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Zander v. Orlich

United States District Court, N.D. Indiana, Hammond Division

November 30, 2017

REBECCA ZANDER, Plaintiff,
v.
SAMUEL ORLICH, JR., Defendant.

          OPINION AND ORDER

          PAUL R. CHERRY MAGISTRATE JUDGE

         This 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.

         PROCEDURAL BACKGROUND

         Plaintiff 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.

         All 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.

         The 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, 2017.

         On 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.

         Zander 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).

         STANDARD

         Federal 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).

         Generally 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 1142.[1]

         When 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).

         On the 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.

         Further, 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).

         Orlich, 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 civil matter.

         ANALYSIS

         Orlich 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 listed ...

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