Sellner v. MAT Holdings, Inc. et al

Filing 524

MEMORANDUM OPINION AND ORDER denying 515 Plaintiff's Motion for New Trial (Written Opinion). Signed by Judge Ann D. Montgomery on 10/4/2018. (TLU)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Douglas James Sellner,
Plaintiff,
vs.

MEMORANDUM OPINION
AND ORDER
Civil No. 13-1289 ADM/LIB

MAT Industries, LLC,
Defendant.
______________________________________________________________________________
Stephen W. Cooper, Esq., and Stacey R. Everson, Esq., The Cooper Law Firm Chartered,
Minneapolis, MN on behalf of Plaintiff.
Donald M. Lewis, Esq., Jeremy D. Robb, Esq., and John J. Wackman, Esq., Nilan Johnson
Lewis PA, Minneapolis, MN, on behalf of Defendant.
______________________________________________________________________________
I. INTRODUCTION
This matter is before the undersigned United States District Judge for a ruling on Plaintiff
Douglas James Sellner’s (“Sellner”) Motion for New Trial [Docket No. 515]. Defendant MAT
Industries, LLC (“MAT”) opposes the Motion. See Def.’s Resp. [Docket No. 520]. For the
reasons set forth below, Sellner’s Motion is denied.
II. BACKGROUND
Sellner sued his former employer, MAT, under the Minnesota Whistleblower Act, Minn.
Stat. § 181.932 (“MWA”). This Court dismissed the MWA claim on summary judgment and
Sellner appealed. The Eighth Circuit reversed and remanded, holding that “[t]he issue is the
causal connection between Sellner’s protected conduct and his firing,” and that the evidence was
sufficient to survive summary judgment on this issue. Sellner v. MAT Holdings, Inc., 859 F.3d
610, 614 (8th Cir. 2017).

Sellner’s MWA claim at trial was that he was terminated from his employment as a
Quality Engineering Technician for refusing to falsify testing data related to air compressors.
MAT denies the claim and asserts that Sellner was terminated for “unacceptable conduct,”
including “inappropriate and offensive statements made to and about his colleagues, an inability
to maintain positive and productive relationships with his co-workers, and engaging in conduct
that adversely affected the productivity of the workplace.” First Ryan Decl. [Docket No. 162]
Ex. 30, Interrog. No. 1.
Sellner’s whistleblower claim was tried to a jury beginning on May 14, 2018. See Min.
Entry [Docket No. 491]. Sellner’s counsel had estimated in pretrial filings that the trial would
last six days. Statement Case [Docket No. 475] at 4. The trial spanned nine days. The eleven
person jury heard testimony from twelve witnesses, and over 100 exhibits were received into
evidence. After deliberating for a day and a half, the jury concluded that although Sellner
reported a violation of law to MAT or a governmental body, the report was not a motivating
factor in MAT’s decision to terminate his employment. See Jury Verdict [Docket No. 512].
Seller contends that he is entitled to a new trial. He identifies four errors that occurred
during the trial itself. First, Sellner argues that prejudicial and irrelevant evidence was
improperly admitted. Second, Sellner argues that the Court refused to admit Plaintiff’s Exhibit
179,1 thereby impairing Sellner’s ability to impeach the credibility of Ryan Schwartz
(“Schwartz”), a co-worker of Sellner’s who testified at trial for the defense. Third, Sellner

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Sellner’s opening brief identified Plaintiff’s Exhibit 172 (not 179) as the document that
was not admitted. MAT responded by correctly noting that Plaintiff’s Exhibit 172 was admitted
at trial. Sellner replied that the opening brief misidentified the exhibit at issue, and that
Plaintiff’s Exhibit 179 is the exhibit that should have been admitted into evidence.
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argues that the Court imposed time limitations that impacted Sellner’s ability to present his case
and to question defense witnesses. Finally, Sellner argues that the Court made comments about
the testimony in the presence of the jury that prejudiced Sellner’s case.
Sellner also raises two grounds for a new trial that are not directly related to the
testimony or evidence. Sellner continues to argue that he should have been permitted to call an
expert witness about the defects in the air compressor. Sellner also contends that Jury
Instruction 13 was fatally defective.
III. DISCUSSION
A. Motion for New Trial Legal Standard
Federal Rule of Civil Procedure 59(a)(1) provides that the Court “may, on motion,
grant a new trial on all or some of the issues—and to any party—as follows: (A) after a
jury trial, for any reason for which a new trial has heretofore been granted in an action at
law in federal court. . . .” Fed. R. Civ. P. 59(a)(1). In evaluating a motion for a new trial, the
“key question” is whether retrial is needed “to avoid a miscarriage of justice,” McKnight v.
Johnson Controls, Inc., 36 F.3d 1396, 1400 (8th Cir. 1994), either because of legal errors made
during the trial or because the verdict is against the weight of the evidence. White v. Pence, 961
F.2d 776, 780 (8th Cir. 1992). “The authority to grant a new trial . . . is confided almost entirely
to the exercise of discretion on the part of the trial court.” Allied Chem. Corp. v. Daiflon, Inc.,
449 U.S. 33, 36 (1980). But in exercising that discretion, “a district judge is not free to reweigh
the evidence and set aside the jury verdict merely because the jury could have drawn different
inferences or conclusions or because judges feel that other results are more reasonable.” King v.
Davis, 980 F.2d 1236, 1237 (8th Cir. 1992) (citing White, 961 F.2d at 780). “Instead, a district

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judge must carefully weigh and balance the evidence and articulate reasons supporting the
judge’s view that a miscarriage of justice has occurred.” Id.
B. Arguments Relating to Events at Trial
Sellner argues that the Court made improper evidentiary rulings during trial, imposed
burdensome time limitations, and made comments from the bench that influenced the jury’s
verdict.
1. Prejudicial Testimony
Sellner argues that prejudicial testimony was improperly admitted at trial. The
challenged testimony includes: 1) Sellener’s alleged use of listening devices to eavesdrop on
neighbors’ conversations; 2) Sellner’s alleged use of spyware to monitor his neighbors’
activities; 3) Sellner’s alleged use of sexually suggestive song titles in his Karaoke business; and
4) Sellner’s alleged collecting of information about who was having affairs in his neighborhood.
Sellner asserts that this testimony was improperly permitted because none of the MAT
employees who terminated Sellner’s employment claimed to have knowledge about these
matters. Without their knowledge, Sellner argues, this testimony was irrelevant to the
circumstances surrounding his termination and therefore only served to impinge his character to
the jury. Sellner also argues that an anonymous email sent by co-worker Schwartz to MAT’s
corporate office on April 10, 2012 should not have been received in evidence.
Under Federal Rules of Evidence 403, evidence that is irrelevant or unfairly prejudicial,
confusing, or misleading must be excluded. Fed. R. Evid. 401, 403. In assessing evidentiary
rules in the context of a Rule 59 motion, “the governing standard is whether the allegedly
erroneous evidentiary ruling ‘was so prejudicial that a new trial would likely produce a different

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result.’” Baker v. John Morrell & Co., 249 F. Supp. 3d 1138, 1177 (N.D. Iowa 2003) (quoting
Bevan v. Honeywell, Inc., 118 F.3d 603, 612 (8th Cir. 1997)).
The Court’s consideration of all of Plaintiff’s arguments for a new trial are significantly
hindered because no trial transcript has been ordered. But even without the benefit of a
transcript to review or document the rulings made at trial, the admissibility of the “other
misconduct” by Sellner evidence can be generally addressed. The testimony Sellner challenges
was admissible to substantiate the accounts of several witnesses who stated that their work
environment was toxic and that the toxicity was, at least partly, caused by Sellner. Although the
decisionmakers may not have directly known about specific comments, the decisionmakers were
aware that employees had complained about how Sellner was causing tension in the lab. Since
workplace dysfunction was a stated reason MAT decided to terminate Sellner’s employment, the
jury was allowed to consider the evidence.
Additionally, the exclusion of this evidence would not have produced a different verdict.
On the Special Verdict Form, the jury determined that Sellner reported a violation of law to
MAT or a governmental body, but that the report was not a motivating factor in MAT’s decision
to terminate his employment.
Sellner next argues an anonymous April 10, 2012 email should not have been admitted
into evidence, and that after it was admitted Sellner’s counsel was not allowed to adequately
question Schwartz about the email. Assuming without deciding the email was improperly
received into evidence, its admission does not necessitate a new trial because it did not “affect a
substantial right of” Sellner. ACTONet, Ltd. v. Allou Health & Beauty Care, 219 F.3d 836, 848
(8th Cir. 2000) (citation omitted).

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Sellner’s counsel challenged Schwartz’s testimony in extensive cross examination which
undermined the supposed corroborative effect of the email. Schwartz admitted that the email
was written by him and that his lab colleagues did not sanction or approve of the email. Cross
examination showed that the concerns identified in the email were not reflective of the lab
generally, but were those of Schwartz specifically. Schwartz testified extensively about his
individual issues with Sellner in the lab. The credibility of Schwartz was placed squarely before
the jury to decide whatever weight they might think his testimony should deserve.
2. Exhibit 179
Sellner argues that the Court erred in refusing to admit Plaintiff’s Exhibit 179. Plaintiff’s
Exhibit 179 purportedly shows that Schwartz modified Test Request 321 (“TR 321”) test results.
Sellner claims that without this document in evidence, his ability to impeach Schwartz was
impaired.
The admission of Plaintiff’s Exhibit 179 would not have yielded a different result from
the jury. Again, Schwartz was thoroughly cross examined about his role in the lab, and his
interactions with Sellner, and the supposed discrepancies between his deposition and trial
testimony. Since admission of Plaintiff’s Exhibit 179 would not have likely produced a different
result, it cannot form the basis for a new trial.
3. Trial Court Management and Comments by the Trial Court
A “district court has wide discretion in managing a trial.” United States v. Harding, 864
F.3d 961, 966 (8th Cir. 2017). “Trial courts are permitted to impose reasonable time limits on
the presentation of evidence to prevent undue delay, waste of time, or needless presentation of
cumulative evidence.” Life Plus Int’l v. Brown, 317 F.3d 799, 807 (8th Cir. 2003). Similarly,

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“any comments the judge made during the presentation of evidence generally relate [] to the
management of a . . . trial, for which trial judges have broad discretion.” Harrington v. State of
Iowa, 109 F.3d 1275, 1280–81 (8th Cir. 1997).
Counsel were informed of the trial schedule before opening arguments, and counsel were
made aware that the trial needed to be completed by a date certain. The trial schedule included a
half-day recess on May 18, 2018 to permit attendance at the investiture of now Circuit Judge
David Stras. The other half-day recess, taken on May 22, 2018, was unexpected but necessary to
allow attendance at the funeral of Circuit Judge Diana Murphy. Even after subtracting the halfday recesses, the trial on Sellner’s single count whistleblower claim consumed eight days,
exceeding Sellner’s counsel’s estimate by two days. The Court recalls no instances of cutting off
any testimony as a violation of any alleged time limitations, and no objection was made by
counsel to time management by the Court.
As previously mentioned, the absence of a transcript is a very significant impediment to
evaluating this Motion. The Court’s memory of the context of the trial events and comments
made to the jury is very different and in some instances, totally contrary, to the claims made in
the Motion for New Trial.2 Rather than respond point by point to the undocumented claims of
judicial misconduct, the Court is confident that the trial transcript will verify that Sellner’s
counsel was given ample time to try his case and that no comment by the Court deprived Sellner
of a fair and just trial by jury.

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For example, the Court recalls the comment about the marketing of air compressors for
holiday gift giving. The comment was intended to express humor at the appropriateness of her
receiving an air compressor as a Christmas gift, and in no way was a comment about a particular
air compressor or its safety.
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C. Arguments Relating to Events Outside the Trial
1. Expert Witness
Sellner argues that he should have been allowed to present expert testimony relating to
the safety of the compressor and pump. Sellner contends that witnesses for the defense opined
about the quality and safety of the pump, and his inability to present expert testimony on these
issues was extremely prejudicial.
The issue of expert testimony was addressed in a pre-trial motion for summary judgment.
On February 8, 2018, the Court held that expert testimony was not needed for the jury to
determine whether MAT took an “adverse employment against [Sellner] because []he engaged in
statutorily protected conduct, here, making a good faith report of a suspected violation of law.”
Mem. Op. Order [Docket No. 420] at 26 (quoting Sellner v. MAT Holdings, Inc., 859 F.3d 610,
614 (8th Cir. 2017)). Nothing that occurred during trial undermines that conclusion.
This was not a products liability case. Rather, this case presented a single count arising
under Minnesota’s whistleblower statute. Permitting experts to testify about air compressor
safety issues was not relevant to whether Sellner’s alleged whistleblowing played a part in his
employment termination.
2. Jury Instructions
Sellner argues that Jury Instruction 13 was erroneously given. First, Sellner argues that
the instruction should have specified which law would have been violated if Sellner was directed
by MAT to falsify testing data. In the alternative, Sellner argues that if no specific law was
identified, it was proper to instruct the jury that MAT violated the law when it requested Sellner
to falsify data. Sellner additionally argues that Jury Instruction 13 erroneously instructed the

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jury that for Sellner to prevail on his Whistleblower claim, Sellner’s protected conduct must
have been “a motivating factor” in MAT’s decision to terminate his employment. Sellner argues
that “played a part” should have been the language used instead.
Trial courts have broad discretion in formulating jury instructions. B & B Hardware, Inc.
v. Hargis Indus., Inc., 252 F.3d 1010, 1012–13 (8th Cir. 2001). “[J]ury instructions do not need
to be technically perfect or even a model of clarity.” Id. The question is “whether the
instructions, taken as a whole and viewed in the light of the evidence and the applicable law,
fairly and adequately submitted the issues in the case to the jury.” Id.
Jury Instruction 13 states:
The Minnesota Whistleblower Act prohibits employers from
discharging, disciplining, threatening, or penalizing an employee
because the employee, in good faith, reports a violation or suspected
violation of any state or federal law or rule or regulation to an
employer, governmental body, or law enforcement official.
To prevail on his claim under the Minnesota Whistleblower Act,
Plaintiff must prove each of the following elements by the
preponderance of the evidence:
1. Plaintiff in good faith reported an actual or suspected
violation of a state law to his employer or a governmental body; or
Plaintiff refused Defendant’s order that Plaintiff believed,
based on objective facts, violated a state or federal law or rule or
regulation, and Plaintiff informed Defendant that the order was being
refused for that reason; and
2. Plaintiff’s report of the violation, or his refusal of the
order, was a motivating factor in Defendant’s decision to terminate
Plaintiff’s employment.
Final Jury Instructions [Docket No. 506] at 14 (emphasis in original). Sellner’s argument that
the jury should have been instructed about a specific law that was alleged to have been violated

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is rejected. Sellner cites no authority to support his position. The jury instruction is the standard
from Minnesota’s Model Jury Instructions. See 4 Minnesota Practice, Jury Instruction Guide Civil 55.65 (6th ed.). For the same reason, Sellner’s challenge to the causation language is
rejected. The model instructions provide that either “motivating factor” or “played a part” are
appropriate. Id. Moreover, in Jury Instruction 15, the Court instructed the jury that Sellner’s
“alleged good faith report of a suspected violation of law or his alleged refusal to perform an
order because he thought it would violate the law was a ‘motivating factor’ only if [Sellner’s]
report or refusal played a part in [MAT’s] decision to discharge him.” Final Jury Instructions at
16 (emphasis added). The jury instructions given fairly and adequately informed the jury about
the applicable law. Sellner’s arguments to the contrary are rejected.
IV. CONCLUSION
Based upon the foregoing, and all the files, records, and proceedings herein, IT IS
HEREBY ORDERED that Plaintiff Douglas James Sellner’s Motion for New Trial [Docket No.
515] is DENIED.
BY THE COURT:

s/Ann D. Montgomery
ANN D. MONTGOMERY
U.S. DISTRICT JUDGE
Dated: October 4, 2018.

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