Phillips v. Duane Morris, LLP et al

Filing 139

ORDER denying 114 Plaintiff's Motion for New Trial. By Judge Robert E. Blackburn on 1/5/2015.(alowe)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 13-cv-01105-REB-MJW
EDWARD H. PHILLIPS
Plaintiff,
v.
DUANE MORRIS, LLP,
JOHN C. HERMAN, and
ALLEN L. GREENBERG,
Defendants.

ORDER DENYING PLAINTIFF’S MOTION FOR NEW TRIAL
Blackburn, J.
The matter before me is Plaintiff’s Motion for New Trial Pursuant to Fed. R.
Civ. P. 59(a) [#114],1 filed August 11, 2014. I deny the motion.
I. JURISDICTION
I have subject matter jurisdiction pursuant to 28 U.S.C. § 1332 (diversity of
citizenship).
II. STANDARD OF REVIEW
Plaintiff seeks a new trial on the ground that I erroneously excluded certain
testimony during the trial of this case. When a case has been tried to a jury, a new trial
may be granted “for any of the reasons for which new trial have heretofore been granted
in actions at law in the courts of the United States.” FED. R. CIV. P. 59(a)(1). In
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“[#114]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s case management and electronic case filing system (CM/ECF). I use this
convention throughout this order.

general, a motion for new trial “is not regarded with favor and should only be granted
with great caution.” United States v. Kelley, 929 F.2d 582, 586 (10th Cir.), cert.
denied, 112 S.Ct. 341 (1991). The decision whether to grant a new trial is committed to
the sound discretion of the trial court. Id.
A new trial may be warranted based on an allegedly improper evidentiary ruling
only if such ruling was both clearly erroneous and so prejudicial that “it can be
reasonably concluded that with or without such evidence, there would have been a
contrary result.” Hinds v. General Motors Corp., 988 F.2d 1039, 1049 (10th Cir. 1993).
“Neither an error in the admission or exclusion of evidence nor an error in a ruling or
order of the court, nor anything done or omitted by the court, can be grounds for
granting a new trial unless the error or defect affects the substantial rights of the
parties." Stewart v. South Kansas and Oklahoma Railroad, Inc., 36 F.Supp.2d 919,
920 (D. Kan. 1999).
III. ANALYSIS
Plaintiff alleges error in the refusal to allow his wife, Diane Phillips, a lay witness,
to testify to a hypothetical question regarding whether she would have agreed to
authorize payment to defendant Duane Morris, LLP, of a $250,000 attorney fee had she
known of certain unknown facts at the time payment was requested. Specifically,
plaintiff’s counsel inquired of Ms. Phillips:
I want you to assume that if you would have been told before
they took the $250,000 that they had not gotten a stay that
would have deferred the judge's ruling and that they would
have explained to you that that might have been their
responsibility, would you have agreed to a $250,000 fee?

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(Def. Resp. App., Exh. B at 257.) I sustained defendants’ objection to this question
under Fed. R. Evid. 602 and 701, but permitted plaintiff to make an offer of proof in
writing. (See Plaintiff’s Offer of Proof: Diane Phillips’ Testimony Regarding the
Payment of $250,000 Fee to Duane Morris, LLP [#101], filed June 19, 2014.)
Therein, plaintiff maintained that this question was proper and that he should be entitled
further to inquire of Ms. Phillips as follows:
What would you have done about paying Duane Morris
$250,000 if on or before 12/29/2006, Duane Morris had told
you and Mr. Phillips that they may not have acted
reasonably in rejecting a proposed stay that, if requested,
would have kept the court from issuing any order on the
JMOL motion until after the end of 2006?
What would you have done if Duane Morris had told you that
on or before 12/29/2006, their total fees were less than
$98,000?
(Id. at 4.) After considering the proffer, I reiterated and supplemented my original ruling,
concluding that in addition to soliciting improper lay testimony, the proffered questions
also were impermissibly leading, in violation of Fed. R. Evid. 611(c), were irrelevant
under Rule 401 given Ms. Phillips’s acknowledgment that she did not have any input
into the decision to approve the fee vel non. Finally, I found that any marginal
probativity that this line of questioning might have was substantially outweighed by the
dangers of confusing the issues and misleading the jury, and thus further was
excludable under Fed. R. Evid. 403. (See Def. Resp. App., Exh. C at 466-467.)
Nothing in the instant motion convinces me that my determinations in this regard
were in error. Indeed, plaintiff merely reiterates the same arguments, based on the
same legal authorities, submitted previously in connection with his offer of proof. I find
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them no more compelling or convincing now than I did when they were first presented
for my consideration. Moreover, plaintiff has addressed only that much of my ruling that
found the testimony inadmissible under Rules 602 and 701, suggesting no basis for
disturbing my alternative – and wholly independently sufficient – reasons for exclusion
of this evidence.
The reiterated objections of plaintiff continue to be without merit. Plaintiff’s
attempt to convince me that Ms. Phillips had personal knowledge of matters relevant to
the payment of the fee is lengthy, but unavailing. The fact that Ms. Phillips generally
handled the couple’s finances cannot overcome her specific testimony that she was not
Duane Morris’s client and that she had no input into the specific decision to authorize
payment of the fee. The testimony therefore is not based on Ms. Phillips’s personal
knowledge and is thus excludable under Rule 602.
This same infirmity infects any attempt to suggest that Ms. Phillips’s responses to
counsel’s hypothetical questions would have been proper under Rule 701. A lay
witness may not testify in the form of an opinion unless, inter alia, such testimony is
“rationally based on the witness's perception.” See FED. R. EVID. 701. “Thus, a lay
witness's opinion testimony which constitutes speculation as to what might have been
done or what might have occurred is ‘not based on his first-hand perception of actual
events,’ and thus does not satisfy the requirements of Fed. R. Evid. 701.” Smith v.
BNSF Railway Co., 2011 WL 4346341 at * 7 (W.D. Okla. Sept. 15, 2011) (quoting
Magoffe v. JLG Industries, Inc., 375 Fed. Appx. 848, 859 (10th Cir. April 7, 2010)).
Given that Ms. Phillips was not a party to the decision to authorize payment of the fee,

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her proffered testimony is even one step farther removed from any proper evidentiary
basis, as it essentially would ask her to opine as to what her husband would have done
had he known all the facts. Such testimony plainly is inadmissible under Rule 701.
Plaintiff’s continued reliance on the Second Circuit’s decision in United States v.
Cuti, 720 F.3d 453 (2nd Cir. 2013), cert. denied, 135 S.Ct. 402 (2014), for the contrary
position is unpersuasive. As I stated in response to plaintiff’s previous proffer, the facts
of that case are plainly distinguishable. The witnesses in Cuti, although not called as
experts at trial, in fact both were accountants, and thus “fact witnesses of a unique sort.”
Id. at 458. Their testimony as to how, under established accounting rules, they would
have accounted for certain real estate transactions had they known the true state of
affairs is plainly not the same as Ms. Phillips’s wholly speculative (and undoubtedly selfserving) estimation of how she might have reacted under different circumstances –
assuming arguendo, of course, that she had any input into or influence over the
decision whether to approve the fee in the first instance, a proposition which is not
supported by her own testimony. See id. (noting that nature of questions asked of
witnesses in Cuti “left little room for the witnesses to engage in speculation and ensured
that their testimony fell near the fact end of the fact-opinion spectrum”).
Finally, I find nothing to substantiate plaintiff’s suggestion that these alleged
errors, even if they did occur, impacted his substantial rights. Although plaintiff argues
that the exclusion of the testimony impacted his ability to demonstrate actual reliance on
defendant’s allegedly false statements, here again, Ms. Phillips’s testimony as to what
she hypothetically would have done with knowledge of the true state of affairs has no

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bearing on that inquiry. Moreover, plaintiff’s suggestion that this testimony was
especially crucial given his inability to testify during the trial due to illness misstates the
record. Plaintiff became ill only after he had rested his case, having already elected not
to take the stand himself, and having never indicated at any point that he would have
testified but for his illness.
For these reasons, I find and conclude that the motion for new trial based on the
exclusion of this evidence must be denied.
THEREFORE, IT IS ORDERED that Plaintiff’s Motion for New Trial Pursuant
to Fed. R. Civ. P. 59(a) [#114], filed August 11, 2014, is DENIED.
Dated January 5, 2015, at Denver, Colorado.
BY THE COURT:

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