Mukherjee v. The Childrens Mercy Hospital

Filing 166

ORDER denying 161 Plaintiff's motion for new trial. Signed on 7/9/2018 by District Judge Ortrie D. Smith. (Kitsmiller, Julia)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
BAIDEHI L. MUKHERJEE,

)
)
Plaintiff,
)
)
vs.
)
)
THE CHILDREN’S MERCY HOSPITAL, )
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Defendant.
)

Case No. 16-01291-CV-W-ODS

ORDER AND OPINION DENYING PLAINTIFF’S MOTION FOR NEW TRIAL
Pending is Plaintiff’s Motion for a New Trial. Doc. #161. At conclusion of trial, the
jury rendered verdicts in favor of Defendant on all of Plaintiff’s claims. Docs. #154-55.
Plaintiff now raises ten bases for her request for a new trial. For the following reasons,
Plaintiff’s motion is denied.
I.

STANDARD

The Court may grant a new trial on some or all of the issues 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)(A). A new trial under Rule 59 “is warranted when the
outcome is against the great weight of the evidence so as to constitute a miscarriage of
justice.” Bank of Am., N.A., v. JB Hanna LLC, 766 F.3d 841, 851 (8th Cir. 2014). In
making this determination, the court relies on its reading of the evidence, including
weighing the evidence and evaluating the credibility of witnesses. Lincoln Composites,
Inc. v. Firetrace USA, LLC, 825 F.3d 453, 459 (8th Cir. 2016).
II.
A.

DISCUSSION

Alleged Hearsay Regarding Plaintiff’s Performance
Plaintiff argues individuals’ statements about her work performance should have

been excluded at trial because the statements were offered for the truth of the matters
asserted therein, and therefore, constituted hearsay. Plaintiff generally refers to
statements, but fails to identify a specific statement by a particular witness or an exhibit

that should not have been admitted. Nonetheless, Plaintiff maintains the jury’s verdicts
were influenced by and she was prejudiced by the admission of these statements.
“Unless justice requires otherwise, no error in admitting or excluding evidence…is
ground for granting a new trial….” Fed. R. Civ. P. 61. Where the moving party complains
about an evidentiary ruling, the court must determine whether the “ruling was so prejudicial
as to require a new trial which would be likely to produce a different result.” Moses.com
Sec., Inc. v. Comprehensive Software Sys., Inc., 406 F.3d 1052, 1058-59 (8th Cir. 2005).
The parties addressed this issue in their trial briefs (Docs. #122, 125), and reiterate
their arguments in their briefing of the pending motion. Prior to the commencement of trial,
the Court concluded the statements were not hearsay. The Court’s decision followed
Eighth Circuit precedent. See Wolff v. Brown, 128 F.3d 682, 685 (8th Cir. 1997) (holding
“internal documents relied upon by the employer in making an employment decision are
not hearsay,” and are “admissible because they help explain…the employer’s conduct);
Hardie v. Cotter & Co., 849 F.2d 1097, 1011 (8th Cir. 1988) (finding customer complaints
were not hearsay and were properly admitted because the complaints demonstrated the
employer’s state of mind when it decided to discharge its employee).
Defendant did not offer the statements for the truth of the matters asserted therein.
Instead, Defendant offered the statements to show its belief that Plaintiff was failing to
meet performance expectations, and the impact the statements had on personnel
decisions. With the admission of each statement, the Court provided a limiting instruction
informing the jury it was not to consider the statement for the truth of the matter asserted
therein but only as to whether Defendant had a nondiscriminatory, non-retaliatory reason
for discharging Plaintiff.1 The Court discerns no evidentiary error, much less an error that
so prejudiced Plaintiff to require a new trial. Plaintiff’s motion for a new trial based upon
this ground is denied.
1

Although Plaintiff contends the limiting instruction was a “distinction without a difference,”
it is unclear if she seeks a new trial based upon the limiting instruction. To the extent she
is, her request is denied. Plaintiff did not object to the limiting instruction, and never
proffered an alternative instruction. Further, the Court presumes the jury follows its
instructions. See Smiley v. Gary Crossley Ford, Inc., 859 F.3d 545, 555 (8th Cir. 2017)
(citation omitted). Thus, the Court must presume the jury did not consider the statements
for the truth of the matters asserted therein, and only considered the statements with
regard to Defendant’s belief that Plaintiff was failing to meet performance expectations,
and the impact the statements had on Defendant’s personnel decisions.
2

B.

After-Acquired Evidence
Plaintiff argues the admission of after-acquired evidence constitutes reversible

error. First, Plaintiff contends Defendant failed to present sufficient evidence of a specific
policy she violated, and to the extent a policy was identified, Defendant failed to show
Plaintiff’s conduct was a terminable offense. Second, Plaintiff argues the evidence was
not “after-acquired.” According to Plaintiff, Defendant knew she was sending documents
to her private email account because it told her she could do so.2 Third, Plaintiff claims the
after-acquired evidence was related to her complaints, and therefore, cannot serve as a
defense. That is, if Defendant had not allegedly harassed, discriminated against, or
retaliated against her, Plaintiff never would have used her private email to communicate
those actions. Finally, Plaintiff avers the evidence should have been excluded under Rule
403 of the Federal Rules of Evidence because any probative value was outweighed by the
prejudicial effect on Plaintiff.3
As set forth supra, the Court must determine whether the admission of afteracquired evidence was so prejudicial as to require a new trial that would likely produce a
different result. Moses.com Sec., Inc., 406 F.3d at 1058-59. The Court finds the
admission of after-acquired evidence was not prejudicial, and was not so prejudicial that a
retrial (excluding said evidence) would likely produce a different result. Further, no
miscarriage of justice occurred with the admission of this evidence. Tellingly, because the
jury found Plaintiff did not establish the essential elements of any of her claims, the jury
never reached the after-acquired evidence issue. For these reasons, the Court denies
Plaintiff’s motion for new trial based upon the admission of after-acquired evidence.
C.

Warren Dudley’s Departure from Employment with Defendant
Plaintiff argues the Court erred in excluding evidence of the circumstances

surrounding Warren Dudley’s departure from Defendant in 2016. Plaintiff claims this
evidence was relevant to her disparate treatment claims (which included her discharge in
2

Neither before nor during trial did Plaintiff contend Defendant gave Plaintiff permission to
send Defendant’s documents to Plaintiff’s private email account (or Defendant knew she
was doing so). To the extent Plaintiff seeks a new trial based upon this argument, for
which there is no support in the record, her request is denied.
3
Plaintiff also argues the Court should not have given after-acquired evidence instructions
to the jury. That argument is addressed infra, section II(H)(1).
3

2014) and the credibility of Defendant’s witnesses. Plaintiff contends Dudley, who was her
supervisor, was “the central player,” and therefore, his credibility, alleged lack of
performance, and alleged behavioral problems were relevant.
The Court first addressed this issue in its Order in Limine. Doc. #116. The Court
determined Dudley’s receipt of a severance agreement was not relevant and would not be
permitted. Id. at 7. But the Court deferred consideration of whether the circumstances
surrounding Dudley’s separation were relevant to Plaintiff’s claims. Id. The Court
instructed the parties to approach the bench prior to eliciting testimony or presenting
evidence about Dudley’s separation. Id.
Plaintiff does not set forth how she preserved this alleged error. And even if she
had preserved this error, Plaintiff fails to establish the exclusion of this evidence would
have likely produced a different result. Moses.com Sec., Inc., 406 F.3d at 1058-59.
Perhaps it is because the evidence – had it been admitted – would have been conflicting.
As noted in the Order in Limine, Dudley and another witness provided conflicting
deposition testimony about whether Dudley voluntarily left his employment or his
employment was terminated. Doc. #116, at 7. The Court finds the exclusion of evidence
pertaining to Dudley’s separation from employment was not prejudicial, and was not so
prejudicial to warrant a new trial. For these reasons, Plaintiff’s motion for a new trial based
upon the exclusion of evidence about Dudley’s separation is denied.
D.

Application of Attorney-Client Privilege to Plaintiff’s Evidence
Plaintiff argues the Court erred in finding documents in her possession, which

included communications with Defendant’s in-house or outside counsel, were privileged.
Without identifying the specific documents, Plaintiff contends these documents were not
privileged because she was a party to the communications, and they were her “work
product.” Doc. #161, at 8. She also argues Defendant waived any privilege because the
communications form the basis of her dismissal. Id. Plaintiff claims if she had been
permitted to use these unidentified communications, it would “have demonstrated” she
“was asked by Mr. Dudley to sign off on or to do things that were unlawful or unethical so
that he could create cause to discipline or terminate her when she refused.”4 Id. Plaintiff
4

Plaintiff did not allege a whistleblower (or similar type of) claim. Plaintiff did not offer any
exhibits showing she was asked to do anything unlawful or unethical, and the Court does
4

also argues the evidence rebutted Dudley’s statements about her work performance
because the communications showed “positive comments about her expertise and
performance.” Id. Finally, Plaintiff maintains the evidence could have been presented in
redacted form. Id.
Even when disregarding her failure to identify the specific documents she contends
were improperly deemed privileged, Plaintiff’s argument is flawed in several respects.
First, the Court recalls Plaintiff informing the Court that she did not intend to utilize the
documents Defendant claimed were privileged. Additionally, the Court has no recollection
of Plaintiff proffering said documents. As such, any evidentiary error was not preserved.
Second, even if the error was preserved, Plaintiff’s arguments as to the application
or waiver of attorney-client privilege are unfounded. While the attorney-client privilege
attaches to corporations, the inclusion of Plaintiff, Defendant’s employee at the time of the
communications, on emails with Defendant’s in-house and/or outside counsel does not
strip the communication of privilege. See Upjohn Co. v. United States, 449 U.S. 383, 389
(1981). Significantly, Defendant’s privilege could not be waived unless a member of
Defendant’s management waived the privilege. See Commodity Futures Trading Comm’n
v. Weintraub, 471 U.S. 343, 348-49 (1985) (stating “the power to waive the corporate
attorney-client privilege rests with the corporation’s management and is normally exercised
by its officers and directors…consistent with their fiduciary duty to act in the best interests
of the corporation”). There was no evidence Defendant waived its privilege. With regard
to her self-described “work product” in emails, Plaintiff, who is not an attorney, fails to cite
authority establishing the inclusion of her work, created during her employment with
Defendant, waives the privilege. Likewise, Plaintiff fails to demonstrate Defendant’s
attorney-client privilege is waived because they relate to her dismissal.
Third, Plaintiff claims she should have been permitted to present the privileged
communications in redacted form. Plaintiff’s argument is not an accurate portrayal of the
record. Prior to the start of trial, Defendant asked if Plaintiff intended to introduce
Defendant’s privileged documents, and if so, Defendant asked that the privileged
information be redacted. In response to Defendant’s inquiry, Plaintiff stated she did not

not recall Plaintiff testifying about being asked to do anything unlawful or unethical. To the
extent Plaintiff requests a new trial based upon this argument, that request is denied.
5

intend to use the documents. As best the Court can recall, Plaintiff did not offer any of the
documents containing privileged information. As such, Plaintiff’s argument fails.
For these reasons, the Court finds the exclusion of this evidence was not
prejudicial, and certainly was not so prejudicial as to require a new trial that would likely
produce a different result. Thus, Plaintiff’s motion for new trial based upon the exclusion of
these documents is denied.
E.

Dismissal of Some of Plaintiff’s Claims Before Trial
Plaintiff argues the Court’s dismissal of her Missouri Human Rights Act, Equal Pay

Act Claims, and misappropriation of privacy and publicity claims at the summary judgment
stage constitutes reversible error, and she should be granted a new trial. Plaintiff’s
dismissed claims were not tried. Plaintiff may seek review of those decisions on appeal,
but she cannot seek a new trial on those claims. The Court denies Plaintiff’s motion for
new trial on this ground.
F.

Plaintiff’s Testimony Regarding Subsequent Employment Search
Plaintiff argues the Court prevented her from “presenting evidence of the difficulties

she has encountered in securing employment due to her abrupt and wrongful termination.”
Doc. #161, at 9. She contends she was not allowed to explain the results of her job
search, and was not permitted to present evidence showing the timing and reasons for
rescinded offers from potential employers.
Plaintiff’s argument misstates the Court’s ruling in limine, and disregards the
evidence at trial. Before trial, Defendant asked the Court to prohibit Plaintiff from
speculating about any role Defendant may have played in her inability to secure
employment after her employment with Defendant concluded. The Court precluded
Plaintiff from speculating as to what role Defendant may or may not have played in her
inability to secure employment. Doc. #116, at 6. If she had personal knowledge of
Defendant playing a role in her inability to secure employment, the Court informed Plaintiff
she could testify to those facts. Id. The Court also stated its ruling did “not preclude
Plaintiff from offering evidence of her mitigation of damages.” Id.
At trial, Plaintiff presented evidence about her employment search and her attempts
to mitigate her damages. Plaintiff’s testimony was limited to matters upon which she had
6

personal knowledge. Fed. R. Evid. 602. Plaintiff was only precluded from speculating that
Defendant somehow interfered with her job search. The Court finds there was no
evidentiary error, much less an error that so prejudiced Plaintiff to require a new trial.
Thus, Plaintiff’s motion for a new trial on this ground is denied.
G.

Warren Dudley’s Negative Comments About Minorities
Plaintiff argues the Court erred in preventing her from testifying about “Mr. Dudley’s

negative comments regarding minorities (African Americans)” because those “comments
reflected Mr. Dudley’s negative mindset against minorities…[and] are relevant to [his]
credibility.” Doc. #161, at 10. In this matter, Plaintiff alleged discrimination and
harassment claims based upon her gender (female), race (Asian), and national origin
(Indian). Dudley’s alleged comment(s) pertained only to African-Americans. Plaintiff fails
to set forth any argument establishing the exclusion of this evidence was so prejudicial as
to require a new trial that would be likely to produce a different result. Further, the Court
discerns no prejudicial error in excluding alleged comments about African-Americans in a
matter where an Asian female of Indian descent alleged discrimination and harassment.
Accordingly, Plaintiff’s motion for a new trial on this ground is denied.
H.

Jury Instructions
(1) After-Acquired Evidence Instructions
Plaintiff claims the Court should not have given after-acquired evidence instructions

because there was “no admissible or substantial evidence on this defense” and the
instructions “clouded the issues badly.” Doc. #161, at 6. But Plaintiff never objected to the
after-acquired evidence instructions. To preserve a claim of instructional error, the party
must object to the alleged error during trial. Fed. R. Civ. P. 51(c). Because she failed to
preserve a claim of instructional error, Plaintiff must show these instructions constitute
plain error. Slidell, Inc. v. Millennium Inorganic Chems., Inc., 460 F.3d 1047, 1054 (8th Cir.
2006) (citation omitted). Plain error “is confined to the exceptional case in which the error
seriously affected the fairness, integrity, or public reputation of the judicial proceedings.”
Id. (citations and internal quotations omitted). Plaintiff does not set forth why the afteracquired evidence instructions constitutes plain error. The Court finds the after-acquired
evidence instructions were legally correct, and the evidence admitted at trial supported the
7

giving of those instructions. Further, as explained above, the jury found Plaintiff failed to
prove the essential elements of her claims, and therefore, the jury never reached the issue
of the after-acquired evidence defense. Plaintiff’s motion for new trial based upon the
Court giving the jury after-acquired evidence instructions is denied.

(2) Unnecessarily Long and Confusing Instructions
Plaintiff argues the instructions prejudiced her because they were “unnecessarily
long and confusing.” Doc. #161, at 10. She contends her proposed instructions, which
included a harassment instruction grouping all three bases of her claims of harassment
and a discrimination instruction grouping all three bases of her claims for discrimination,
should have been given.
Plaintiff’s argument, however, ignores she also proposed separate instructions for
discrimination based upon national origin, race, and sex. Doc. #128, at 5-7. The Court’s
instructions on Plaintiff’s discrimination claims largely mirrored her proposed (separate)
discrimination instructions. Doc. #149, at 18, 21, 24. Plaintiff cannot propose an
instruction, lodge no objection to the use of her proposed instruction, and later contend the
instruction was erroneous. For this reason, Plaintiff’s argument fails.
Regardless, Plaintiff did not object to the instructions, and any error has not been
preserved. Fed. R. Civ. P. 51(c). Because she failed to object, Plaintiff must show the
instructions constitute plain error. Slidell, 460 F.3d at 1054. While she contends the
instructions were too long and confusing, Plaintiff does not argue (or even discuss) how
the instructions affected the “fairness, integrity, or public reputation of the judicial
proceedings.” The instructions were based upon the evidence admitted, and the state of
the law. There was no error, plain or otherwise. Plaintiff’s motion for a new trial based
upon “unnecessarily long and confusing” jury instructions is denied.
I.

Jury’s Verdicts
Plaintiff argues the evidence “overwhelming showed” Defendant harassed and

discriminated against her, and once she complained, Defendant retaliated against her.
The jury’s verdicts, according to Plaintiff, were against the weight of the evidence, and a
new trial should be granted.
8

“A motion for new trial based on sufficiency of the evidence should be granted only
if the jury’s verdict was against the great weight of the evidence, so as to constitute a
miscarriage of justice.” EFCO Corp. v. Symons Corp., 219 F.3d 734, 739 (8th Cir. 2000).
When considering a motion for new trial based upon the sufficiency of the evidence, the
Court may weigh the evidence and assess the credibility of witnesses. White v. Pence, 961
F.2d 776, 780-81 (8th Cir.1992). The evidence must be viewed in the light most favorable
to the jury verdict. Inacom Corp. v. Sears, Roebuck & Co., 254 F.3d 683, 689 (8th Cir.
2001). The moving party has the burden of proving the propriety of a new trial. Kehm v.
Proctor & Gamble Co., 580 F. Supp. 890, 896 (N.D. Iowa 1982).
The outcome of this trial largely turned on whose testimony the jury believed. The
possibility the jury could have found Plaintiff more credible than Defendant’s witnesses,
which may have resulted in a different result, is not a sufficient basis for granting a new
trial. See Blake v. J.C. Penney Co., 894 F.2d 274, 281 (8th Cir. 1990). Having heard the
testimony and viewed the evidence, the Court cannot find the jury’s verdicts were against
the great weight of the evidence. Further, based upon the evidence presented at trial, the
jury’s verdicts did not constitute a miscarriage of justice, and were not a seriously
erroneous result. Finally, Plaintiff, who does not point to anything specific in the record,
has not her burden of proving a new trial is warranted. For these reasons, Plaintiff’s
motion for a new trial on the basis the jury’s verdicts were allegedly against the great
weight of the evidence is denied.
J.

Plaintiff’s Sister’s Lawsuit
Plaintiff argues she is entitled to a new trial because the Court allowed Defendant’s

counsel to question Plaintiff’s sister, Jana Mukherjee, about a lawsuit filed by Plaintiff’s and
Jana’s sister, Lisa. Plaintiff claims the evidence was prejudicial in that it insinuated Plaintiff
and her family are litigious and suggested Plaintiff’s claims were meritless.
Because Plaintiff’s argument rests an evidentiary ruling, the Court must determine
whether allowing the questioning and testimony about Plaintiff’s sister’s lawsuit “was so
prejudicial as to require a new trial which would be likely to produce a different result.”
Moses.com Sec., Inc., 406 F.3d at 1058-59. Defendant asked Jana about her sister, Lisa,
filing a lawsuit against Harvard in 2010. The Court recalls Jana was not sure if a lawsuit
was filed. She said she knew something happened with regard to Lisa’s employment but
9

she did not know what exactly happened. No exhibits pertaining to the lawsuit were
offered.
The Court’s decision to allow questioning about Plaintiff’s sister’s lawsuit was not so
prejudicial as to require a new trial. Further, the admission of Jana’s testimony about her
sister’s lawsuit was not so prejudicial as to require a new trial. Even if the testimony had
not been admitted, the jury’s verdicts, in all likelihood, would have been the same given the
considerable evidence presented during trial. Accordingly, the Court’s denies Plaintiff’s
new motion for a new trial based upon the inquiry into her sister’s lawsuit.5
III.

CONCLUSION

As set forth above, the Court finds each of Plaintiff’s bases for a new trial fails to
meet the Rule 59 requirements. The Court also considered the ten bases for a new trial
collectively. Even when contemplating those bases together, the Court finds Plaintiff fails
to demonstrate a miscarriage of justice occurred. Accordingly, Plaintiff’s Motion for a New
Trial is denied.
IT IS SO ORDERED.
/s/ Ortrie D. Smith
ORTRIE D. SMITH, SENIOR JUDGE
UNITED STATES DISTRICT COURT

DATE: July 9, 2018

5

The day prior to Jana’s testimony, Plaintiff, over Defendant’s objections, was permitted to
ask Dudley, Plaintiff’s supervisor and alleged bad actor, about a lawsuit he filed in 2009
wherein he alleged age and gender discrimination. To allow Plaintiff such an inquiry but
not allow Defendant the same (when both inquiries sought to elicit potentially relevant
evidence) appears inconsistent and unbalanced. As noted by Justice Breyer, “in the law,
what is sauce for the goose is normally sauce for the gander.” Heffernan v. City of
Paterson, 136 S. Ct. 1412, 1418 (2016).
10