the misconduct. In other words, as noted above, the misconduct permeated the trial and, although many severe examples are set forth in this Opinion, there were many, many more violations of the orders in limine and the rules of evidence during the trial.
c. Possible relevancy to the real issues before the jury. In this case, the misconduct of Franks and counsel for the FAR Defendants was calculated to be, and was, directly relevant to the real issues before the jury, namely the credibility and reputation of Plaintiff, whom the FAR Defendants (and Hochman) had accused of engaging in fraudulent activity.
d. Manner in which the parties and the Court treated the comments. As discussed above, Franks and counsel for the FAR Defendants cavalierly made the comments and engaged in the actions which constituted the offensive misconduct. In their post-trial brief, they have exhibited the same attitude and approach, wherein they still suggest that there were but "a few insignificant violations of this [C]ourt's limine orders by defense counsel and/or a couple of their witnesses . . ." despite:
(i) hearing the Court's repeated admonitions of how inappropriately the FAR Defendants and their counsel were trying the case, including the repeated violations of orders of the Court;
(ii) hearing the Court state: "I have been on the bench thirty-two years and I have never seen anything like this"; and
(iii) having an opportunity to see (virtually) all of their transgressions,
(virtually) all of the Court's comments about their misconduct, and (virtually) all of the admonitions that the Court made regarding their misconduct.
Unlike the FAR Defendants, Plaintiff treated the misconduct seriously and with a recognition of the gravity of the unfair prejudice such misconduct was having as the trial unfolded. With admonitions and warnings to Franks and counsel for the FAR Defendants, the Court repeatedly tried to redirect Franks and counsel for the FAR Defendants to present a proper case to the jury, i.e., one that was not riddled with misconduct that was unfairly prejudicial to Plaintiff.
e. Strength of the case. The Court believes that this is a case that, if fairly presented, is one that would cause the finders of fact to grapple with and debate. The fact that the jury deliberated for approximately two full days in spite of the unfairly prejudicial misconduct of Franks and counsel for the FAR Defendants reflects the closeness of this case.
f. The verdict itself. The Court finds that the verdict rendered by the jury must be discounted because of the misconduct of Franks and counsel for the FAR Defendants. The Court believes their misconduct and their injection of inadmissible evidence into the record so obfuscated the admissible evidence introduced at trial that it is likely that the jury's decision was based, at least in part, on such improper, inflammatory and unfairly prejudicial information rather than solely on the admissible evidence.
Accordingly, for the reasons set forth above and based on the totality of the circumstances involved in this case, the Court concludes that there was at least a "reasonable probability that the verdict of [the] jury [was] influenced by" misconduct of Franks and counsel for the FAR Defendants. Twachtman, 106 F.2d at 509. Their misconduct, as detailed above, taken in the aggregate, demonstrates repeated violations of orders of the Court, the rules of evidence and the rules of trial practice. In short, the misconduct reflected a lack of respect for both this Court and for the trial proceedings that are designed to ensure a fair trial to all parties. More significantly, for purposes of determining whether a new trial should be granted, the Court finds that Franks and counsel for the FAR Defendants engaged in a "deliberate course of conduct aimed at preventing a fair and impartial jury[,]" and that such misconduct: (1) deflected the jury's attention from the issues involved, (2) caused unfair prejudice to Plaintiff, and (3) had a controlling influence on the jury. Wilson, 183 Mich. App. at 26 (citation omitted). In addition, the Court finds that Plaintiff has made "a concrete showing that the misconduct of counsel [and Franks and Szostak] consistently permeated the entire trial from beginning to end[.]" Sutkiewicz, 110 F.3d at 361 (citation omitted). The Court thus concludes that there was a reasonable probability that a fair and impartial jury no longer existed by the time it commenced deliberations and, accordingly, that a fair verdict was not rendered in this case. The Court therefore grants Plaintiff's motion for a new trial with respect to Plaintiff's nine claims against the FAR Defendants and the Lanham Act counterclaim asserted by FAR against Plaintiff.
E. New Trial Not Warranted on Claims Against Hochman
The Court is not persuaded that the totality of the circumstances involved in this case support the granting of a new trial with respect to Plaintiff's claims against Hochman. First, the only instance of Hochman's alleged misconduct cited by Plaintiff (and the Court's notes reflect no other possible misconduct) involved Hochman's testimony when questioned by Schwartz after Plaintiff called Hochman as an adverse witness. Plaintiff argues that Hochman testified in violation of the Court's order precluding reference to criminal investigations when Hochman stated: "There's a lot of civil actions against them [Plaintiff]. There's investigations. I am told there is a federal investigation underway. I hope it goes through." The record reflects, however, that at the time Hochman made those statements, he and Schwartz were, at Schwartz's direction, reading into the record questions asked by Phillips (being read by Schwartz) and the answers Hochman gave during a 2007 interview of Hochman conducted by Phillips. That interview was then published in written form on the FAR website on November 6, 2007. The statements of Hochman set forth above, as read into the record, constituted his verbatim recitation of a portion of that article. Prior to Hochman's testimony, however, that article had been offered by Plaintiff, without redaction, as Exhibit 507 and the Court had already received into evidence, without redaction, Exhibit 507. The Court also notes that Plaintiff did not object to the reading of those statements prior to Hochman uttering them, nor did Plaintiff object once Hochman had read the answers into the record. Thus, the Court finds that this testimony by Hochman did not constitute misconduct.
Second, the misconduct of Hochman's counsel (Simpson) did not rise to a level that would permit the Court to, solely on the basis of the actions of Simpson, find that there was "a reasonable probability that the verdict of [the] jury [was] influenced by [Simpson's] conduct." Twachtman, 106 F.2d at 509. The central focus of Plaintiff's argument that Hochman engaged in misconduct is that Hochman read from documents that had not been admitted, a practice the Court ruled was improper:
[THE COURT]: You may ask him if he's heard that statement. But to read it from a document that has not been admitted is improper.
Plaintiff asserts that Simpson continued to do this on numerous occasions, though Plaintiff cites only three such occasions (including the initial occasion when the Court issued the ruling quoted above). Plaintiff believes these occasions, together with the many instances where counsel for FAR did the same thing, had an immeasurable negative impact on Plaintiff ("the damage done when the contents of documents are read to the jury whether the document is admitted or not, cannot be measured. Numerous `bells' were already rung before any objection could conceivably be lodged."). As reflected by the quote above, the Court agrees that Simpson attempted to put certain evidence before the jury in an improper manner.
Plaintiff also alleges that the following actions attributable to Simpson constituted misconduct: (a) in his opening statement, Simpson said that the Dali affidavit would be admitted as an exhibit, and (b) Simpson made an inappropriate objection during the testimony of Bernard Ewell ("Ewell") on direct examination. The Court, however, finds that neither of these actions constituted misconduct that resulted in prejudice to Plaintiff.
First, when Simpson represented in his opening statement that he would be introducing something as evidence (the Dali affidavit) and failed to do so, Hochman was the party harmed by Simpson's failure to get that evidence introduced. Moreover, based on the pre-trial motions and filings, the Court also finds that Simpson probably had little reason to doubt the admissibility of the Dali affidavit when the trial commenced, even though the exhibit ultimately was not admitted. For example, there was no motion in limine to exclude reference to it, even though Plaintiff had filed almost 20 motions in limine. Likewise, Plaintiff did not object when Simpson discussed the Dali affidavit during his opening statement, even when Simpson read the English translation of the Dali affidavit to the jury. In an ordinary case, the Court might be inclined to find that Plaintiff's failure to object was based on the long-held tradition of not interrupting opposing counsel's opening statements and closing arguments. In this case, however, Plaintiff had not hesitated to object during Payton's opening statement, which was given before Simpson's.
With respect to the objection made by Simpson during Ewell's testimony, the Court finds that: (1) at least in front of the jury, Simpson did nothing improper except make an erroneous objection, (2) nothing inappropriate was communicated to the jury in conjunction with his objection, and (3) Plaintiff was not prejudiced as a result of the objection. Therefore, based on the limited instances of misconduct by Simpson, the Court concludes that his misconduct did not have the effect of unfairly prejudicing or influencing the jury.
Plaintiff next argues that, even if the misconduct of Simpson was not prejudicial in itself, Hochman "profited from the prejudice" injected into the case by the misconduct of Franks and counsel for the FAR Defendants, such that Plaintiff should also be entitled to a new trial on its claims against Hochman. In support of its argument, Plaintiff relies on LaMade v. Wilson, 512 F.2d 1348 (D.C. Cir. 1975). In LaMade, the plaintiff brought claims against both his treating physician and the treating hospital. At trial, the physician's counsel conducted improper cross-examination of plaintiff and his physician (suggesting that plaintiff had already been compensated by a worker's compensation award). Counsel for the hospital did not engage in such questioning. The D.C. Circuit nonetheless ordered a new trial of plaintiff's claims against both the physician and the hospital, observing that "[c]ounsel for appellee Providence Hospital did not initiate the error, but it could have profited from the prejudice, so its [no cause] judgment must also be reversed." Id. at 1350 n. 2.
The Court is not, of course, bound by the LaMade decision. In this case, the Court believes it is possible that Hochman could have profited from the prejudice to Plaintiff caused by the misconduct of Franks and counsel for the FAR Defendants. Based on the totality of the circumstances in this case, however, and for the following reasons, the Court declines to vacate the judgment in favor of Hochman and order a new trial on Plaintiff's claims against him.
First, contrary to Plaintiff's assertions, Hochman did not defend this case "in tandem" with the FAR Defendants. Plaintiff's decision to sue Hochman along with the FAR Defendants does not create a joint defense by the defendants. Likewise, any decision by the Court to give the Defendants an aggregate period of time for closing arguments (or by the magistrate judge to give all Defendants a fixed number of peremptory challenges) does not mean that the Defendants were trying the case in tandem. Hochman hired separate counsel, and he filed separate and distinct pre-trial motions and responses. Throughout the course of trial, Hochman consistently distanced himself from the overall activities of FAR, Franks and Phillips. For example, in the relatively limited questioning conducted on Hochman's behalf, Simpson consistently asked witnesses whether they knew who Hochman was and/or what he had written. Most of those witnesses, including both of Plaintiff's customers who testified on Plaintiff's behalf, did not who Hochman was or what he had said in the one FAR article that related to him, notwithstanding their familiarity with FAR. In most instances, Simpson asked little else of the witnesses he questioned.
Second, although the type of claims against Hochman are the same as those Plaintiff brought against the FAR Defendants ( i.e., defamation, tortious interference, conspiracy), the scope of activity in which Hochman was alleged to have participated was far more limited. Unlike the extensive and ongoing internet "smear campaign" Plaintiff asserted the FAR Defendants have engaged in, the claims against Hochman stem from one interview that Hochman gave to FAR (Phillips), which FAR then published in written form on the FAR website. Accordingly, at trial, the overwhelming focus of Plaintiff's case-in-chief pertained to the activities of the FAR Defendants, not those of Hochman. Similarly, in its post-trial brief, Plaintiff attributed almost every instance of the egregious, deliberate, intentional, inflammatory and unfairly prejudicial misconduct that permeated the trial on Franks and counsel for the FAR Defendants, with only the occasional reference to Hochman and/or Simpson. In other words, although Plaintiff clearly asserted in its complaint (and amended complaint) that the interview with Hochman posted on the FAR website defamed Plaintiff, it is also clear that Plaintiff primarily blames, and seeks to recover from, the FAR Defendants for the damages Plaintiff alleges it has suffered.
Even Plaintiff's reply brief, obviously filed after Hochman filed his response brief, makes no reference to any misconduct by Hochman and says very little about any alleged misconduct involving Simpson. As in its initial brief, and notwithstanding the fact that Hochman's response expressly exposed the absence in Plaintiff's initial brief of much misconduct attributable to Hochman and/or Simpson, Plaintiff's reply almost exclusively cited the misconduct of Franks, Payton and Schwartz.
Accordingly, and for the reasons set forth above, the Court denies Plaintiff's motion for a new trial insofar as it relates to Plaintiff's claims against Hochman.
F. Arguments of the FAR Defendants Not Previously Considered
The FAR Defendants argue that there are three reasons why Plaintiff is not entitled to a new trial.
1. Plaintiff's Failure to Move for a New Trial
As Defendants correctly state, Plaintiff did not move for a new trial at any time prior to the verdict. There is, however, no governing law that requires this Court to find that Plaintiff waived its right to request a new trial because it did not move for a mistrial prior to the jury verdict. Neither the U.S. Supreme Court nor the Sixth Circuit has ruled on the issue. See Clarksville-Montgomery Cty. Sch. Sys. v. U.S. Gypsum Co., 925 F.2d 993, 1003 n. 20 (6th Cir. 1991) ("Because we hold that the district court did not abuse its discretion in denying the motion for new trial, we need not reach the waiver issue"). In this case, Plaintiff retained competent, experienced trial counsel, and the Court shall afford Plaintiff's counsel the benefit of the doubt that Plaintiff's counsel had a reasonable basis for not requesting a mistrial prior to the jury verdict. As such, the Court shall not substitute its judgment for that of Plaintiff's counsel.
2. Failure to Object and/or Request Curative Instructions
As Defendants accurately state, Plaintiff did not object and/or request a curative instruction each time misconduct occurred and, in fact, Plaintiff did not object and/or request a curative instruction on numerous occasions when it could have. In some cases, a court has held that it would not reverse a verdict "where a curative instruction could have alleviated any prejudicial effect." See, e.g., People v. Callon, 256 Mich.App. 312, 329 (2003) (citations omitted); People v. Unger, 278 Mich.App. 210, 235 (2008) (citations omitted) ("Curative instructions are sufficient to cure the prejudicial effect of most inappropriate prosecutorial statements and jurors are presumed to follow their instructions."). It is also true, however, that:
cautionary instructions are effective only up to a certain point. There must be a line drawn in any trial where, after repeated exposure of a jury to prejudicial information . . . cautionary
instructions would have little, if any, effect in eliminating the prejudicial harm.
Peter Kiewit, 624 F.2d at 759 (quoting
O'Rear v. Fruehauf Corp., 554 F.2d 1304, 1309 (5th Cir. 1977)).
In this case, the sheer volume and nature of the prejudicial statements, questions and answers expressed by Franks and counsel for the FAR Defendants obviated the possibility that giving a curative instruction in each instance would have been effective. As set forth above, the improper and objectionable conduct of Franks and counsel for the FAR Defendants was frequent, highly prejudicial and permeated the trial proceedings. Moreover, much of the misconduct involved injecting inadmissible information on critical issues before the jury. In other words, the misconduct was not isolated, or insignificant, or of a nature that could easily be cured. On several occasions when the Court asked Plaintiff what it wanted to do about the violations, Plaintiff indicated that it did not want the Court to give a curative instruction because doing so would have only caused the jury to re-focus on the prejudicial testimony. On each of those occasions, the Court agreed that giving a curative instruction would have prejudiced Plaintiff even more than the original utterance did, standing alone. Accordingly, the Court concludes that Plaintiff's failure to object and/or request a curative instruction does not constitute a sufficient basis for the Court to deny Plaintiff's motion for a new trial as it pertains to the FAR Defendants.
3. Plaintiff's Violations of Orders in Limine
The FAR Defendants assert that Plaintiff violated the Court's orders pertaining to the motions in limine on seven occasions.
In the first incident, Plaintiff sought to introduce an exhibit that should have been redacted prior to be offered because it contained references to a CBS broadcast about Plaintiff. In a light most favorable to the FAR Defendants, the Court finds that Plaintiff violated one of the Court's rulings on one of the motions in limine when it sought to introduce an exhibit before properly redacting the references to the CBS broadcast. At the time Plaintiff offered the exhibit, however, the jury was not prejudiced in any way because Plaintiff did not mention the CBS broadcast or display the exhibit to the jury in a manner such that the jury could see the references to the CBS broadcast ( e.g., by projecting portions of the exhibit on the court screen). Ironically, however, Payton managed to prejudice the jury against Plaintiff when making his objection. Rather than simply objecting that the exhibit contained material that should have been redacted, Payton stated "the problem is the CBS broadcast is mentioned in a number of these . . ." Thus, even on this occasion, when Plaintiff technically violated one of the Court's rulings, Payton trumped Plaintiff's violation by: (a) also violating a ruling of the Court, and (b) improperly communicating to the jury that CBS had broadcast a story about Plaintiff.
As to the second incident, Young asked Scaglione: "[H]as anybody ever demonstrated in your 40 year history that any of the art that you have sold to anybody is not authentic or socalled, to use the defendant's lawyer's word, fake?" (to which Scaglione answered, without objection, "In 40 years, not once") and "Have you ever been accused of selling fake art?" (to which Scaglione answered, "By our defendants. By our defendants."). At this point, Payton objected because he believed this line of questioning and/or the answers would go into lawsuits by other parties against Plaintiff. Young then withdrew the second question. The Court finds that these questions did not violate any ruling on a motion in limine because the questions asked and the answers given did not make any reference to lawsuits.
In the third incident, Young asked Scaglione: "[H]ave you ever been involved in any kind of organized crime?" and "[H]as anyone at Park West that you know of been involved in organized crime?" Contrary to the contention of the FAR Defendants, these questions did not violate the Court's ruling on the motion in limine regarding reference to criminal investigations (Docket #189), or any other motion in limine. In the fourth incident, Scaglione recited the lines from something that had been posted on the FAR website, as follows: "Park West certainly has a sweet set-up with cruise lines, don't they? Together they are raking it in and laughing all the way to the bank. If Interpol and the FBI Art Crime Unit * * * don't have their respective radar up on this one, they certainly should. This one has organized crime written all over it." As the Court stated on the record, this statement did not violate any of the Court's rulings.
In the next alleged violation, Young asked one of Plaintiff's customers (not Molina, as the FAR Defendants' brief indicates): "Do you believe that [Scaglione] would defraud purchasers by selling them fake art?" Upon objection by the Defendants, the Court stated that Young had not laid a foundation for the question. Young then moved on to a different topic. Although the question was improper because a foundation had not been laid, it did not communicate an answer to the jury, nor did it include inadmissible evidence. Moreover, the question did not violate any ruling by the Court on any motion in limine (including the Court's ruling on the motion in limine pertaining to Wittman — presumably the one the FAR Defendants believe Young violated).
As to the sixth incident, in a light most favorable to the FAR Defendants, the FAR Defendants are correct in pointing out that Plaintiff violated one of the Court's orders when Plaintiff introduced Exhibit 341 without redacting certain inadmissible information. During Payton's re-direct examination of Phillips, Schwartz asked Plaintiff to put a certain portion of Exhibit 341 on the screen for the jury to see. When Plaintiff put the requested portion of Exhibit 341 onto the screen, the Court immediately observed that some of the displayed language should have been redacted before being shown to the jury. The offending language was "This is the link regarding Fine Art Registry and its owner defaulting on the Lawsuit." The Court finds that this violation did not prejudice FAR or Franks because: (a) it is highly unlikely that any of the jurors saw the offending language in the few seconds it was on the screen, and (2) the offending language was not read into the record. In addition, even if all of the jurors read that statement, the Court finds that the meaning of the language was unclear. The Court also notes that, if Plaintiff intended to get this information before the jury, Plaintiff could have projected the language on the screen when cross-examining Phillips about Exhibit 341. Instead, Plaintiff projected the language onto the screen only when counsel for the FAR Defendants requested that a certain portion of Exhibit 341 be put on the screen.
The FAR Defendants also claim Plaintiff violated one of the Court's rulings on a motion in limine when Quadrozzi asked Day: "Are you aware that Sotheby's has been prosecuted by the United States Federal Government?" The Defendants objected to this question, Quadrozzi responded and the Court stated, "Let's move on to another question." The Court did not rule expressly on the objection at the time, but the Court now concludes that the question did not violate any ruling by the Court.
After considering each of the seven alleged violations by Plaintiff and finding that Plaintiff committed two violations, 8 the Court concludes that those two violations were extremely insignificant in the context of the entirety this trial. Simply put, the impact of those two violations was less than negligible in light of the pervasive misconduct of Franks and counsel for the FAR Defendants.
F. Conclusion
For the reasons set forth above, the Court concludes that the misconduct of Franks and counsel for the FAR Defendants was pervasive, offensive and significant, to such an extent that the Court holds that there is a "reasonable probability that the verdict of [the] jury [was] influenced by such conduct." Accordingly, the Court: (1) vacates the jury's verdict with respect to the nine claims asserted by Plaintiff against the FAR Defendants, (2) vacates the jury's verdict on the Lanham Act counter-claim filed by FAR against Plaintiff, and (3) orders a new trial on the nine claims asserted by Plaintiff against the FAR Defendants and the Lanham Act counter-claim filed by FAR against Plaintiff.
As discussed above, however, no new trial shall be had on Plaintiff's three claims against Hochman, and the verdict entered in Hochman's favor on Plaintiff's three claims against him shall stand. Moreover, as no motion has been filed with respect to the six non-Lanham Act counter-claims filed by FAR and Phillips against Plaintiff, the verdict entered in Plaintiff's favor on the six non-Lanham Act counter-claims filed by FAR and Phillips also shall stand.
In addition, as a result of the Court's rulings set forth above, the Court DENIES AS MOOT the following motions and requests:
1. Bill of Costs filed by the FAR Defendants and Bill of Costs — Amended, filed by the FAR Defendants (Docket #s 345 and 355);
2. Motion for Determination that Judgment is Not Final or Imposition of Stay, filed by Plaintiff (Docket #346);
3. Motion for Attorney Fees and Treble Damages, filed by FAR (Docket #349); and
4. Renewed Motion for Directed Verdict, filed by Hochman (Docket #353).
The Court also notes that Hochman has filed a Bill of Costs (Docket #354), to which Plaintiff has filed a response. The Court hereby ORDERS Hochman to file a reply to Plaintiff's response on or before August 27, 2010.
Finally, inasmuch as Plaintiff did not request that the Court award costs for fees and expenses incurred for the 28 days of trial, no costs shall be awarded.
VI. CONCLUSION
Accordingly, and for the reasons set forth above, Plaintiff's JMOL Motion (Docket #338) is DENIED insofar as Plaintiff seeks a judgment as a matter of law and GRANTED IN PART and DENIED IN PART insofar as Plaintiff seeks a new trial.
In furtherance of the rulings herein, the Court hereby STRIKES the Judgments previously entered in this matter (Docket #s 341 and 342). In striking Docket #s 341 and 342 and rendering this Opinion and Order, however, the Court ORDERS that the jury verdicts rendered in favor of: (a) Hochman, with respect to the three claims Plaintiff filed against him, and (b) Plaintiff, with respect to the six non-Lanham Act counter-claims filed by FAR and Phillips, shall remain intact.
In addition, the Court hereby ORDERS Hochman to reply to Plaintiff's response to Hochman's Bill of Cost request on or before August 27, 2010.
IT IS SO ORDERED.
Dated: August 12, 2010