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May 20, 2005.


The opinion of the court was delivered by: SYLVIA RAMBO, Senior District Judge


Before the court is Plaintiff's motion for a new trial. (Doc. 94.) A jury trial was held in the captioned matter on November 8, 9, 10, 12, 15, and 16, 2004, which resulted in a verdict in favor of Defendant Dominick DeRose ("Warden DeRose").*fn1 Plaintiff now raises several issues of alleged error that he contends warrant a new trial, including erroneous evidentiary rulings, trial misconduct, and misleading jury instructions. The court finds Plaintiff's arguments to be ill-founded; therefore, the court will deny Plaintiff's motion.

I. Background

  The factual and procedural background of the captioned matter is well-known to the parties and will not be reiterated in detail. The relevant background to the instant motion is as follows. Plaintiff, one of three deputy wardens at the Dauphin County Prison in Harrisburg, Pennsylvania, brought suit against Defendants under 42 U.S.C. § 1983 alleging retaliation for the exercise of his First Amendment rights. Plaintiff alleged that he spoke out about the following matters of public concern: (1) inmate abuse, (2) Deputy Warden Carroll taking magazines that belonged to prisoners, (3) the acceptance of gifts and other emoluments from vendors by Prison officials, (4) Warden DeRose and other Prison administrators playing golf during work hours, and (5) being ordered to run a background check on a former employee. Plaintiff asserted that he made these complaints to both Warden DeRose and the County Commissioner, Anthony Petrucci. Plaintiff also alleged the following acts of retaliation: (1) Warden DeRose threatened Plaintiff in a "screaming tirade" in his office, (2) Warden DeRose reduced the Records Office staff and deprived Plaintiff of the resources needed to perform his job, (3) Warden DeRose frequently called Plaintiff into work unnecessarily, and (4) Warden DeRose recommenced a pay increase that was less than the other two deputy wardens and gave Plaintiff a "satisfactory" rating on his evaluation while the other two deputy wardens received an "exceeds expectations" rating.

  Defendants filed a motion for summary judgment, and on August 17, 2004, the court granted the motion in part and denied it in part. In making this decision, the court did not consider the complaints Plaintiff allegedly made to Commissioner Petrucci because Plaintiff failed to establish a genuine issue that Warden DeRose ever learned about the information Plaintiff provided to Commissioner Petrucci. Nevertheless, the court granted Defendants' motion with respect to Defendant Dauphin County as well as with respect to Plaintiff's claim that he complained to Warden DeRose about Prison administrators playing golf during work hours and with respect to Plaintiff's claims that Warden DeRose retaliated against him by yelling at him, reducing his staff, and calling him into work frequently. The court denied Defendants' motion in all other respects, and the case proceeded to trial on the following issues: (1) whether Plaintiff complained to Warden DeRose about Prison administrators accepting gifts and other emoluments from vendors, (2) whether Warden DeRose's decision to recommend less of a pay increase for Plaintiff than for the other deputy wardens in December 2002 was causally connected to Plaintiff's complaints about inmate abuse, Warden Carroll taking magazines that belonged to prisoners, being ordered to perform a background check on a former employee, and possibly Prison administrators accepting gifts from vendors, and (3) whether Warden DeRose would have reached the same decision regarding Plaintiff's December 2002 evaluation and corresponding pay increase even in the absence of the protected conduct. Plaintiff did not file a motion for reconsideration of the court's decision.

  On September 17, 2004, Warden DeRose filed a motion in limine to preclude Plaintiff from introducing, among other things, evidence relating to Plaintiff's alleged complaints to Commissioner Petrucci. The court granted the motion, and Plaintiff subsequently filed a motion for reconsideration. In the motion, Plaintiff argued that testimony regarding Plaintiff's conversations with Commissioner Petrucci should be admissible because Warden DeRose must have known about Plaintiff's conversations with Commissioner Petrucci because Commissioner Petrucci addressed one of the issues Plaintiff spoke to him about at a prison board meeting that Warden DeRose attended. The court denied Plaintiff's motion.

  The court held a pre-trial conference on October 15, 2004. During the conference, defense counsel sought to preclude the admission of a number of Plaintiff's witnesses and exhibits on the grounds that they were irrelevant or untimely disclosed. The parties also discussed the relevant time frame of the events at issue.

  In an order following the pre-trial conference, the court set the time frame for evidence to be presented at trial as March 2001 to December 2002, but allowed evidence outside of this time frame to be admitted if a proper foundation was established. Additionally, the court excluded Plaintiff from introducing many of the witnesses and exhibits defense counsel objected to, but deferred ruling on others. Prior to trial, the court permitted Plaintiff to present some of the contested witnesses if he established a proper foundation (see Oct. 25, 2004 Order) and excluded some of the remaining contested exhibits (see Nov. 3, 2004 Order). By the time the trial began, only four exhibits had yet to be ruled on, Exhibits U. through X., which were deposition transcripts of four witnesses. At the outset of the trial, Plaintiff notified the court that he was withdrawing the exhibits and did not intend to use them. Later in the trial, however, Plaintiff sought to introduce some of the deposition testimony in order to impeach a witness. The court denied Plaintiff's request. Plaintiff requested a hearing on the admissibility of the transcripts, which the court also denied.

  On November 8, 2004, a jury trial commenced and lasted six days. Numerous issues arose during the trial that required discussion at sidebar conferences. Additionally, Plaintiff's counsel continuously challenged the court's rulings, and occasionally the court admonished Plaintiff's counsel in the presence of the jury. Finally, at one point during the direct examination of Plaintiff in which Plaintiff had repeatedly provided non-responsive answers, defense counsel objected to a leading question asked by Plaintiff's counsel. In response, the court remarked that it might be a way to get a straight answer out of him. At another point in the trial, Plaintiff alleged that an assistant to Warden DeRose who was sitting in on the trial, Brenda Hoffer, was making notes of testimony in the courtroom and later relaying the information to sequestered witnesses. The court interviewed Ms. Hoffer at sidebar about the allegations, and she indicated that although she had spoken to the witnesses, she did not mention anything to them about testimony offered during the proceedings. Plaintiff subsequently filed a motion to re-open his case or to call witnesses on rebuttal in order to provide testimony that Ms. Hoffer was seen talking to sequestered witnesses with her notebook in her hand. The court deferred ruling on the motion. Plaintiff did not pursue the matter during his case-in-rebuttal; thus, the court dismissed his motion as moot. (Doc. 87.)

  Finally, during the jury charge conference, Plaintiff raised several objections to the jury instructions. Specifically, Plaintiff argued that the court was improperly imposing Title VII principles to a First Amendment retaliation case. Further, Plaintiff asserted that the court should include alleged retaliatory acts in the charge that it had previously excluded as de minimis because the acts could be considered as part of a continuing course of conduct. The court included some of the language requested, but did not accept Plaintiff's theory regarding a continuing course of conduct.

  On November 16, 2004, the jury entered a verdict in favor of Warden DeRose. Plaintiff subsequently filed a timely motion for a new trial. The parties have briefed the issues, and the matter is ripe for disposition.

  II. Legal Standard: Motion for a New Trial A motion for a new trial is governed by Federal Rule of Civil Procedure 59. Under this rule, in the case of a jury trial, "[a] new trial may be granted to all or any of the parties and on all or part of the issues . . . for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of the United States." Fed.R.Civ.P. 59(a)(1). In the Third Circuit, a new trial is warranted "when the verdict is against the great weight of the evidence or errors at trial produce a result inconsistent with substantial justice." Sandrow v. United States, 832 F. Supp. 918, 918 (E.D. Pa. 1993) (citing Roebuck v. Drexel Univ., 852 F.2d 715, 735-36 (3d Cir. 1988)); see also Bullen v. Chaffinch, 336 F. Supp. 2d 342, 346 (D. Del. 2004) (noting that excessive damages or improper use of peremptory challenges to exclude potential jurors on the basis of race are other grounds for a new trial).

  When a motion for a new trial is based on a prejudicial error of law, the court has broad discretion to order a new trial. Klein v. Hollings, 992 F.2d 1285, 1289-90 (3d Cir. 1993). If, however, a motion for a new trial is premised on a verdict that is allegedly against the weight of the evidence, the court's discretion is more limited. Williamson v. Consol. Rail Corp., 926 F.2d 1344, 1353 (3d Cir. 1991). Under these circumstances, a new trial should only be granted when the verdict "cries out to be overturned or shocks the conscience." Id. Nonetheless, in reviewing a motion for a new trial, the court must draw all reasonable inferences in favor of the verdict winner. Marino v. Ballestas, 749 F.2d 162, 167 (3d Cir. 1984); see also 12 James Wm. Moore et al., Moore's Federal Practice § 59.13[2][a].

  III. Discussion Plaintiff's arguments as to why a new trial should be granted fall into the following three categories: (1) erroneous evidentiary rulings, (2) trial misconduct, and (3) misleading and erroneous jury ...

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