The case is Cheathem v. Ostrow, decided by the Appellate Division, Second Department, on November 21. My law partner and I tried the case, and I argued the appeal. This is a sexual harassment case that went to trial in Orange County Supreme Court in February 2009. The plaintiff worked for a small employer who persisted in seeking sex and groped and touched her over the course of two weeks, causing her quit her job because she couldn't take it anymore. At deposition, counsel asked her to describe the harassment. Each time, she testified about more incidents. But plaintiff was never asked the "close out" question that would box her in, i.e., "have you told me everything he did to you?" So, at trial, she testified for the first time that her employer wanted to play "Simon Says" at work. He took off his shirt, suggesting that she do the same.
On cross-examination, defendant's counsel wanted to impeach plaintiff for not testifying about Simon Says at deposition. The trial judge said this was impermissible because plaintiff did not have the opportunity to testify about this in deposition. Plaintiff went on to win this he-said she-said case; the jury awarded her $25,000 for pain and suffering. The Appellate Division affirms, reasoning that the trial court did not abuse its discretion in limiting the scope of cross-examination:
At trial, the plaintiff testified that her employer, the defendant Stephen Ostrow, required her to play the game “Simon Says,” and that during this game, he instructed her to hop on one foot and expose her bare chest to him. Although the plaintiff did not testify about this event during her deposition, the plaintiff was not asked in her deposition whether she testified to every alleged instance of sexual harassment. Under these circumstances, the use of the plaintiff’s deposition testimony to impeach this portion of her trial testimony would have been confusing and unfairly prejudicial, and the Supreme Court properly precluded defense counsel from doing so.A contrary ruling would allow the jury to think the plaintiff was making up the story because she did not mention Simon Says at deposition. There is nothing like getting the plaintiff to admit that her account was omitted (or different) from her prior sworn testimony. In a close case, that kind of impeachment can turn the case around. What this case tells us is that the plaintiff should not volunteer testimony at deposition, and that defendants have to box-in the plaintiff so there are no surprises at trial.