United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
R. CHERRY MAGISTRATE JUDGE
matter is before the Court on a Motion to Set Aside Judgment
and for New Trial [DE 131], filed by Defendant Samuel Orlich,
Jr. on August 28, 2017, and on a Motion for Hearing on
Defendant's Motion to Set Aside Judgment and for New
Trial [DE 139], filed by Orlich on September 6, 2017. For the
reasons stated below, the Court denies both motions.
Rebecca Zander initiated this cause of action on November 3,
2014, by filing a Complaint. With the Court's leave,
Zander filed an Amended Complaint on June 23, 2015. In the
Amended Complaint, Zander brought claims against Samuel
Orlich, Jr. in his individual and official capacities, John
Buncich, and Lake County, Indiana. Zander alleged that Orlich
committed the torts of battery and false imprisonment and
violated Zander's federal civil rights by committing
sexual battery against her.
claims except the individual capacity claims against Orlich
were resolved prior to trial. The claims against Orlich in
his individual capacity proceeded to jury trial, which was
held from July 31, 2017, through August 2, 2017. At trial,
Zander moved to admit a report by expert witness Dr. Judith
DeGrazia Harrington into evidence. Orlich objected, and
Zander withdrew the motion to admit the report. The report
was mistakenly provided to the jury for use in deliberations.
Also at trial, Orlich moved to admit Zander's medical
records. Zander objected, and Orlich ultimately withdrew his
offer of the medical records into evidence.
jury deliberated from 2:58 p.m. to 5:58 p.m. on August 2,
2017, and returned verdicts in favor of Zander and awarded
$100, 000 in compensatory damages and $275, 000 in punitive
damages. The Court directed the Clerk of Court to enter
judgment on the verdict. Judgment was entered on August 4,
August 28, 2017, Orlich filed the instant Motion to Set Aside
Judgment and for New Trial. Zander filed a response on August
31, 2017. Orlich filed a reply on September 6, 2017. The
motion is fully briefed and ripe for ruling. Also on
September 6, 2017, Orlich filed the instant Motion for
Hearing on Defendant's Motion to Set Aside Judgment and
for New Trial. Zander did not respond to the latter motion.
and Orlich orally agreed on the record to have this case
assigned to a United States Magistrate Judge to conduct all
further proceedings and to order the entry of a final
judgment in this case. Therefore, this Court has jurisdiction
to decide this case pursuant to 28 U.S.C. § 636(c).
Rule of Civil Procedure 59 allows the Court to grant a new
jury trial “for any reason for which a new trial has
heretofore been granted in an action at law in federal
court.” Fed.R.Civ.P. 59(a)(1)(A). A motion for a new
trial must be filed no later than 28 days after the entry of
judgment. Id. at 59(b).
speaking, materials not admitted into evidence should not be
given to the jury for use in deliberations. Baugh ex rel.
Baugh v. Cuprum S.A. de C.V., 730 F.3d 701, 705 (7th
Cir. 2013). “When unapproved material reaches the jury,
the trial court must decide whether there is a reasonable
possibility the material altered the jury's
verdict.” Bankcard Am., Inc. v. Universal Bancard
Sys., Inc., 203 F.3d 477, 483 (7th Cir. 2000) (citing
Artis v. Hitachi Zosen Clearing, Inc., 967 F.2d
1132, 1142 (7th Cir. 1992)). If a reasonable possibility
exists, then the Court must order a new trial. Deicher v.
City of Evansville, Wis., 545 F.3d 537, 543 (7th Cir.
2008). Whether there is such a possibility is left to the
Court's discretion. See Artis, 967 F.2d at
non-evidence is duplicative of other evidence, including
trial testimony, courts tend to find no reasonable
possibility that the non-evidence altered the jury's
verdict. See Bankcard Am., Inc., 203 F.3d at 483;
Artis, 967 F.2d at 1143; Arnold v. Pfizer,
Inc., No. 3:10-CV-01025-AC, 2015 WL 268967 at *16 (D.
Or. Jan. 21, 2015) (finding no reasonable possibility that
the provision of non-evidence-an expert witness's
report-to the jury altered the jury's verdict where the
purportedly prejudicial statement in the report had been
discussed during trial testimony).
other hand, if the party moving for new trial was lulled into
thinking that the party would not need to mitigate the
effects of the non-evidence on the jury because the party
believed that the jury would not see the non-evidence, then
that is a factor in favor of finding a reasonable possibility
that the non-evidence altered the jury's verdict.
Baugh, 730 F.3d at 711.
the jury should not be questioned as to whether they
considered the non-evidence, Artis, 967 F.2d at
1142, but the Court may consider the timing of the provision
of the non-evidence in relation to the rendering of the
jury's verdict, see Baugh, 730 F.3d at 711
(finding timing to be a factor where jury deliberations
lasted three days and the jury reached its verdict shortly
after it was permitted to examine non-evidence).
in reply, devotes considerable attention to United States
v. Bruscino, 662 F.2d 450 (7th Cir. 1981), in which the
trial court's denial of a new trial was reversed.
However, as Orlich notes, this opinion was reversed following
en banc rehearing, 687 F.2d 938 (7th Cir. 1982),
because the three-judge panel employed an erroneous standard
of review. The result after the en banc rehearing
was affirmation of the trial court's denial of new trial.
Thus, the overturned decision granting a new trial in a
criminal case is of limited use to the Court in the instant
argues that there is a reasonable possibility that the
provision to the jury of Dr. Harrington's report altered
the jury's verdict. The thrust of Orlich's argument
is that he was denied fair notice and opportunity to
cross-examine Dr. Harrington regarding material in her report
that Zander did not go into on direct examination. The
argument is that Orlich was not aware of his need to refute
or respond to the matters in the report. As Orlich states in
his reply brief, “[s]ince the report was not supposed
to be seen by the jury, Orlich's counsel made the
tactical decision not to attack or discredit those aspects of
the report that the jury would not see.” (Reply, 6, ECF
No. 138). Orlich argues that several matters in the report
are prejudicial to him on this ground, specifically:
1. The 14 diagnoses listed in the report;
2. The 21 tests that Dr. Harrington administered that are