Black v. Wrigley et al

Filing 469

MEMORANDUM OPINION AND ORDER signed by the Honorable Matthew F. Kennelly on 8/3/2020: For the reasons stated in the accompanying Memorandum Opinion and Order, the Court denies Katherine Black's motions for judgment as a matter of law [dkt. no. 437] and for a new trial [dkt. no. 435]. The Court grants Pamela Kerr's motion for costs in part [dkt. no. 442] and awards Kerr $19,004.97 in costs. (mk)

Case: 1:17-cv-00101 Document #: 469 Filed: 08/03/20 Page 1 of 64 PageID #:14176

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

KATHERINE BLACK,

)
)
Plaintiff,
)
)
vs.
)
)
CHERIE WRIGLEY, MELISSA COHENSON, )
BRIAN A. RAPHAN, P.C., and PAMELA
)
KERR,
)
)
Defendants.
)

Case No. 17 C 101

MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge:
Plaintiff Katherine Black has been involved in acrimonious and sprawling
litigation concerning the inheritance of her mother-in-law's estate. This case involves
allegedly tortious conduct that took place during that litigation. Katherine 1 sued Cherie
Wrigley, Pamela Kerr, and Melissa Cohenson, alleging a range of tortious conduct
including defamation, intentional infliction of emotional distress (IIED), false light,
publication of private facts, intrusion upon seclusion, interference with contractual
relations, and civil conspiracy. She also sued Cohenson's former employer, the law firm
Brian A. Raphan, P.C., alleging that the firm was vicariously liable for Cohenson's
conduct.
A series of pretrial rulings resulted in the dismissal of all of the claims against

1

The Court will refer to Katherine Black and her husband Bernard Black by their first
names to avoid confusion. Katherine also goes by the last name Litvak.

Case: 1:17-cv-00101 Document #: 469 Filed: 08/03/20 Page 2 of 64 PageID #:14177

Cohenson, the claim against Brian A. Raphan, P.C., and some of the claims against
Wrigley and Kerr. Katherine proceeded to trial on four claims under Illinois law: an IIED
claim against Wrigley, a defamation claim against Kerr, an aiding-and-abetting claim
against Wrigley, and a conspiracy claim against Kerr and Wrigley. A jury found in favor
of the defendants on all of those claims. Katherine, who is now proceeding pro se, has
moved for judgment as a matter of law and for a new trial. Kerr has moved to recover
costs.
Background
The Court assumes familiarity with this case's factual and procedural
background, which this Court has discussed in prior written opinions. See, e.g., Black v.
Wrigley, No. 17 C 101, 2019 WL 2433740 (N.D. Ill. June 11, 2019) ("Summary
Judgment Decision"); Black v. Wrigley, No. 17 C 101, 2017 WL 8186996 (N.D. Ill. Dec.
8, 2017) ("Motions to Dismiss Decision"). The following background is relevant to the
post-trial motions and largely is taken from the Court's summary judgment decision, see
Summary Judgment Decision, 2019 WL 2433740, at *1–3, and the trial record.
Katherine and her husband Bernard Black are professors at Northwestern
University Pritzker School of Law. In 2012, Bernard's mother passed away. He had
expected to inherit one-third of her approximately $3 million estate in the form of an
issue trust for himself, Katherine, and their two children. Instead, his mother
disinherited him by making virtually her entire estate payable on death to his sister,
Joanne, who suffers from mental illness. Bernard successfully petitioned in the probate
court in Denver, Colorado—where Joanne was living—to become Joanne's conservator.
He then exercised his powers as conservator to disclaim their mother's payment to

2

Case: 1:17-cv-00101 Document #: 469 Filed: 08/03/20 Page 3 of 64 PageID #:14178

Joanne, effectively undoing the disinheritance of himself and Katherine. As a result, the
original terms of Bernard and Joanne's mother's estate plan went into effect, such that
one-third of her assets were redirected from Joanne to Bernard and Katherine's
children.
Several years later, Joanne moved to New York, and Bernard filed a suit in New
York state court in which he sought to be appointed guardian of her property. Wrigley,
who is Bernard's cousin, filed a cross-petition in the New York lawsuit to be appointed
Joanne's guardian in place of Bernard. Wrigley was represented by Cohenson, an
attorney who at the time worked as an associate at Brian A. Raphan, P.C. Katherine
alleges that Wrigley also retained a private investigator named Esaun Pinto purportedly
to protect Joanne and supervise her affairs. At the trial, Wrigley testified that she was
aware that Pinto was being paid to assist with Joanne's care but was "not really" aware
that he was a private investigator. Trial Tr. at 572:24–25. She testified that she did not
hire Pinto, id. at 573:24–574:12, but that Bernard gave her "permission" to "obtain" Pinto
and told her to pay him a retainer, for which Bernard said he would reimburse her. Id. at
687:10–688:13.
In the Colorado probate court case, Joanne's guardian ad litem Gayle Young
obtained information that Bernard had caused a significant amount of Joanne's
inheritance to be diverted from Joanne to himself or his family. Young sought a forensic
accounting of Joanne's accounts and retained Kerr. Kerr testified that Young hired her
for the limited purpose of investigating Bernard's actions. Katherine contends that Kerr
was supposed to be a neutral investigator and that the Colorado probate court
authorized her to conduct a full accounting of all of Joanne's assets, including

3

Case: 1:17-cv-00101 Document #: 469 Filed: 08/03/20 Page 4 of 64 PageID #:14179

investigating concerns that Pinto had been improperly receiving Joanne's social security
payments and/or other funds.
In April 2015, Katherine and Wrigley attended a contentious hearing in the
Colorado probate court. Katherine testified that before and after the hearing, Wrigley
made remarks that Katherine interpreted as threats against her. These threats serve as
the basis for Katherine's IIED claim against Wrigley.
Katherine's defamation claim against Kerr arises from a communication that Kerr
made to Northwestern University Pritzker School of Law, where Katherine was
employed as a law professor. In January 2016, Katherine submitted a lengthy letter to
the judge in the New York state court case. Among other things, the letter discussed in
detail Katherine's contentions regarding the events concerning Joanne and the
Colorado probate litigation. Katherine wrote the letter on letterhead bearing
Northwestern's name and an old version of its logo. On January 8, 2016—the day after
Katherine submitted her letter to the New York judge—Kerr and Wrigley exchanged emails about Katherine's letter and copied Joanne's attorney Lisa DiPonio on the e-mails.
Kerr wrote that she had just called the office of the dean of the law school and had
spoken about Katherine. Kerr later relayed that she had told someone in the dean's
office that Katherine had used Northwestern's letterhead to make a false statement to a
court. In a later e-mail, Wrigley wrote that she had left messages with the deans of both
Northwestern's law school and its business school—Bernard teaches in both. Wrigley
also said that she planned to submit an ethics report to the university describing
Katherine's actions.
In response, Kerr sent an e-mail to which she attached a letter she had written

4

Case: 1:17-cv-00101 Document #: 469 Filed: 08/03/20 Page 5 of 64 PageID #:14180

and addressed to the dean of the law school. The letter quoted the following portion of
a heading in Katherine's letter to the New York state court judge: "and the Colorado
Judge Found those Allegations credible Enough to Authorize an Investigation of Pinto's
Conduct by a Forensic Accountant." Pl.'s Mot. for J. as a Matter of Law ("JMOL"), Ex. 2
at 1; see also id., Ex. 1 at 17 (Katherine's unredacted letter). Kerr wrote in her letter to
the dean that this claim was "100% false" and "completely false." Id., Ex. 2 at 1. The
letter was written on Kerr's professional letterhead and included her signature.
Later that day, Wrigley submitted to Northwestern an ethics report and attached
Kerr's letter as supporting evidence, along with a description of the document. This
communication served as the basis for Katherine's defamation claim against Wrigley.
Specifically, Katherine alleged that Wrigley defamed her in a comment she submitted to
Northwestern and by attaching Kerr's letter to her submission.
B.

Procedural background
In January 2017, Katherine filed the present lawsuit. The defendants moved to

dismiss Katherine's claims; the Court dismissed certain claims but not others. Motions
to Dismiss Decision, 2017 WL 8186996, at *14. The defendants subsequently moved
for summary judgment on the remaining claims. The Court granted summary judgment
on all of the claims against Cohenson and Brian A. Raphan, P.C. and on the false light
claim against Wrigley and Kerr, but it otherwise denied Wrigley and Kerr's motions.
Summary Judgment Decision, 2019 WL 2433740, at *11.
In July 2019, the Court issued two orders ruling on the parties' motions in limine.
Dkt. nos. 366, 377. In August 2019, approximately one week before the case was set
for a jury trial, Katherine moved to voluntarily dismiss her defamation claim against

5

Case: 1:17-cv-00101 Document #: 469 Filed: 08/03/20 Page 6 of 64 PageID #:14181

Wrigley. The Court granted her motion and dismissed with prejudice the defamation
claim against Wrigley and the associated conspiracy and aiding-and-abetting claims to
the extent they related to that defamation claim. Dkt. no. 399. Katherine also moved to
bifurcate the issues of liability and damages for trial, and the Court granted that motion.
Dkt. no. 411 at 18. In the same order, the Court ruled on a number of evidentiary issues
the parties disputed in light of Katherine's withdrawal of her defamation claim against
Wrigley. Id. at 7–18.
In August 2019, Katherine proceeded to trial on the remaining claims,
specifically, the IIED claim against Wrigley, the defamation claim against Kerr, the
aiding-and-abetting claim against Wrigley, and the conspiracy claim against Kerr and
Wrigley. Following a five-day trial, the jury found in favor of the defendants on all of
those claims.
Katherine has filed a motion for judgment as a matter of law on her defamation
claim against Kerr, her aiding-and-abetting claim against Wrigley, and her conspiracy
claim. In addition, Katherine has moved for a new trial on all of the claims that went to
trial and on the defamation claim against Wrigley, which did not go to trial. Kerr has
filed a motion for the taxation of costs. 2
Discussion
A.

Motion for judgment as a matter of law
Katherine moves for judgment as a matter of law under Federal Rule of Civil

Procedure 50(a) on Kerr's defamation claim, Wrigley's aiding-and-abetting claim, and

2

Wrigley did not file a timely motion for taxation of costs.
6

Case: 1:17-cv-00101 Document #: 469 Filed: 08/03/20 Page 7 of 64 PageID #:14182

the conspiracy claim. 3 Rule 50 "allows the trial court to remove cases or issues from
the jury's consideration 'when the facts are sufficiently clear that the law requires a
particular result.'" Weisgram v. Marley Co., 528 U.S. 440, 448 (2000) (quoting 9A C.
Wright & A. Miller, Federal Practice and Procedure § 2521 (2d ed.1995)). Under Rule
50(a), a party may move for judgment as a matter of law "at any time before the case is
submitted to the jury." Fed. R. Civ. P. 50(a)(2). After the entry of judgment, a party may
"file a renewed motion for judgment as a matter of law." Fed. R. Civ. P. 50(b). But a
party that did not make a motion for judgment as a matter of law in the first place, before
the case went to the jury, has lost "the opportunity to make [a renewed motion] after the
verdict." Phillips v. Cmty. Ins. Corp., 678 F.3d 513, 518 n.2 (7th Cir. 2012); see also
Alverio v. Sam's Warehouse Club, Inc., 253 F.3d 933, 939 (7th Cir. 2001); Pierce v.
Chicago Rail Link, LLC, No. 03 C 7524, 2006 WL 3370343, at *3 (N.D. Ill. Nov. 20,
2006) (Kennelly, J.) (denying motion for judgment as a matter of law where plaintiff did
not file such a motion until after the conclusion of trial).
Katherine cannot bring her motion under Rule 50(a)—the rule under which she
brought her motion—because the case already has been submitted to (and decided by)
the jury. And she cannot bring her motion under Rule 50(b) because she did not move
for judgment as a matter of law before the case was submitted to the jury. Therefore,
the Court has no authority to consider her motion for judgment as a matter of law.
Without citing to legal authority, Katherine asserts that the Court should be able

3

Though Katherine has styled her motion as one seeking "judgment notwithstanding
the verdict," such motions have been known as motions for judgment as a matter of law
since the 1991 amendment to Rule 50. See, e.g., Alverio v. Sam's Warehouse Club,
Inc., 253 F.3d 933, 939 n.1 (7th Cir. 2001).
7

Case: 1:17-cv-00101 Document #: 469 Filed: 08/03/20 Page 8 of 64 PageID #:14183

to consider her motion because her failure to make a motion under Rule 50(a) at the
proper time was due, she contends, to her trial counsel's incompetence. Unlike criminal
defendants, however, "civil litigants have no constitutional right to the assistance of
counsel and therefore no constitutional right to effective assistance of counsel." Stroe v.
I.N.S., 256 F.3d 498, 500 (7th Cir. 2001) (internal citations omitted). As a result,
Katherine cannot seek to reverse the outcome of the trial on the ground that her
lawyer's representation was incompetent or ineffective. See, e.g., id.; DeSilva v.
DiLeonardi, 181 F.3d 865, 869 (7th Cir. 1999).
Katherine contends that she should not be bound by her counsel's incompetence
for, among other things, failing to move for judgment as a matter of law under Rule
50(a), because she tried to terminate him mid-trial and the Court did not allow her to do
so. 4 But even if she had properly filed a motion under Rule 50(a), she would not be
entitled to judgment as a matter of law for the following reasons.
Judgment as a matter of law is appropriate if "a party has been fully heard on an
issue during a jury trial and the court finds that a reasonable jury would not have a
legally sufficient evidentiary basis to find for the party on that issue." Fed. R. Civ. P.
50(a)(1), (b); see Martin v. Milwaukee County, 904 F.3d 544, 550 (7th Cir. 2018). In
deciding whether to grant judgment as a matter of law, the Court may not assess
credibility or weigh evidence, and it must "construe the evidence in favor of the party
who won before the jury." Id. A jury verdict will be overturned only if the court
concludes that "no rational jury could have found for the prevailing party." Stragapede

4

The Court addresses Katherine's contentions regarding her counsel's alleged
incompetence more fully in the section of this opinion on her motion for a new trial.
8

Case: 1:17-cv-00101 Document #: 469 Filed: 08/03/20 Page 9 of 64 PageID #:14184

v. City of Evanston, 865 F.3d 861, 865 (7th Cir. 2017) (internal quotation marks
omitted). "In other words, [the Court's] job is to decide whether a highly charitable
assessment of the evidence supports the jury's verdict or if, instead, the jury was
irrational to reach its conclusion." May v. Chrysler Grp., LLC, 716 F.3d 963, 971 (7th
Cir. 2013).
As indicated, Katherine seeks judgment as a matter of law on three claims. First,
she asserts that she is entitled to judgment as a matter of law on her defamation per se
claim against Kerr. To prove defamation under Illinois law, a plaintiff must show "that
the defendant made a false statement about the plaintiff, that the defendant made an
unprivileged publication of that statement to a third party, and that this publication
caused damages." Green v. Rogers, 234 Ill. 2d 478, 491, 917 N.E.2d 450, 459 (2009).
Among the categories of statements that constitute defamation per se—meaning
defamation whose harm is "obvious and apparent on its face"—are "words that impute a
person lacks ability or otherwise prejudices that person in her or his profession." Id. at
491–92, 917 N.E.2d at 459. A statement cannot serve as the predicate for a
defamation claim if it is substantially true—that is, if the "gist or sting of the allegedly
defamatory material is true." Coghlan v. Beck, 2013 IL App (1st) 120891, ¶ 42, 984
N.E.2d 132, 146 (internal quotation marks omitted).
Katherine contends that, based on the evidence presented at trial, a reasonable
jury could not have found in Kerr’s favor on the defamation claim. Construing the
evidence and drawing reasonable inferences in favor of Kerr, the Court is not
persuaded. A reasonable jury could have concluded that Kerr’s statement—in which
she wrote that Katherine made a “100% false” and “completely false” statement when

9

Case: 1:17-cv-00101 Document #: 469 Filed: 08/03/20 Page 10 of 64 PageID #:14185

she wrote to the New York judge that the Colorado probate court found the accusations
against Pinto credible enough to authorize an investigation by a forensic accountant into
his conduct—was substantially true. See Pl.'s JMOL, Ex. 2 at 1. This is because there
was evidence showing that, contrary to Katherine’s statement to the New York judge,
the Colorado probate judge did not determine whether the allegations against Pinto
were credible and thus did not authorize an investigation into his conduct on that basis.
This evidence included the Colorado probate judge’s order from April 2, 2015, in which
the judge stated that Pinto should provide documentation to forensic accountants
concerning all the funds he controlled—without making any express findings regarding
whether or not the allegations against Pinto were credible. It also included Katherine’s
statement during her cross-examination at trial that the Colorado probate court’s April 2,
2015 order did not contain a finding regarding the allegations against Pinto, Trial Tr. at
450:9–11, and the fact that no order containing an express finding from the Colorado
probate judge on that issue was introduced at the trial.
Alternatively, there was sufficient evidence for a reasonable jury to conclude that
Kerr’s statement was substantially true based on a finding that, contrary to Katherine’s
statement to the New York judge, the Colorado probate judge did not authorize an
investigation into Pinto’s conduct. The evidence supporting this finding includes the
Colorado probate judge’s April 2, 2015 order, in which the judge directed Pinto to
provide documentation to the forensic accountant but did not expressly state that
direction pertained to an investigation into Pinto’s conduct. Among other things, it also
includes Kerr's testimony at trial in which she stated, "I was not authorized -- I was not
ordered to investigate Mr. Pinto's conduct," Trial Tr. at 747:11–13, and said her

10

Case: 1:17-cv-00101 Document #: 469 Filed: 08/03/20 Page 11 of 64 PageID #:14186

investigation focused narrowly on Bernard's conduct.
Katherine contends that the only reason the Colorado probate court could have
directed Pinto turn over the documentation was because Pinto's conduct was being
investigated. The Court disagrees. Kerr testified that she was hired to investigate
Bernard's conduct. E.g., Trial Tr. at 764:9–11. The jury reasonably could have inferred
that Colorado probate court ordered Pinto to provide Kerr with documentation of
Joanne's funds and assets in order to make more information available to Kerr
regarding how, if at all, Bernard was using those funds and assets, not because Pinto's
conduct was at issue. And though Katherine contends that Kerr actually investigated
Pinto, the jury reasonably could have found that had no bearing on whether the
Colorado probate court authorized such an investigation. Based on these and other
findings, a rational jury could have concluded that Kerr's statement about Katherine's
statement was substantially true and therefore that Kerr did not defame Katherine.
Katherine also contends that no rational jury could have found in favor of Wrigley
on the aiding-and-abetting claim. In this claim, Katherine alleged that Wrigley aided and
abetted Kerr's defamation claim. Thus the claim depended on a finding that Kerr
defamed Katherine. As just explained, a reasonable jury could have found that Kerr did
not defame Katherine. Accordingly, a rational jury also could have found that Wrigley
did not aid and abet defamation.
Katherine finally argues that no rational jury could have found in favor of Wrigley
and Kerr on the conspiracy claim, in which Katherine alleged that Wrigley and Kerr
conspired to defame her. She bases this argument on two theories. First, Katherine
contends that the jury would have been required to find that Wrigley and Kerr conspired

11

Case: 1:17-cv-00101 Document #: 469 Filed: 08/03/20 Page 12 of 64 PageID #:14187

to have Kerr to defame Katherine in her letter to Northwestern. Alternatively, she
contends that the jury would have been required to find that Wrigley and Kerr conspired
to have Wrigley to defame Katherine by attaching Kerr's letter to the ethics report
Wrigley submitted to Northwestern. Though that latter contention involves defamation
by Wrigley, not Kerr, both contentions depend on a finding that Kerr's statement in her
letter was defamatory. But there was sufficient evidence introduced at the trial for a
reasonable jury to conclude that Kerr's statement was not defamatory, as the Court has
indicated. As a result, a reasonable jury could have found that that neither Kerr nor
Wrigley committed a defamatory act against Katherine and thus that Kerr and Wrigley
did not conspire to defame Katherine. 5
In sum, a reasonable jury could have found against Katherine on the defamation
per se, aiding-and-abetting, and conspiracy claims. Even if Katherine had properly filed
a motion under Rule 50(a), she would not be entitled to judgment as a matter of law on
these claims.
For these reasons, the Court denies Katherine's motion for judgment as a matter
of law.
B.

Motion for a new trial
Katherine also moves under Rule 59 for a new trial. A new trial is warranted

5

Before the trial, Katherine withdrew her defamation claim against Wrigley. Prior to
withdrawing that claim, Katherine also had alleged that Wrigley defamed her by writing
a slanderous statement in the ethics report. In her motion for judgment as a matter of
law, she has not contended that this allegedly slanderous statement supported her civil
conspiracy claim, let alone that a rational jury would have been required to find based
on the evidence introduced at trial that Wrigley and Kerr engaged in a civil conspiracy
on that basis. Accordingly, the Court need not address whether the evidence
established that Wrigley and Kerr committed a civil conspiracy in that regard.
12

Case: 1:17-cv-00101 Document #: 469 Filed: 08/03/20 Page 13 of 64 PageID #:14188

under Rule 59(a) if the verdict was "against the manifest weight of the evidence or if the
trial was in some way unfair to the moving party." Martinez v. City of Chicago, 900 F.3d
838, 844 (7th Cir. 2018). In making this determination, a court "has the power to get a
general sense of the weight of the evidence, assessing the credibility of the witnesses
and the comparative strength of the facts put forth at trial." Whitehead v. Bond, 680
F.3d 919, 928 (7th Cir. 2012). The Seventh Circuit has cautioned that a court should
grant a new trial "only when the record shows that the jury's verdict resulted in a
miscarriage of justice or where the verdict, on the record, cries out to be overturned or
shocks our conscience." Estate of Burford v. Accounting Practice Sales, Inc., 851 F.3d
641, 646 (7th Cir. 2017).
Katherine first asserts that she is entitled to a new trial because, she contends,
the jury’s findings were contrary to the weight of the evidence. She bases this
contention on the same grounds as her motion for judgment as a matter of law. For the
reasons discussed earlier in this order with regard to that motion, the Court denies
Katherine’s motion for a new trial on these grounds. Katherine also contends that the
trial was fundamentally unfair to her. She contends this was because the Court issued
allegedly erroneous rulings with regard to certain jury instructions, and with regard to
the admission and exclusion of certain evidence; Kerr’s attorney made allegedly
improper statements during his closing arguments; and Katherine's own attorney was
allegedly incapacitated and ineffective. The Court addresses each of these contentions
in turn.
1.

Attorney's alleged incapacity

Katherine asserts that a new trial is warranted because she alleges that her trial

13

Case: 1:17-cv-00101 Document #: 469 Filed: 08/03/20 Page 14 of 64 PageID #:14189

counsel was incapacitated and ineffective. 6 The Court addresses this argument at the
threshold because, among other things, Katherine contends that her counsel's alleged
incapacity caused her to fail to preserve errors that she contends warrant a new trial.
As the Court explained earlier in this opinion, however, "civil litigants have no
constitutional right to the assistance of counsel and therefore no constitutional right to
effective assistance of counsel." Stroe, 256 F.3d at 500. And "[a] retrial is not a proper
remedy for deficient representation in a civil action." Cavoto v. Hayes, 634 F.3d 921,
924 (7th Cir. 2011). Though Katherine contends that she did not know that her attorney
was allegedly incapacitated until after the trial commenced, that makes no difference in
this regard. See Choice Hotels Int'l, Inc. v. Grover, 792 F.3d 753, 756 (7th Cir. 2015)
("[C]ivil litigants are responsible for their own choices.").
As indicated, Katherine contends that she should not be bound by her attorney's
actions because she tried to terminate him before closing arguments started and the
Court did not allow her to do so. If she had been permitted to terminate her counsel,
Katherine contends, she would have, among other things, filed a timely motion for
judgment as a matter of law under Rule 50(a), objected to certain jury instructions,
asked the Court to reconsider certain evidentiary rulings, and objected to certain
comments made during closing arguments by opposing counsel. To be sure, one
reason civil litigants must bear the costs of their counsel's shortcomings is because they

6

In her reply brief, Katherine contends that this is not an independent ground on which
she has sought a new trial but rather an argument in support of granting her a new trial
on other grounds. That is not how the Court reads her opening brief. In order to
address the contention in its entirety, the Court thus considers it both as an independent
basis for a new trial and as an argument in support of her other arguments for a new
trial.
14

Case: 1:17-cv-00101 Document #: 469 Filed: 08/03/20 Page 15 of 64 PageID #:14190

"can hire replacement counsel freely." Id. But that does not mean that they have
unlimited freedom to hire and fire new attorneys at any stage of the proceedings. See,
e.g., N.D. Ill. L.R. 83.17 (local rule in this district precluding an attorney of record from
withdrawing from a case "without first obtaining leave of court").
Some principles from criminal law, where defendants have a right to choose their
own counsel, are instructive here. In that context, a district court has "wide latitude to
balance" the right to choose one's counsel "against the needs of fairness to the litigants
and against the demands of [the court's] calendar." United States v. Velazquez, 772
F.3d 788, 797 (7th Cir. 2014). Importantly, a party does not have "the power to
manipulate his [or her] choice of counsel to delay the orderly progress of [a] case," id. at
798 (alteration omitted), and requests for new counsel during a trial are rarely
considered timely, United States v. Golden, 102 F.3d 936, 941 (7th Cir. 1996).
Similarly, as the Court explained at the trial, Katherine's attempts to terminate her
counsel were attempts to game or manipulate the proceedings in a manner that would
delay the trial. Soon after the parties rested their cases, on a Friday, Katherine sought
to present her own closing argument. When the Court rejected that request, Katherine
asked the Court if she could terminate her counsel and then present her own closing
argument. The Court said it would not allow her to do so and explained that her request
showed "gamesmanship," if not "manipulat[ion]." See Trial Tr. at 925:21–25. When
Katherine later asked the Court to reconsider that decision or alternatively to continue
the closing arguments until that Monday due to personal challenges faced by her
counsel, the Court explained that it regarded these motions as "part of a continuing
effort on [Katherine's] part to manipulate the proceeding[s] in the case." Id. at 934:14–

15

Case: 1:17-cv-00101 Document #: 469 Filed: 08/03/20 Page 16 of 64 PageID #:14191

19. More than once, the Court expressed concern that if it granted a continuance,
Katherine would terminate her counsel over the weekend in order to manipulate the
proceedings. E.g., id. The Court explained that it could not trust Katherine "to follow
the rules" because, throughout the trial, she had repeatedly ignored or chose not to
follow directions given by the Court, despite numerous express warnings not to do so.
Id. at 941:15–942:6. The Court had ample reason, based on its familiarity with the
extensive history of the case and Katherine's conduct at the trial and during the pre-trial
proceedings, to consider her attempt to terminate her counsel mid-trial as an attempt to
manipulate the proceedings and "delay the orderly progress" of her case. See
Velazquez, 772 F.3d at 798. In short, the request was improper and untimely, and the
Court had discretion to deny it.
In addition, Katherine's contentions that her failure to preserve errors should be
excused due to her counsel's alleged incompetence hold no water. Again, "litigants are
bound by the acts and omissions of their chosen agents, including lawyers." Choice
Hotels Int'l, 792 F.3d at 754. An attorney's alleged ineffectiveness in a civil suit such as
this one is not grounds to excuse the forfeiture or waiver of arguments or errors. See id.
at 756. This is because, for litigants like Katherine, "monetary compensation via a
malpractice action is an adequate recompense for an adverse judgment." See id.
Therefore, even if Katherine no longer wanted her counsel to represent her, her
issues with his representation at the final stage of the trial are not grounds for a new trial
or to excuse her failure to preserve some of the alleged errors the Court discusses next.
The Court denies Katherine's motion for a new trial on those grounds.

16

Case: 1:17-cv-00101 Document #: 469 Filed: 08/03/20 Page 17 of 64 PageID #:14192

2.

Jury instructions

Katherine asserts that she is entitled to a new trial because, she contends, the
jury instructions for five claims contained inadequate statements of the law. "To win a
new trial based on an incorrect jury instruction, [a party] must show both that (1) the
instruction inadequately states Seventh Circuit law; and (2) the error likely confused or
misled the jury causing prejudice to the [moving party]." O'Donnell v. Caine Weiner Co.,
LLC, 935 F.3d 549, 552 (7th Cir. 2019) (alteration and emphasis omitted).
A party may assert that an instruction that the Court "actually" gave to the jury
was erroneous if she or he "properly objected" to the instruction. Fed. R. Civ. P.
51(d)(1)(A). And a party may assert that "a failure to give an instruction" was erroneous
if she or he "properly requested it and—unless the court rejected the request in a
definitive ruling on the record—also properly objected." Fed. R. Civ. P. 51(d)(1)B). A
party properly objects by, "on the record, stating distinctly the matter objected to and the
grounds for the objection." Fed. R. Civ. P. 51(c)(1). "The objection must be specific
enough that the nature of the error is brought into focus," so that the district court is
"made aware of" it and "can fix" it before instructing the jury. Davis v. Wessel, 792 F.3d
793, 802 (7th Cir. 2015). "Mere tendering of proposed instructions different from the
instructions given is not sufficient to preserve an objection to the instructions that are
given." Walker v. Groot, 867 F.3d 799, 803 (7th Cir. 2017) (internal quotation marks
and alteration omitted).
Where, however, a party has not properly objected to an instruction, "[a] court
may consider a plain error in the instructions . . . if the error affects substantial rights."
Fed. R. Civ. P. 51(d)(2). That said, "[e]specially in civil cases, plain-error review of jury

17

Case: 1:17-cv-00101 Document #: 469 Filed: 08/03/20 Page 18 of 64 PageID #:14193

instructions is quite limited and discretionary," and should occur only in exceptional
circumstances. Walker, 867 F.3d at 803 (internal quotation marks omitted). Thus the
"[a]pplication of Rule 51(d)(2) requires that '(1) there must be an error; (2) the error must
be plain; (3) the error must affect substantial rights; and (4) the error must seriously
affect the fairness, integrity, or public reputation of judicial proceedings.'" Id. at 803
(quoting Fed. R. Civ. P. 51, 2003 note). 7
a.

Defamation claim against Wrigley

Katherine contends that the Court erred by not instructing the jury with regard to
her claim of defamation against Wrigley. But a week before the trial started, Katherine
filed a motion seeking to voluntarily dismiss the defamation claim against Wrigley. Dkt.
no. 394. The Court granted Katherine's motion and dismissed the claim. Dkt. no. 399.
After withdrawing the defamation claim against Wrigley, Katherine did not request an
instruction on it, and she did not object when the Court did not issue one. Accordingly,
the plain-error standard applies. It cannot be a plain error for the Court to decline to
instruct the jury on a claim that Katherine had withdrawn and was thus no longer part of
the case.
In her reply brief, Katherine contends that she brought "two separate claims for
defamation against Wrigley" and sought to dismiss only one of those claims. Pl.'s Reply

7

In their response brief, the defendants contend that parties who fail to challenge a jury
instruction waive any objections to that instruction, but they do not mention the justdescribed standard for plain-error review under Rule 51(d)(2). In her opening brief,
Katherine does not mention the standards under Rule 51 at all. She contends in her
reply brief, however, that defense counsel should be sanctioned for their failure to
mention Rule 51(2)(d). This is not a proper way to request sanctions, and the Court
disregards it. See Fed. R. Civ. P. 11(c)(2) ("A motion for sanctions must be made
separately from any other motion and must describe the specific conduct that allegedly
violates Rule 11(b).").
18

Case: 1:17-cv-00101 Document #: 469 Filed: 08/03/20 Page 19 of 64 PageID #:14194

Br. in Supp. of Mot. for a New Trial at 13. The Court understands Katherine to be
contending that she brought two sets of allegations against Wrigley for defamation and
sought to dismiss only her allegations concerning an allegedly slanderous statement
that Wrigley made to Northwestern. But in its decision dismissing Katherine's
defamation claim, the Court made clear that it was dismissing the claim against Wrigley
in its entirety. Dkt. no. 399 at 2–3 ("[T]he Court grants plaintiff's motion to voluntarily
dismiss with prejudice her defamation claim against defendant Wrigley and her
associated conspiracy and aiding-and-abetting claims to the extent they relate to that
defamation claim."). If Katherine felt that ruling went beyond the scope of her motion to
dismiss, she could have asked the Court to reconsider it and could have objected to the
exclusion of the defamation claim from trial. She did not do so. Her challenge to the
lack of a jury instruction is not the proper means by which to assert her contention that
the Court's order dismissing the claim was erroneous.
Regardless, even if the Court erred by not providing an instruction on the
defamation claim against Wrigley, it would not amount to plain error. Katherine
contends that she withdrew only her allegation that Wrigley slandered her; she asserts
that she did not withdraw her allegation that Wrigley defamed her by attaching Kerr's
letter to the ethics report Wrigley submitted to Northwestern. As the Court explained in
the section of this opinion concerning Katherine's motion for judgment as a matter of
law, however, this allegation depends on a finding that Kerr's statement in her letter was
defamatory. Because the jury found that Kerr's statement was not defamatory, the jury
could not have found that Wrigley defamed Katherine by transmitting Kerr's statement.
As a result, if there was an error, it would not have "seriously affect[ed] the fairness,

19

Case: 1:17-cv-00101 Document #: 469 Filed: 08/03/20 Page 20 of 64 PageID #:14195

integrity, or public reputation of judicial proceedings." Walker, 867 F.3d at 803 (quoting
Fed. R. Civ. P. 51, 2003 note).
b.

Defamation claim against Kerr

Katherine next takes issue with the jury instructions on the defamation claim
against Kerr. As relevant, those instructions said that to succeed on her defamation
claim against Kerr, Katherine was required to prove by a preponderance of the
evidence: (1) "Ms. Kerr caused a statement of fact about Ms. Black to be made to
Northwestern Law School"; (2) "Ms. Kerr's statement was false"; (3) "Ms. Kerr knew the
statement was false, or she believed the statement was true but lacked reasonable
grounds for this belief"; (4) "it was apparent from the words of the statement that it
prejudiced Ms. Black in her profession." Trial Tr. at 962: 4–15. Katherine objects to
these instructions on several grounds.
First, Katherine argues that the instructions were erroneous because they did not
tell the jury that Kerr's intent with regard to publication was irrelevant. She contends
that the jury could have erroneously believed it needed to find that Kerr knew the
statement was published to Northwestern. Katherine previously raised this objection, or
at least a form of it, so the Court does not apply the plain-error standard. But nothing in
the jury instructions told or suggested to the jury that the Kerr had to have knowingly
published or caused publication of her statement. Katherine has offered no support for
a contention that the Court had to specifically advise the jury that Kerr's intent regarding
publication did not matter.
In addition, Katherine contends, without citing to legal authority, that the
instructions were erroneous because the Court did not "explain" the concept of but-for

20

Case: 1:17-cv-00101 Document #: 469 Filed: 08/03/20 Page 21 of 64 PageID #:14196

causation. Pl.'s Mot. for a New Trial at 5. Specifically, she asserts that the Court should
have instructed the jury that they needed to find that "but for Ms. Kerr's conduct, [Kerr's]
statement would not have been made to Northwestern." Id. at 6. She did not previously
make this objection, so the Court applies the plain-error standard. Katherine has not
explained why the Court should have provided that instruction, let alone offer any
supporting authority. See United States v. Wenzel, 854 F.3d 957, 961 (7th Cir. 2017)
(argument not developed in a party's opening brief is waived). Regardless, if Katherine
is contending that the jury may have erroneously assumed that Kerr personally had to
publish her statement to Northwestern, nothing in the jury instructions suggested to the
jury that it was required to make such a finding. Katherine has not shown that the Court
plainly erred by declining to "explain" but-for causation when instructing the jury on the
defamation claim.
Third, Katherine contends that the Court erroneously instructed the jury to find
that Kerr's statement caused Katherine actual harm. This is simply not true; the Court
gave no such instruction. That aside, Katherine previously did not make this objection
at trial, so she would have to show plain error, which she has not done.
Fourth, Katherine asserts, without citing to legal authority, that it was improper for
the jury to determine whether the statement fell within a defamatory per se category.
She previously did not make this objection, so the Court applies the plain-error
standard. Katherine contends that whether a statement falls within a per se category is
a determination to be made by the Court. Indeed, a court must resolve the legal
question of whether a statement's meaning is reasonably capable of an innocent
construction and thus does not fall within a per se category. Lott v. Levitt, 556 F.3d 564,

21

Case: 1:17-cv-00101 Document #: 469 Filed: 08/03/20 Page 22 of 64 PageID #:14197

568 (7th Cir. 2009) (Illinois law). 8 But where, as here, a court has found that the
statement could not reasonably be innocently interpreted, a jury must decide whether
"whether the statement was in fact understood to be defamatory." Tuite v. Corbitt, 224
Ill. 2d 490, 503, 866 N.E.2d 114, 122 (2006); see also Summary Judgment Decision,
2019 WL 2433740, at *4 (concluding, in Katherine's favor, that Kerr's allegedly
defamatory statement could not reasonably be given an innocent construction). That is
what the jury instructions in this case called on the jury to do; the Court instructed the
jury to determine, among other things, whether Kerr's statement was in fact understood
to be defamatory because its words prejudiced Katherine in her profession. If Katherine
is contending that the Court instructed the jury to find whether she experienced actual
harm or prejudice, not whether the statement's meaning was defamatory, that makes no
sense. As just indicated, the Court gave no instruction concerning actual harm. The
Court did not plainly err by instructing the jury to determine whether it was apparent
from Kerr's statement that it prejudiced Katherine in her profession.
Finally, Katherine contends that the Court plainly erred by failing to instruct the
jury on defamation per quod in addition to defamation per se. To state a claim for
defamation per quod, a plaintiff must plead special damages. Id. at 501, 866 N.E.2d at
121. This, again, was an objection that Katherine did not raise at trial. Regardless, it
could not possibly have been error, because the Court, at an early stage, found that
Katherine had not alleged a viable claim of defamation per quod. Motions to Dismiss

8

Katherine contends in her reply brief that a jury can decide whether a statement is
capable of a reasonable construction. As indicated, that is incorrect. She also
contends that innocent construction was never an issue in this case. That is incorrect
as well; it was a ground on which Kerr sought summary judgment. Summary Judgment
Decision, 2019 WL 2433740, at *4.
22

Case: 1:17-cv-00101 Document #: 469 Filed: 08/03/20 Page 23 of 64 PageID #:14198

Decision, 2017 WL 8186996, at *9. Thus no such a claim was legitimately at issue at
the trial.
In sum, Katherine has failed to show any error in the jury instructions on the
defamation claim that would entitle her to a new trial.
c.

Aiding-and-abetting claim

Katherine contends, without citing to legal authority, that the jury instructions for
the aiding-and-abetting claim against Wrigley were "fatally infected by" the "instructions
for the underlying offense," i.e. the instructions for the defamation claim against Kerr. 9
Pl.'s. Mot. for a New Trial at 7. She did not raise this objection at trial, so the plain-error
standard applies. As the Court just explained, Katherine has failed to show any error
(or, where required, plain error) in the instructions for the defamation claim.
Accordingly, her claim that those instructions "infected" the aiding-and-abetting claim is
similarly lacking in merit.
Katherine also contends that the instructions for the aiding-and-abetting claim
against Wrigley were "fatally infected by . . . the absence of a jury instruction on
defamation per se against Wrigley." Id. This contention makes no sense. Katherine
alleged in her aiding-and-abetting claim that Wrigley aided and abetted Kerr's alleged
defamation, not that Wrigley aided and abetted her own defamation. Thus the
withdrawn defamation claim against Wrigley had no bearing on whether Wrigley aided
and abetted defamation.

9

In her reply brief, Katherine contends that the defendants did not respond to this
contention, but that is incorrect. See Defs.' Resp. Br. at 5–6.
23

Case: 1:17-cv-00101 Document #: 469 Filed: 08/03/20 Page 24 of 64 PageID #:14199

d.

Conspiracy claim

Katherine next contends that the jury instructions on the conspiracy claim were
erroneous because the jury was instructed that they could find in her favor on that claim
only if they found that Kerr and Wrigley conspired to defame her. She contends that her
conspiracy claim also was based on other unlawful conduct, including Kerr and
Wrigley's alleged intimidation of and retaliation against her for testifying against them.
Katherine contends that she previously objected to the instruction on this ground.
That is not true. Katherine objected to an instruction stating that if the jury found for
Kerr on the defamation claim, it need not consider the conspiracy claim. The basis for
her objection was as follows: "The jury can find the defendants coordinated to defame
Ms. Black and that Wrigley participated in satisfying some of the required elements." Id.
at 912:5–9 (emphasis added). The Court agreed with Katherine on that point; it did not
include the form of instruction to which she objected. In making that objection, however,
Katherine did not suggest that the jury could find a conspiracy based on non-defamatory
conduct, as she contends now. Indeed, as shown by the just-quoted language, she
suggested the opposite. And her attorney specifically told the Court that it was "[f]ine"
to instruct the jury that the conspiracy was based on defamation, not other unlawful
conduct. Trial Tr. at 150:11–15. By affirmatively approving of the instructions,
Katherine waived her right to challenge them as erroneous or plainly erroneous. See
Walker, 867 F.3d at 804 (party waived challenge to jury instructions where he
affirmatively stated he did not object to them). Further, Katherine has not shown that
jury instructions on civil conspiracy misstated the law or created confusion or
misunderstanding about the law; she merely contends that they did not describe the full

24

Case: 1:17-cv-00101 Document #: 469 Filed: 08/03/20 Page 25 of 64 PageID #:14200

scope of her allegations. See Ammons-Lewis v. Metro. Water Reclamation Dist. of
Greater Chi., 488 F.3d 739, 751 (7th Cir. 2007) (no plain error in jury instructions where
there was "no reason to believe" that the jury's verdict "was the product of confusion or
a misunderstanding of the law"). Therefore, Katherine has waived her challenge to the
instructions on the civil conspiracy claim, and there was no plain error.
e.

IIED claim

Katherine contends that the jury instructions regarding the IIED claim were
erroneous because they suggested that the IIED claim solely involved a threat Wrigley
made to Katherine, not other conduct such as witness intimidation and retaliation. 10
The instructions stated that to succeed on the IIED claim, Katherine needed to prove by
a preponderance of the evidence that, among other things, "Ms. Wrigley made one or
more threats against Ms. Black." Trial Tr. 961:15–16.
In Katherine's motion for summary judgment, she pointed to three instances of
allegedly extreme and outrageous conduct. See Summary Judgment Decision, 2019
WL 2433740, at *5. Specifically, she alleged that Wrigley engaged in extreme and
outrageous conduct by telling Katherine that she would arrange for Katherine to have a
sex change operation; by threatening to burglarize Katherine; and by threatening in April
2015 to file a false report to cause Katherine to lose custody of her children. Id. at *5–6.
The Court found that the comment about a sex change operation did "not rise to the
level of extreme and outrageous conduct, at least not by itself." Id. at *6. It found that

10

Katherine contends—correctly—that the defendants did not respond to her arguments
regarding the jury instructions for the IIED claim. But the defendants' failure to assert
arguments on this point does not result in an automatic finding that the jury instructions
were plainly erroneous.
25

Case: 1:17-cv-00101 Document #: 469 Filed: 08/03/20 Page 26 of 64 PageID #:14201

no reasonable jury could find the alleged threat of burglary to constitute extreme and
outrageous conduct but that Wrigley's threat to file a false report could withstand
summary judgment. Id.
At the beginning and end of the trial, Katherine asked the Court to include
language in the instructions stating that the jury needed to find "Wrigley made one or
more threats against" Katherine. See Trial Tr. at 912:20–25. Her counsel explained
that, based on the Court's summary judgment decision, Wrigley's alleged comments
about the sex change operation and the false report could together support the IIED
claim. Id. at 126:11–127:16. The Court agreed and included that language.
As indicated, Katherine now contends that other conduct—witness intimidation
and retaliation—could serve as the basis for her IIED claim. She does not describe the
claimed witness intimidation or retaliation in any detail. She merely references an
attack by Wrigley against her at Northwestern in January 2016, which she contends
"strongly intensified [her] fear for her children's safety." Pl.'s Mot. for a New Trial at 8.
She does not explain what conduct that attack consisted of. The Court assumes she is
referencing Wrigley's filing of the ethics report to Northwestern in January 2016, but
without more information the Court cannot be sure that is what she is referencing.
Regardless, Katherine has waived her challenge to the jury instructions. This is
because Katherine intentionally chose not to seek a jury instruction that the IIED claim
encompassed conduct other than threats, even though she made arguments on multiple
occasions regarding the scope of conduct the claim covered. See United States v.
Heon Seok Lee, 937 F.3d 797, 819 (7th Cir. 2019) (party's "repeated decisions" not to
pursue an argument during district court proceedings despite multiple opportunities

26

Case: 1:17-cv-00101 Document #: 469 Filed: 08/03/20 Page 27 of 64 PageID #:14202

"evinced a tactical choice" that constituted waiver), cert. denied sub nom. Lee v. United
States, 140 S. Ct. 1125 (2020); see also United States v. Withers, 960 F.3d 922, 930
(7th Cir. 2020) (evidence that a party made a "knowing and intentional choice not to
challenge [an] issue [with jury instructions] at trial provides sufficient ground to find
waiver" (internal quotation marks omitted)); see also Higbee, 440 F.3d at 409 (7th Cir.
2006) (principles of plain error in the criminal context provide guidance in the civil
context). Katherine must have known of the alleged witness intimidation and retaliation
at trial, because she contends it could have served at the basis for her IIED claim. The
fact that the jury instructions referenced only threats could not have come as a surprise.
Thus it appears that Katherine made a strategic choice not to object to this jury
instruction, and she cannot contend now that this instruction is erroneous.
In sum, Katherine has not shown that any error in the jury instructions entitle her
to a new trial.
3.

Evidentiary arguments

Katherine next argues that a new trial is warranted due to the Court's decisions to
exclude or admit certain evidence. 11 A new trial is warranted due to erroneous
evidentiary rulings "only if the error has a substantial and injurious effect or influence on
the determination of a jury and the result is inconsistent with substantial justice." Burton
v. City of Zion, 901 F.3d 772, 776 (7th Cir. 2018). "In other words," if there was a
"flawed" evidentiary ruling, "there must be a significant chance that [it] affected the
outcome of the trial." Id. In this case, because the Court concludes that its rulings were

11

Though Katherine raised her evidentiary arguments in separate sections of her brief,
the Court addresses these arguments together because the same standard applies in
part to evidence admitted at trial as to evidence excluded from trial.
27

Case: 1:17-cv-00101 Document #: 469 Filed: 08/03/20 Page 28 of 64 PageID #:14203

not erroneous, it need not consider whether there was a significant chance that the
rulings affected the outcome of the trial.
a.

Excluded evidence 12
i.

Language from Katherine's letter

Katherine asserts that the Court erroneously excluded certain language from the
letter she wrote to the New York judge who was overseeing the probate proceedings.
The Court admitted the following sentence from the body of the letter: "The Colorado
probate court found allegations of Pinto's misconduct sufficiently credible and
troublesome to order an investigation of Pinto by the court-appointed forensic
accountant, Pamela Kerr." Pl.'s JMOL, Ex. 1 at ECF p. 44–45 (redacted version); see
also id., Ex. 1 at 17–18 (unredacted version). Katherine contends that the Court
erroneously excluded language from the heading under which that sentence appeared.
The heading concerned the allegations that Pinto misappropriated Joanne's assets and
in relevant part stated: "and the Colorado Judge Found those Allegations Credible
Enough to Authorize an Investigation of Pinto's Conduct by a Forensic Accountant." Id.
at 17 (emphasis omitted). As indicated, Kerr quoted that language from the heading
and, in her allegedly defamatory statement, described it as "100% false" and
"completely false." Pl.'s JMOL, Ex. 2 at 1.
Katherine made neither a timely objection nor an offer of proof concerning the
exclusion of the language. See Fed. R. Evid. 103(a)(2) (to preserve a claim of error on

12

In her reply brief, Katherine contends she should have been permitted to introduce
evidence from a case in the Eastern District of New York concerning allegations against
Pinto. The Court declines to address the merits of this contention, however, because
"[p]arties waive arguments which they develop for the first time in a reply brief."
Campos v. Cook County, 932 F.3d 972, 976 n.2 (7th Cir. 2019).
28

Case: 1:17-cv-00101 Document #: 469 Filed: 08/03/20 Page 29 of 64 PageID #:14204

a ruling that excludes evidence, a party must inform the court of the substance of the
evidence by an offer of proof, "unless the substance was apparent from the context").
At the beginning of the trial, Kerr's attorney asked the Court to admit all of Katherine's
letter or, in the alternative, parts of it, including the heading in question. Katherine's
counsel objected and asked the Court to include only the portion of the letter "that
constitutes the defamatory statement." Trial Tr. at 157:24–158:1. After hearing
argument, the Court asked Katherine's counsel to identify the defamatory statement she
wanted to have admitted. Counsel pointed to the bottom of page 17 (though he
expressed some confusion over the specific page number, because he apparently did
not have a numbered copy of the letter). The Court admitted that language and
described it as "the carryover paragraph at the bottom of page 17 and the top of page
18." Id. at 164:19–22. Katherine's counsel did not indicate to the Court that he
disagreed or that Katherine sought to admit the heading, which appeared in the middle
of the seventeenth page, let alone that she objected to its exclusion. Thus Katherine
has not preserved her claim of error. See Fed. R. Evid. 103(a)(2).
Katherine argues, however, that her counsel did not waive her objection about
the exclusion of the heading. She contends that her counsel stated the correct guiding
principle—that Katherine sought to admit the part of the letter that Kerr later quoted—
and merely identified the wrong language in the letter as the language he sought to
have admitted. That contention misses the mark, however. It was incumbent on
Katherine's counsel to identify the specific language he sought to have admitted,
because it was not apparent from the context. See id.
Because Katherine did not object to the exclusion of the portion of the letter, its

29

Case: 1:17-cv-00101 Document #: 469 Filed: 08/03/20 Page 30 of 64 PageID #:14205

exclusion is reviewable only for plain error. See Fed. R. Evid. 103(a)(2), (e). As
indicated, "[t]his review is extremely limited" and discretionary. Sanchez v. City of
Chicago, 880 F.3d 349, 360 (7th Cir. 2018); Walker, 867 F.3d at 805 ("Federal Rule of
Evidence 103(e) permits (but does not require) plain-error review when a party fails to
object to [an evidentiary ruling]."). Courts need not engage in plain error review where,
as here, the alleged error was the result of an error a party "committed, invited, induced
the court to make, or to which it consented." See Sanchez, 880 F.3d at 360; see also
Walker, 867 F.3d at 807. Though Katherine contends that the exclusion of the
language in the letter was "material" and "prejudicial," Pl.'s. Mot. for a New Trial at 11,
she has not attempted to show "extraordinary circumstances resulting in a miscarriage
of justice," Walker, 867 F.3d at 807. Her contention that the heading's admission would
have helped her to strengthen her case simply does not meet this high standard. See
Jimenez v. City of Chicago, 732 F.3d 710, 720 (7th Cir. 2013) (defendants' arguments
that excluded evidence affected their substantial rights because it showed weaknesses
in the plaintiff's case did not establish a plain error).
For these reasons, the exclusion of the heading on the seventeenth page of
Katherine's letter was not plain error and does not warrant a new trial.
ii.

Other portions of Katherine's letter

Katherine also asserts that the Court erred by admitting only one sentence from
the letter she wrote to the New York judge instead of other portions of the letter,
including the section in which that sentence appeared. She contends that other
portions of the letter, together with a transcript from the Colorado probate court, would
have enabled her to establish the falsity of Kerr's statement. As indicated, however,

30

Case: 1:17-cv-00101 Document #: 469 Filed: 08/03/20 Page 31 of 64 PageID #:14206

Katherine did not ask for the Court to admit other portions of the letter and did not object
to their exclusion, so she has forfeited this argument. See Fed. R. Evid. 103(a)(2).
Nor has Katherine explained how excluding the section was a plain error that
would have affected "substantial rights and result[ed] in a miscarriage of justice."
Walker, 867 F.3d at 805. She contends that there was no other evidence by which she
could establish the truth of her statement. That is an inaccurate characterization of the
evidence she presented at the trial and just another way of arguing that this evidence
would have strengthened her case. Katherine did have other means by which to
attempt to establish the truth of her statement, including through her own testimony.
Her failure to ask the Court to admit evidence that she now contends is particularly
strong does not establish plain error. See Jimenez, 732 F.3d at 720.
If Katherine is contending that the jury would have been required to find in her
favor on the defamation claim if she had introduced this part of her letter at the trial, the
Court disagrees. As explained in the section of this opinion regarding Katherine’s
motion for judgment as a matter of law, there was sufficient other evidence that
permitted the jury reasonably to find in Kerr’s favor. To the extent Katherine suggests
that it would have been apparent to the jury from the excluded section of her letter that
she was merely offering her interpretation of the Colorado probate court’s order and not
a definitive description of it, she had the opportunity to explain that characterization of
her letter when she testified at the trial. See id. (on a motion for a new trial, the court
cannot re-weigh the evidence by drawing inferences in the losing party's favor).
Further, in the section of the letter that Katherine contends should have been
admitted, Katherine alleged that Pinto made unauthorized and unreported withdrawals

31

Case: 1:17-cv-00101 Document #: 469 Filed: 08/03/20 Page 32 of 64 PageID #:14207

from a bank account belonging to Joanne. If these allegations had been admitted at
trial, then evidence to rebut them would have been admissible. This would have
consisted of allegations against Katherine's husband Bernard—namely, allegations that
Bernard, not Pinto, misappropriated money from Joanne's bank accounts. This rebuttal
evidence would have been highly prejudicial to Katherine (and the Court had excluded it
on that basis at Katherine's request), so it was appropriate for the Court not to admit the
section of the letter containing allegations against Pinto. See Fed. R. Evid. 403.
For these reasons, the non-inclusion of the full section of the letter does not
warrant a new trial.
iii.

Colorado probate court transcript

Katherine next asserts that the Court erroneously excluded a transcript from a
hearing the Colorado probate court held on April 2, 2015. 13 She contends this transcript
would have enabled her to establish the falsity of Kerr's allegedly defamatory statement.
In ruling on the parties' motions in limine, the Court found that this transcript was
admissible with regard to "the truth or falsity of Kerr's statement accusing [Katherine] of
lying to the New York judge about what Kerr was authorized to investigate by the
Colorado judge." Dkt. no. 377 at 8. The Court reaffirmed that ruling after Katherine
withdrew her defamation claim against Wrigley. Dkt. no. 411 at 14. Because the
parties had not identified which parts of the transcript they contended were admissible,
however, the Court declined to break down the transcript's admissible and non-

13

Katherine did not provide a citation to this transcript or identify the date on which it
occurred. Nonetheless, based on language she quoted from the transcript and her
arguments about it, the Court infers that she is referring to the transcript of the hearing
that took place on April 2, 2015 before the Colorado probate court.
32

Case: 1:17-cv-00101 Document #: 469 Filed: 08/03/20 Page 33 of 64 PageID #:14208

admissible parts at that time. Id. at 14–15. It directed counsel to confer on the
appropriate breakdown, but the parties were unable to reach an agreement, so on the
first day of trial the Court directed them make submissions regarding their positions.
Meanwhile, after the Court issued its initial ruling on the motions in limine,
Katherine stated in writing that she did not object to the admission of the order entered
on April 2, 2015 by the Colorado probate judge. Dkt. no. 403 at 13. Relying on that
statement, the Court found the order admissible. Dkt. no. 411 at 15.
In a written ruling issued on the second day of the trial, referencing that finding
and on the parties' submissions regarding the parts of the transcript they sought to
admit, the Court excluded from trial the transcript of the April 2, 2015 proceedings
because it found the transcript was "in large part, unnecessarily cumulative" of the April
2, 2015 order, "in a way that significantly outweighs its probative value." Dkt. no. 416.
The Court stated that the non-duplicative material in the transcript was "largely
irrelevant" or, if relevant, "unfairly prejudicial in a way that significantly exceeds its
probative value." Id.
During the trial, Katherine's counsel asked the Court to reconsider its decision to
exclude the transcript. Katherine sought to admit a portion of the transcript where that
the Colorado probate judge indicated that there was a "big dispute" about Pinto's
conduct. See Trial Tr. at 801:5–7 (quoting Colorado probate court's transcript).
Katherine's counsel contended this language showed that the Court found, among other
things, that the dispute "was a matter of big concern." Id. at 801:8–13. The Court ruled
that the portion of the transcript was inadmissible because Kerr was not at the hearing,
so she would have understood the scope of her investigation from the Colorado probate

33

Case: 1:17-cv-00101 Document #: 469 Filed: 08/03/20 Page 34 of 64 PageID #:14209

judge's order, not the transcript. In addition, the Court ruled that the transcript was not
admissible because the Colorado probate judge did not "make any findings," and the
transcript "just provide[d] the background for why the order [was] entered." Trial Tr. at
802:20–22.
Katherine now asserts that the Colorado probate court's transcript would have
been available to Kerr because, she contends, Kerr was a party to the proceedings.
That does not accurately state Kerr's role in the Colorado proceedings. She was an
accountant retained by a party to those proceedings, not a party herself. And Katherine
has submitted no evidence indicating that Kerr had access to the transcript. More to the
point, as the Court previously ruled, the Colorado probate judge did not make any
findings in the transcript regarding the credibility of the accusations against Pinto. Thus,
contrary to Katherine's contentions, the transcript had minimal probative value with
regard to the issue of whether the Colorado probate court made findings on that point.
See Fed. R. Evid. 403. And the transcript would not have enabled Katherine to
definitively establish that the Colorado probate court authorized an investigation into
Pinto's conduct, as she contends in her reply brief; the transcript does not reflect that
the court expressly stated this. See id.
Further, Katherine does not explain why the Court's written ruling—that the
proceedings were unnecessarily cumulative and otherwise unfairly prejudicial—was
erroneous. Indeed, if anything, that ruling was beneficial to Katherine. By excluding the
transcript, the Court also excluded testimony that was extremely and unfairly prejudicial
to her, namely accusations that her husband Bernard had misappropriated Joanne's
funds and testimony from Wrigley that Bernard maintained no relationship with Joanne.

34

Case: 1:17-cv-00101 Document #: 469 Filed: 08/03/20 Page 35 of 64 PageID #:14210

See id. For these reasons, the Court's exclusion of the transcript from the April 2, 2015
hearing before the Colorado probate court was not erroneous and does not warrant a
new trial.
iii.

E-mails between Bernard and Kerr

Katherine next contends that the Court erroneously excluded a series of e-mails
sent between Bernard and Kerr. In these e-mails, Bernard provided Kerr with
information concerning Pinto and described some of the allegations against Pinto. In
response, Kerr asked questions about the information, including why Bernard was
making his own withdrawals from Joanne's accounts.
Katherine contends that this information was "material" with regard to her
defamation claim because it had a bearing on "whether Kerr was authorized to review
Pinto's handling of Joanne's funds, whether she understood this to be her role, and the
extensive work she actually did." Pl.'s. Mot. for a New Trial at 16. But, as the Court
explained when ruling on a motion in limine filed by Katherine to exclude from the trial
certain other evidence concerning Bernard, nothing about Bernard "has any bearing on
the truth or falsity of Kerr's narrow and focused statement to the Northwestern dean."
Dkt. no. 377 at 6. When Katherine sought to introduce the e-mails at trial, the Court
excluded the e-mails under Federal Rule of Evidence 403 as needlessly cumulative,
because Kerr had already testified that she had received communications from Bernard
during the course of her investigation, and unfairly prejudicial, because it was "a six- or
seven-page single-spaced letter by [Bernard] that basically lays out all of his allegations
about misconduct by Mr. Pinto." Id. at 885:7–17. The Court made a similar ruling with
regard to other e-mails exchanged between Bernard and Kerr, finding that this evidence

35

Case: 1:17-cv-00101 Document #: 469 Filed: 08/03/20 Page 36 of 64 PageID #:14211

was cumulative of questions and answers during Kerr's testimony and, alternatively,
involved whether Pinto committed misconduct, which was not at issue at the trial. Id. at
885:20–886:2; id. at 886:5–9.
In her reply brief, Katherine contends that the Court should not have excluded
these e-mails because they were not unfairly prejudicial to Kerr. The e-mails, however,
raised a danger that the jury would infer that Kerr had been authorized by the Colorado
judge to investigate Pinto from the fact Bernard was providing her information about
Pinto. That substantially outweighed the probative value of the e-mails, which was
minimal because they included no indication as to whether the court actually authorized
Kerr to investigate Pinto's conduct. And their admission would have opened the door to
evidence rebutting Bernard's allegations against Pinto—i.e., evidence regarding the
conduct by Bernard that was at issue in the investigation—which would have been
extremely and unfairly prejudicial to Katherine. This would have included an order
issued by the Colorado court on January 4, 2018 in which, as this Court previously has
described:
the Colorado judge removed Bernard as trustee of certain trusts; stripped
him of authority to make any decisions regarding funds or property of the
trusts; ordered an accounting of assets to which he had access intended
to benefit [Katherine]; directed him to disclose the source of his assets
used to pay attorney's fees; and made findings that the actions of Bernard
and plaintiff Black were 'shocking to the conscience.'
Dkt. no. 377 at 9–10 (emphasis added). The Court excluded that order from the trial
because it was highly prejudicial to Katherine.
Admitting the e-mails Bernard sent to Kerr also would have opened the door to
Kerr's forensic accounting report that addressed Bernard's alleged misconduct, which
the Court excluded for similar reasons. See dkt. no. 411 at 15. Katherine cannot have
36

Case: 1:17-cv-00101 Document #: 469 Filed: 08/03/20 Page 37 of 64 PageID #:14212

it both ways; she cannot contend that evidence concerning Pinto's alleged misconduct
should have been admitted but that rebuttal evidence concerning her husband's alleged
misconduct should have excluded.
Katherine also contends that these e-mails were not cumulative. That
contradicts a statement her counsel made to the Court, indicating that Kerr had testified
that she received information from Bernard during her investigation. Regardless, the
presentation of these lengthy e-mails would have unnecessarily wasted time because,
as indicated, they offered little probative value with regard to the scope of Kerr's
investigation as authorized by the Colorado probate court and thus had no bearing on
the truth or falsity of Kerr's allegedly defamatory statement to the New York judge. See
Fed. R. Evid. 403.
For these reasons, the rulings were appropriate under Rule 403, and the Court's
exclusion of the e-mails between Bernard and Kerr is not a basis for a new trial.
iv.

New York court's TRO and final order

Katherine contends that the Court erred in excluding "all evidence" relating to the
guardianship proceedings in New York. Pl.'s. Mot. for a New Trial at 16. Specifically,
she contends that the Court erred in excluding a temporary restraining order (TRO) the
New York court issued against Wrigley and Kerr and a final order the New York court
issued on June 7, 2016. Katherine has not submitted the TRO in connection with this
motion or her motion for judgment as matter of law, but, as the Court described it during
the trial, it precluded Wrigley and other people from contacting Katherine and her family.
Trial Tr. at 297:23–25. In the relevant part of the New York court's June 7, 2016 order,
the court declined to temporarily restrain Wrigley and others from contacting the Blacks

37

Case: 1:17-cv-00101 Document #: 469 Filed: 08/03/20 Page 38 of 64 PageID #:14213

or Northwestern, and it discontinued the just-described TRO based on assurances that
the parties and their attorneys would no longer contact Northwestern. Pl.'s JMOL, Ex.
9.
In her opening brief, Katherine contends that she sought to introduce this
evidence to challenge Wrigley's credibility by showing that Wrigley broke an "express
promise" she made to the New York court that she would not contact Northwestern
again. Pl.'s. Mot. for a New Trial at 17. She contends this shows that Wrigley was
motivated to lie in a deposition in this case to cover the alleged fact that she did contact
Northwestern. That's not what Katherine's counsel said during the trial, though; he said
Katherine sought to introduce the TRO because it would "confirm[] [Wrigley's alleged]
extreme and outrageous conduct." Trial Tr. at 298:8–10. And, indeed, in her response
brief, Katherine appears to change course by contending that the TRO would have
helped her prove, among other things, "specific actions by Wrigley that served as a
basis for the IIED claim." Pl.'s Reply Br. in Supp. of Mot. for a New Trial at 25.
Regardless, as the Court explained during the trial, the TRO was highly and unfairly
prejudicial because the jury would understand it as "some sort of third-party judicial
confirmation of the accuracy of" the allegations in this case, which would have been
misleading. Id. at 299:2–7. That ruling was appropriate, and Katherine has not shown
otherwise. See Fed. R. Evid. 403.
The same is true for the New York court's June 7, 2016 order. Moreover, neither
party has pointed to any part of the record indicating that Katherine previously sought to
introduce that particular order at the trial, and, in reviewing the record, the Court has
been unable to find any such indication either. Assuming Katherine did not seek to

38

Case: 1:17-cv-00101 Document #: 469 Filed: 08/03/20 Page 39 of 64 PageID #:14214

introduce that order, she cannot claim that the exclusion of evidence was erroneous, let
alone a plain error. See Fed. R. 103(a), (e).
In a footnote in her opening brief, Katherine also contends that a sworn answer
to an amended petition that Wrigley filed before the New York court would have enabled
her to show that Wrigley lied under oath. In that filing, Wrigley stated in relevant part
that there were no allegations that Pinto had done anything improper with regard to
Joanne. If Katherine is contending that this should have been admitted at the trial to
challenge Wrigley's credibility, she has not shown that she asked the Court to admit it
during her cross-examination of Wrigley, see Fed. R. Evid. 608, and the Court has
found no indication in the record that she did. Thus, as with the New York court's order,
Katherine cannot claim that the exclusion of evidence was erroneous, let alone a plain
error. See Fed. R. 103(a), (e). Even if she had offered the evidence at trial, the filing's
probative value in challenging Wrigley's credibility would have been substantially
outweighed by the danger that it would have needlessly and unfairly misled the jury.
See Fed. R. Evid. 403. This is because in the filing, Wrigley contended that a felony
charge against Pinto was dropped and that he had never been convicted of a felony.
As the Court previously ruled, evidence regarding Pinto's criminal history "has no
bearing" on Katherine's claims. Dkt. no. 411 at 13. Admitting this filing would have
opened the door to other evidence regarding Pinto's criminal history, which the Court
excluded under Rule 403, ruling in favor of Katherine on a motion in limine she filed.
Again, Katherine cannot have it both ways: she cannot seek to admit evidence
concerning Pinto's criminal history where it favors her and to exclude other evidence
concerning his criminal history where it undermines her case.

39

Case: 1:17-cv-00101 Document #: 469 Filed: 08/03/20 Page 40 of 64 PageID #:14215

For these reasons, Katherine has failed to show that any error regarding the
exclusion of the cited evidence from the New York court proceedings entitles her to a
new trial.
v.

Alleged perjury by Wrigley

Katherine next asserts that the Court erroneously excluded evidence that she
contends shows that Wrigley committed perjury during discovery in this case. Katherine
appears to be referring to deposition testimony by Wrigley and a privilege log produced
by the law firm where Wrigley's brother Anthony Dain works. She contends this would
have shown that Wrigley falsely testified about when she deleted an old e-mail account
and when she began using a new one. She further contends that, had the jury seen
evidence of this and other alleged lies, it likely would not "have believed anything
Wrigley said." Pl.'s. Mot. for a New Trial at 18.
After Katherine's counsel examined Kerr on redirect, he asked to admit some of
the evidence to which Katherine refers. Some of it the Court excluded because it was
"largely testimony about documents being lost, and not everything was recovered,"
which the Court found was irrelevant and unfairly prejudicial. Trial Tr. at 883:4–7. The
Court excluded other exhibits because they were unnecessarily cumulative of Wrigley's
testimony, and it indicated that Katherine's counsel had had the chance to address
these issues when Wrigley was on the stand. Id. at 883:8–17. In asserting that the
Court erroneously excluded this evidence, Katherine contends only that it was relevant
and admissible to challenge Wrigley's credibility. She does not attempt to explain how
the evidence was not unfairly prejudicial to Wrigley, nor does she attempt to explain
how it was not unnecessarily cumulative to Wrigley's testimony. In other words, she

40

Case: 1:17-cv-00101 Document #: 469 Filed: 08/03/20 Page 41 of 64 PageID #:14216

does not address the core of the Court's ruling.
The Court's exclusion of this evidence was appropriate. Wrigley's deposition
testimony about the lost documents did not go to the merits of any of the claims against
Wrigley. And though Katherine contends that the privilege log shows that Wrigley was
lying about the dates when her e-mail account was hacked and she started using her
new account, Katherine has not submitted the privilege log with her present motions, so
the Court cannot determine whether it contradicts Wrigley's testimony. More
importantly, even if the privilege log showed that Wrigley incorrectly testified as to when
she stopped using her old account and started using her new one, that would not
reasonably lead to the inference that Wrigley committed perjury in this case, as
Katherine contends. See, e.g., United States v. Lathrop, 634 F.3d 931, 940 (7th Cir.
2011) ("One commits perjury if, while under oath, he or she gives false testimony
concerning a material matter with a willful intent to provide false testimony, rather than
as a result of confusion, mistake, or faulty memory."). The dates when Wrigley used her
e-mail accounts are in no way material to this case. And it would have been
unreasonable for a jury to infer on the basis of the transcript that Wrigley showed a
willful intent to provide false testimony; the only reasonable inference would have been
that she was confused or did not remember precisely when she switched e-mail
accounts. In short, the evidence does not show what Katherine purports it does, and it
was irrelevant to this case. See Fed. R. Evid. 401. For these reasons, the exclusion of
this evidence does not warrant a new trial.
b.

Admitted evidence

Katherine asserts that the Court erroneously admitted the entirety of the

41

Case: 1:17-cv-00101 Document #: 469 Filed: 08/03/20 Page 42 of 64 PageID #:14217

Colorado probate court's order dated April 2, 2015. She contends that passages in the
order concerning accusations against Bernard were highly and unfairly prejudicial to her
and irrelevant to the defamation claim against Kerr.
In a written response to the defendants' proffer of evidence, Katherine specifically
stated that she did not object to the admission of the April 2, 2015 order issued by the
Colorado probate court. Dkt. no. 403 at 13. The Court expressly relied on that
statement when, in a written ruling it issued on August 18, 2019, it found the Colorado
probate court's order admissible. Dkt. no. 411 at 15. The Court also noted that the
order was relevant to the defendants' theory that Katherine allegedly had a motive or
bias in bringing the present lawsuit. Id.; see also id. at 11.
The Court reaffirmed that finding after the first day of trial, when Katherine
changed her position and contended that the order should be excluded. Dkt. no. 416.
The Court stated that "[t]here is nothing wrong with seeking reconsideration of a ruling,"
but it declined to reconsider its decision, "particularly in light of the fact that the Court
relied on the concession and the admissibility of this exhibit in making other rulings and
was entitled to presume that plaintiff's decision not to object to admission of this exhibit
was well-considered." Id. The Court also noted that Katherine's "attempt to change her
position on this was made after opening statements, during which defendants were
entitled to rely on the Court's ruling regarding admissibility." Id.
Those findings apply equally to this motion. Katherine waived her challenge to
the Court's admission of the Colorado probate court's order by consenting to it. See
Sanchez, 880 F.3d at 360; Walker, 867 F.3d at 805. And the Court acted appropriately
in denying Katherine's attempt to seek reconsideration, because there was no manifest

42

Case: 1:17-cv-00101 Document #: 469 Filed: 08/03/20 Page 43 of 64 PageID #:14218

error or change in the law (or the relevant background) that warranted re-examination of
its initial ruling. See, e.g., Minch v. City of Chicago, 486 F.3d 294, 301 (7th Cir. 2007);
Oto v. Metro. Life Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000) ("A manifest error is not
demonstrated by the disappointment of the losing party. It is the wholesale disregard,
misapplication, or failure to recognize controlling precedent." (internal quotation marks
omitted)). Though Katherine contends that the Colorado probate court's April 2, 2015
order was unfairly prejudicial to her because it allowed the jury to see allegations
against her husband, that does not amount to plain error. The Colorado court's April 2,
2015 order was highly probative because it bore directly on whether that court
authorized an investigation into Pinto's conduct—an issue at the heart of the defamation
claim—and this was not substantially outweighed by its potential for unfair prejudice
against Katherine. See Fed. R. Evid. 403. Therefore, Katherine has waived the
argument that the evidence was improperly admitted and has "failed to make a showing
of the type of extraordinary circumstances required to establish plain error." See
Walker, 867 F.3d at 805.
In sum, Katherine has not shown that the Court's evidentiary rulings were
erroneous as to warrant a new trial.
4.

Closing arguments

Katherine next contends that during closing argument, Kerr's counsel made four
false statements to the jury concerning the contents of evidence that the Court
excluded. 14 A party seeking a new trial based on alleged misconduct during closing

14

To the extent Katherine also is contending in her reply brief that she is entitled to
sanctions for Kerr's counsel's conduct during closing arguments, the Court disregards
that request. As indicated, that is not the proper way by which to request sanctions.
43

Case: 1:17-cv-00101 Document #: 469 Filed: 08/03/20 Page 44 of 64 PageID #:14219

arguments must clear a very high hurdle to obtain relief. See, e.g., Smith v. Hunt, 707
F.3d 803, 812 (7th Cir. 2013). Specifically, a statement made during a closing
argument constitutes reversible error and warrants a new trial "only if the statement was
plainly unwarranted and clearly injurious." Id. (internal quotation marks omitted). The
Court addresses each statement that Katherine alleges is improper in turn.
First, Katherine contends that Kerr's counsel made a false statement regarding
the letter Katherine wrote to the New York judge. Kerr's counsel said that Katherine
wrote in the letter that the Colorado probate court "ordered" Kerr to conduct an
investigation, not that the court "authorized" Kerr to do so, and he indicated that the jury
would not "find anything in there authorizing Kerr." Trial Tr. at 1036:12–17. Katherine
contends that this statement was false because, as indicated, she stated in a heading in
the letter, which was excluded from the trial, that the court authorized an investigation.
The difference between a court "ordering" and "authorizing" something seems
insignificant, as any authorization would have come in an order. That aside, however,
Katherine did not object to this statement at the time, so she has waived this challenge.
See Soltys v. Costello, 520 F.3d 737, 745 (7th Cir. 2008). "[N]o plain error doctrine
exists to remedy errors which are alleged to have occurred during closing argument."
Deppe v. Tripp, 863 F.2d 1356, 1364 (7th Cir. 1988); see also Kafka v. Truck Ins. Exch.,
19 F.3d 383, 385 (7th Cir. 1994).
Regardless, even if review for plain error is appropriate, Kerr's counsel's
statement that the jury would not find language "authorizing Kerr" does not amount to

See Fed. R. Civ. P. 11(c)(2) ("A motion for sanctions must be made separately from any
other motion and must describe the specific conduct that allegedly violates Rule
11(b).").
44

Case: 1:17-cv-00101 Document #: 469 Filed: 08/03/20 Page 45 of 64 PageID #:14220

plain error. See Williams v. Dieball, 724 F.3d 957, 964 (7th Cir. 2013) (finding that a
party failed to preserve a challenge to comments made during opening arguments but
nonetheless also finding that there was no plain error). This is because if the jury found
that the Colorado probate court did not order an investigation of Pinto's conduct, as
Kerr's counsel suggested, the jury nonetheless could have found that the court
authorized Kerr to investigate Pinto's conduct, which would have confirmed the falsity of
Kerr's defamatory statement and permitted a finding in Katherine's favor. Stated
differently, despite Kerr's counsel's characterization of the issue, the jury could have
found that the allegedly defamatory statement was false (i.e., that the Colorado court
authorized such an investigation). In short, Kerr's counsel's statement was not "likely to
have influenced the outcome." See id.
Second, Katherine contends that Kerr's attorney falsely stated that there was no
order in which the Colorado probate judge made findings regarding Pinto's alleged
misconduct. Katherine contends that the Colorado probate judge made such findings at
a hearing on April 2, 2015, which she contends is reflected in the transcript and order
from that hearing. 15 Again, Katherine did not object to this statement at trial, so she has
waived this challenge. Regardless, to the extent the Colorado probate judge made
such findings in the order from that hearing, contrary to Katherine's contentions in her
briefs, that order was admitted at the trial. And the transcript, which was excluded from
the trial, does not reflect that the Colorado probate judge made any findings regarding

15

In her opening brief, Katherine describes this transcript and order only as the
"Colorado Transcript" and provides no citation to it. Based on her reference to earlier
arguments, her description of the transcript, and her reply brief, the Court infers that she
is referring to the transcript of the proceedings before the Colorado court on April 2,
2015.
45

Case: 1:17-cv-00101 Document #: 469 Filed: 08/03/20 Page 46 of 64 PageID #:14221

Pinto's alleged misconduct, as indicated. It therefore was appropriate for Kerr's counsel
to note this apparent weakness in Katherine's case and did not amount to plain error.
See Soltys, 520 F.3d at 745.
Third, Katherine contends that Kerr's counsel falsely stated that Katherine
"invented another wrongdoer to deflect attention from" Bernard, implying that Katherine
sought to cast the blame for Bernard's alleged misconduct on Pinto. Trial Tr. at
1034:14–16. Katherine objected to this statement, but the Court ruled that it was
appropriate argument. That ruling was not erroneous; Kerr's counsel was suggesting
an inference based on the evidence, which attorneys have leeway to do in their closing
arguments. See Soltys, 520 F.3d at 745.
Finally, Katherine contends that Kerr's counsel falsely stated that Katherine wrote
the letter to the New York court in an effort to influence that court's decision "to choose
her husband" as Joanne's guardian. Trial Tr. at 1033:4–7. Without citing to any
evidence, Katherine contends that some of the excluded evidence regarding the New
York guardianship proceedings would have shown that this statement was false
because Bernard had withdrawn his guardianship petition by that point. Katherine
waived this objection by failing to make it at trial, but it lacks merit in any event. Even if
this statement was incorrect, it was not "clearly injurious." See Smith, 707 F.3d at 812.
This is because Katherine's motivation for writing the letter to the New York court was
not at issue in the case. The issue for the jury's determination was whether Kerr's
statement about what the letter said was false. Assuming Katherine's motivation in
sending the letter had nothing whatsoever to do with an attempt to influence the New
York court to choose Bernard as the guardian, that had no bearing one way or another

46

Case: 1:17-cv-00101 Document #: 469 Filed: 08/03/20 Page 47 of 64 PageID #:14222

on whether Kerr mischaracterized the letter. Kerr's counsel's statement about
Katherine's motivation is not a basis for a new trial.
In her reply brief, Katherine asserts several arguments regarding improper
comments during closing arguments that she did not make in her opening brief.
Specifically, she contends that Kerr's attorney's comments confused the jury and misled
them about legal standard, apparently with regard to the publication element of the
defamation claim and the knowledge element of the conspiracy claim. She contends
that Kerr and Wrigley's attorneys told the jury that employees from Northwestern were
not testifying because Katherine "lied about her injuries or [the] propriety of her
behavior." Pl.'s Reply Br. in Supp. of Mot. for a New Trial at 5. And she contends that
Kerr's attorney insinuated that she (Katherine) lied under oath. Because Katherine did
not make these arguments in her opening brief, however, she has forfeited them, and
the Court therefore disregards them. See Campos v. Cook County, 932 F.3d 972, 976
n.2 (7th Cir. 2019). Finally, even if any of Kerr's counsel's statements were improper,
the Court mitigated any harm that those statements may have caused by instructing the
jury that closing argument is not evidence. E.g., Soltys, 520 F.3d at 745 ("[C]urative
instructions to the jury mitigate harm that may otherwise have resulted from improper
comments during closing argument."). There is no indication that "the jury was unable
or unwilling to follow the court's instructions to refrain from treating the testimony of the
attorneys as evidence." Id. at 744.
Katherine contends that the facts of this case are "eerily similar" to the facts of
Harbin v. Interlake Steamship Co., 570 F.2d 99 (6th Cir. 1978), where the Sixth Circuit
found that a counsel's statement in his closing argument was improper because it "may

47

Case: 1:17-cv-00101 Document #: 469 Filed: 08/03/20 Page 48 of 64 PageID #:14223

have had some influence" on the jury's verdict, see id. at 106. Pl.'s Reply Br. in Supp.
of Mot. for a New Trial at 1. The Court need not address any claimed factual similarities
between this case and Harbin, however, because the legal standard that the Sixth
Circuit adopted in that case does not apply here. In the Seventh Circuit, as indicated, a
counsel's statement in his or her closing argument warrants a new trial "only if the
statement was plainly unwarranted and clearly injurious," Smith, 707 F.3d at 812, not if
the statement "may have had some influence" on the jury's verdict, Harbin, 570 F.2d at
106.
For these reasons, the statements by Kerr's counsel during his closing argument
do not warrant a new trial.
4.

Cumulative error

Katherine contends in her reply brief that the cumulative effect of the allegedly
erroneous jury instructions, erroneous evidentiary rulings, and improper comments
during closing arguments caused cumulative prejudice that warrants a new trial. She
did not make this argument in her opening brief, however, so she has forfeited it. See
Campos v. Cook County, 932 F.3d at 976 n.2. Regardless, because Katherine has not
shown the existence of multiple plain errors or errors that she preserved for review, she
has not shown that "multiple errors so infected the jury's deliberation that they denied
[her] a fundamentally fair trial." Sanchez, 880 F.3d at 361 (alteration omitted).
In sum, for the reasons stated above, the Court denies Katherine's motion for a
new trial.
C.

Costs
Finally, the Court turns to Kerr's motion to recover costs. "Unless a federal

48

Case: 1:17-cv-00101 Document #: 469 Filed: 08/03/20 Page 49 of 64 PageID #:14224

statute, [the Federal Rules of Civil Procedure], or a court order provides otherwise,
costs—other than attorney's fees—should be allowed to the prevailing party." Fed. R.
Civ. P. 54(d)(1). "There is a presumption that the prevailing party will recover costs, and
the losing party bears the burden of an affirmative showing that taxed costs are not
appropriate." Richardson v. Chicago Transit Auth., 926 F.3d 881, 893 (7th Cir. 2019).
"This presumption is difficult to overcome," and, in deciding whether to award costs, a
"district court’s discretion is narrowly confined." Id.
1.

Entitlement to costs

Katherine argues that Kerr is not entitled to costs. The Seventh Circuit has
recognized "only two situations in which the denial of costs might be warranted: the first
involves misconduct of the party seeking costs, and the second involves a pragmatic
exercise of discretion to deny or reduce a costs order if the losing party is indigent."
Mother & Father v. Cassidy, 338 F.3d 704, 708 (7th Cir. 2003). Katherine contends that
both situations apply here.
a.

Misconduct

Courts have denied costs due to misconduct only in "exceptional circumstances,"
Overbeek v. Heimbecker, 101 F.3d 1225, 1228 (7th Cir. 1996), in which the prevailing
party's extreme and repeated misconduct "needlessly extended or delayed the
litigation." Merix Pharm. Corp. v. Clinical Supplies Mgmt., Inc., 106 F. Supp. 3d 927,
941 (N.D. Ill. 2015) (Kennelly, J.). Katherine describes several circumstances she
contends show extreme misconduct. 16

16

In her response brief, Katherine contends that any costs the Court awards should be
offset by the legal fees she incurred for responding to Kerr's and Kerr's counsel's
49

Case: 1:17-cv-00101 Document #: 469 Filed: 08/03/20 Page 50 of 64 PageID #:14225

First, Katherine contends that Kerr's counsel's allegedly improper statements in
his closing arguments provide a basis for denying costs. But, as explained earlier in this
opinion, Kerr's counsel's statements were not improper and did not harm her in any
cognizable way. And even if they were improper, the statements were not so extreme
as to be "worthy of penalty." Smith v. DeBartoli, 769 F.2d 451, 453 (7th Cir. 1985).
Second, Katherine contends that Kerr attempted to get an order from the
Colorado probate judge ruling on the truthfulness of Kerr's statement to Northwestern,
which Katherine characterizes as an attempt to "preempt" the jury's determination about
the truthfulness of the statement in this case. Pl.'s Br. in Resp. to Kerr's Mot. for Costs
at 8. Katherine is referring to a motion Kerr filed to extend fact discovery so that she
could, among other things, obtain an order from the Colorado probate judge or
testimony from the judge regarding whether she ordered or merely authorized Pinto's
investigation. Katherine contends that the Court "made clear that this was
inappropriate" at a hearing it held on September 13, 2018. Id. at 5.
That, however, mischaracterizes the Court's statements and ruling at the hearing.
The Court said that it was "bizarre" for a party to ask a judge to explain a ruling she
made more than three years after she made it, and it asked Kerr to explain how she
planned to use that evidence if she was able to obtain it. See, e.g., Sept. 13, 2018 Hr'g
Tr. at 18:19–20:8. But the Court made no finding that Kerr's strategy was inappropriate.
Instead, the Court denied Kerr's request to extend the discovery cutoff for this purpose
because Kerr had not shown diligence in seeking to depose or obtain an order from the

misconduct. This is not a proper request to make in a response brief, and Kerr cites no
law to support it. Therefore, the Court disregards it.
50

Case: 1:17-cv-00101 Document #: 469 Filed: 08/03/20 Page 51 of 64 PageID #:14226

Colorado probate judge. Though Katherine contends that Kerr had unsavory intentions
in seeking an order or testimony from a judge, she has cited no authority suggesting
that Kerr's plan constituted misconduct that would warrant denial of costs. And,
regardless, the plan did not delay the case, because, as indicated, the Court did not
permit Kerr to obtain a discovery extension for that purpose.
Third, Katherine alleges that Kerr's counsel lied to the Court regarding his
motivation to seek the just-described order or testimony from the Colorado probate
judge. She points to a statement by Kerr's counsel that he did not know that the order
or testimony from the Colorado probate judge would be necessary until he took
Katherine's deposition, a statement that Katherine contends was undermined by
counsel's later statement that he took actions to obtain such an order before Katherine's
deposition. Although the Court agrees that, based on counsel's second statement, his
first statement was false, this conduct is not so egregious that it would justify denying
costs. See Merix Pharm, 106 F. Supp. 3d R 941 (attorney's improper comments did not
warrant the denial of costs).
Fourth, Katherine alleges that Kerr improperly obtained an order from the
Colorado probate court that she says contained critical remarks about her. Katherine
contends that Kerr sought to introduce these allegedly improper remarks as evidence in
this case and that the Court indicated that it would allow the remarks to be admitted at
the damages stage of the trial if Katherine had prevailed on liability. But allegedly
improper conduct in a separate case cannot serve to offset costs in this case. See
Mother & Father, 338 F.3d at 708. And Kerr did not commit misconduct by attempting
to introduce an order from the Colorado probate court as evidence in this case. In any

51

Case: 1:17-cv-00101 Document #: 469 Filed: 08/03/20 Page 52 of 64 PageID #:14227

event, the present case never got to a damages phase in light of the jury's finding of no
liability. This conduct does not warrant denying costs.
Fifth, Katherine alleges that Kerr knew that Wrigley was engaging in alleged
witness tampering and perjury and did nothing to stop this. The Court need not address
whether Wrigley engaged in witness tampering or perjury, because even if she did,
Katherine has not attempted to explain how that misconduct is fairly attributable to Kerr
or Kerr's attorneys. Only misconduct by the party seeking costs can warrant the denial
of costs. Mother & Father, 338 F.3d at 708.
In sum, Katherine has not shown that Kerr or her attorneys engaged in
misconduct that renders the denial of costs appropriate.
b.

Inability to pay costs

Katherine also contends that she is unable to pay costs. "To deny costs based
on indigency, the court must first make a threshold factual finding that the losing party is
incapable of paying the court-imposed costs at this time or in the future." Richardson,
926 F.3d at 893 (7th Cir. 2019) (internal quotation marks omitted). "The burden is on
the losing party to provide the district court with sufficient documentation to support
such a finding." Id. "This documentation should include evidence in the form of an
affidavit or other documentary evidence of both income and assets, as well as a
schedule of expenses." Rivera v. City of Chicago, 469 F.3d 631, 635 (7th Cir. 2006).
Katherine has submitted an affidavit to the court regarding her inability to pay
costs, but she provided no information in it regarding her income or assets, nor a
schedule of expenses. Instead, she states that the Court "already has all financial
information about my income and other financial matters from discovery in the

52

Case: 1:17-cv-00101 Document #: 469 Filed: 08/03/20 Page 53 of 64 PageID #:14228

underlying case," and she describes some of her financial responsibilities and the size
of her legal bills. Pl.'s Br. in Resp. to Kerr's Mot. for Costs, Ex. A ¶ 2. Those statements
do not come close to carrying her burden to prove her inability to pay costs.
For these reasons, the Court finds that Kerr is entitled to costs.
2.

Amount of costs

Courts may award specific litigation-related costs under 28 U.S.C. § 1920. The
statute specifically enumerates certain costs that are taxable:
(1) Fees of the clerk and marshal;
(2) Fees for printed or electronically recorded transcripts necessarily
obtained for use in the case;
(3) Fees and disbursements for printing and witnesses;
(4) Fees for exemplification and the costs of making copies of any
materials where the copies are necessarily obtained for use in the case;
(5) Docket fees under section 1923 of this title;
(6) Compensation of court appointed experts, compensation of
interpreters, and salaries, fees, expenses, and costs of special
interpretation services under section 1828 of this title.
28 U.S.C. § 1920. The party seeking costs has the burden of establishing that, where
appropriate, the costs it incurred were reasonably necessary to the litigation. See Nat'l
Org. for Women, Inc. v. Scheidler, 750 F.3d 696, 698 (7th Cir. 2014); Little v. Mitsubishi
Motors N. Am., Inc., 514 F.3d 699, 702 (7th Cir. 2008). But, in this context, "necessary"
does not mean "indispensabl[e]"; rather, the party seeking costs must simply that costs
were incurred for more than attorney preference or convenience. See Scheidler, 750
F.3d at 698; Majeske v. City of Chicago, 218 F.3d 816, 825 (7th Cir. 2000).
Kerr seeks costs for the fees for the service of summons and subpoenas, fees for
printed or electronically record transcripts, costs of exemplification and copies, and
docket fees. The Court addresses each in turn.
a.

Service of summons and subpoenas
53

Case: 1:17-cv-00101 Document #: 469 Filed: 08/03/20 Page 54 of 64 PageID #:14229

Kerr seeks $1,012.00 for fees to serve summons and subpoenas. This includes
$200 in rush service fees. A prevailing party may recover costs paid to private process
servers that do not exceed the marshal's fee. Collins v. Gorman, 96 F.3d 1057, 1060
(7th Cir. 1996). Katherine does not contend that Kerr seeks costs for serving summons
and subpoenas in excess of the marshal's fees.
Katherine, however, contends that it is unreasonable for Kerr to recoup rush or
expedited service fees. The Court agrees. "[A]dditional fees associated with rush
service are not appropriately compensable without explanation for why they were
necessary." GC2 Inc. v. Int'l Game Tech., No. 16 C 8794, 2019 WL 3410223, at *2
(N.D. Ill. July 29, 2019) (Kennelly, J.). In her opening brief, Kerr contends rush service
was necessary due to upcoming discovery deadlines, but then in her reply brief she
contends that three of the rush fees applied to the service of subpoenas for witnesses at
trial, not depositions. Either way, she has not attempted to explain why she did not
serve the subpoenas earlier, so she has not shown that rush service was necessary.
Therefore, the Court declines to award her costs for rush service.
Katherine contends that Kerr should not be awarded costs for service of
subpoenas upon Northwestern or individuals affiliated it without presenting evidence
that university administrators refused to be served via e-mail. Parties are not required
to attempt service via e-mail before attempting in-person service. See Fed. R. Civ. P.
45(b). Katherine has cited no case suggesting otherwise. Therefore, the Court declines
to reduce Kerr's costs on this basis.
Katherine also contends that Kerr should not receive costs for service to Bernard
Black in Illinois at a time when Kerr's counsel allegedly knew he was living in Israel.

54

Case: 1:17-cv-00101 Document #: 469 Filed: 08/03/20 Page 55 of 64 PageID #:14230

The Court disagrees. Even if that was a valid basis for reducing costs (which the Court
need not decide), Katherine has not carried her burden of showing that costs were not
appropriate for this service. This is because she has not submitted evidence showing
that Bernard was living in Israel at that time or that Kerr knew he was living there. See
Richardson, 926 F.3d at 893 ("[T]he losing party bears the burden of an affirmative
showing that taxed costs are not appropriate.").
Katherine contends that all of Kerr's costs for service of process should be
divided by four because there were four defendants at the times of service and that she
should be taxed only for Kerr's one-fourth share of the expenses. But the invoices Kerr
has submitted reflect that she was charged the amounts for the process service fees
that she requested. Though Katherine contends that Kerr is seeking to be awarded
more than her fair share of the costs, Katherine has not carried her burden of
affirmatively showing that is the case. See id.
For these reasons, the Court awards Kerr $812 for the service of summons and
subpoenas—the amount she requested less the rush fees for the service of certain
subpoenas.
b.

Transcripts and records

Kerr seeks a total of $30,621.44 in costs related to transcription and recording. 17
This request is broken down into (1) transcription, videography, and other costs related
to depositions and (2) transcription costs related to court proceedings.

17

In her opening brief, Kerr stated that she sought $30,541.44 for these costs. As
explained in more detail in the next footnote, she miscalculated the sum of the costs she
requested for one deposition. After adjusting that calculation, the amount she seeks is
$30,621.44.
55

Case: 1:17-cv-00101 Document #: 469 Filed: 08/03/20 Page 56 of 64 PageID #:14231

i.

Depositions

Kerr seeks $20,322.54 for costs associated with depositions. 18 This includes
costs for standard transcriptions ($11,223.24), real-time electronic transcriptions
($3,319), videography ($2,762.50), appearance fees for court reporters ($1,260), fees
associated with the use of exhibits during depositions ($982.80), video synchronization
fees ($400), and processing fees ($375). Katherine disputes some of these requests.
Katherine contends that real-time transcripts are not reasonably necessary and
thus not recoverable. The Court agrees. At least in the present case, the record
reflects that "real-time transcription services are a convenience, not a necessity."
Cascades Computer Innovation, LLC v. Samsung Elecs. Co., No. 11 C 4574, 2016 WL
612792, at *4 (N.D. Ill. Feb. 16, 2016) (Kennelly, J.). The Court declines to tax
Katherine for Kerr's choice to pay for real-time transcription.
Katherine also disputes the costs Kerr seeks to recover for the videography of
Katherine and Bernard's depositions. Kerr seeks to recover $1,787.50 for the video of
Katherine's deposition, $400.00 for the synchronization of that video, and $975.00 for
the video of Bernard's deposition. A prevailing party can recover costs for both video
and stenographic transcription of a deposition where those costs were "reasonable and
necessary to the litigation." Little, 514 F.3d at 702. Kerr contends the video of
Katherine's deposition was necessary so that the jury could compare her deposition with

18

In her opening brief, Kerr states that she seeks $20,242.54 in costs, but as indicated,
there is an error in the calculation of the costs relating to the deposition of Jason Jared.
Kerr stated that she sought $508.50 for that deposition, but the total costs she listed
actually add up to $588.50 ($384.40 for the transcripts, $80 for the court reporter's
attendance, $112.50 for real-time transcripts, $12.60 for exhibits, and $35 for
processing).
56

Case: 1:17-cv-00101 Document #: 469 Filed: 08/03/20 Page 57 of 64 PageID #:14232

her demeanor at trial. The Court disagrees. Kerr knew Katherine would be testifying at
the trial, so the video of her deposition was not necessary but rather was a strategic
means by which Kerr sought to bolster her case. The Court declines to award costs for
the video or its synchronization.
The Court, however, awards costs for the video of the deposition of Bernard. He
was on sabbatical in Israel at the time of the deposition, so it was reasonable for Kerr to
presume that he might not be within the Court's subpoena power at the time of trial.
See Intercontinental Great Brands LLC v. Kellogg N. Am. Co., No. 13 C 321, 2016 WL
316865, at *2 (N.D. Ill. Jan. 26, 2016) (Kennelly, J.) (reasonable for party to request
both printed transcripts and a recording of a deposition where the deponent was outside
the subpoena power of the Court and therefore could not have been compelled to testify
at trial). Though Katherine responds that Kerr had no reason to believe that Bernard
would not return to Illinois before the trial, the determination of whether a depositionrelated cost is necessary "must be made in light of the facts known at the time of the
deposition." See Mother & Father, 338 F.3d at 712.
Katherine also disputes the taxation of certain fees related to depositions,
including the fees for the court reporter's attendance, processing, and exhibits, because
she contends these are fees that should have been split among the defendants. The
invoices Kerr has submitted show that she paid these fees in the depositions for which
she requested their reimbursement. As with the fees for the service of summons and
subpoenas, Katherine contends that the parties shifted all of their costs to Kerr and thus
that Kerr is requesting more than her fair share. But she has provided no evidence in
support of this contention and thus has not carried her burden to prove that these costs

57

Case: 1:17-cv-00101 Document #: 469 Filed: 08/03/20 Page 58 of 64 PageID #:14233

are not appropriate. See Richardson, 926 F.3d at 893. Accordingly, the Court declines
to reduce Kerr's costs on this basis.
Katherine further disputes Kerr's requests for the costs of transcripts for
depositions that Katherine ordered, for which Katherine paid for the original or first copy
of the transcripts. She contends Kerr should be reimbursed only for the lower fees
associated with copies of those originals. But, for the at-issue depositions, Kerr has
sought either the rate established by the Judicial Conference or the amount she
incurred (where it was lower than the rate established by the Judicial Conference).
Local Rule 54.1 allows for recovery of the full charge of the transcript, "so long as it
does not exceed the highest maximum rate as established by the Judicial Conference."
Gallagher v. Gallagher, No. 07 C 4196, 2010 WL 2610192, at *4 (N.D. Ill. June 24,
2010) (Kennelly, J.). Accordingly, the Court declines to reduce the amount of costs in
this regard.
For depositions the defendants ordered, Katherine contends that the costs of the
transcripts should be divided by the number of defendants who were involved in the
case at the time of the deposition. This is because, she contends, there is a "good
chance" Wrigley (and, apparently, the other defendants) did not pay for the transcripts
for those depositions and received them for free from Kerr. Pl.'s Br. in Resp. to Kerr's
Mot. for Costs at 21. At the same time, Katherine appears to contend that Wrigley paid
Kerr for at least some transcripts at a rate she refers to as the "Wrigley Rate," which
Katherine appears to have presumed by basing it on the rate for copies of transcripts.
See id.; see also id. at 23. She has, however, presented no evidence that either of
these arrangements were in place, and Kerr asserts that each party paid for its own

58

Case: 1:17-cv-00101 Document #: 469 Filed: 08/03/20 Page 59 of 64 PageID #:14234

transcripts. Because Katherine has presented no evidence to the contrary, the Court
declines to reduce the costs of the transcripts on this basis. 19 See Richardson, 926
F.3d at 893.
For these reasons, the Court awards Kerr $14,816.04 for transcript and recording
costs associated with depositions—the amount she requested less the cost of real-time
transcripts, the videography of Katherine's deposition, and the synchronization of the
video of Katherine's deposition.
ii.

Court proceedings

Kerr seeks $10,298.90 for transcripts of court proceedings—$1,278.35 for
transcripts of ten pretrial hearings, $6,515.85 for same-day transcripts of the trial, and
$2,504.70 for real-time transcripts of the trial. With regard to the pretrial hearings, Kerr
seeks costs for expedited, three-day, and/or same-day transcripts.
Katherine contests the costs of expedited, three-day, or same-day transcripts for
the pretrial hearings. "Courts in this District have generally awarded costs for
transcripts of such proceedings only when the prevailing party articulates some specific
necessity—for example, where the written record of the status call or motion hearing
was the basis for, or relevant to, some subsequent motion or filing, or to supply out-ofstate counsel with a record of the proceedings." Hillman v. City of Chicago, No. 04 C
6671, 2017 WL 3521098, at *7 (N.D. Ill. Aug. 16, 2017) (Kennelly, J.). Katherine points
out that Kerr has not specifically explained why it was reasonably necessary to

19

Katherine contends that "the right solution" to the question of whether Wrigley paid for
her own transcripts "could be to demand that Wrigley" produce bills for those costs.
Pl.'s Br. in Resp. to Kerr's Mot. for Costs at 21. It is not clear who Katherine is
contending should make that demand. If she is asking the Court to make it, she has not
filed a motion making such a request, so the Court disregards it.
59

Case: 1:17-cv-00101 Document #: 469 Filed: 08/03/20 Page 60 of 64 PageID #:14235

purchase expedited transcripts for certain hearings. All Kerr has said is that there was a
"short turnaround time for copying with certain discovery instructions" or preparing for
trial; she has not explained what information each transcript contained that she needed
within a short timeframe. See Kerr's Mem. at 11. The Court agrees that this is not a
sufficiently specific articulation for why Kerr needed expedited transcripts. Cf. GC2,
2019 WL 3410223, at *3 (party articulated a sufficiently specific explanation where it
explained that it needed a particular expedited transcript because the court had
explained its ruling at the hearing). Therefore, the Court declines to award the costs of
expedited transcripts for the pretrial hearings and reduces the amount of the costs she
requested for pre-trial by one-third, amounting to a total of $852.23.
The Court also is persuaded that the costs stemming from the transcription of the
trial must be reduced. As indicated, Kerr seeks reimbursement for same-day transcripts
and real-time transcripts of the trial. Because the trial involved a reasonable degree of
complexity, the Court concludes that it was reasonably necessary for Kerr to purchase
some form of transcript for her counsel's use during the trial. See id. at *3. But Kerr has
not explained to the Court why she needed two different forms of transcripts, and the
Court is not persuaded that both were reasonably necessary as required for an award of
costs. For that reason, the Court will award Kerr only the cost of the first transcript she
received—the electronic real-time version. See id. Under different circumstances, the
Court "might be moved to award the cost of fully corrected daily transcripts," but Kerr
has made no attempt to persuade the Court that she needed to pay for a same-day
transcript when she already had received a real-time electronic one. See id.
As with the costs of the deposition transcripts, Katherine contends that the costs

60

Case: 1:17-cv-00101 Document #: 469 Filed: 08/03/20 Page 61 of 64 PageID #:14236

of the trial transcripts should be reduced for the occasions Kerr purchased a copy of the
transcript and not the original. The Court disagrees. For the occasions when Kerr
purchased a copy of a transcript, as she did for the hearing on May 29, 2019, for
example, she has requested only the amount she paid for that copy. In other words, the
receipts she has submitted do not reflect that she has requested to be reimbursed more
than she paid, and the Court declines to reduce her award on this basis.
In addition, as with the costs of deposition transcripts and service and summons
of subpoenas, Katherine contends that the costs of the transcripts should be divided by
the number of defendants involved in the case at the time of the corresponding hearing
or the trial. Alternatively, she contends that the Court should permit Kerr to recover only
the "Wrigley Rate," the rate, as indicated, that Katherine presumes Wrigley paid Kerr to
buy copies of the transcripts. Because, as explained above, Katherine has provided no
evidence that Kerr divided the costs of the transcripts with any of the defendants or that
Wrigley paid Kerr for transcripts, the Court declines to reduce the award on that basis.
In sum, for the transcripts of court proceedings, the Court awards Kerr
$3,356.93—the reduced cost of the transcripts of pretrial hearings ($852.23) and the
cost of real-time transcripts during the trial ($2,504.70).
c.

Exemplification and copies

Kerr seeks reimbursement for the costs she paid to copy case files from other
litigation proceedings involving the Black family ($852.00) and to create two
demonstrative exhibits she presented at trial ($7,443.76). Expenses for copying
materials and creating demonstrative exhibits are recoverable costs where those
materials were reasonably necessary at the time the costs were incurred. Srail v.

61

Case: 1:17-cv-00101 Document #: 469 Filed: 08/03/20 Page 62 of 64 PageID #:14237

Village of Lisle, No. 07 C 2617, 2008 WL 5272459, at *5 (N.D. Ill. Dec. 15, 2008)
(Kennelly, J.).
Katherine disputes the cost of the case file copies. Among other things, she
contends those files not reasonably necessary for this case, because they involved
unrelated litigation. Kerr contends that the documents she copied were related to this
case because they involved proceedings that were relevant to the defamation claim in
this case. But Kerr has not shown, and does not appear to contend, that these
documents related only to the proceedings concerning the issues raised by the
defamation claim. Instead, in her reply brief, she contends that information about other
litigation involving Katherine generally was related to this case because Katherine put
her reputation at issue in this case. Though the Court agrees that Kerr does not need
provide an overly detailed description of the documents she copied, see Northbrook
Excess & Surplus Insurance Co. v. Procter & Gamble Co., 924 F.2d 633, 643 (7th Cir.
1991), the Court is not persuaded that the copies were reasonably necessary for Kerr's
defense in this case. See Cascades Computer Innovation, 2016 WL 612792, at *6
(declining to award costs for copies where "no detail contained in any documentation or
invoice that indicates what documents were produced or why they were necessary").
Therefore, the Court declines to award any costs for those copies.
Katherine also disputes the cost of Kerr's demonstrative exhibits. "To determine
whether an exemplification was necessarily produced, the Court considers 'whether the
nature and context of the information being presented genuinely called for the means of
illustration that the party employed. In other words, is exemplification vital to the
presentation of that information, or was it merely a convenience or, worse, an

62

Case: 1:17-cv-00101 Document #: 469 Filed: 08/03/20 Page 63 of 64 PageID #:14238

extravagance?'" Id. at *7 (quoting Cefalu v. Village of Elk Grove, 211 F.3d 416, 428 (7th
Cir. 2000)). Kerr's exemplifications consisted of a very simple map of the location of
related litigation proceedings—i.e., a map showing the locations of Illinois, New York,
and Colorado—and a chart showing the various individuals involved in the case. Kerr
asserts that the cost for these two very simple posters was $14,887.52, which she split
evenly with Wrigley, and that they helped the jury understand the facts of the case.
Katherine contends that these costs are excessive and that the exemplifications were
not necessary. The Court agrees; in fact, the term "excessive" does not quite capture
the exorbitant amount claimed. The Court is not persuaded that a map or chart was
reasonably necessary to help the jury understand the facts. Rather, they were
extravagances, at least at the price that was charged. The Court declines to award
costs for these demonstratives.
d.

Docket fees

Kerr also seeks $20 for docket fees, to which Katherine does not object.
Accordingly, the Court awards that cost to Kerr.
e.

Summation

For the reasons stated above, the Court limits Kerr's award of costs to
$19,004.97. This award consists of $812 for the costs of service of summons and
subpoenas, $14,816.04 for the costs of transcripts and recording associated with
depositions, $3,356.93 for the costs of transcripts of court proceedings, and $20 for
docket fees.
Conclusion
For the foregoing reasons, the Court denies Katherine Black's motions for

63

Case: 1:17-cv-00101 Document #: 469 Filed: 08/03/20 Page 64 of 64 PageID #:14239

judgment as a matter of law [dkt. no. 437] and for a new trial [dkt. no. 435]. The Court
grants Pamela Kerr's motion for costs in part [dkt. no. 442] and awards Kerr $19,004.97
in costs.
________________________________
MATTHEW F. KENNELLY
United States District Judge
Date: August 3, 2020

64