Friday, May 17, 2019

When verdict forms go bad

After Winning Nearly $1M Verdict, Former Student Bullied for Years Will Face Retrial

“The window of opportunity for Supreme Court to fix the [jury verdict sheet] problem closed when the other jurors left the courthouse," the appeals court wrote. "Supreme Court's subsequent efforts, while well intentioned, were futile and ... our only course of action is to order a new trial."

Stephen Bergstein, Bergstein & Ullrich in New Paltz.
When Anthony Motta Jr. was in seventh grade, he was sitting in study hall doing work when another student came up from behind him and started choking him until he almost “blacked out,” Motta testified at a 2017 trial in Sullivan County Supreme Court.

“I was at the point of blacking out and he had mercy and let me go. I jumped up gasping for air … I ran to the office and notified them what happened,” he further told a jury, according to an appellate brief quoting his testimony.

He also told jurors that the boy who choked him was not disciplined, even after Motta’s mother reported what happened to the school’s principal.

The trial was thought to be the conclusion of a years-long lawsuit Motta and his parents brought against the school district, alleging that district officials and educators negligently supervised its students and didn’t protect Motta from what he testified was years of constant bullying and abuse, all through seventh grade, eighth grade and two attempts at ninth grade, which he repeated after failing classes.

Motta told jurors about how he was shoved into lockers and walls and spit on, about how bullies urinated all over a prized hat his father had given him, about how he was constantly called a “faggot,” a “pussy,” a “cocksucker,” about how bullying students flipped over his lunch tray, drenching his clothes and phone in milk, according to his lawyer’s appellate brief citing his testimony.

And in October 2017, a jury in Sullivan County, a mostly rural county upstate, returned a nearly $1 million verdict in his favor.

But now, because of juror error in answering a single question on an eight-question verdict sheet, and specifically because a well-intentioned judge overseeing the trial tried but failed to properly fix their error in the minutes after the trial ended, the verdict has been thrown out.

An Appellate Division, Third Department panel has ruled that a new trial must be held, writing that “the taking of this verdict was fatally flawed,” and stating that “Supreme Court [Judge Stephan Schick’s] subsequent efforts, while well intentioned, were futile and … our only course of action is to order a new trial.”

Motta, who developed PTSD and social anxiety from the years of bullying, according to his appellate lawyer, Stephen Bergstein, is expected to relive the experience over again from the stand.

Christopher Mills, the appellate attorney representing the Eldred Central School District in the lawsuit, could not be reached for comment despite multiple attempts.

The school district itself could not be immediately reached for comment Thursday.

According to both the Third Department’s decision and Bergstein’s appellate brief, the jury erred by answering verdict sheet question five after it had answered question four with “No.”

After finding the school district negligent and that the district’s negligence was a “substantial factor” in causing Motta’s injuries, the jurors also found that Motta had committed some negligence over the years.

Then, asked in question four whether Motta’s negligence was a “substantial factor” in causing his own injuries, the jury said, “No.”

The sheet’s instructions then said, “If your answer is No [to Question 4], proceed to Question 6.”
Instead, the jury went to question five and answered it. Question five had asked them to apportion a “percentage of fault” between the school district and Motta himself in causing the injuries he suffered.

The jury said the injuries were 70% caused by the district, 30% by Motta.

A short time later in the small courthouse upstate, a clerk read aloud the verdict sheet answers but, for some reason, bypassed reading aloud question five, the appeals panel’s decision and Bergstein said.
Part of what the clerk read aloud was an award of $300,000 to Motta for past pain and suffering and $640,000 to him for future pain and suffering, along with $60,000 to his parents for psychological and other injuries they suffered due to their son’s trauma.

Schick then excused the jury, before soon realizing the jury’s error, according to Bergstein and the panel.

Schick was able to quickly retrieve the jury forewoman, and she came back into the courtroom where, according to Bergstein, quoting a trial transcript, the forewoman told the judge and lawyers, “We just thought we had to come up with a number.”

The Third Department panel explained that Schick then “indicated that [he] considered the answer to question No. 5 a nullity and, after the foreperson was questioned and counsel given the opportunity to be heard, the foreperson was again discharged.”

But for the panel, which considered the district’s challenge to Schick’s “nullity” finding, what Schick did was not enough.

“The taking of this verdict was fatally flawed,” the panel wrote.

“Pursuant to CPLR 4111 (c), when the answers on a verdict sheet ‘are inconsistent with each other and one or more is inconsistent with the general verdict, the court shall require the jury to further consider its answers and verdict or it shall order a new trial,’” wrote the panel, quoting Marine Midland Bank v. Russo Produce Co.

“The jury’s consideration of question No. 5 was inconsistent with its answer to question No. 4 and should have been brought to the jury’s attention with a curative charge, followed by a return to deliberations to resolve the inconsistency,” the panel said.

“However, because the jury had already been discharged, this was not possible and Supreme Court’s consultation with the jury foreperson alone, although done in open court, could not take the place of full jury reconsideration.”

“In essence,” the panel said, “the window of opportunity for Supreme Court to fix the problem closed when the other jurors left the courthouse. Supreme Court’s subsequent efforts, while well intentioned, were futile and, given this timeline, our only course of action is to order a new trial.”

Bergstein said Motta is now in his early 20s and he had begun seventh grade in 2009.

The lawyer also said of the appeals court decision, “It is tragic that there has to be another trial, and Anthony has to relive the bullying again, and be subject to cross-examination again, over a trial error that is not his fault and is not his [trial] lawyer’s fault.”

“I think when you have something like this, you really need to think of a solution that prevents a second trial, because it was a difficult trial for everyone—a full week [trial],” he said.

He also noted that he and the Mottas will try to challenge the Third Department’s May 9 decision, beginning with a motion for reconsideration.

A lesson for trial lawyers, he said, is that “you want to see the verdict sheet for yourself as a lawyer before jury leaves the courthouse.”

He added, “The [CPLR] statute appears to deny a court any discretion; if you’re dealing with this on appeal, you’re options are going to be limited.”

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