once the jury had been selected, rather than delaying the start of trial
by a day or more so that Plaintiff would not have to take the stand
before Weber and Miller. Moreover, Plaintiff was free to request an
opportunity to retake the stand after Weber and Miller testified but
before the close of her case-in-chief. She made no such request at
trial. Accordingly, I find that the order of presenting evidence and
witnesses was managed in accordance with Rule 611 and that Plaintiff had
adequate opportunity at the time of trial to remedy any potential
prejudice that she believed would result from the order of witnesses.
ii. Improperly Admitted Evidence
Plaintiffs fourth ground for a new trial is based on the admission of
two exhibits, her unredacted tax returns and a letter written by the
interim Superintendent of the Plainview school, which explained why
Plainview was denying Plaintiff tenure. Plaintiff argues that both of
these pieces of evidence were irrelevant and unduly prejudicial and that
their admission warrants a new trial.
As to the unredacted tax returns, Plaintiff principally argues that the
"Jury's access to the entire tax returns only served to tap any latent
prejudices the jurors might direct to Ms. Tesser based upon her wealth."
(Pl.'s Mem. of Law at 36.) I previously considered the issue of relevance
and prejudice before deciding to admit the tax returns in dispute. (Tr.
1467-69.) The decision as to whether or not to admit these documents was
reserved until after Plaintiff elicited testimony from her expert, Mr.
McAteer, on the tax implications of a damages award to Plaintiff Mr.
McAteer testified that he had reviewed Plaintiffs W-2 forms, among other
documents, in preparing his report and he testified as to how a lump sum
award to Plaintiff would increase her tax bracket and cause her to pay
more in taxes than if she had received that sum as pay over several
years. (Tr. 1492-93.) Based on this testimony, it was decided to admit
the tax forms with the following limiting instructions to the jury: "The
amounts earned by plaintiffs spouse and the family's other income and
assets as reflected on the joint tax returns may be considered by you
only to the extent that you believe they bear on the testimony of Mr.
McAteer to the degree that he referred to the tax consequences in
calculating damages. These amounts have no other bearing on this case,
and I instruct you not to consider them otherwise." (Tr. 1363.) In light
of this limiting instruction, and the rule that "juries are presumed to
follow their instructions," Zafiro v. United States, 506 U.S. 534, 540
(1993), I conclude that any potential prejudice was sufficiently cured
and the admission of the tax returns did not create substantial
With respect to the admission of Defendants' Exhibit NN-2, which was
the letter by the interim Superintendent of Plainview, Plaintiff withdrew
her objections to admission of this exhibit. (Tr. 431-439, 464-65.)
Moreover, this letter was discussed in, and attached to, Plaintiffs
Expert Witness Report, which was admitted by Plaintiff as Exhibit 309.
(Tr. 1346, Ex. 309 at 7.) Given these facts, Plaintiff cannot claim any
prejudice based on its admission, let alone claim substantial prejudice
requiring a new trial.
iii. Defendants' Summation
Finally, Plaintiff argues that defense counsel made statements in
summation which "led the jury over the line from permissible inference to
impermissible speculation." (Pl.'s Mem. of Law at 38.) Specifically,
Plaintiff argues that defendants caused her substantial prejudice by
suggesting, without any factual support, that Plaintiff was withholding,
or had destroyed, various pieces of evidence or witness testimony that
would either fail to support her claim or, alternatively, exonerate
Defendants. (Id. at 39-46.) For instance, Plaintiff objects to statements
made in reference to the tape recorded phone conversations, such as "What
did she cutout? She cut something out. She is hiding something from you,
snippants she is one to give you little snippants, not the full picture,
if you saw the full picture you would realize there was not merit to her
claim at all." (Tr. at 1250.)
In a civil case such as this, speculation by defense counsel, while not
proper, does not threaten to impermissibly shift the burden of proof as it
would in a criminal case in which the prosecution makes unfounded
speculative arguments about a defendant's guilt. Here, defendants were
free to argue that Plaintiff had not met her burden and to question the
sufficiency of her evidence. While, there was no specific evidentiary
basis for suggesting that Plaintiff had "cutout" or withheld other
tape-recordings, taken in context the defense was arguing that the
recordings presented by Plaintiff did not accurately represent the
conversations between her and defendants. Similarly taking in context
each of the statements to which Plaintiff points, I do not believe that
they were so prejudicial as to have improperly swayed the jury.
Moreover, I gave the jury very specific instructions to preclude any
impermissible speculation. The jury was instructed that, "[r]easonable
inferences are conclusions prompted by reason and common sense. Not all
logically possible conclusions are reasonable inferences. Whether a
particular inference is reasonable is exclusively for you to determine. In
deciding this case, you may consider only the exhibits which have been
admitted in evidence and the testimony of the witnesses as you have heard
it in this courtroom." The jury was further cautioned, that "[t]he
questions, arguments, remarks and summations of the attorneys are not
evidence. . . ." (Tr. 1346-48.)
I find that any potential prejudice resulting from statements by
defense counsel which may have verged on speculation was adequately cured
by the instructions to the jury, and in any case, in light of all the
other evidence, such statements could not be considered so substantially
prejudicial as to "in some material respect" have "swayed" the
factfinder's judgment. Perry, 115 F.3d at 150.
d) Plaintiff is Not Entitled to a New Trial
Having considered all the evidence presented at trial, and for all the
reasons discussed above, I do not believe that the jury reached a
"seriously erroneous result" in deciding that Plaintiff had not carried
her burden of proof and I do not find that the verdict is a "miscarriage
of justice." Accordingly, Plaintiffs motion for a new trial is denied.
For all the reasons discussed above it is hereby ORDERED that
Plaintiffs motion for judgment as a matter of law or, in the
alternative, for a new trial is DENIED in its entirety.