PLAINTIFF B et al v. FRANCIS et al

Filing 633

ORDER denying 624 Motion for New Trial. Signed by JUDGE RICHARD SMOAK on 7/1/2011. (jcw)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
PANAMA CITY DIVISION

PLAINTIFF B; PLAINTIFF J;
PLAINTIFF S; and PLAINTIFF V,
Plaintiffs,
vs.

CASE NO. 5:08-cv-79/RS-GRJ

JOSEPH R. FRANCIS; MRA HOLDINGS,
LLC; MANTRA FILMS, INC.; and AERO
FALCONS, LLC,
Defendants.
_________________________________________/
ORDER
Before me is Plaintiffs’ motion for a new trial and/or to alter or amend the
judgment as it relates to Defendant Joseph Francis (Doc. 624).
To grant a motion for new trial, a judge must find the verdict contrary to the
great, not merely the greater, weight of the evidence. Watts v. Great Atlantic and
Pacific Tea Co., Inc., 842 F.2d 307, 310 (11th Cir. 1988). The district judge
should not substitute his own credibility choices and inferences for the reasonable
credibility choices and inferences made by the jury. Rosenfield v. Wellington
Leisure Products, Inc., 827 F.2d 1493, 1498 (11th Cir. 1987). When there is some
support for a jury’s verdict, it is irrelevant what the district judge would have

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concluded. Redd v. City of Phenix City, Ala., 934 F.2d 1211, 1215 (11th Cir.
1991).
Looking back on trials over the past thirty-eight years, I recall no other jury
as attentive and conscientious as the jury in this case. The all-female jury spent
hours deliberating until the early hours of the morning, and painstakingly
completed a twelve-page verdict form answering a variety of interrogatories.
(Doc. 613). It is clear from the verdict form that although the jury found that
Defendant Francis did do some of the things Plaintiffs alleged, the jury concluded
that none of the Plaintiffs were damaged by Defendant’s actions because they
awarded “$0” in damages for all counts. At trial, evidence was presented about
other factors and circumstances in Plaintiffs’ lives aside from Girls Gone Wild that
could have also led to the injuries they claimed were caused by Defendant, thus
providing the jury some grounds to find for Defendant. I decline to substitute my
credibility choices and judgment for the reasonable choices and judgment of the
jury. Because there was some support for the jury’s verdict, it is irrelevant what I
or anyone else would have decided, and a new trial is not warranted. See Redd at
1215.
Plaintiffs also argue that they are entitled to a new trial because they were
prejudiced by the behavior of Defendant Francis. A district court’s decision to
grant a new trial based on prejudicial conduct or pernicious behavior is less likely

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to constitute an abuse of discretion than the grant of a new trial based on some
other ground, because the trial judge who is actually present at trial is best able to
determine whether the proceeding has been “contaminated” by events outside the
jury’s control. McWhorter v. City of Birmingham, 906 F.2d 674, 677 (11th Cir.
1990). However, a new trial is not warranted on these grounds either.
There is no doubt that Francis’s behavior at trial was far from ideal. To sum
it up in a word, his behavior was childish. He had extreme difficulty sitting still,
following directions, waiting his turn to speak, and speaking at the proper volume.
He exhibited virtually no courtroom decorum. His cross-examination of the
Plaintiffs, who were portrayed as victims in their direct examination, was
extremely antagonistic, prompting me to warn Defendant several times that he was
causing irreparable harm to his case in the eyes of the jury. 1 Quite simply, Mr.
Francis handled his case in the exact opposite manner of what any rational attorney
would do.
However, Mr. Francis was proceeding pro se, and his behavior was not
unlike that of many other pro se parties in a courtroom. As a pro se party, Francis
was entitled to some leniency toward his behavior. In addition, Francis only
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For example, during his cross-examination of Plaintiff S, I warned Francis:
You have just destroyed yourself with this jury. You really need to stop, Mr. Francis. It is painful for me,
for somebody who was proud of being a trial lawyer for years and years, to see somebody so selfdestructive as you are being. Now you need to stop. You have thoroughly, thoroughly antagonized the
women on that jury. You have thoroughly done it. I’m sitting there watching them. Now you need to stop
for your own self interest.
Doc. 622 at 79.
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represented himself during voir dire and the first two and a half days of trial. On
the third day of trial Francis retained counsel and did not return to the courtroom
again. The remainder and majority of the trial continued smoothly and without
incident; therefore Francis’s behavior had a minimal effect on the overall
proceedings.
Furthermore, if Francis’s behavior prejudiced any of the parties, it was not
the Plaintiffs but the Defendants. His behavior appeared to completely alienate the
jury and, as I warned Mr. Francis numerous times, his antics must have caused
serious damage to his case and credibility with the jury. 2 Consistent with this
assessment is the fact that although the Plaintiffs objected to some of Francis’s
actions at trial, they never moved for a mistrial. In fact, Plaintiffs used Francis’s
irrational behavior to bolster their case by having their experts analyze it and
referencing it in their closing argument, arguing to the jury that his behavior during
the trial was that of a “predator in action.” See Doc. 619 at 74-80. Thus, the
proceedings were not so “contaminated” and prejudicial to Plaintiffs that a new
trial is warranted.
Finally, Plaintiffs argue that they are entitled to a new trial because
Plaintiffs’ medical records were improperly discussed in Defendant’s crossexamination of Plaintiffs’ expert witness, Dr. Lebowitz. However, FED. R. EVID.

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See note 1, supra.
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705 clearly states than an expert witness may be required to disclose the underlying
facts or data upon which she relied on cross-examination. In addition, while FED.
R. EVID. 703 provides that “[f]acts or data that are otherwise inadmissible shall not
be disclosed to the jury by the proponent of the opinion or inference unless the
court determines that their probative value in assisting the jury to evaluate the
expert’s opinion substantially outweighs their prejudicial effect” (emphasis added),
the advisory committee notes state that “[n]othing in this Rule restricts the
presentation of underlying expert facts or data when offered by an adverse party.”
FED. R. EVID. 703 advisory committee’s note. Dr. Lebowitz testified that she
reviewed the medical records of the Plaintiffs in preparing for the case. See Doc.
619 at 96. Thus, Defendants questioning of Dr. Lebowitz about those medical
records was proper. The issue of authentication of these records is not pertinent, as
they were not admitted as substantive evidence. Therefore, a new trial is not
warranted on these grounds either.
Accordingly, Plaintiffs’ motion for a new trial and/or to alter or amend the
judgment as it relates to Defendant Joseph Francis (Doc. 624) is denied.
ORDERED on July 1, 2011.

/s/ Richard Smoak
RICHARD SMOAK
UNITED STATES DISTRICT JUDGE

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