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Randall Duchesneau v. Cornell University

February 19, 2013

RANDALL DUCHESNEAU,
PLAINTIFF,
v.
CORNELL UNIVERSITY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Jones, II, U.S.D.J.

MEMORANDUM

Presently before the Court is Plaintiff Randall Duchesneau's Motion for a New Trial (Dkt. No. 486), Defendant Cornell University's Response to Plaintiff's Motion for a New Trial (Dkt. No. 488), Plaintiff's Reply thereto (Dkt. No 494), and Defendant's Supplemental Memorandum (Dkt. No. 497).*fn1 For the reasons set forth below, Plaintiff's Motion is DENIED.

1) Background

This case involves a tragic accident that occurred at Cornell University on October 12, 2006, which resulted in the paralysis of the Plaintiff. Given the well-documented nature of this case, there is no need for a complete recitation of the background. The accident has been the subject of protracted litigation, involving in excess of 260 evidentiary motions, and numerous hearings which culminated in an eighteen-day trial. Ultimately, the jury returned a verdict that the Defendant, Cornell University, was not negligent. Not only has this litigation been drawn out over half a decade, it has been colored by the unnecessarily vitriolic behavior of counsel.

As this Court has previously discussed, the evidentiary issue of "waiver" has been prominent throughout this litigation. Perhaps it should come as no surprise that "waiver" is at the heart of Plaintiff's Motion for a New Trial. In short, in March 2006, it is undisputed that Plaintiff executed a document with the heading "Waiver and Assumption of Risk Agreement." That document was the subject of several rounds of briefing, motions in limine, and hearings before this Court.

Vigorous discussion and argument took place regarding the Waiver and Assumption of Risk Agreement, as to what could and could not be part of the document ultimately shown to the jury and discussed at trial.*fn2 This Court issued several rulings regarding the Waiver and Assumption of Risk Agreement including: 1) the manner in which parties would refer to the Waiver and Assumption of Risk Agreement --it would be called "the document"; and 2) if said document was shown to the jury, certain portions of the document must be redacted.

A. Alleged Misconduct

Plaintiff alleges that over the course of the eighteen-day trial, and in disregard of this Court's directives, "Cornell's counsel repeatedly engaged in a pattern of misconduct to have the jury consider the inadmissible and highly prejudicial issue of waiver." (Pl.'s Mot. for New Trial 1). Plaintiff argues that Defendant fashioned a multi-day "strategy" to get this critical issue before the jury. According to Plaintiff, this "strategy" of misconduct included:

1) Defense counsel's "repeated[] refer[ence] to the waiver as a 'participation agreement' in opening statements" (Pl.'s Mot. for New Trial 8);

2) Defense counsel's subsequent reference to the Waiver and Assumption of Risk Agreement as a "participation agreement," even after the Court's directive after opening statements that all counsel refer to the Waiver and Assumption of Risk Agreement as "the document"(Pl.'s Mot. for New Trial 9);

3) After this Court directed the parties to remove certain language from the Waiver and Assumption of Risk Agreement before it was submitted to the jury, defense counsel "proposed a document that included ellipses" as an attempt to indicate there was "more" to the document (Pl.'s Mot. for New Trial 10); and

4) Following this Court's directive that the parties create an altered version of the Waiver and Assumption of Risk Agreement to present to the jury, counsel for the defense, Richard

B. Wickersham, Jr., engaged in a colloquy in the jury's presence in which he stated, inter alia,"I didn't know if it was appropriate for you to give an instruction to the jury that this is not the actual document, but was something that you asked counsel to piece together." (Pl.'s Mot. for New Trial 13-14).

According to Plaintiff, these complained-of occurrences, taken together, made it "'reasonably probable' that the verdict was influenced by prejudicial statements." Plaintiff further argues that "misconduct in this case clearly rose to the level such that it is reasonably probable that the verdict was ...


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