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BHAYA v. WESTINGHOUSE ELEC. CORP.

March 22, 1989

LAL R. BHAYA, RICHARD CARNER, WILLIAM J. HAESSLER, HENRY A. PARZICK, and EARLE WILLIAMS
v.
WESTINGHOUSE ELECTRIC CORPORATION



The opinion of the court was delivered by: LORD, III

 In November 1985, a jury found that defendant's decision to lay off plaintiffs in December 1982 while retaining certain younger employees was the product of willful discrimination based on age, in violation of the Age Discrimination in Employment Act, 29 U.S.C. ยง 623(a) ("ADEA"). Defendant moved for judgment n.o.v. or a new trial. I granted judgment n.o.v. and did not reach the new trial motion. The Court of Appeals for the Third Circuit reversed, 832 F.2d 258, and now has remanded the case for me to consider the defendant's new trial motion. Bhaya v. Westinghouse, 832 F.2d 258 (3d Cir. 1987), cert. denied, 488 U.S. 1004, 102 L. Ed. 2d 774, 109 S. Ct. 782, 57 U.S.L.W. 3451 (1989).

 Defendant claims a new trial is warranted for numerous reasons. I will discuss only those two grounds which are meritorious. One concerns purported hearsay; the other concerns evidence that defendant laid off other employees after plaintiffs. For the reasons which follow, I will grant defendant's motion for a new trial.

 I. Standard of Review

 A motion for a new trial on the basis of alleged trial error requires two inquiries: whether an error was in fact made; and whether that error was so prejudicial that refusal to grant a new trial would be "inconsistent with substantial justice." Fed.R.Civ.P. 61. With respect to an evidentiary error, the test under the second inquiry is that a new trial must be granted unless "it is highly probable that [the erroneous ruling] did not affect the [objecting party's] substantial rights." McQueeney v. Wilmington Trust Co., 779 F.2d 916, 928 (3d Cir. 1985); cf. Fed.R.Evid. 103(a).

 II. Purported Hearsay

 Defendant contends that I erroneously admitted out-of-court statements by an unidentified person. While one of the plaintiffs, Henry Parzick, was being questioned by his attorney, the following exchange took place:

 
Q: What else occurred on that day . . .?
 
A: One point of interest after the meeting, I did speak to Mr. Kinlin. We just chatted, and he informed me that at a meeting that he attended --
 
Q: Can you explain who that gentleman is?
 
. . . .
 
A: He was my immediate supervisor.
 
. . . .
 
Q: What did he tell to you?
 
A: He told --
 
MS. KAHN [defendant's attorney]: Objection, Your Honor. If he's going to tell us what was told third-hand to ...

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