Tuesday, January 7, 2025

2d Circuit sustains sexual assault verdict against Trump

The Second Circuit has sustained the sexual assault verdict against Donald Trump, ruling that the trial court did not abuse its discretion in certain evidentiary rulings that bolstered the plaintiff's case. Recall that a Southern District jury found that Trump violated E. Jean Carroll in the dressing room at a Bergdorf Goodman in New York City in 1996, a claim made possible by the Adult Survivor's Act, which revived the statute of limitations. The ruling focuses on the federal rules of evidence and whether the trial judge abused his discretion in allowing the jury to hear about Trump's other sexual abuse victims and the Access Hollywood tape in which Trump talked about grabbing women by the genitals.

The case is Carroll v. Trump, issued on December 23. The jury awarded plaintiff $5 million in damages for the sexual assault and Trump's defamatory comments about plaintiff after she publicized the allegation.

Years ago, you could not bring in evidence of the defendant's prior bad acts to prove your case. We call that propensity evidence. The concern was that you would find a party liable or guilty (in a criminal case) because of what he did in some other case. But Congress amended the Federal Rule of Evidence 415 to permit the jury in sex abuse cases to hear about the civil defendant's prior sex abuse. That evidence is admissible if it survives the balancing test under Rule 403: if its relevance is not substantially outweighed by unfair prejudice. The trial judge's evidentiary rulings are usually affirmed on appeal under the "abuse of discretion" test, and this case is no exception.

The Court of Appeals summarizes the trial testimony this way:

In 1996, Ms. Carroll encountered Mr. Trump at the Bergdorf Goodman department store in Manhattan. At the time, Ms. Carroll was an advice columnist for Elle Magazine and hosted a daily advice talk show called "Ask E. Jean." Mr. Trump recognized Ms. Carroll and asked her to stay and help him pick a gift for a girl. Describing this as a "funny New York scene" and a "wonderful prospect" for a "born advice columnist" to give advice to Mr. Trump on buying a gift, Ms. Carroll said yes.

After Ms. Carroll suggested that Mr. Trump purchase a handbag or a hat, Mr. Trump proposed that they go to the lingerie department instead. Ms. Carroll and Mr. Trump went to the lingerie department on the sixth floor. Mr. Trump selected a piece of lingerie and insisted that Ms. Carroll try it on. Ms. Carroll jokingly responded, "You put it on. It's your color." After some playful banter, Mr. Trump took Ms. Carroll's arm and motioned for her to go to the dressing room with him. Because Mr. Trump was being "very light" and "pleasant" and "funny," Ms. Carroll walked with Mr. Trump into the open dressing room, which she described as "sort of an open area." But as soon as she entered, Mr. Trump "immediately shut the door" and "shoved [her] against the wall . . . so hard [that] [her] head banged."

Ms. Carroll pushed Mr. Trump back, but "he thrust [her] back against the wall again," causing her to "bang[] [her] head again." With his shoulder and the whole weight of his body against her, Mr. Trump held her against the wall, kissed her, pulled down her tights, and stuck his fingers into her vagina -- until Ms. Carroll managed to get a knee up and push him back off of her. She immediately "exited the room" and left the store "as quickly as [she] could." The encounter lasted just a few minutes.

One witness, Leeds, told the jury that Trump assaulted her on an airplane in 1978 or 1979. That conduct was admissible because it arguably constituted a sex crime under the U.S. Code. Another witness, Stoynoff, testified that, as a reporter for People magazine, Trump sexually assaulted her behind closed doors at Mar-a-Lago in 2005. As for the Access Hollywood tape, we all know what Trump said on camera, that "when you're a star," you can grab women by the genitals. That tape, from 2005, nearly upended the 2016 presidential election. The trial court admitted this tape in evidence because it suggests that Trump has had contact with women's genitalia without their consent, or has attempted to do so. The tape was also admissible because it shows a pattern of sexual assault, or a recurring modus operandi.

Other evidentiary rulings are also discussed in this decision. Trump challenged the trial court's order excluding evidence challenging Carroll's credibility, such as that a third-party helped to fund her litigation against Trump. But courts have held such funding is not relevant to credibility. The trial court also acted within its discretion in excluding evidence that, according to Trump, suggested that Carroll was trying to influence Stoynoff's testimony. Nor did the district court abuse its discretion in precluding any argument that Carroll had allegedly falsely claimed that Trump's DNA was on her dress from the dressing room incident.

As described in this ruling, the evidence at trial certainly makes Trump look terrible. The Court of Appeals (Chin, Carney and Perez) notes that Trump did not testify nor even appear at trial, and the Court adds that Trump has denied the allegations. I guess that reference is a courtesy to the next President of the United States. However, as all litigators know, if the jury said it happened, the denials fall away on appeal and the court accepts the evidence in the light most favorable to the winning party.

Friday, January 3, 2025

Connecticut educator cannot win disparate treatment claim

In this disparate treatment case under Title VII, plaintiff argued that she could not be terminated for the same misconduct that her co-workers had also committed. The Court of Appeals affirms the grant of summary judgment, holding that, whatever her co-workers did wrong, they were not comparable to plaintiff. This dooms the disparate treatment claim, and the case is over.

The case is Laiscell v Board of Education, City of Hartford, a summary order issued on December 20.
The Board’s letter terminating Laiscell’s employment cited her “fraudulent and unprofessional conduct, including but not limited to” maintaining her ex- husband as an eligible dependent on her healthcare plan, costing the school district approximately $6,691; deleting a sentence from an email she forwarded to school superintendents, purportedly minimizing the significance of the ongoing dependent verification audit; and improperly storing certain budget-related files on her laptop. The letter further stated that “[s]uch conduct is particularly egregious given [her] stature and position . . . as the Executive Director of Financial Management.”

Plaintiff claims she was fired in retaliation for exercising her rights under Title VII. But the only way she can claim retaliation is if other coworkers did the same thing but were not fired. The question is whether the coworkers were similarly-situated, or comparable, to plaintiff under Title VII. They are not. 

The other workers who allegedly committed similar misconduct held lower-level positions than plaintiff or belonged to the union. Under case law from the Second Circuit (and presumably all the federal courts around the country), the employer may treat people differently depending on their job title and whether they are subjected to certain protections under the collective bargaining agreement. 

Thursday, January 2, 2025

Continued post-complaint sexual harassment does not always permit employer liability

A hostile work environment will not result in any damages, or even a jury trial, if the plaintiff cannot connect that work environment to the employer. This case is a good example of how it all works. In the end, plaintiff loses the case because the Court of Appeals determines the employer, the Veterans' Administration, acted reasonably after it learned that plaintiff was being harassed by a coworker who would not leave her alone.

The case is Cain v. McDonough, a summary order issued on December 19. Coworker White made sexual overtures toward plaintiff, but she rebuffed him. White then falsely wrote plaintiff up for misconduct (he was her temporary supervisor for one day). When plaintiff complained to management about White's harassment, the VA's police chief began an investigation almost immediately, and White was given a warning and they changed his shift to keep him away from plaintiff. The VA also took away his service weapon and had him work somewhere else in the building, warning him to stay away from plaintiff. 

The VA's swift response to plaintiff's harassment claim would normally be enough for the agency to defend this lawsuit. So plaintiff focuses on what happened next:

Three times, White came into the office area near Cain’s desk after the stay-away order. In the first two instances, White came to the administrative area near Cain’s cubicle, and either shuffled papers or lingered near her. He did not speak to, touch, or attempt to touch Cain. Cain did not report his conduct. On the third occasion, White came to the same area, shuffled papers, and remained for a shorter period of time. Cain reported these incidents to the police chief. In response, the chief had another conversation with White and told him that he could not spend time in the area near Cain’s desk. If he had something to drop off in the administrative office, he should “drop it off and go.” The chief told Cain that on occasion White may have to come to the administrative office near Cain’s work area, but he would not need to stay near Cain’s desk for any length of time. After that, Cain had no further problems; White only came to her office area a few times, and each visit was very brief.

On this record, the employer is not liable for negligently handling plaintiff's harassment complaint. Here is how the Court of Appeals puts it:

The VA instituted a formal investigation within one business day after Cain reported the harassment. The VA took the allegations seriously. And the VA’s response was multifaceted and included steps to prevent Cain and White from working overlapping shifts, relocating White to a different wing of the building, taking away White’s service weapon, and requiring White to stay away from Cain’s work area. As soon as Cain notified her supervisors that White had stood near her desk following the stay-away order, they took effective action to ensure that it didn’t happen againMoreover, at the conclusion of its investigation the VA placed White on a last chance agreement, which included a demotion from lieutenant to line officer.

Plaintiff argued that, in light of White's violation of the stay-away order, her case is comparable to another coworker harassment case, Whidbee v. Garzarelli Food Specialities, 232 F.3d 62 (2d Cir. 2000), a case that I argued 25 years ago. In that case, the harassment continued even after the plaintiffs complained about a coworker's racial comments. Summary judgment for the employer was reversed in that case because the manager did not speak to the offending employee for several days, during which time the harassing comments continued. After the manager gave the coworker a warning, he made further racially-harassing comments, and the manager told the plaintiffs he was unable to control the coworker's mouth and he did not know how to deal with the problem. While the manager then gave the coworker a written warning, the harassment continued, prompting the plaintiffs to quit their job. Whidbee stands for the proposition that the continued harassment after the plaintiffs' repeated complaints permits the inference that management's response was inadequate. 

Cain's case is not Whidbee, the Court of Appeals (Robinson, Nathan and Briccetti [D.J.]) holds, because "it is undisputed that White did not speak to or contact Cain after her initial complaint, that Cain did not report White’s coming near her desk the first two times he came to the administrative office area, and that once she reported these incidents, the police chief effectively ensured that White stayed away from Cain."

This Whidbee distinction may be the first time the Court of Appeals has held that continued harassment following management's attempts to stop the harassment does not always permit a finding of employer liability in coworker harassment cases. Every precedent has its limits, and the presidential reach of Whidbee is no exception.

Tuesday, December 31, 2024

No malicious prosecution claim in child death case

The Court of Appeals holds that the plaintiff cannot sue the police for malicious prosecution even though he alleges the police had coerced a confession that he had caused a child's death. Although plaintiff was either acquitted of the homicide charge or the police dropped the charge against him (this ruling is not clear on how the case ended), this case reminds us yet again how difficult it is to win these cases, or even to have them proceed to trial.

The case is Thomas v. Mason, a summary order issued on December 23. The district court held the officers are entitled to qualified immunity, and the Court of Appeals agrees. This immunity protects police officers from litigation if they acted in a good-faith and reasonable manner, as determined by clearly-established case law in similar cases. Set both below is the reason why the officers had probable cause to arrest plaintiff, and why his case was dismissed on summary judgment:

(1) The examinations at Albany Medical Center indicated that M.T. had suffered a bilateral subdural hematoma to the brain, had brain swelling, had both new and old blood on the brain, and was completely brain dead; (2) Dr. Walter Edge described M.T.’s injuries as those typical of a high-impact injury possibly caused by shaking or severe acceleration and deceleration onto a hard object; (3) Thomas stated in his initial interview before the break (before the purported fabrications) that M.T.’s injury had probably occurred in his care and that M.T. had smacked his head on the crib about ten days before, which could possibly have caused the injury; and (4) M.T.’s older sibling said in an interview that she witnessed Thomas throwing M.T. into the crib and saw M.T. go limp, and that Thomas had repeatedly beaten the older sibling.

That disposes of the malicious prosecution claim. Plaintiff also sues the police for fabricating evidence. But this claim was dismissed as well. While plaintiff claims the police coerced his confession, 

it was objectively reasonable for Defendants to conclude, based on the undisputed evidence of what Defendants were told prior to the second interrogation, that their “working theory” was “accurate and not a fabrication.” Thomas’s spouse told Defendants that Thomas had “anger issues when dealing with the kids,” and both Thomas’s spouse and M.T.’s older sibling said that Thomas previously beat the older child. M.T.’s older sibling said that she saw Thomas throw M.T. onto a bed. Treating physicians told Defendants that M.T.’s bilateral subdural hematomas and apparent skull fracture were trauma injuries typically caused by high-speed impact or by slamming very hard into a hard object.

On this record, the Court of Appeals (Walker, Park and Nathan) holds, the police were not unreasonable in believing their version of events as to how M.T. died was true and not a fabrication. 

Monday, December 30, 2024

Court of Appeals affirms trial court's order directing a new sexual harassment trial

This case has a long and convoluted history, including two trials held within a year of each other. The first trial yielded a $2.575 million verdict, but the trial court vacated the liability verdict and damages award and ordered a second trial, which yielded $1 in compensatory damages. The Court of Appeals affirms the first decision to throw out the first verdict, and it holds the second trial was free from reversible judicial error.

The case is Qorrolli v. Metropolitan Dental Associates, issued on December 23. I briefed and argued the appeal. Zachary Holzberg, Esq., tried both cases. As the Court of Appeals (Walker, Menashi and Merchant [D.J.]) puts it, here is what happened at the first trial:

At that trial, Qorrolli testified that she was sexually harassed by Orantes almost daily, who, among other things, allegedly “told [Qorrolli] that [she] had a nice, firm body,” would “hug” Qorrolli, “kiss” her on the cheek, and tell her he “loved” her, and “lingered around [Qorrolli’s] lips for [her] to look up and have him kiss [her].” Qorrolli testified that Orantes’ conduct made her “start[] feeling anxiety and [having] panic attacks.” 
Qorrolli also testified that she observed Orantes sexually abusing her female coworkers and giving preferential treatment to the women who accepted his advances. Qorrolli asserted that Orantes would blame her for these other women’s mistakes and would unfairly target Qorrolli for punishment and chastisement because of her refusal to submit to his advances.

Note that Plaintiff testified that she observed Orantes harass other women, primarily by taking them into empty offices for sexual liaisons. Plaintiff rebuffed Orantes' advances in this regard, and she testified that, in retaliation for that, Orantes disparaged her job performance to Dr. Cohen, who owned the dental practice. Plaintiff further testified that Dr. Cohen told her in vulgar terms that he did not believe her when she complained about Orantes. The jury awarded plaintiff $575,000 for pain and suffering and $2 million in punitive damages.

The trial court held the damages award was so out of line that a new trial was warranted on liability. Most of the time, trial judges will simply reduce the damages if they are too high, but the district court in this case held the jury heard too much hearsay evidence about coworker harassment at the hands of Orantes, and that that evidence infected the verdict. We argued on appeal that this kind of evidence was often witnessed by plaintiff firsthand and that the judge issued limiting instructions on related evidence in any event, which the jury is presumed to follow.

District courts have discretion to order a new trial. The standard of review is "abuse of discretion," which is deferential to the trial court, but not insurmountable. The Court of Appeals finds the trial court did not abuse its discretion in ordering a new trial. In holding the trial court was able to find the first trial was a miscarriage of justice, the Court of Appeals reasons as follows:

1. The compensatory damages were too high and "shocked the judicial conscience" because $575,000 was too much for compensatory damages and $2 million in punitive damages was excessive. The Court of Appeals cites precedent stating that "An unusually high damages award should be corrected through remittitur when 'the trial has been free of prejudicial error,' but 'the size of a jury’s verdict may be so excessive as to be inherently indicative of passion or prejudice and to require a new trial.'” The Court notes that, under the matrix used in the Second Circuit, "garden variety" emotional distress awards typically yield damages in the range of $30,000 to $125,000, and "significant" awards amount to $50,000 to $200,000 and sometimes reach $500,000. Since the damages in this case were significantly larger than other employment discrimination cases, the Second Circuit holds the district court did not abuse its discretion in holding the damages in this case were out of line since plaintiff (whose mother testified about plaintiff's pain and suffering) did not put on corroborating medical testimony and "presented limited evidence regarding the severity of the conduct that produced such distress," even though, as the Court of Appeals noted, plaintiff testified that Orantes sexually harassed her "almost daily" for approximately six years.

2. The Court of Appeals further holds that the punitive damages were too high and "can only be explained by the unfair prejudice to the defendants from the hearsay offered by the plaintiff." Not to sound too defensive here, but we argued on appeal the "hearsay" was not all hearsay as plaintiff witnessed much of Orantes' harassment of other employees, and plaintiff testified that Dr. Cohen was callously indifferent to plaintiff's concerns about the sexual harassment.

The Court of Appeals did not particularize the nature of the "hearsay" that it claims infected the verdict. The primary focus in affirming the trial court's order directing a new trial was the size of the damages award. To that end, we argued that, apart from plaintiff's extensive testimony about her pain and suffering, corroborated by her mother, we cannot fault the jury for awarding a too-high compensatory damages award since it has no awareness of the damages matrix that the Second Circuit referenced in the ruling, with its rough estimates about the value of "garden variety" and "significant" cases, many of which are more than 10 years old and reflected yesterday's values about the harm created by longstanding sexual harassment. 

Will this ruling prompt more trial judges to order a new trial when the jury awards an excessive damages award? The trial court can do so if the court thinks something bad happened at trial. But no trial is perfect. Some hearsay always sneaks into the record, usually corrected by limiting instructions. These instructions were issued in this case, but the Court of Appeals does not mention it in this ruling, so future judges may read this decision to mean that an excessive damages award plus some hearsay is enough for a new trial on liability. Very few cases order a new trial on these grounds, and with little precedent to guide them. I wonder what impact this case will have on future cases.

The second trial, as noted, yielded a nominal damages award on a similar but not identical trial record, though the plaintiff again testified about the almost-daily harassment, and her mother corroborated her pain and suffering. The Court of Appeals rules that plaintiff is not entitled to a new trial on the second trial, again applying the abuse-of-discretion standard.

One trial error raised on appeal was the trial court's order disallowing a corroborating witness, Vila, from testifying on liability after her doctor told the court that the witness had cancer and could not make it to the courthouse; plaintiff asked to have the jury hear the witness's deposition testimony, a common solution when the witness is not available. The Court of Appeals holds that the district court did not abuse its discretion in precluding Vila's deposition testimony, determining as follows:

The district court determined that Qorrolli had not established Vila’s unavailability because, although “it would ordinarily find a doctor’s note to be determinative regarding unavailability, . . . Ms. Vila was still travelling to and attending work in Manhattan; [Qorrolli’s] counsel had been uncertain whether Ms. Vila would testify in person; the physician’s letters were vague and produced only at the eleventh hour; and, it appeared the doctor had simply accommodated a witness’s desire not to appear because of the emotional stress an appearance would entail.”

The district court also precluded introduction of plaintiff's medical records, which we argued would have corroborated her pain and suffering. The Court of Appeals held the prejudicial value of the medical records substantially outweighed their relevance because they provided "general descriptions of the plaintiff’s mental wellbeing—including that she was having problems in the workplace, having trouble sleeping, and experiencing symptoms of depression." In addition, the Court of Appeals stated that the records contain "limited references to Orantes, and none of those references describe the specific instances of sexual misconduct described by plaintiff at the second trial. He is described as ‘very manipulative’ and ‘verbally abusive.’ There is no description of a specific event and no use of the term sexual harassment." Moreover, the district court saw limited probative value in the psychiatric records because they contained 'few' statements 'made for the purpose of a medical diagnosis or treatment' and because their general description of Qorrolli’s psychological maladies did not include any attribution to causes or precipitating incidents."

Friday, December 27, 2024

"We cannot enjoin what no longer exists"

This COVID-19 vaccination challenge reaches the Court of Appeals nearly five years after the virus ripped its way across the United States and around the world. Plaintiffs argue that the vaccine mandate from the State of New York and their private employer violated the religious freedom protections under the Constitution and federal law, as they claimed to have a sincerely-held religious belief against ingesting the vaccine. While some of these challenges have succeeded in the last few years, many of them now are being dismissed as moot. This is one of the mootness cases.

The case is John Does v. Hochul, a summary order issued on December 20. The case is moot because the vaccine mandate in this case was repealed in October 2023. That means there is no live controversy under the Constitution, which does not authorize theoretical lawsuits. The Court of Appeals (Cabranes, Sullivan and Perez) states, "we cannot enjoin what no longer exists."

The mootness rule has an exception: the court can still rule on the regulation if the regulation might resurface in the future. The state's repeal of the vaccination requirement corresponded with similar repeals around the country as the COVID-19 pandemic began taking on new personalities. While people still get COVID-19, the state has not tried to resurrect the vaccine mandate. As such, plaintiffs are not under "a constant threat" that the mandate will return. While the state continues to defend the vaccine mandate in court, that does not overcome mootness. Nor was the repealed vaccine mandate a mere litigation tactic, the Court of Appeals holds. 

As for plaintiff's Title VII lawsuit against their private employers, that claim fails under Rule 12, which means the case will never go beyond the pleading stage, and there will be no discovery. What dooms this portion of the case is the principle that the private employer can defend against certain forms of religious discrimination if a reasonable accommodation would cause an "undue hardship" on the entity. That is the case here, even at the pleading stage, the Court of Appeals holds, because the private employers had to comply with state regulations in enforcing the vaccine mandate. Cases hold that an accommodation that would violate legal obligations constitute an undue burden under Title VII. If the private employers in New York were to accommodate the plaintiffs, they would be in violation of New York's regulations. That's an undue hardship under the precedents.

Thursday, December 26, 2024

Acquitted at trial on homicide charge, but no malicious prosecution case

This plaintiff went on trial on a homicide charge after the police determined he was responsible for killing the two-year-old daughter of his girlfriend. The jury acquitted him. That acquittal is a ticket to the courthouse for malicious prosecution. But these cases are hard to win, and plaintiff's malicious prosecution case will not proceed to a jury because the district court, and the Court of Appeals, finds the police had probable cause to arrest him.

The case is Davis-Guider v. City of Troy, a summary order issued on December 23. Anyone who is acquitted following a criminal trial is probably wondering if they can sue the police over their ordeal. (This plaintiff spent time in jail awaiting his criminal trial). But what happened in this case, and this is an inherent problem in malicious prosecution cases involving felony arrests, is that the jury indicted plaintiff for manslaughter and endangering the welfare of a child. The indictment creates a presumption that there was probable cause to arrest (as the grand jury has cleared the case for trial based on the evidence presented by the prosecution). You can overcome that presumption with evidence that the indictment was procured in bad faith. But that is a difficult hurdle to overcome, and plaintiff cannot overcome it.

Here is the reason why the federal courts have accepted the indictment as evidence of probable cause: while plaintiff called the police after finding the girl unresponsive at 1:09 pm, and he claims he attempted CPR, plaintiff told the police he had been awake by 11:00 am, two hours before he called 911. The autopsy report showed the girl died rom blunt force trauma. The police thought that plaintiff appeared too calm about the girl's death, and her bed was too tidy for plaintiff to have conducted CPR on it, as he had claimed. The police also told the grand jury that it appeared the girl had been fatally struck only 15-20 minutes before plaintiff called 911. This is why the jury indicted plaintiff.

While plaintiff argues the police made mistakes in presenting the case to the grand jury, that does not overcome the presumption of probable cause because there is no evidence these mistakes were made in bad faith. At best, the Court of Appeals (Walker, Nathan and Park) holds, plaintiff only speculates the police acted in bad faith. An example of one of plaintiff's arguments: the police had hastily declared the girl's death a homicide before all the medical tests on her had come back, and the police did not tell the grand jury that EMS's attempts to administer CPR may have contributed to the girl's death. But, the Court of Appeals says, by the time defendants had planned to declare the death a homicide, the medical officer had already noted the girl's body had bone fractures and liver lacerations which were not consistent with any other cause of death.