O'Connell v. Onondaga County et al

Filing 88

MEMORANDUM-DECISION & ORDER that pltf's 84 Motion for New Trial is DENIED. Signed by Senior Judge Frederick J. Scullin, Jr on 3/13/2013. (see)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________________
GEORGE J. O'CONNELL,
Plaintiff,

v.

5:09-CV-364
(FJS/ATB)

ONONDAGA COUNTY, ONONDAGA
COUNTY SHERIFF'S DEPARTMENT
AND SHERIFF KEVIN WALSH, IN HIS
OFFICIAL CAPACITY AS SHERIFF OF
ONONDAGA COUNTY
Defendants.
_____________________________________________
APPEARANCES

OF COUNSEL

OFFICE OF K. FELICIA DAVIS
P.O. Box 591
Syracuse, New York 13201-3049
Attorneys for Plaintiff

K. FELICIA DAVIS, ESQ.

ONONDAGA COUNTY DEPARTMENT
OF LAW
421 Montgomery Street
10th Floor
Syracuse, New York 13202
Attorneys for Defendants

CAROL L. RHINEHART, ESQ.

SCULLIN, Senior Judge
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Currently before the Court is Plaintiff George J. O'Connell's motion for a new trial. See
Dkt. No. 84-2.

II. BACKGROUND
Defendant Onondaga County1 employed Plaintiff as a Deputy Sheriff in the Custody
Division of the Onondaga County Sheriff's Department. See Dkt. No. 30 at 2. Following his
repeated disciplinary actions, Plaintiff commenced this employment discrimination action
against Defendant, alleging, among other things, that Defendant (1) intentionally discriminated
against him because of his alleged shoulder disability; (2) failed to provide him a reasonable
accommodation in the form of light duty assignment; and (3) retaliated against him for
repeatedly requesting an accommodation for what he, in good faith, believed to be a disability,
all in violation of the Americans with Disabilities Act of 1990 ("ADA") and the Rehabilitation
Act of 1973. See Dkt. No. 11. In November 2012, the Court presided over a four-day jury trial
adjudicating Plaintiff's claims. At the conclusion of this trial, the jury rendered a verdict, finding
no cause of action. See Dkt. No. 79.
On December 27, 2012, Plaintiff filed the present motion for a new trial pursuant to Rule
59 of the Federal Rules of Civil Procedure. See Dkt. No. 84. Plaintiff asserted the following
grounds in support of his motion: (1) the verdict was against the weight of the evidence; (2) the
Court erroneously excluded three arbitration decisions from evidence; (3) the jury prematurely
deliberated; and (4) the Court's verbal instruction misled the jury as to his disability
discrimination claim.2 See id. Defendant opposes this motion. See Dkt. No. 86-1.

1

In a Memorandum-Decision and Order dated February 9, 2012, the Court found that
Plaintiff's claims against Defendants Onondaga County, Onondaga County Sheriff's Department
and Kevin Walsh, in his official capacity as Sheriff of Onondaga County were redundant and,
therefore, referred to Plaintiff's claims as against Defendant Onondaga County only. See Dkt.
No. 30 at 2 n.1 (citations omitted). Thus, Defendant Onondaga County is the only Defendant in
this action. See id.
2

The papers Plaintiff submitted in support of his motion for a new trial lack a table of
contents, citations to the evidentiary record, and citations to supporting legal precedent beyond
the applicable legal standards. See Dkt. No. 84-2; Dkt. No. 97. The Court reminds Plaintiff's
2

III. DISCUSSION
A.

Standard of review
Under Rule 59, a court may grant a motion for a new trial if it concludes, "'the jury has

reached a seriously erroneous result or . . . the verdict is a miscarriage of justice.'" DLC Mgmt.
Corp. v. Town of Hyde Park, 163 F.3d 124, 133 (2d Cir. 1998) (quotation omitted); see also Fed.
R. Civ. P. 59(a)(1)(A); Snyder v. Shenendehowa Cent. Sch. Dist., No. 1:98-CV-1292, 2011 U.S.
Dist. LEXIS 17302, *7-*8 (N.D.N.Y. Feb. 22, 2011) (stating that "[t]he primary responsibility of
a judge reviewing a Rule 59 motion is to ensure that a jury verdict does not impose manifest
injustice" (citations omitted)). Importantly, "Rule 59 is not a vehicle for relitigating old issues,
presenting the case under new theories, securing a rehearing on the merits, or otherwise taking a
'second bite at the apple[.]'" Sequa Corp. v. GBJ Corp., 156 F.3d 136, 144 (2d Cir. 1998)
(citations omitted).
On a motion for a new trial, "the trial judge may weigh the evidence and the credibility of
witnesses and need not view the evidence in the light most favorable to the verdict winner."
Raedle v. Credit Agricole Indosuez, 670 F.3d 411, 418 (2d Cir. 2012) (citing United States v.
Landau, 155 F.3d 93, 104 (2d Cir. 1998)). Nevertheless, "trial judges must exercise their ability
to weigh credibility with caution and great restraint, as a judge 'should rarely disturb a jury's
evaluation of a witness's credibility,' DLC Mgmt., 163 F.3d at 134, and may not 'freely substitute
his or her assessment of the credibility of witnesses for that of the jury simply because the judge
disagrees with the jury,' Landau, 155 F.3d at 104." Raedle, 670 F.3d at 418.

counsel of Local Rule 7.1(a)(1), which provides, in pertinent part, that "[a]ll memorandum of
law shall contain a table of contents and, wherever possible, parallel citations." N.D.N.Y. L.R.
§ 7.1(a)(1); see e.g., Clark v. New York State Elec. & Gas Corp., 67 F. Supp. 2d 63, 71
(N.D.N.Y. 1999) (instructing counsel that "[f]uture non-compliance with the local rules will lead
to rejection of papers and imposition of appropriate sanctions").
3

B.

Verdict against the weight of the evidence
A district court may grant a new trial if the verdict is against the weight of the evidence

adduced at trial. See Raedle, 670 F.3d at 417; Lore v. City of Syracuse, 670 F.3d 127, 176-77 (2d
Cir. 2012) (noting that "[i]t is well established that the trial judge enjoys 'discretion to grant a
new trial if the verdict appears to [the judge] to be against the weight of the evidence'" (quotation
omitted)). "'[A] decision is against the weight of the evidence . . . if and only if the verdict is
[(1)] seriously erroneous or [(2)] a miscarriage of justice.'" Raedle, 670 F.3d at 417-18
(quotation and other citation omitted).
In this case, the first basis upon which Plaintiff seeks a new trial is his contention that the
jury returned a verdict against the weight of the evidence regarding his retaliation, failure to
accommodate, and disability discrimination claims. See Dkt. No. 84-2 at 2-3. Plaintiff purports
that the jury failed to evaluate the ample evidence and testimony that he presented at trial. See
Dkt. No. 87 at 3.
The Court, however, declines to disturb the verdict and defers to the jury's interpretation
of the evidence and assessment of the testimony. See United States v. Landau, 155 F.3d 93, 10405 (2d Cir. 1998) (stating, "[a] jury's credibility assessments are entitled to deference" (citation
omitted)); Raedle, 670 F.3d at 419 (noting that "'[t]he veracity of [a witness'] statements . . . was
a matter of credibility for the jury to resolve'" (quotation omitted)). "[W]here, as here, a verdict
is predicated almost entirely on the jury's assessments of credibility, such a verdict generally
should not be disturbed except in an egregious case, . . . or to prevent a miscarriage of justice."
Raedle, 670 F.3d at 418-19. Plaintiff, however, has advanced neither a compelling argument nor
evidence that the verdict was seriously erroneous or a miscarriage of justice. See Holloway v.
Isaacson, No. 1:05-CV-400, 2013 U.S. Dist. LEXIS 9400, *6 (N.D.N.Y. Jan. 23, 2013) (denying
plaintiff's motion for a new trial because he failed to produce evidence demonstrating that the
4

verdict was seriously erroneous or a miscarriage of justice). Instead, Plaintiff simply casts his
disagreement with the verdict in a vague and conclusory fashion, offering nothing more than
general references to testimony and evidence in the record. See Dkt. No. 84-2 at 2-3; Meiselman
v. Byrom, 207 F. Supp. 2d 40, 43 (E.D.N.Y. 2002) (denying plaintiff's motion for a new trial, in
part, because her conclusory allegation that opposing counsel tampered with the evidence was
insufficient); Ullman v. Starbucks Corp., 152 F. Supp. 2d 322, 326 (S.D.N.Y. 2001) (stating
"[t]he unsuccessful party's disagreement with the court's decisions or conclusion is insufficient to
obtain relief under Rule 59" (citation omitted)). Also, "a review of the evidence that the parties
adduced at trial overwhelming supports the jury's verdict" in favor of Defendant and against
Plaintiff. Holloway, 2013 U.S. Dist. LEXIS 9400, at *7.
Accordingly, the Court finds that the verdict was not against the weight of the evidence
and denies Plaintiff's motion for a new trial on this ground.

C.

Exclusion of the arbitration decisions
Under Rule 61 of the Federal Rules of Civil Procedure, "[u]nless justice requires

otherwise, no error in admitting or excluding evidence – or any other error by the court or a party
– is ground for granting a new trial . . . At every stage of the proceeding, the court must disregard
all errors and defects that do not affect any party's substantial rights." Fed. R. Civ. P. 61.
Applying this standard, the Second Circuit has held that "an evidentiary error in a civil case is
harmless 'unless [the party moving for a new trial demonstrates that] it is likely that in some
material respect the factfinder's judgment was swayed by the error.'" Tesser v. Bd. of Educ., 370
F.3d 314, 319 (2d Cir. 2004) (quotation omitted). "Whether an evidentiary error implicates a
substantial right depends on 'the likelihood that the error affected the outcome of the case.'" Id.
(quotation omitted).
5

In this case, Plaintiff filed grievances against Defendant because of disciplinary actions it
brought against him allegedly in connection with his requests for an accommodation. See Dkt.
No. 78. The grievances were resolved at three arbitrations with the presiding arbitrators
rendering written decisions. See id. The Court, however, excluded Plaintiff from offering into
evidence full and complete copies of the arbitrators' decisions at trial.3 See Dkt. No. 75 at 3.
Rather, the Court prepared a written summary of these decisions for the jury. See Dkt. No. 78.
Plaintiff argues that the Court abused its discretion by excluding full and complete copies
of the arbitration decisions and trial testimony detailing the specifics of those decisions. See Dkt.
No. 84-2 at 5; Dkt. No. 75 at 3. In particular, Plaintiff contends that, because he premised his
retaliation claim on Defendant's disciplinary actions grieved at the arbitrations, the Court
deprived the jury of key evidence to support his claim. See Dkt. No. 84-2 at 5. He also claims
undue prejudice from the Court's summary of the arbitration decisions, which excluded the
arbitrators' justifications. See id.; Dkt. No. 87 at 1. Plaintiff continues that the Court essentially
adopted in full Defendant's proposed summary of the decisions, which lacked a full
representation of the evidence. See Dkt. No. 84-2 at 5. Plaintiff further offers that the Court
could have cured any concerns with the arbitration decisions by redacting troublesome language.
See id. Finally, Plaintiff asserts that the Court's refusal to allow Daniel Matthews, President of

3

Prior to trial, the Court ruled on the parties' motions in limine, stating that, "Plaintiff
may not offer into evidence copies of the arbitrators' decisions. Plaintiff may ask witnesses, who
testified at the arbitration hearings, about their testimony at those hearings; however, if any such
witness denies providing any such testimony, Plaintiff may not use the arbitrators' decisions to
rebut that testimony." See Dkt. No. 75 at 3. To the extent that Plaintiff seeks to rely upon
arguments he already advanced in his motion in limine, the Court rejects those arguments for the
reasons it previously articulated. See id. at 2-5; see also LiButti v. United States, 178 F.3d 114,
118 (2d Cir. 1999) (holding that "a trial court should be most reluctant to set aside that which it
has previously decided unless convinced that it was based on a mistake of fact or clear error of
law, or that refusal to revisit the earlier decision would work a manifest injustice" (citation
omitted)). For brevity's sake, the Court will not restate its reasoning for its pre-trial evidentiary
rulings.
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the Deputy Sheriff's Benevolent Association and a Deputy in the Custody Division, to testify
about the arbitration decisions, the union's interpretation of the decisions, and subsequent judicial
affirmations of the decisions "short-circuited" his retaliation claim. See id.
The Court concludes that Plaintiff has failed to carry his burden to show that its decision
to exclude full and complete copies of the arbitration decisions affected his "substantial rights."
See Cameron v. City of New York, 598 F.3d 50, 61 (2d Cir. 2010) (affording district courts '''wide
latitude . . . in determining whether evidence is admissible'" at trial (quotation omitted)). First,
the Court rejects Plaintiff's argument that the Court deprived the jury of key evidence to support
his retaliation claim by excluding the full arbitration decisions.4 See Dkt. No. 84-2 at 5. To
determine the merits of Plaintiff's retaliation claim amply, the Court informed the jury, via its
written summary, of the disposition of the disciplinary charges and the awards granted at the
arbitrations. The remainder of the arbitrations decisions (e.g., the arbitrators' findings on the
evidence before them and the conclusions they drew from those findings, the arbitrators'
justifications for finding Defendant's disciplinary actions inapt, and the parties' respective
positions) had no bearing on whether Defendant retaliated against Plaintiff for requesting
accommodations. See D'Cunha v. Genovese/Eckerd Corp., 415 F. App'x 275, 277 (2d Cir. 2011)
4

To support this argument, Plaintiff relies on Munafo v. Metro. Transp. Auth., Nos. 98CV-4572, 00-CV-0134, 2003 U.S. Dist. LEXIS 13495, *79-*81 (E.D.N.Y. Jan. 22, 2003). See
Dkt. No. 87 at 5. The Second Circuit's Local Rules, however, prohibit parties from "cit[ing] a
summary order of this court issued prior to January 1, 2007," except in a subsequent stage of a
case in which the summary order has been entered or when cited as subsequent history. See 2d
Cir. L.R. 32.1.1(b)(2). Since neither exception applies in this case, Plaintiff's reliance on Munafo
is misguided. See e.g., Price v. Cushman & Wakefield, Inc., 808 F. Supp. 2d 670, 697 n.16
(S.D.N.Y. 2011) (finding defendants' reliance on a 2005 summary order from the Second Circuit
to defend against plaintiff's retaliation claim as improper under Local Rule 32.1.1(b)(2)).
Notwithstanding, Munafo differs from this case because (1) the court addressed the parties'
motions in limine to exclude evidence at trial, not a post-verdict motion for a new trial; and (2)
the plaintiff, a public sector employee, alleged that his employer retaliated against him for
exercising his constitutional right to free speech and freedom of association in violation of 42
U.S.C. § 1983. See Munafo, 2003 U.S. Dist. LEXIS 13495, at *3.
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(finding that the court's evidentiary ruling to preclude the parties from introducing its prior
decision was not an abuse of discretion because that decision was immaterial to the
determinations to be made by the jury).
Second, even if the evidentiary ruling was erroneous, Plaintiff has not demonstrated that
excluding the entire arbitration decisions was harmful and somehow influenced the verdict. See
Tesser, 370 F.3d at 320-21 (concluding that the district court did not abuse its discretion in
denying a motion for a new trial because plaintiff was not substantially prejudiced by the
admission into evidence of her and her husband's jointly filed federal income tax returns).
Although Plaintiff contends that the Court's summary of the arbitration decisions was unduly
prejudicial because it adopted Defendant's proposed language, he offers no legal argument to
support this contention. See Levine v. Reader's Digest Ass'n, Inc., No. 06 Civ. 0590, 2008 U.S.
Dist. LEXIS 47341, *15 (S.D.N.Y. June 10, 2008), aff'd, 2009 U.S. App. LEXIS 16077 (2d Cir.
July 22, 2009) (denying a new trial because, in part, plaintiff's conclusory statement was
insufficient to establish that the court's evidentiary rulings "were anything more than harmless"
(citation omitted)). Further, it remains unclear how redacting the arbitration decisions would
have helped Plaintiff prove that Defendant unlawfully retaliated against him. See id. at *9-*10
(denying a motion for a new trial, in part, because plaintiff failed to show how the court's
decision to admit unredacted versions of e-mails into evidence, rather than redacted versions,
affected a substantial right (citation omitted)). Nevertheless, the Court was within its wide
discretion to cure its concerns with the arbitration decisions by drafting the summary rather than
redacting troublesome language. See Parker v. Reda, 327 F.3d 211, 213 (2d Cir. 2003) (stating,
"[d]istrict courts exercise broad discretion in making evidentiary rulings").
Third, the Court finds that it properly precluded Daniel Matthews from testifying about
the arbitration decisions, the union's interpretation of the decisions, and the union's attempt to
8

seek judicial affirmations of the decisions. None of these matters was relevant to Plaintiff's
retaliation claim and allowing such testimony would have portrayed Defendant in a prejudicial
light.
Accordingly, the Court holds that Plaintiff has not proven that its evidentiary rulings
swayed the jury's verdict in some material respect and thus denies his motion for a new trial on
this ground.

D.

The Court's verbal instruction to the jury
A "court should order a new trial if the jury instructions were erroneous, and such error

may have influenced the jury's verdict." Stowe v. Nat'l R.R. Passenger Corp., 793 F. Supp. 2d
549, 559 (E.D.N.Y. 2011) (citing Gordon v. N.Y.C. Bd. of Educ., 232 F.3d 111, 116 (2d Cir.
2000)); see also Webb v. GAF Corp., 936 F. Supp. 1109, 1118 (N.D.N.Y. 1996) (stating that
"[t]he error must appear, from a review of the record, to be prejudicial before a new trial will be
granted" (citations omitted)). "A jury instruction is erroneous if it misleads the jury as to the
correct legal standard or does not adequately inform the jury on the law." Anderson v. Branen,
17 F.3d 552, 556 (2d Cir. 1994) (citations omitted); see also Plagianos v. Am. Airlines, Inc., 912
F.2d 57, 59 (2d Cir. 1990) (stating that "[a] new trial is warranted if, taken as a whole, the jury
instructions gave a misleading impression or inadequate understanding of the law" (citation
omitted)).
Importantly, Rule 51 of the Federal Rules of Civil Procedure requires "a party in a civil
action [to] make specific objections to jury instructions before the jury retires to deliberate."
Fashion Boutique of Short Hills, Inc. v. Fendi USA, Inc., 314 F.3d 48, 61 (2d Cir. 2002)
(citations omitted). A party's failure to assert a timely objection results in a waiver of that
objection. See Jarvis v. Ford Motor Co., 283 F.3d 33, 57 (2d Cir. 2002) (quotation and other
9

citations omitted). District courts, however, may entertain an untimely objection if the alleged
error is fundamental. See Shade v. Hous. Auth. of City of New Haven, 251 F.3d 307, 312-13 (2d
Cir. 2001) (citation omitted). "An error is fundamental . . . only if it is 'so serious and flagrant
that it goes to the very integrity of the trial.'" Id. at 313 (quotation omitted).
In the instant matter, the Court verbally instructed the jury during the jury charge that it
had previously found Plaintiff not disabled as a matter of law prior to January 1, 2009; and,
according to Plaintiff, this instruction misled the jury to believe that the entire issue of disability
was already decided. See Dkt. No. 84-2 at 6. Plaintiff also argues that the verbal instruction
created a "dueling definition with the written instruction," thereby confusing the jury. See Dkt.
No. 87 at 6. Consequently, Plaintiff asserts that he is entitled to a new trial because the Court's
verbal instruction deterred the jury from finding him disabled after January 1, 2009. See id.; Dkt.
No. 84-2 at 6.
As an initial matter, the Court finds that Plaintiff has waived any post-trial objections to
the verbal instruction because he failed to object to the Court's instruction prior to the jury
deliberating. See Jarvis, 283 F.3d at 57 (stating "'litigants do not get another opportunity to
assign as error an allegedly incorrect charge simply because the jury's verdict comports with the
trial courts instructions'" (quotation and other citations omitted)); Ireh v. Nassau Univ. Med. Ctr.,
371 F. App'x 180, 180 (2d Cir. 2010) (stating that a party moving for a new trial on the basis of
jury instructions must have objected to the instruction on the record, stating distinctly the matter
objected to and the grounds for the objection).
Even assuming a timely objection, Plaintiff has not established, let alone proved, a
fundamental error in the Court's verbal instruction that is "'so serious and flagrant that it goes to
the very integrity of the trial.'" Shade, 251 F.3d at 313 (quotation omitted). The Court informed
the jury that it had already found Plaintiff not disabled as a matter of law before January 1, 2009,
10

to ensure that the jury plainly understood the issue to deliberate, namely whether Plaintiff had a
disability under the ADA after January 1, 2009. See ADA Amendments Act of 2008, Pub. L.
No. 110-325 (2008) (becoming effective on January 1, 2009, and broadening the definition of a
disability under the ADA to expand the class of individuals entitled to protection). Thus, the
verbal instruction neither misled nor confused the jury; rather, it focused the jury on the relevant
timeframe to decide whether Plaintiff was disabled. See Lore, 670 F.3d at 156 (stating that "'[a]
jury instruction is erroneous if it misleads the jury as to the correct legal standard or does not
adequately inform the jury of the law'" (quotation omitted)). Additionally, the jury instructions,
as a whole, comported with the applicable law, adequately informing the jury of the correct legal
standards; and Plaintiff has failed to produce persuasive arguments to the contrary. See Snyder,
2011 U.S. Dist. LEXIS 17302, at *12-*13 (denying a motion for new trial, in part, because
plaintiff failed to show that the jury instructions were prejudicial); Dreyer v. Ryder Auto. Carrier
Group, Inc., No. 98-CV-82A, 2008 U.S. Dist. LEXIS 21557, *6 (S.D.N.Y. Mar. 19, 2008)
(denying defendants' motion for a new trial, in part, because they neither stated why the jury
instruction was erroneous nor provided supporting case law).
Accordingly, the Court denies Plaintiff's motion for a new trial based upon an alleged
error in the Court's verbal instruction.

E.

Premature jury deliberations
In criminal cases, premature jury deliberations may warrant a new trial if they result in

actual prejudice to the one of the parties. See United States v. Sabhnani, 529 F. Supp. 2d 384,
390 (E.D.N.Y. 2008) (citation omitted); see also United States v. Cox, 324 F.3d 77, 86 (2d Cir.
2003) (stating that "[w]here the district court instructs a jury to refrain from premature
deliberation . . . and the jury nonetheless discusses the case before the close of trial, that
11

premature deliberation may constitute juror misconduct" (citation omitted)). Although district
courts have sound discretion in the "handling of allegations of juror misconduct," United States
v. Thai, 29 F.3d 785, 803 (2d Cir. 1994) (citations omitted), they should "hold a post-trial jury
hearing only when reasonable grounds for investigation exist," United States v. Moon, 718 F.2d
1210, 1234 (2d Cir. 1983). "Reasonable grounds are present when there is clear, strong,
substantial and incontrovertible evidence, . . . that a specific, nonspeculative impropriety has
occurred which could have prejudiced the trial of a defendant." Id. (internal citation omitted).
Notably, the Second Circuit disfavors probing jurors for potential misconduct postverdict. See id. (stating that "[i]t hardly bears repeating that courts are, and should be, hesitant to
haul jurors in after they have reached a verdict in order to probe for potential instances of bias,
misconduct or extraneous influences"). As such, courts' reiterating their instructions against
premature deliberation "is [often] all that is necessary." Thai, 29 F.3d at 803 (citation omitted);
United States v. Siegel, 271 F. App'x 115, 117 (2d Cir. 2008) (stating that judges generally do
not abuse their discretion when they "decline[] to investigate allegations of jury misconduct but
instead merely reiterate[] their instructions against premature deliberation" (citations omitted)).
Here, Plaintiff alleges, without any citations to the record, that a male juror, possibly
Juror Number Eight ("Juror"), stated something to the effect that, "how are we to make a
decision on the case when there wasn't any medical information going into/after 2009." See Dkt.
No. 84-1 at ¶ 16; Dkt. No. 84-2 at 4. Plaintiff contends that the Juror made this statement in the
presence of the full jury (in open court) and before the Court submitted the case to the jury for
deliberations. See Dkt. No. 84-1 at ¶ 16; Dkt. No. 87 at 1. From this statement, Plaintiff
surmises that the jury prematurely discussed the evidence before the end of the trial. See Dkt.
No. 84-2 at 5. Thus, Plaintiff requests the Court to conduct a post-verdict inquiry into whether
the jurors prematurely deliberated and, if so, grant a new trial. See id.
12

The Court finds no factual or legal basis to conduct an inquiry of the jurors to determine
whether they prematurely deliberated. Plaintiff advances only criminal case law in support of his
argument and offers no legal support to extend these holdings to the civil context. See Dkt. No.
84-2 at 4-5. Even assuming that the Court were to extend criminal law principles to this civil
matter5 and that the Juror made the purported statement, there is "no clear, strong, substantial and
incontrovertible evidence" of "specific, nonspeculative impropriety" sufficient to probe the jury
post-verdict for potential misconduct. Moon, 718 F.2d at 1234 (internal citation omitted).
Additionally, Plaintiff's argument for premature deliberations hinges on his conjecture
that the Juror's use of the term "we" in his statement indicates that his question was on behalf of
the jury, which, in turn, means that the jury prematurely discussed the case. See Dkt. No. 84-2 at
5. Plaintiff's argument, however, is a logical stretch at best and too vague to infer premature
deliberations. See Stowe, 793 F. Supp. 2d at 575 (denying plaintiff's motion, in part, because
plaintiff's "statement that Juror Number Three had some training or knowledge is too vague to
infer that this juror held himself out as an expert"). Indeed, the Juror's statement hardly provides
a smoking gun inference of premature deliberations. On this basis alone, the Court denies
Plaintiff's motion.
Moreover, at no time did Plaintiff object to the Juror's alleged comment; rather, he waited
until after the jury rendered a no-cause finding. See Thai, 29 F.3d at 803 (stating that the Second
Circuit "particularly loath[es] to second-guess the actions of the district court when the defendant

5

In Cocconi v. Pierre Hotel, 146 F. Supp. 2d 427, 430 (S.D.N.Y. 2001), the court
explained that there is a presumption in criminal cases that extraneous information
communicated to a jury is prejudicial and that, although "the Second Circuit has not squarely
addressed the issue, other circuits have held that the same presumption of prejudice applies in the
civil cases." Id. at 430 n.2 (citations omitted). As such, the court proceeded with its analysis of
whether to grant a new civil trial because of the jury's alleged exposure to extraneous
information. See id.
13

has failed to object at trial, lest the defendant be permitted to 'wait to hear the verdict before
contesting the impartiality of the jury and then attack the court's refusal to investigate his
allegation'" (quotation omitted)). Plaintiff also has not advanced any evidence showing how the
Juror's isolated statement was sufficiently prejudicial to warrant a new trial, especially in light of
the Court's instructions to refrain from premature deliberations. See id. (affirming the district
court's handling of questionable juror conduct, in part, because the court "reiterated its
instruction not to engage in premature deliberations"); United States v. Peterson, 385 F.3d 127,
135 (2d Cir. 2004) (rejecting defendants' argument "that juror number three was engaging in
premature deliberations when she told another juror that she knew the defendants" because "[n]ot
every comment a juror may make to another juror about the case is a discussion about a
defendant's guilt or innocence that comes within a common sense definition of deliberation").
Accordingly, since there is no evidence, let alone clear, strong and substantial evidence,
that the jury prematurely deliberated, the Court finds that a post-verdict inquiry on premature
deliberations is unwarranted and denies Plaintiff's motion for a new trial on this ground.

IV. CONCLUSION
After carefully reviewing the entire record in this matter, the parties' submissions, and the
applicable law, and for the above-stated reasons, the Court hereby
ORDERS that Plaintiff's motion for a new trial is DENIED.
IT IS SO ORDERED.
Dated: March 13, 2013
Syracuse, New York

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