Berndt et al v. California Department of Corrections et al

Filing 946

Order by Magistrate Judge Nandor J. Vadas denying 907 Motion for New Trial.(njvlc1, COURT STAFF) (Filed on 5/19/2016)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 EUREKA DIVISION 7 8 MARTHA BERNDT, et al., Case No. 1:03-cv-03174-NJV Plaintiffs, 9 ORDER DENYING MOTION FOR NEW TRIAL v. 10 United States District Court Northern District of California 11 12 CALIFORNIA DEPARTMENT OF CORRECTIONS, et al., Re: Dkt. No. 907 Defendants. 13 14 This case was tried on February 1, 2016, through February 10, 2016, at which time the jury 15 returned a verdict for Defendants. The jury found that Plaintiff Martha Berndt, who had worked 16 as a correctional officer in the Secured Housing Unit ("SHU") at Pelican Bay State Prison, had not 17 proved that she was subjected to a hostile work environment because of inmate sexual misconduct. 18 (Doc. 890.) The jury further found that Plaintiff had not proved that Defendant David Skerik 19 personally participated in discriminating against her based on her gender or set in motion a series 20 of acts by others which he knew or reasonably should have known would cause others to 21 discriminate against her based on her gender. Id. Now pending before the court is Plaintiff's 22 Motion for a New Trial. Doc. 907. Defendants oppose the motion. Doc. 917. For the reasons 23 discussed below, the court denies Plaintiff's Motion for a New Trial. 24 25 LEGAL STANDARD Under Federal Rule of Civil Procedure 59(a)(1), a court “may, on motion, grant a new trial 26 on all or some of the issues.” After a jury trial, a court may grant a new trial, "for any reason for 27 which a new trial has heretofore been granted in an action at law in federal court." Fed.R.Civ.P. 28 59(a)(1)(A). A court may grant a new trial “if the verdict is contrary to the clear weight of the 1 evidence, is based upon false or perjurious evidence, or to prevent a miscarriage of justice.” 2 Molski v. M.J. Cable, Inc., 481 F.3d 724, 729 (9th Cir. 2007) (internal quotation marks omitted). 3 A judge should not grant a new trial unless “left with the definite and firm conviction that a 4 mistake has been committed.” Landes Constr. Co. v. Royal Bank of Can., 833 F.2d 1365, 1372 5 (9th Cir. 1987) (internal quotation marks omitted). In considering a Rule 59(a) motion for a new 6 trial, the court “is not required to view the trial evidence in the light most favorable to the verdict. 7 Instead, the district court can weigh the evidence and assess the credibility of the witnesses.” 8 Experience Hendrix LLC v. Hendrixlicensing.com Ltd, 762 F.3d 829, 842 (9th Cir. 2014). DISCUSSION 9 10 Weight of the Evidence United States District Court Northern District of California 11 The first question on the verdict form was, "Did Plaintiff Martha Berndt prove, by a 12 preponderance of the evidence, that she was subject to a sexually hostile work environment 13 because of inmate sexual misconduct?" Doc. 890. The jury answered "no" to this question. Id 14 Plaintiff contends that this outcome is against the weight of the evidence presented at trial, arguing 15 that the evidence showed that Berndt was subjected to a hostile work environment. 16 17 18 19 20 21 22 A plaintiff asserting a Title VII claim under a hostile work environment theory must show (1) the existence of a hostile work environment to which the plaintiff was subjected, and (2) that the employer is liable for the harassment that caused the hostile environment to exist. See Little v. Windermere Relocation, Inc., 301 F.3d 958, 966 (9th Cir. 2002) (citing Faragher v. City of Boca Raton, 524 U.S. 775, 787–89, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998)). To establish the existence of a hostile work environment, “a plaintiff must prove that (1) she was subjected to verbal or physical conduct of a sexual nature, (2) this conduct was unwelcome, and (3) this conduct was sufficiently severe or pervasive to alter the conditions of ... employment and create an abusive working environment.” Id. (internal quotations omitted). The third element requires us to consider the totality of the circumstances and whether the harassment was both objectively and subjectively abusive. Id. 23 24 25 Freitag v. Ayers, 468 F.3d 528, 541 (9th Cir. 2006). Plaintiff contends that the "the only possible evidentiary basis in the record" for the jury's 26 negative answer to question number 1 on the verdict form was the testimony of Defendants' prison 27 expert witness, Dr. Steve Martin. Doc. 907, 9:10-11. She also contends that the court erred in 28 admitting that testimony. Plaintiff references the following testimony by Dr. Martin. 2 1 Dr. Martin was asked: 2 Now, in your review of materials for the 1997 to 2002 time period at Pelican Bay, did you form any opinion about whether inmate indecent exposure was a severe or pervasive problem at Pelican Bay? 3 4 5 Doc 881, 1082:11-14. Over the objection of Plaintiff’s Counsel, Dr. Martin was allowed to answer: 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 I would not characterize it in terms -- relatively speaking, in terms of management of an institution as either serious and certainly not pervasive in terms of sheer incidents as compared to inmate assaults and staff assaults and uses of force that occur. All of those are serious events that typically involve -- can involve physical harm to parties. So with the frequency that those occur in Pelican Bay, those other, what I consider to be, physical harm, immediate physical harm incidents, you compare inmate exposure to those numbers, and it's not -- I don't know how to say, other than I calculated a percentage of -well, I'll just -- the OIG report I understand is in evidence. They took events at Pelican Bay over a seven-month period, I believe in January to July, 2000, and calculated all the events. You know, disciplinary infractions and force that you have in prison. And inmate exposure cases were three percent. Three percent of that. As opposed to over -I think I calculated 77 cases as opposed to over a thousand -- over a thousand assaults, both inmate on inmate, inmate on staff, applications of force and threats to assault. That, my friend, is a pervasive problem. Doc 881, 1083:9-1084:3. Dr. Martin further testified: Relative to an inmate exposure, inmate locked securely behind his cell, no imminent bodily threat, exposed himself, while it's demeaning, it's vulgar, no question about that, it's not something pleasant, it's not what we're talking about in terms of serious, threatening management issues that get people hurt and killed. It simply is not. Doc 881, 1087:22-1088:3. 22 In arguing initially that this testimony should not have been admitted, Plaintiff complains 23 that, “it shows a lack of understanding of the legal issues in a Title VII sexual harassment/hostile 24 working environment case.” Doc. 907, 15:5-6. This argument is nonsensical, as Dr. Martin did 25 not purport to have such an understanding or to state an opinion on those legal issues. To the 26 contrary, Dr. Martin expressly testified that he had no expertise in the area of equal employment 27 opportunity issues, and had never been involved as an expert in a case involving gender 28 discrimination. Doc. 881, 1104:3-13. Plaintiff had a variety of methods available at trial to 3 1 2 explain her view of Dr. Martin’s testimony to the jury, and it was up to her to do so. Plaintiff's claim that the "only possible evidentiary basis" the jury could have relied on to 3 find against her was the testimony of CDCR' s prison expert, Steve Martin, that sexual misconduct 4 was less pervasive than physical violence at Pelican Bay, ignores the actual question before the 5 jury. That is, whether inmate sexual misconduct was "sufficiently severe or pervasive to alter the 6 conditions of employment." Freitag, 468 F.3d at 539. 7 The record supports the conclusion that any correctional officer job, and especially a 8 Pelican Bay SHU Correctional officer job, requires working with difficult-to-manage inmates who 9 frequently violate institutional rules. Plaintiff's witness, Dr. Roy Curry, testified that, from his personal experience, "[inmates] are usually anti-authority and they get pleasure out of 11 United States District Court Northern District of California 10 manipulating others, if they can. Themselves as well as those who have power over them." Doc. 12 895, 147:17-19. Dr. Curry testified that Plaintiff told him that most inmates were manipulative 13 because "that's all they had. They had time to think about how to provoke the guards or others." 14 Id. at 13-14. When asked whether all inmates housed in the SHU were "difficult-to-manage" 15 inmates, union representative Rick Newton responded "absolutely." Doc. 894, 85:2. Former 16 Officer Hastings testified that, along with sexual misconduct, inmates insulted her, called her 17 names, threatened her safety, threatened to kill her, and tried to intimidate her. Doc. 894, 161:2- 18 11. Plaintiff's own prison expert, Ken Katsaris, described the work environment in prison as 19 "probably underappreciated by the majority of citizens who have no idea of how difficult it is to 20 work there to start with." Doc. 896, 826:11-12. When asked whether "maintaining order in a 21 prison is enhanced by isolating the most chronic troublemakers from the general population," 22 Katsaris responded "that's what the Supermax prisons are for." Doc. 896, 852:23-853:2. Katsaris 23 agreed that staff working in a SHU unit must be "uniquely adaptable to working in an abnormal 24 setting with persons who present inordinate adjustment and management problems." Doc. 896, 25 854:15-17. Dr. Martin testified that Pelican Bay is different than other prisons in California 26 because it is a "very, very high security facility," designed to house "very difficult-to manage 27 prisoners, prisoners that are violent, prisoners that are persistent in their institutional misconduct." 28 Doc. 881, 17:15; 17:24-18-1. Joe McGrath, the former warden, testified that Pelican Bay was 4 1 built as the "most secure prison that California has and houses probably the most difficult to 2 manage and dangerous inmates in the State of California." Doc. 881, 187:21-23. McGrath 3 described in detail the types of difficult inmates that employees at Pelican Bay were tasked with 4 controlling: violent inmates, volatile inmates, and those with a "history of making poor decisions 5 [who] are not well suited to listen and take direction from staff and do what they're told to do." 6 Doc. 881, 189:8-22. 7 Additionally, Dr. Martin testified that inmate indecent exposure is something that a prison 8 must address, and that a prison cannot ignore it. Doc. 888, 33:15-20. The prison experts from 9 both sides agreed that inmate masturbation offenses were impossible to completely stop. Doc. 881, 33:21-22; Doc. 896, 840: 2-7. Martin explained to the jury that prisons have "chronic 11 United States District Court Northern District of California 10 offenders" and that no matter what sanctions are imposed, "[i]f they have the opportunity to act 12 out, they will." Doc. 881, 35:20-21. Warden McGrath testified that there were two inmates, 13 chronic offenders, responsible for approximately half of the indecent exposure incidents at Pelican 14 Bay: Snaggletooth Johnson and Goldwire Jackson. Doc. 881, 35:20-21. 15 The jury was required to review the totality of the circumstances in assessing the work 16 environment at Pelican Bay and in determining whether inmate sexual misconduct Plaintiff 17 encountered was sufficiently severe or pervasive to alter her work environment. See, Freitag, 468 18 F.3d at 541. In addition, the finding of an abusive work environment requires a showing that the 19 conduct was both objectively and subjectively abusive. Id. As Plaintiff argues, the Ninth Circuit 20 has held that a single incident of severe abuse can constitute a hostile work environment. Id. at 21 540. This, however, does not absolve the jury from analyzing whether both Plaintiff and an 22 objective person would find her work environment was unlawfully altered by her specific 23 experience. Plaintiff's work environment happened to be the "end of the line" for difficult inmates 24 in California, including at least two inmates who constantly engaged in sexual misconduct. 25 Additionally, the work environment at Pelican Bay was physically violent. The jury heard 26 Warden McGrath summarize the range of inmate misconduct as everything from murder to 27 thievery, drugs, and assault on other inmates and staff. Doc. 881, 1250:14-20. 28 In light of all the evidence presented to the jury, the undersigned concludes that Plaintiff 5 1 has not established that the jury’s determination on this issue was against the clear weight of the 2 evidence.1 3 Admission of Testimony under Rule 704 Plaintiff contends that the court violated Rule 704 of the Federal Rules of Evidence by 4 5 admitting the testimony of Dr. Martin set forth above. She argues that the testimony told the jury 6 what outcome to reach as to whether Plaintiff was subjected to verbal or physical conduct that was 7 sufficiently severe or pervasive to alter the conditions of employment and create an abusive 8 working environment. Rule 704, however, provides in relevant part as follows: "[a]n opinion is 9 not objectionable just because it embraces an ultimate issue." The court did not sustain an 10 objection to Dr. Martin's testimony on the ground that it reached an ultimate issue in the case. Plaintiff cites the Advisory Committee Notes to the 1972 Proposed Rules regarding Rule United States District Court Northern District of California 11 12 13 14 15 704, which provide in part: The abolition of the ultimate issue rule does not lower the bars so as to admit all opinions. Under Rules 701 and 702, opinions must be helpful to the trier of fact, and Rule 403 provides for exclusion of evidence which wastes time. These provisions afford ample assurances against the admission of opinions which would merely tell the jury what result to reach, somewhat in the manner of the oath-helpers of an earlier day. The testimony cited by Plaintiff, Martin's opinion that inmate sexual misconduct was less 16 17 pervasive than violent misconduct at Pelican Bay, was permissible. Martin was qualified as a 18 prison management expert, the testimony was relevant and reliable, and could assist the trier of 19 fact in determining whether CDCR was devoting adequate resources and attention to combatting 20 the problem of inmate sexual misconduct. Fed. R. Evid. 702 and 704. Plaintiff is incorrect that Martin's opinion was an improper legal conclusion. Martin, in the 21 22 lengthy citation included in Plaintiff's motion, opined that indecent exposure was not as pervasive 23 as violent crime at Pelican Bay, relying on data he reviewed. This is a factual conclusion, not a 24 legal one. Plaintiff's prison expert, Katsaris, used the term "pervasive" six times when testifying to 25 describe the problem of inmate sexual misconduct at Pelican Bay. Doc. 896, 799:3, 802:14, 26 27 28 1 In light of this conclusion, the court finds it unnecessary to address Plaintiff's arguments regarding the weight of the evidence to support the other elements of a sexual hostile work environment claim. 6 1 816:14, 817:11, 817:20, 870:25. Martin was permitted to rebut Katsaris' characterization of the 2 problem as "pervasive." Martin's testimony did not address the specific issue of whether the 3 conduct Plaintiff Berndt was subjected to was sufficiently severe or pervasive to alter her work 4 environment. His testimony compared the relative pervasiveness of sexual misconduct to the 5 violence at Pelican Bay. 6 When Defense Counsel posed a question specific to Plaintiff's work experience, the court sustained Plaintiff's objection. The court sustained Plaintiff's objections to questions that would 8 actually have gone to ultimate fact, i.e., whether four incidents over eighteen months would 9 constitute a severe or pervasive hostile work environment. Doc. 881, 1095:21-1096:6. The court 10 further sustained an objection to a question, based on the same Rule 704 objection, about whether 11 United States District Court Northern District of California 7 a "reasonable female correctional officer [would] have to expect some sort of indecent exposure 12 conduct." Doc. 881, 1096:8-13. The court later reviewed and affirmed these rulings. Doc. 881, 13 1116:23-1117:15. 14 The court properly admitted Martin's factual opinions that fell within his expertise and that 15 were supported by the evidence in the record. No violation of Rule 704 occurred. 16 Limitation of Testimony to Period of May 24, 1997 to July 13, 2002 17 In ruling on Defendants' Motion for Summary Judgment as to Plaintiff Berndt, Chief Judge 18 Hamilton found that the continuing violation doctrine applied in this case. Doc. 739, 7:12-19. 19 Chief Judge Hamilton ruled that this doctrine allowed "the inclusion of otherwise time-barred 20 incidents as long as they are deemed part of 'one unlawful employment practice giving rise 21 to a single claim,'” quoting National Railroad Passenger Corporation v. Morgan, 536 U.S. 22 101, 118 (2002). Id. at 15-18. The court therefore determined that it would consider all four 23 inmate exhibitionist masturbation ("IEX") incidents alleged by Plaintiff to be part of her Title VII 24 claim, regardless of whether they occurred outside the 300 day limitation period before Plaintiff 25 administratively exhausted her claims. Doc. 739, 7:18-19. 26 At the Final Pretrial Conference held on August 17, 2015, Chief Judge Hamilton 27 acknowledged her prior ruling regarding the continuing violation doctrine. Transcript of Final 28 Pretrial Conference, 7:20-24; 12:6-7. Stating that she had not yet set the exact parameters of the 7 1 time period for which evidence would be admitted, Chief Judge Hamilton ruled that the end date 2 would be the last day of Plaintiff's employment. Id. at 12:14-16. Chief Judge Hamilton then 3 asked Plaintiff's Counsel what date she would prefer as a starting date. Counsel proposed the date 4 of May 24, 1997, which the court accepted, and memorialized in the Final Pretrial Order. Id. at 5 13:8, 21-25; Doc. 821, 2:12-14. Judge Hamilton applied the same time period limitation to 6 evidence of harassment experienced by third parties. Doc. 821, 2: 25-27. Plaintiff now contends that the court erred in limiting the time frame so as to begin on May 8 24, 1997. Plaintiff argues evidence of inmate masturbation during the entire time Plaintiff worked 9 at Pelican Bay was relevant, and that the time period should therefore have begun in 1994. The 10 only specific prejudice claimed by Plaintiff is that evidence could have been admitted of seven 11 United States District Court Northern District of California 7 115s filed by Officer Marla Aguirre regarding incidents in April through May 9 of 1997. The authority cited by Plaintiff establishes only that a court may exercise its discretion to 12 13 consider evidence showing a hostile work environment over an entire employment period; it does 14 not make such consideration mandatory. See Morgan, 536 U.S. at 118 ("Provided that an action 15 contributing to the claim occurs within the filing period, the entire time period of the hostile 16 environment may be considered by a court for the purposes of determining liability.") Further, 17 Plaintiff's argument that, "'[i]f Attorney Price had been given the opportunity to do so, she would 18 have proposed a longer time since under the Morgan decision she could have requested the entire 19 time of Officer Berndt's employment," proceeds from a false premise. The beginning date of May 20 24, 1997, was imposed by the court only after it was suggested by Plaintiff's Counsel. Counsel 21 could have proposed an earlier date. She could, for example, have proposed a date that would 22 have included all of April and May 1997. There is nothing in the record to suggest that the court 23 would have rejected such a date.2 Plaintiff cannot now be heard to complain of the imposition of a 24 2 25 26 27 28 Chief Judge Hamilton asked a very open question, stating as follows: What I'd like to know from you is what is the start date? It's impossible to tell, given all of the documents you've submitted, including the charts that are the subject of another motion. I mean, these things go back for years. And I'm not -- I'm not entirely persuaded that all of them should go -- that I'm going to permit all of that evidence. So you tell me, what is it you are seeking in terms of a time frame for these two plaintiffs? Complaints commencing when and ending when they leave the employment. 8 1 date limitation she herself offered. Any claim of error has been waived. 2 Limitation of Number of Documented Instances of Exhibitionist Masturbation Admitted 3 During the cross-examination of Defendants’ expert witness Dr. Martin, Plaintiff sought to 4 admit documents relating to ten 115s by other female correctional officers involving Goldwire 5 Jackson between December, 2001, and June, 2002. The court excluded this evidence. Doc. 880, 6 100-103; Doc. 881, 71, 74, 83; Doc. 894, 60-62. The court found specifically that,"[g]iven the 7 findings that are in the Freitag decision, the Court believes that its ruling in regards to the number 8 of 115s for other incidents not related specifically to Ms. Berndt is more than adequate for the 9 plaintiff to show a pervasiveness." Doc. 895, 593:14-18. Plaintiff now argues that "the jury could have taken a far different view of the question of the pervasiveness of inmate exhibitionist 11 United States District Court Northern District of California 10 masturbation as well as the validity of Dr. Martin’s opinion as to pervasiveness and severity if it 12 had these exhibits before it." Doc. 907, 23:9-12. 13 In so arguing, Plaintiff ignores the extent of the evidence the court admitted to support the 14 issue of pervasiveness. The court admitted the OIG report (Exhibit 1 ), Plaintiff's IEX charts 15 (Exhibits 2-3), and numerous other IEX reports by other correctional officers (Exhibits 6, 7, 9, 11, 16 13-17, 20, 25, 28-32, 41, A-C). These documents provide a clear picture of the total number of 17 IEX incidents that occurred during Plaintiff's employment at Pelican Bay. Plaintiff has made no 18 showing how any of the information in the excluded documents would have changed the overall 19 picture presented to the jury. Further, the opinion of Plaintiff's prison expert, Ken Katsaris, relied 20 on the total number of IEX incidents to support his opinion on the issue of pervasiveness. Katsaris 21 discussed the full extent of inmate Jackson's misconduct, the total number of reported IEX 22 incidents at Pelican Bay, and the incidents' effect on women correctional officers. Doc. 896, 23 794:19-800:4, 816:14-818:15, 821:1-4, 825:4-22, 828:15-18, 835:18-20, 838:18-839:3, 862:12- 24 863:14. He stated specifically that he reviewed over one hundred 115s from the relevant time 25 period, all of which involved sexual conduct by inmates. Doc. 896, 56:8-19. Contrary to 26 Plaintiff's assertion of prejudicial deprivation, the jury had ample evidence on the issue of 27 28 Transcript of Final Pretrial Conference, 12:17-25 9 1 pervasiveness to consider in reaching its verdict. 2 Judicial Notice of Rulings in Freitag During the trial, Plaintiff requested that the Court take judicial notice of two rulings. Docs. 3 4 879, 872. The first was the ruling that this case and Freitag v. CDCR, 3:00-cv-02278 TEH, were 5 related cases pursuant to Civil L.R. 3-12, because "[t]he cases involve substantially the same 6 events and questions of fact and law, to wit: whether the inmates at Pelican Bay State Prison 7 created a sexually hostile work environment to which the defendants failed to appropriately 8 respond, and whether the defendants unlawfully retaliated against female employees who voiced 9 concerns about the inmates’ conduct." Doc. 5, 2:1-4. The second was the Order Granting Permanent Injunction, entered by Judge Henderson on August 18, 2003, in Freitag. Doc. 872-1 11 United States District Court Northern District of California 10 That injunction, in part, permanently enjoined the California Department of Corrections "from 12 engaging in any employment practices, or taking any other personnel action, for the purpose or 13 with the effect of maintaining a sexually hostile work environment at Pelican Bay State Prison." 14 Doc. 872-1, 8:18-19. Plaintiff argues that Judge Henderson's order was directly relevant to and 15 probative of key issues in this case, i.e., whether there was a hostile working environment at 16 Pelican Bay and whether CDCR had taken reasonable steps to remedy the situation. The court denied Plaintiff's request for judicial notice, finding the evidence more 17 18 prejudicial than probative. Doc. 880, 15-17. As was repeatedly reiterated by the court during the 19 trial, Plaintiff had the burden of convincing the jury that she, not Officer Freitag, was subjected to 20 a hostile working environment. Judge Henderson's legal conclusions regarding the working 21 environment at Pelican Bay were based on evidence presented at a completely separate trial. The 22 unfair prejudice deriving from the introduction of Judge Henderson's legal conclusions in this case 23 would have greatly outweighed any probative value. See Rule 403, Federal Rules of Evidence. 24 To have allowed the jury to consider those conclusions would have created a high risk of 25 confusing the issues and misleading the jury. Id. The court did not err by denying Plaintiff's 26 requests for judicial notice. 27 // 28 // 10 1 2 Testimony of Captain Patten Plaintiff contends that the court erred in admitting certain testimony of Captain Cara 3 Patten, because the testimony was not properly disclosed and was prejudicial. Based on a 4 recollection that occurred during the trial, Patten testified that she was the supervisor responsible 5 for inmate Jackson not being moved on July 12, 2002. Doc. 897, 1416:25-1417:7. She also 6 testified about her personal knowledge of IEX with male correctional officers. Plaintiff provides 7 no legal authority to support her contention that admission of this testimony was erroneous. 8 9 Defendants timely disclosed Patten as a trial witness on the issues of her work history; Martha and Allan Berndt; the CDCR; Pelican Bay State Prison and inmates; the job duties of correctional officers and correctional supervisory and management personnel and related training; 11 United States District Court Northern District of California 10 referral of inmate crimes to the District Attorney; and inmate Goldwire Jackson. Doc. 864, 2:14- 12 19. Plaintiff did not object to the scope of Patten’s proposed testimony at either pretrial 13 conference, thus any challenge on this ground is waived. Further, Plaintiff took Patten’s 14 deposition in 2013, and thus had ample opportunity to discover the scope of Patten's possible 15 testimony. Plaintiff also had the opportunity during discovery to inquire into Patten’s personal 16 knowledge regarding Plaintiff’s claims by taking Patten's supervisors’ depositions or by 17 propounding specific interrogatories. 18 Plaintiff claims that she was prejudiced by Patten’s testimony because Plaintiff had been 19 held to a more rigorous standard as to disclosure of her witnesses. She relies specifically on the 20 court’s ruling excluding Officer Freitag from testifying at trial because Plaintiff failed to timely 21 include Officer Freitag on her witness list. Doc. 865, 5:18-6:19. Plaintiff argues that by contrast, 22 Captain Patten was allowed to testify to matters “wholly undisclosed and as to which Plaintiff had 23 no opportunity to rebut or otherwise challenge.” Doc. 907, 25:23-24. 24 Plaintiff’s argument is meritless. The exclusion of Freitag’s testimony did not somehow 25 make the admission of Patten’s testimony improperly prejudicial to Plaintiff. Moreover, the 26 exclusion of Officer Freitag was wholly attributable to Plaintiff’s Counsel’s failure to comply with 27 the requirements of this court’s pretrial court. Captain Patten, however, was on Defendants’ 28 witness list and her work history was disclosed as a topic on which she would testify. 11 1 "The district court has broad discretion to admit potentially prejudicial evidence under 2 Rule 403." United States v. Rizk, 660 F.3d 1125, 1132 (9th Cir.2011). Patten was present at trial 3 during testimony relating to Plaintiff's claim that Defendants ignored her request to immediately 4 move inmate Jackson on July 12, 2002. While listening to this testimony, Patten remembered 5 that she was involved in the decision not to move inmate Jackson on that night. Doc. 897,1394:2- 6 6; 1420:12-15. Defendants are not required to disclose impeachment or unknown information 7 prior to trial. Fed. R. Civ. P. 26(a)(3), (e)(l)(A). Patten's testimony on this issue was not known 8 prior to trial and was used solely for impeachment purposes. The court's decision to admit this 9 testimony was within its discretion. 10 Putative Misconduct by Defense Counsel United States District Court Northern District of California 11 Plaintiff contends that during the course of the trial there were a number of acts of 12 "misconduct" by Defense Counsel that "could have affected the jury's verdict." Plaintiff provides 13 no citation to a legal standard governing claims of attorney misconduct as a basis for a motion for 14 a new trial. 15 16 17 18 19 20 21 A new trial should only be granted where the “‘flavor of misconduct ... sufficiently permeate[s] an entire proceeding to provide conviction that the jury was influenced by passion and prejudice in reaching its verdict.’” Kehr v. Smith Barney, 736 F.2d 1283, 1286 (9th Cir. 1984) (quoting Standard Oil Co. of California v. Perkins, 347 F.2d 379, 388 (9th Cir. 1965)). There is an even “high[er] threshold” for granting a new trial where, as here, defendants failed to object to the alleged misconduct during trial. Kaiser Steel Corp. v. Frank Coluccio Constr. Co., 785 F.2d 656, 658 (9th Cir. 1986). A higher threshold is necessary for two reasons: “First, raising an objection after the closing argument and before the jury begins deliberations ‘permit[s] the judge to examine the alleged prejudice and to admonish ... counsel or issue a curative instruction, if warranted.’ ” Hemmings v. Tidyman's Inc., 285 F.3d 1174, 1193 (9th Cir. 2002) (quoting Kaiser, 785 F.2d at 658). Second, “allowing a party to wait to raise the error until after the negative verdict encourages that party to sit silent in the face of claimed error.” Id. 22 Settlegoode v. Portland Pub. Sch., 371 F.3d 503, 516-17 (9th Cir. 2004) 23 The first alleged misconduct is that Defense Counsel asserted in opening statement that 24 IEX was reported by men, but Defendants failed to produce any actual IEX reports by men. 25 Overpromising on the evidence during opening statement is not misconduct. There are many 26 reasons why counsel may change her mind during the course of trial as to what evidence she will 27 introduce. Plaintiff, of course, had the option of pointing out the absence of the promised 28 12 1 evidence in closing argument. The court notes that Plaintiff's own evidence, Exhibit 1, the OIG 2 Report, showed that IEX was reported by men. Katsaris testified that the OIG Report noted 3 seventeen reports by male staff members of indecent exposure and/or masturbation. Doc. 896, 4 123:12-14. Defendants also produced Exhibit P, Warden McGrath's response to the OIG Report, 5 and testimony by Martin and Patten which directly addressed this issue. 6 The second alleged misconduct is Defendants' failure to produce evidence regarding 7 Correctional Officer Hunt's disability retirement after questioning Plaintiff about it during cross- 8 examination. Overpromising evidence after a sustained objection during cross-examination is not 9 misconduct. Again, Plaintiff could have noted the absence of the promised evidence in closing 10 United States District Court Northern District of California 11 argument. The third alleged misconduct is Defense Counsel's statement in closing argument that 12 Plaintiff filed "only" four IEX reports. This statement is not misconduct because it accurately 13 summarizes the evidence. Exhibits 21, 22, G, J. Moreover, Defense Counsel's argument that the 14 low number of 115s filed by Plaintiff against Jackson showed that there was no hostile work 15 environment was just that: argument. It was not, as Plaintiff now contends, a misstatement of the 16 law. Plaintiff's counsel was free to argue, as she does now, that under controlling law, the severity 17 of sexual misconduct did not depend on the number of incidents. 18 The fourth alleged misconduct is Defense Counsel's question during cross-examination 19 regarding Plaintiff's rental income. The court sustained Plaintiff's objection to this line of inquiry 20 as irrelevant and admonished the jury to disregard it. Plaintiff has failed to show how asking this 21 question amounted to misconduct or was prejudicial. 22 The fifth alleged misconduct is Defense Counsel's questioning during cross-examination 23 regarding Plaintiff's trips and related interaction with Warden McGrath. Plaintiff and her husband 24 both testified that Plaintiff was catatonic for four months following inmate Jackson's IEX on July 25 2002. Plaintiff's Counsel also implied that the Berndts had no access to Warden McGrath because 26 of the "chain of command" at Pelican Bay, a fact that McGrath himself rebutted during his 27 testimony. Defendants were allowed to elicit impeachment testimony to contradict Plaintiff's 28 claims. While this impeachment of Plaintiff's testimony may have been prejudicial, it was not 13 1 2 misconduct. The sixth alleged misconduct was Defense Counsel's impeachment of Alan Berndt relating 3 to testimony he gave under oath during his industrial injury litigation. It is not improper to 4 impeach a witness based on previous testimony in unrelated litigation. 5 The seventh alleged misconduct was Defense Counsel's questions regarding defense expert fees. On cross examination, Plaintiff asked Dr. McNiel about his fees. Doc. 881, 1184:3-21. On 7 redirect, Defendants attempted to establish that Dr. McNiel did not get to keep any of those fees, 8 but that he was required to give all fees earned to his employer, UCSF. Doc. 881, 1197:17- 9 1198:114. Plaintiff objected that it was "irrelevant what [Dr. McNiel] does with his money," and 10 the court sustained the objection. Doc. 881, 1198:2-4. Defense Counsel attempted to revisit this 11 United States District Court Northern District of California 6 topic later by asking another question of Dr. Binder. The court sustained Plaintiff's Counsel's 12 objection. Doc. 881, 1236:4-12. Plaintiff has failed to show how this tangential issue had any 13 effect on the issues to be determined by the jury. Further, the Court cured any possible negative 14 effect by forcefully instructing the jury that it was to disregard it. United States v. Washington, 26 15 462 F.3d 1124, 1136 (9th Cir. 2006) (Judge's prompt corrective action in response to counsel's 16 improper comments is sufficient to cure any problems arising from the comments.). 17 18 19 The eighth alleged misconduct involves the testimony by Captain Patten discussed above. The court finds no misconduct on the part of Defense Counsel. In conclusion, the court finds that Plaintiff's allegations of misconduct by Defense Counsel 20 provide no basis for a new trial. 21 Counsels' Participation in Voir Dire 22 Plaintiff contends that the limitations placed on Counsels' participation in voir dire by the 23 court prevented a full and adequate evaluation of the prospective jurors. Plaintiff argues that the 24 ability of counsel to participate in voir dire was limited in two ways. First, counsel was not 25 furnished with either a proposed questionnaire or the questions the court would ask the 26 prospective jurors. Second, counsel were limited to fifteen minutes to ask questions of the 27 eighteen prospective jurors. 28 Plaintiff supports her contentions by citing to best-practice recommendations adopted by 14 1 the Judicial Council of the Ninth Circuit in 2006. These recommendations include the use of case- 2 specific, focused questionnaires "where the jurors' personal experiences might have a significant 3 impact on their ability to be fair, such as those involving sexual assault." The court's decision not 4 to adopt this recommendation falls well within its inherent discretion in the content and conduct of 5 voir dire of prospective jurors in civil cases. Fed.R. Civ.P. Rule 47(a). Further, the court asked all 6 prospective jurors whether they, their close friends or relatives, had been the subject of harassment 7 in the workplace or a hostile work environment. The court allowed jurors to answer that question 8 in camera, wherein Plaintiff had unlimited time for questioning. Plaintiff is mistaken in stating that counsel were not provided with the questions that the 9 court would ask of the prospective jurors. At the Pretrial Conference on January 14, 2015, the 11 United States District Court Northern District of California 10 court explained exactly what questions it would ask. Doc. 861, 18:10-19:22. Judge Hamilton's and Judge Vadas's Standing Pretrial Orders expressly state that the court 12 13 will conduct voir dire and counsel will be allowed a "brief period for follow-up questions." This 14 is standard practice in the Northern District. Plaintiff did not object to limiting the questioning to 15 fifteen minutes during the final pretrial hearings on August 17, 2015 and January 14, 2016. Doc. 16 821; 865; 861, 4, 6-20. Plaintiff further failed to object to the fifteen-minute limitation at trial, 17 either prior to or during voir dire. Plaintiff now fails to provide any offer of proof of follow-up 18 questions she was unable to ask the jury panel, stating only that "changes in the manner in which 19 the voir dire was conducted could have resulted in fuller information being obtained from the 20 prospective jurors." Doc. 921, 11:2-3. Such speculation is insufficient to show either an abuse of 21 discretion or legal error, particularly in light of the fact that Plaintiff's Counsel did not use her 22 entire allotted fifteen minutes. In summary, the court finds no merit in Plaintiff's argument the limitations placed on 23 24 Counsels' participation in voir dire prevented a full and adequate evaluation of the prospective 25 jurors. The court finds no basis for a new trial. 26 // 27 // 28 // 15 CONCLUSION 1 2 A judge should not grant a new trial unless “left with the definite and firm conviction that a 3 mistake has been committed.” Landes Constr. Co. v. Royal Bank of Can., 833 F.2d at 1372. After 4 considering all of Plaintiff’s arguments and reviewing the record, the undersigned has a definite 5 and firm conviction that no mistake was committed. Accordingly, Plaintiff’s Motion for a New 6 Trial is HEREBY DENIED. 7 IT IS SO ORDERED. 8 9 10 United States District Court Northern District of California 11 Dated: May 19, 2016 ______________________________________ NANDOR J. VADAS United States Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16

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