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United States District Court, Southern District of New York

February 25, 2003


The opinion of the court was delivered by: Lewis A. Kaplan, District Judge.


The plaintiff in this employment discrimination case, Neville Evans, is an engineer at the Port Authority of New York and New Jersey (the "Authority") who believes that he repeatedly has been passed over for promotion because he is African-American. The complaint asserted also that plaintiff was subjected to a hostile work environment and that defendants retaliated against him for complaining about alleged racial discrimination at the Authority. The hostile work environment claim, some of the failure-to-promote claims, and claims against a number of individual defendants were dismissed on summary judgment.*fn1 The case was tried to a jury, which returned a verdict in favor of the remaining defendants on all points.

On February 19, 2003, plaintiff submitted a motion for a new trial to the Clerk. It was not accompanied by proof of service or by a memorandum of law as required.*fn2 The motion therefore is denied. In the alternative, however, the Court denies the motion on the merits. Only three points warrant discussion*fn3 — plaintiff's contentions that (1) the Court's imposition and enforcement of time limits on the presentations of both sides was inappropriate and prejudicial,*fn4 (2) the Court questioned the veracity of plaintiff's counsel while accepting without questions representations made by opposing counsel,*fn5 and (3) the verdict was against the weight of the evidence.*fn6 Unfortunately, the nature of plaintiff's motion requires comments concerning his counsel that the Court would have preferred to leave unmade.

I The Time Limitation

Prior to trial, the Court imposed time limits on the parties' presentations. Despite expansion of those limits during the trial, the plaintiff ran out of time prior to the completion of defendants' case. While the Court gave its reasons when it enforced the time limit against the plaintiff,*fn7 further elaboration is appropriate in light of the motion now before the Court.

A. The Background of the Time Limitation — Problems With Plaintiff's Counsel Prior to Trial

As the record in this case amply reveals, plaintiff's counsel, Stephen T. Mitchell, Esq., failed from the outset to cooperate in discovery and pretrial proceedings.*fn8

The most egregious example was his failure to respond to the Authority's October 2000 interrogatories, which sought the identity of all persons with knowledge or information relevant to the subject matter of this action and the aspects of the matter concerning which each was knowledgeable. This episode is amply detailed in Evans v. Port Authority, 201 F.R.D. 96 (S.D.N.Y. 2001) ("Evans I"), as clarified by Order, Jan. 21, 2003, and will not be repeated here. But it was not the only instance of what can be described only as Mr. Mitchell's recalcitrance during pretrial proceedings.*fn9 The Court notes here only one additional example: Mr. Mitchell's behavior concerning the joint pretrial order.

The joint pretrial order initially was due in June 2001. On or about June 15, 2001, Mr. Mitchell submitted a document entitled "Plaintiff's Proposals for a Joint Pretrial Order" to which he signed the name of the Authority's attorney, followed by his own initials, thus suggesting that the document was submitted on behalf of plaintiff and the Authority defendants.*fn10 It later developed that counsel for the Authority defendants had authorized Mr. Mitchell to submit a joint pretrial order on her behalf provided certain changes were made in plaintiff's draft. The changes were not made. Mr. Mitchell signed her name to the document and submitted it anyway. He never told his adversary that he had done so.*fn11 But that was not the end of the story.

The Court did not approve the pretrial order submitted by Mr. Mitchell, as it did not bear signatures on behalf of all of the defendants. On April 5, 2002, the Court granted in part and denied in part the Authority defendants' motion for summary judgment dismissing the complaint.*fn12 Bearing in mind both that the decision had narrowed the case and the absence of an approved joint pretrial order, the Court, on August 5, 2002, directed the submission of a joint pretrial order by September 3, 2002. But Mr. Mitchell, who as plaintiff's counsel was obliged to prepare and submit a draft to the defendants' counsel,*fn13 simply ignored the order.*fn14 In consequence, no joint pretrial order ever was prepared.*fn15

B. The Adoption of the Initial Time Limits

As the trial approached, the Court focused on the potential difficulties of managing the trial in the absence of a joint pretrial order, particularly given the problems concerning the identification of possible witnesses that are detailed in Evans I and the deficiencies in Mr. Mitchell's papers on the summary judgment motion.*fn16 Accordingly, on January 14, 2003, the Court issued an order to show cause why the presentations of each side should not be limited to 13.5 hours.*fn17 This reflected the Court's best estimate of the time required competently to present this case based, among other things, on the nature of the remaining issues, the June 2001 proposed pretrial order, and the number of witnesses each side likely would call.

On January 17, 2003, Mr. Mitchell responded with a letter vaguely claiming that he would need more time. He stated that he intended to call 23 witnesses, including several who had been precluded by the decision in Evans I. At oral argument, despite its earlier order to the contrary, the Court decided to allow plaintiff to call a number of the previously precluded witnesses.*fn18 While it adopted the 13.5 hour time limitation, it made clear that it remained flexible and would consider, as the trial progressed, any reasonable application to expand this limitation.*fn19 It cautioned, however, that it would take into account, in passing on any such requests, whether the time allotted had been used efficiently.*fn20

C. The Commencement of the Trial

By the time the case went to trial, all that remained were three alleged failure-to-promote claims and a narrow retaliation claim although, to be sure, plaintiff was entitled to, and the Court granted, latitude to adduce background evidence and to attempt to demonstrate an insensitivity or unresponsiveness by the Authority toward racial prejudice in the workplace.*fn21

Plaintiff began his case by calling Joseph Durando, who was involved in the selection process for one of the positions to which plaintiff aspired. Mr. Mitchell spent part of his direct examination questioning Mr. Durando about the qualifications the Authority had established for the position. At the end of the day, out of the presence of the jury, the Court commented to Mr. Mitchell as follows:

"[I]t may be helpful simply to say to Mr. Mitchell that you did not make much use of your time today. You could have offered in evidence the job bulletin. You would have had in front of the jury right away exactly what the qualifications were, and you would have saved a large amount of time that was spent essentially arguing with the witness about whether he remembered what the job posting said and various other things that the record will show, all of which were established conclusively in the space of less than 60 seconds once the job bulletin came in.

I am not inviting an answer. I am simply telling you how you could have done this much more effectively, and I am doing it because I want you to focus on how to present your case."*fn22

On the following day, plaintiff elected to play hours of excerpts from a videotaped deposition of Joseph Bardzilowski, a retired Authority executive who had been involved in the selection of successful candidates for one or more of the positions at issue in the case. As the deposition and trial transcripts reveal,*fn23 plaintiff chose unnecessarily to play a good deal of argumentative colloquy between counsel.*fn24

As the trial continued, Mr. Mitchell asked patently objectionable questions. Much of his questioning was argumentative or assumed facts unsupported by or contrary to the record. Thus, he often consumed a good deal of time reformulating questions in response to well taken objections. Nevertheless, the Court kept both sides apprized of the time remaining to each on at least a daily basis, and it reiterated its willingness to reconsider the time limit on the basis of a demonstrated showing of need.

D. Enlargement of the Time Limit

On January 26, 2003, plaintiff made such an application,*fn25 claiming that he still had nine witnesses to present. The Court held a conference to deal with this request. After going over the list of remaining witnesses in detail and eliciting stipulations that obviated any need for two of the nine, the Court expanded the time allotments from 13.5 to 17 hours.*fn26 Mr. Mitchell responded that "I think that we will make that deadline,"*fn27 and he raised no objection.

E. Plaintiff Runs Out of Time

Despite essentially having reached agreement on the time limitations, Mr. Mitchell's performance after the expansion of the time allotment did not improve. This is well illustrated by his use of fully one half of a trial day, January 29, 2003, to present the testimony of the head of the Authority's medical department and two of plaintiff's doctors.

1. The Medical Testimony

A few words of background. As Evans II relates in more detail, plaintiff had disputes with supervisors and others in the early part of 2000, which culminated in an informal reprimand on May 23.*fn28 On the following day, he went to the Authority's medical department, was found to have high blood pressure, and was sent home in a car (provided by the Authority) with instructions to see his private physician. At trial, the parties stipulated that plaintiff later was put on absent-without-leave status after he failed to appear for an appointment at the medical department on June 9, 2000; that his pay therefore was stopped for a period of roughly two weeks; that it later was determined that a nurse in the medical department had told him that he did not have to come in on June 9; and that his back pay then was sent to him by Federal Express.*fn29 Despite this stipulation, plaintiff, as was his right, proceeded to claim that he had been put on absent-without-leave status and that his pay had been withheld in retaliation for his having complained about alleged racial discrimination to his supervisors. What was not his right was to waste an enormous amount of time with matters having no real relationship to the question whether, notwithstanding the stipulated facts, retaliatory animus motivated this contretemps.

Mr. Mitchell began by calling Dr. Martin Duke, head of the Authority's medical department, whose only connection to these events was that he had received a call on June 9 from plaintiff's personal physician, Dr. Altema. Dr. Duke's first hand knowledge was limited to the call, in which Dr. Altema stated that the plaintiff would not keep his appointment for that day, and to the fact that the medical department then had referred plaintiff for administrative disposition — i.e., it told his supervisor that he had failed to report as directed, leaving the determination of whether to take action with the supervisor.*fn30 Nevertheless, Mr. Mitchell consumed the better part of an hour to elicit these facts — which were not disputed to begin with and which he then proceeded to elicit again from Dr. Altema — and to have Dr. Duke read entries that had been made by others in plaintiff's medical records.

After Dr. Duke testified, Mr. Mitchell called Dr. Altema. Mr. Mitchell elicited from Dr. Altema that plaintiff had high blood pressure,*fn31 that plaintiff had complained of alleged harassment at work,*fn32 and that Dr. Altema had recommended that plaintiff not return to what Dr. Altema described as "the hostile environment at work."*fn33 In addition, Dr. Altema testified that he had told an Authority doctor that plaintiff would not return until Dr. Altema thought plaintiff could do so without detriment to his health.*fn34

This testimony was of little or no utility. There was no dispute concerning plaintiff's history of hypertension. The fact that, by June 2000, he had complained of alleged racial discrimination at work likewise was undisputed. Dr. Altema's statement that plaintiff would not show up on June 9 was recorded in the Authority's medical records, the admissibility of which was unchallenged. Thus, the only conceivable point of Dr. Altema's testimony was to show that plaintiff did not keep his appointment on June 9 because his doctor had advised against it, and it was cumulative on this issue.*fn35 In any case, Dr. Altema's testimony had nothing to do with the real issue: whether the Authority (a) put plaintiff on absent-without-leave status to enforce an alleged policy of requiring all of its employees, absent extraordinary circumstances not even arguably present here, to appear for evaluation by its physicians whenever they are on sick leave, regardless of the views of their personal physicians, or (b) instead used the failure to show up on June 9 as a pretext to punish plaintiff for his complaints.

But the capstone of the medical evidence was the testimony of Dr. Kildare Clarke, an emergency room physician and alleged psychiatrist called by plaintiff. Dr. Clarke, it turned out, failed the board certification examinations in psychiatry;*fn36 has seen only a small number of psychiatric patients,*fn37 some of whom are clients of Mr. Mitchell with legal claims;*fn38 and had had his medical license revoked for issuing unlawful prescriptions for marijuana for the purpose of deceiving a court.*fn39 Despite this pedigree, and a caution from the Court (out of the presence of the jury) that offering testimony from such an alleged expert could seriously undermine the credibility of his case,*fn40 Mr. Mitchell insisted on proceeding with this witness*fn41 to elicit the opinion that plaintiff was suffering from post-traumatic stress disorder as a result of an office prank.*fn42

The wastefulness of the time devoted to Dr. Clarke's testimony is patent. As the hostile work environment claim had been dismissed on the Authority's motion for summary judgment, the question whether the prank was a proximate cause of any post-traumatic stress disorder was immaterial, as there was no remaining claim for relief in respect of the incident. Even if there had been such a claim for relief, the calling of a witness with Dr. Clarke's background was, to say the least, ill advised and certainly not a reasonable use of limited court resources.

2. The Conclusion of the Trial

Plaintiff rested his case-in-chief on January 30, 2003 at page 914 of the trial transcript. The Authority defendants moved for judgment as a matter of law, a motion which, for the most part, was denied. Nevertheless, it is noteworthy that plaintiff consented to the dismissal of the claim against defendant Holmes, the Authority executive who placed plaintiff on absent-without-leave status as a result of the medical department incident and thus the focus of that claim.*fn43

Toward the end of the day on January 30, 2003, during the defendants' case, the Court advised plaintiff that he had less than 30 minutes left of his enlarged allotment of 17 hours*fn44 and said that it would cut plaintiff off when that time was gone. Nevertheless, the Court expanded the 17 hour limit by 15 minutes in response to Mr. Mitchell's claim that he had miscalculated the time remaining and granted plaintiff an additional 20 minutes for summation even if, as proved to be the case, plaintiff used up his entire time allotment.*fn45

The Authority then called eleven additional witnesses on its case, although their testimony took only parts of two days and less than 200 pages of transcript. Some of those witnesses already had testified on plaintiff's case-in-chief. Plaintiff finally ran out of time (save the additional 20 minutes granted for summation) after the conclusion of his cross-examination of the Authority's penultimate witness, Ms. Holmes. The only defense witness whom plaintiff could not cross-examine was Ernesto Butcher — a witness whom plaintiff had examined extensively on his direct case and whose testimony during the defense case was partly repetitious and not particularly significant in the overall context of the case.

When plaintiff's time expired, Mr. Mitchell, out of the presence of the jury, asked for an instruction, which the Court gave.*fn46 Before the lawyers delivered their closing arguments, the Court again mentioned the time limit so that the jurors would not draw any inference from the respective lengths of the parties' closing statements.*fn47 Finally, the Court charged the jury that it was not to "consider the fact that time limits were established for the presentations of the parties and that one side ran out of time. The law permits trial judges for obvious reasons to impose reasonable time limits. The question whether the time limits imposed were appropriate is no part of your concern."*fn48

F. The Time Limit Is No Basis for a New Trial

Trial courts have discretion to impose reasonable time limits on the presentation of evidence at trial.*fn49 This is essential if they are to manage their dockets, as many cases compete for trials and for the attention of judges, and no party has an unlimited call on their time. Moreover, in order to prevail on a claim that a time limit was too short, a party must have come forward with an offer of proof showing how its presentation would be curtailed by it and must demonstrate prejudice.*fn50 Plaintiff has not done so. Not only did he present his entire case-in-chief, but he made no offer of proof of any respect in which his cross-examination of those of the defendants' witnesses whom he did cross-examine was impaired or of what he might have adduced by cross-examining Mr. Butcher on defendants' case. He never identified any probative, non-cumulative evidence that he was prevented by the time limit from presenting.

In the final analysis, the Court is convinced that plaintiff easily could have presented his case fully and effectively in the 13.5 hours originally allotted. His counsel essentially admitted that the 17 hours ultimately granted was sufficient. He nevertheless consumed more than 17 hours and 35 minutes. In the Court's view, the enforcement of the time limit had no meaningful effect on the presentation of his case.

II The Veracity of Counsel

Plaintiff complains that the Court questioned his counsel's veracity and refused to credit his verbal representations while not treating his opposing counsel in the same fashion.*fn51 Even if this were true, it would afford no basis for a new trial. There is no evidence that any such thing ever occurred in the presence of the jury or that plaintiff was prejudiced in any way by any such conduct. But the charge warrants a response.

Discovery in this case was a very contentious process, replete with accusations of dishonesty among counsel. These conflicts made the Court very reluctant to accept the uncorroborated assertions of any of the attorneys in this case. And, even before trial, there was at least some fire amidst all the smoke. During the proceedings that culminated in Evans I, for example, Mr. Mitchell falsely represented to the Court that it had excused him from answering the interrogatories then at issue.*fn52 In consequence, the Court on January 17, 2003 (and possibly earlier) told all counsel that it would not make rulings of substance on the basis of unsworn representations by either side and, if need be, that it would put lawyers on the witness stand.*fn53

On the first day of the trial, counsel raised the dispute, discussed above,*fn54 concerning the Authority's allegedly belated identification of three witnesses. Contrary to plaintiff's suggestion, the Court did not simply accept the word of the Authority's counsel. It insisted that she take the witness stand, allowed plaintiff to cross-examine, and then afforded Mr. Mitchell the opportunity to testify. Only after doing so, and receiving documentary evidence proving that Mr. Mitchell's assertion was inaccurate, did the Court make any finding.*fn55 And, although it found against Mr. Mitchell, it concluded that it would "charitably put it [i.e., the inaccuracy] down to failure of recollection. . . ."*fn56

Later in the trial, another dispute arose, and again the Court declined to resolve the matter by accepting the word of one lawyer over another. When the Authority sought to use defendants' exhibit WWW during cross-examination of one of plaintiff's witnesses, Mr. Mitchell objected, representing that "I never received this document."*fn57 After the jury was excused, the Authority's counsel countered that the document was an exhibit to its reply papers in support of its motion for summary judgment, which had been served on Mr. Mitchell.*fn58 The Court, however, did not then rule.*fn59 Two days later, when the Authority again sought to use the document, Mr. Mitchell renewed his objection. The Court then reviewed the official court file and found that the document was attached to the Authority's summary judgment papers.*fn60 Although Mr. Mitchell admitted that he had received those papers, he persisted in claiming that the copy of the papers he had received was missing this particular document.*fn61 The Court then directed him to produce the copy of the papers that was served on him. But Mr. Mitchell at that point said that he "would not be able to produce it because what we had to do was take it apart to give it to the Port Authority. So all of the documents that I have are not intact."*fn62 The Court thereupon found, out of the presence of the jury, that his excuse was "just patently false" and overruled his objection.*fn63

Where, as here, attorneys disagree on basic historical facts material to pretrial and other proceedings, courts nevertheless must resolve their disputes. Almost invariably, those decisions involve findings as to which side's account is accurate. As long as those matters are conducted fairly and no inappropriate information comes to the attention of the jury, there is no basis for objection. Those conditions were satisfied here.

III The Weight of the Evidence

In determining whether to order a new trial on the ground that a verdict is against the weight of the evidence:

"The trial judge, exercising a mature judicial discretion, should view the verdict in the overall setting of the trial; consider the character of the evidence and the complexity or simplicity of the legal principles which the jury was bound to apply to the facts; and abstain from interfering with the verdict unless it is quite clear that the jury has reached a seriously erroneous result. The judge's duty is essentially to see that there is no miscarriage of justice. If convinced that there has been then it is his duty to set the verdict aside; otherwise not."*fn64

In this case, the verdict was not against the weight of the evidence. The evidence that those chosen for the various positions to which plaintiff aspired were better or, at least, fully as qualified as the plaintiff was ample, and the jury was entitled to find it persuasive. There was abundant evidence that plaintiff was a problem employee in a number of respects including a tendency to demean subordinates*fn65 and to be prickly to and obstinate with supervisors.*fn66 The jury was not persuaded that race played a role in any of the promotion decisions, and the Court — bearing in mind its obligation in considering this aspect of the motion to "weigh the evidence" itself — is in full agreement.*fn67 And the jury was well within its province in rejecting the retaliation claim, which turned almost entirely on the medical department incident and which, in the Court's view, was utterly baseless. Indeed, that entire misunderstanding would have been avoided if Mr. Mitchell, who sent the Authority a belligerent letter in June 2000,*fn68 simply had written that the nurse in the medical department had told Mr. Evans that he was excused from appearing for the appointment — a fact he did not mention, thus delaying discovery of the error.


For the foregoing reasons, plaintiff's motion is denied in all respects.



Ground Comment and Record References

Refusal to permit witnesses to It appears that plaintiff claims that the witnesses in question, who testify to alleged custom and are not identified in the Rule 59 motion, were precluded by practice of racial Evans I, so no further explanation is warranted. The Court notes, discrimination b y the however, that plaintiff's position at trial was that there was no Authority in order to satisfy need to satisfy Monell under either Title VII or 42 U.S.C. § 1981. Monell v. Dept. of Social Tr. 1254-58. In so far as Section 1981 is concerned, plaintiff was Servs., 436 U.S. 658 (1978). wrong. Id. 1265; see Anderson v. Convoy, 156 F.3d 167, 176 Mitchell Aff. ¶¶ 14-19. n. 17 (2d Cir. 1998); Mack v. Port Authority, 225 F. Supp.2d 376, 383 (S.D.N.Y. 2002). In any case, the point was rendered academic by the jury's finding that there was no discrimination or retaliation.

Requirement in June 13, 2001 The requirement to identify trial witnesses in the June 13, 2001 and unspecified January 2003 order was entirely appropriate. See FED. R. CIV. P. 16(c)(7); see, orders improperly required e.g., Brock v. R.J. Auto Parts and Serv., Inc., 864 F.2d 677, 679 plaintiff to reveal identities of (10th Cir. 1988) (stating that a district court is not "powerless to trial witnesses prior to filing compel the production of a witness list during discovery, for such of pretrial order. Mitchell an approach may be necessary to the efficient disposition of a Aff. ¶¶ 19-20. complex case or for other reasons"). Any January 2003 order, moreover, was entered long after the conclusion of discovery and the date on which the joint pretrial order was due, which was September 3, 2002. Order, Aug. 5, 2002.

Alleged errors in the charge. The alleged errors in a number of instances rest on the Mitchell Aff. ¶¶ 24-29, 47. mischaracterization of the charge. To the extent the matters complained of were raised in the charge conference or prior to the submission of the case to the jury, the Court dealt with them on the record. See Tr. 1243-63, 1379-80. To the extent they were not properly raised, they have been waived. FED. R. CIV. P. 51.

Alleged discovery violation The Court is unaware of what plaintiff is referring to. In any by the Authority. Mitchell case, plaintiff never moved to compel production. Aff. ¶¶ 34-35.

Evidentiary rulings. Mitchell The bases for the rulings are in the trial transcript. E.g., Tr., Aff. ¶¶ 36-40, 44-45. 184-205, 753-60, 1023-24.

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