RORRER et al v. CLEVELAND STEEL CONTAINER CORP. et al
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE MITCHELL S. GOLDBERG ON 1/18/12. 1/18/12 ENTERED AND COPIES EMAILED.(rf, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
CLEVELAND STEEL CONTAINER CORP., :
January 18, 2012
This case involves Title VII claims premised upon an alleged hostile work environment at
Cleveland Steel Container Corp., a Quakertown, Pennsylvania company which manufactures steel
pails. Before the Court is Plaintiff’s motion for a new trial, which raises eighty-six claims of error
that allegedly occurred during an eight-day trial. For the reasons set forth below, we find no grounds
to disturb the jury’s verdict and thus Plaintiff’s motion will be denied.
In the typical case, our approach in addressing post-verdict motions would be to carefully
consider the claims presented in conjunction with the trial record, consider the responses, review the
law and make a determination regarding those claims. This, however, is not a typical case.
From the outset of discovery, continuing through trial, and now at the post-verdict motion
stage, the level of animosity between the lawyers has been beyond anything this Court has witnessed
either as a practitioner or judge. This case necessitated unending intervention by the Court and
constant resolution of disagreements between counsel on even the most basic matters, such as the
exchange of exhibits. The majority of the issues raised by counsel did not involve principled legal
or evidentiary disputes. Rather, the Court’s primary role in this case was to act as a referee between
two attorneys whose dislike for each other seemed at times to overshadow the interests of their
The Court is now confronted with reviewing over eighty claims of error raised by Plaintiff
(fifty-six actual numbered claims, many with multiple sub-parts). Addressing these claims has
required an enormous amount of time and judicial resources and, frankly, has been disheartening.
Regarding the inordinate number of claims raised by Plaintiff, the comments of the Honorable
Ruggero John Aldisert aptly apply here:
With a decade and a half of federal appellate court experience behind me, I can say
that even when we reverse a trial court it is rare that a brief successfully demonstrates
that the trial court committed more than one or two reversible errors. I have said in
open court that when I read an appellant’s brief that contains ten or twelve points, a
presumption arises that there is not merit to any of them. I do not say that it is an
irrebuttable presumption, but it is a presumption nevertheless that reduces the
effectiveness of appellate advocacy. Appellate advocacy is measured by
effectiveness, not loquaciousness.
Ruggero J. Aldisert, The Appellate Bar: Professional Responsibility and Professional Competence
— A View From the Jaundiced Eye of One Appellate Judge, 11 CAP . U. L. REV . 445, 458 (1982).
Not surprisingly, a majority of the issues raised by Plaintiff’s counsel have little to do with
substantive allegations of error, but are personal and disparaging attacks on Defense counsel and the
Court. For instance, Plaintiff’s counsel alleges that some of Defense counsel’s trial strategy included
tactics that were aimed to “terrify” Plaintiff, and induce “severe emotional distress.” (Pl.’s Mot. ¶
4.) Without any basis or citation to the record, Plaintiff’s counsel also accuses Defense counsel of:
threatening the Court with reversal if a verdict were allowed for Plaintiff (id. ¶ 28); “misbehaving
in the courtroom, making comments about plaintiff’s counsel under her breath, shaking her head and
sighing throughout the trial” (id. ¶ 29); and, asking Plaintiff’s counsel if she was going to “slither
away” (id. ¶ 29). Without any support or basis, Plaintiff’s counsel also alleges that Defense counsel
engaged in “unethical conduct in using ex-parte conversations . . . and influencing witness employees
not to talk to plaintiff’s counsel.” (Id. ¶ 33.) Unfortunately, these very serious allegations are only
a small sampling of Plaintiff’s counsel’s claims.
Plaintiff’s counsel’s accusations against the Court are equally as scathing. Essentially,
Plaintiff’s counsel has alleged that the Court abandoned its most basic and important function—to
provide a fair and impartial forum for the parties. (See id. ¶¶ 27, 33). Despite this inflammatory
rhetoric, our view is that we bent over backwards to provide Plaintiff and her attorney with a fair and
dignified forum to present their case. More importantly, we took great care to resolve all of the
unending disagreements between counsel outside the presence of the jury, and the record squarely
bears this out.
The simple truth is that if constant intervention was required by the Court, it was due in large
part to Plaintiff’s counsel’s inability to follow even the most basic principles of acceptable advocacy,
and this Court’s Orders. Any impatience with Plaintiff’s counsel displayed by the Court was more
than warranted. Indeed, we are certain that Defense counsel may be equally as displeased with the
Court for the continued latitude and courtesy we tried to extend to Plaintiff’s counsel. If the Court
was impatient with Plaintiff’s counsel, she only need to examine a few examples of her
unprofessional behavior to discern why. Some of these antics included: instigating a phone
discussion with the Court’s law clerk regarding her personal and professional difficulties, in which
she cried when explaining her reasons for opposing a trial continuance; having her expert meet with
Plaintiff for an extensive follow-up exam days before trial and well after the close of discovery, and
then failing to advise either Defense counsel or the Court that this had occurred, resulting in
sanctions more fully discussed in our Memorandum Opinion of September 20, 2010 (Doc. No. 236);
and ending the trial by referring in her closing to the Cleveland Steel employee who allegedly
harassed her client as “the Son of Sam,” a known serial killer.1 (N.T. June 23, 2010, p. 147.)
II. FACTS OF THE CASE
While this case was unnecessarily combative and overcomplicated by the lawyers, the facts
are relatively simple and straightforward. Plaintiff, Lucy Rorrer, was an employee of Defendant,
Cleveland Steel Container Corp., a steel pail manufacturing company. Although Plaintiff was
employed at Cleveland Steel starting in 2000, the unrefuted evidence established that her work
schedule was not steady and included extended layoffs. Indeed, Plaintiff was referred to as a parttime employee, and, as characterized by her counsel, “she was subject to lay-offs, . . . . Sometimes
it would be a week here. Sometimes it would be a month here. Sometimes it would be two months.
Sometimes it would be more, and it was scattered through the years.” (N.T. June 14, 2010, p. 23.)
Plaintiff was laid off from August 2005 until April 2006, a fact which is particularly relevant to one
of the central issues before the Court. (Def.’s Trial Exs. 111, 112.)
The crux of Plaintiff’s claims pertain to an incident occurring on August 1, 2006. On that
date, Plaintiff was working alongside a conveyor belt with her coworker, Richard Gilbert, who she
claimed had previously harassed female employees. Plaintiff was running what is referred to as a
double fitting machine while Gilbert fed pieces of steel into the machine. Both employees had
Plaintiff’s counsel also extended an invitation to the Court’s deputy clerk to join her for
a drink on the same day as jury selection. When confronted by this, Plaintiff’s counsel
characterized this offer as “not exactly true” and “a joke.” (N.T. June 18, 2010, pp. 224-25.)
stopped working so that Gilbert could use a box cutter to open a new box of materials. Plaintiff
claimed that after opening the box, Gilbert reached towards her with the box cutter, pressed it into
her left breast and looked like he was “going to kill her.” (N.T. June 15, 2010, pp. 33-34.)
Plaintiff’s expert witness, Dr. Robert Toborowsky, testified that, as a consequence of this
incident, Plaintiff suffers from chronic post-traumatic stress disorder, which has resulted in her total
impairment, both socially and occupationally. (N.T. June 17, 2010, pp. 70-76.) Defendant’s expert,
Dr. Annie Steinberg, disputed this diagnosis and opined that Plaintiff did not meet the diagnostic
criteria for post-traumatic stress disorder, and that her symptoms better matched other disorders not
related to the August 1, 2006 incident. Defendant’s expert explained that Plaintiff was more likely
suffering from anxiolytic-induced disorder, which she described as symptoms and behaviors induced
by overmedication. Defendant’s expert also testified that there was the possibility of malingering,
or exaggerating, on Plaintiff’s part for personal financial gain. (See N.T. June 22, 2010, pp. 84-85.)
III. RELEVANT PROCEDURAL AND FACTUAL HISTORY
Discovery and pretrial motion practice in this case were overly contentious. During the
discovery period alone, the parties filed seven motions to compel discovery (Doc. Nos. 26, 50, 54,
56, 57, 79, 80) as well as a motion for sanctions and a motion for a protective order (Doc. Nos. 44,
49). The Court held a hearing to address many of the outstanding motions on April 3, 2009 and then
engaged in subsequent telephone conferences to deal with additional motions. Pretrial, fifteen
motions in limine and motions to exclude were filed. (See Order, May 19, 2010, Doc. No. 181.)
While settlement negotiations are normally not relevant in addressing post-verdict motions,
because Plaintiff’s motion for a new trial has raised this issue in a variety of contexts, we also take
time to explain that process.
The Honorable L. Felipe Restrepo held the first settlement conference in this matter on
January 30, 2009. The parties reconvened before Judge Restrepo on February 9, 2009. At that point
Plaintiff had an opportunity to receive a total of $325,000 in settlement proceeds: $200,000 offered
by Defendant for the Title VII claims and $125,000 she received from Liberty Mutual for a workers’
compensation claim. Plaintiffs’ demand before Judge Restrepo was $1 million. A third settlement
conference was scheduled by Judge Restrepo for November 6, 2009 and the Court suspended the
Third Amended Scheduling Order to facilitate this process (Doc. No. 86). However, no settlement
was reached. During trial, Defense counsel indicated that Cleveland Steel had recently offered
$150,000 to settle the Title VII claims, and that the offer was still on the table. (N.T. June 17, 2010,
Trial finally commenced on June 11, 2010 on claims of severe and pervasive sexual
harassment discrimination.2 After the completion of Plaintiff’s case in chief, Defendant raised a Rule
50(a)(i) motion, arguing “that a reasonable jury would not have a legally sufficient evidentiary basis”
to find for Plaintiff. (Doc. No. 197.) This motion was granted in part, dismissing Plaintiff’s claim
of pervasive harassment. A detailed explanation of our reasoning in dismissing this claim is set out
in the record. (N.T. June 23, 2010, vol. 1, pp. 3-13.) In short, Defendant’s motion was granted as to
the claim of pervasive harassment because Plaintiff had been laid off for an extended period of time
during the alleged period of harassment, thus, greatly dissipating the effects of any harassment prior
We note that Plaintiff’s claim of hostile work environment based on her allegations of
both severe and pervasive sexual harassment barely survived summary judgment. Defendant’s
motion was denied as there appeared to be factual disputes regarding, for example, whether the
box cutter blade was out (opened); whether Gilbert’s action was intentional or accidental; and
whether there was supervisor notice of the alleged harassment.
to the layoff. See Konstantopoulos v. Westvaco Corp., 112 F.3d 710, 715-16 (3d Cir. 1997), cert.
denied, 522 U.S. 1128 (1998) (finding that 8-month break in employment “provided an opportunity
for the lingering effects of the prior incidents [of harassment] to dissipate”).
The issue of whether the August 1, 2006 box cutter incident was “severe” was submitted to
the jury, which found in favor of Defendant. Specifically, the jury found that: (1) Gilbert’s conduct
towards Plaintiff on August 1, 2006 was intentional and because of her sex; (2) the incident was
unwelcome; and (3) Plaintiff had not proven by a preponderance of the evidence that she believed the
conduct towards her was severe enough to render her work environment hostile or abusive.3
The jury filled out the verdict form in the following manner:
LIABILITY – AUGUST 1, 2006 (SEVERE)
1. Do you find that Ms. Rorrer proved by a preponderance of the evidence that Mr. Gilbert’s
August 1, 2006 conduct towards Ms. Rorrer was intentional and because of her sex?
YES ___X___ NO _______
If your answer to the above question is “NO,” STOP HERE. Your deliberations are
over. If your answer is “YES,” then go on to Question 2 below.
2. Do you find that Ms. Rorrer proved by a preponderance of the evidence that Mr. Gilbert’s
August 1, 2006 conduct towards Ms. Rorrer was unwelcome by Ms. Rorrer?
YES ___X___ NO _______
If your answer to the above question is “NO,” STOP HERE. Your deliberations are
over. If your answer is “YES,” then go on to Question 3 below.
3. Do you find that Ms. Rorrer proved by a preponderance of the evidence that she believed
that Mr. Gilbert’s August 1, 2006 conduct towards Ms. Rorrer, was severe enough to
render her work environment hostile or abusive?
YES ______ NO ___X____
If your answer to the above question is “NO,” STOP HERE. Your deliberations are
On June 28, 2010, in accordance with our Rule 50 dismissal of the pervasive claim and the
jury’s verdict, judgment was entered in favor of Defendant. On July 23, 2010, Plaintiff filed a motion
for a new trial, seeking to have the verdict of the jury set aside and a new trial scheduled pursuant to
Federal Rule of Civil Procedure 59.
Plaintiff’s motion for a new trial failed to include a brief in support of the motion as required
by United States District Court of the Eastern District of Pennsylvania Local Rule 7.1(c). This rule
requires that every motion not certified as uncontested be “accompanied by a brief containing a
concise statement of the legal contentions and authorities relied upon in support of the motion.”
Plaintiff's motion also failed to cite to any legal authority or provide any references to the trial record.
See Marcavage v. Bd. of Trs., 2002 U.S. Dist. LEXIS 19397, at * 9 n.8 (E.D. Pa. Sept. 30, 2002)
(“Under our district's local rules, failure to cite to any applicable law is enough to deny a motion as
without merit since zeal and advocacy is never an appropriate substitute for case law and statutory
authority in dealings with the Court.”).
Plaintiff’s failure to comply with Local Rule 7.1(c) could have justified dismissal of her
motion without any further consideration. See e.g., Equip. Fin., LLC v. Hutchison, 2010 U.S. Dist.
LEXIS 102402, at *11, *16-17 (E.D. Pa. Sept. 24, 2010) (denying summary judgment and finding
“defendants’ mere citation of the statute of frauds without any meaningful discussion of its
applicability and without citing other authority in support of its argument . . . insufficient under Local
Rule 7.1(c)”); Miller v. Cadmus Commc’ns, 2010 U.S. Dist. LEXIS 19283, at *12 (E.D. Pa. Mar. 1,
2010) (motion deemed “unopposed” due to failure to offer meaningful legal discussion); Depace v.
over. If your answer is “YES,” then go on to Question 4 below.
(Doc. No. 207.)
Jefferson Health Sys., Inc., 2004 U.S. Dist. LEXIS 24905, at *1 n.1 (E.D. Pa. Dec. 7, 2004) (finding
that counsel’s wholesale extraction of nearly ten pages from plaintiff’s amended complaint called to
mind the Seventh Circuit’s admonition regarding the virtue of clarity in legal briefs: “Judges are not
like pigs, hunting for truffles buried in briefs”); Woods v. Cohen, 1999 U.S. Dist. LEXIS 1556, at *78, *10 (E.D. Pa. Feb. 1, 1999) (noting that Local Rule 7.1(c) requires that motions be accompanied
by a brief containing factual authorities and indicating that parties are expected to cite to specific
sections of the record, including the appropriate transcript pages).
Defendant filed a timely response in opposition, requesting that Plaintiff’s motion be
dismissed due to its numerous procedural deficiencies. Plaintiff responded with a “Motion for
Permission to File Reply Brief,” which was substantively a request for a briefing schedule.
Despite the procedural deficiencies in Plaintiff’s motion for a new trial, the authority noted
above—which would have clearly supported dismissal of Plaintiff’s motion without consideration
of her eighty-plus claims—and Defendant’s strenuous urging that Plaintiff’s motion be dismissed
outright, we declined to do so, opting to consider Plaintiff’s claims on the merits.
On December 13, 2010, finding Plaintiff’s motion for a new trial too unwieldy to address
without record cites, we ordered Plaintiff to supplement her submission with specific cites to the
record.4 Plaintiff responded by submitting an amended motion for a new trial on January 11, 2011,
adding citations to some, but not all, of her claims. Additionally, despite all of Plaintiff’s procedural
missteps leading up to this point, many of the record cites finally provided by Plaintiff did not
This Order stated: “[I]t is hereby ORDERED that Plaintiff shall have thirty (30) days to
provide the Court with specific citations to the record in support of each factual assertion made in
her motion. Plaintiff may not include any new arguments and, aside from the addition of
citations, there shall be no additions to the text of the motion.” (Doc. No. 245.)
accurately reference or pertain to her claims. Other cites are nowhere to be found in the record and
appear to have been plucked from thin air.
IV. STANDARD OF REVIEW
Federal Rule of Civil Procedure 59 permits a court to grant a new trial “on all or some 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). New trials may be granted “(1) when the
jury's verdict is against the clear weight of the evidence and a new trial must be granted to prevent
a miscarriage of justice; (2) when the verdict is internally inconsistent; and (3) when prevailing
counsel committed misconduct and there is a “reasonabl[e] probab[ility] that the verdict was
influenced by prejudicial statements.” Waddington N. Am., Inc. v. Sabert Corp., 2011 WL 3444150,
at *4 (D.N.J. Aug. 5, 2011) (internal citations omitted).
The decision to grant or deny a new trial is within the sound discretion of the trial court.
Davis v. Mountaire Farms, Inc., 598 F. Supp. 2d 582, 587 (D. Del. 2009) (citing Allied Chem. Corp.
v. Daiflon, Inc., 449 U.S. 33, 36 (1980)). The court’s level of discretion varies depending on the type
of error alleged. Reynolds v. Univ. of Pennsylvania, 747 F. Supp. 2d 522, 533 (E.D. Pa. 2010) (citing
Klein v. Hollins, 992 F.2d 1285, 1289-90 (3d Cir. 1993)). Where a new trial is sought on the ground
that the jury’s verdict was against the weight of the evidence, the court may grant the motion “only
where 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.” Id. (citing Williamson v. Consol.
Rail Corp., 926 F.2d 1344, 1353 (3d Cir.1991)). “This high standard provides due respect for the
jury’s primary function as factfinder.” Id. (citing Otos Tech., Co., Ltd. v. OGK America, Inc., 2007
WL 2374995, at *3 (D.N.J. Aug. 13, 2007)).
Where a party moves for a new trial based on alleged trial error, the court has broader
discretion. Klein v. Hollins, 992 F.2d 1285, 1289-90 (3d Cir. 1993). In such instances, the court
conducts a two-part inquiry: (1) whether an error was in fact committed; and (2) whether that error
was so prejudicial that denial of a new trial would be “inconsistent with substantial justice.”
Reynolds, 747 F. Supp. 2d at 522 (citing Farra v. Stanley-Bostitch, Inc., 838 F.Supp. 1021, 1026
(E.D. Pa. 1993)). In determining prejudice under the second prong, “a new trial must be granted
unless it is highly probable that [the erroneous ruling] did not affect the [objecting party's] substantial
rights.” Id. (quoting Bhaya v. Westinghouse Elec. Corp., 709 F. Supp. 600-02 (E.D. Pa. 1989), aff’d,
922 F.2d 184 (3d Cir. 1990)).
In an attempt to adequately respond to Plaintiff’s claims in an organized, workable fashion,
we have grouped them into categories as follows: (A) The granting of Defendant’s Rule 50 motion
regarding Plaintiff’s pervasive harassment claim; (B) Allegations that the verdict was against the
weight of the evidence; (C) Issues related to the admissibility of evidence; (D) Alleged errors in the
instructions to the jury; and (E) The Court’s alleged bias against Plaintiff’s counsel.
A. Dismissal of Plaintiff’s Pervasive Harassment Claim
Federal Rule of Civil Procedure 50(a) provides that a court may grant a moving party
judgment as a matter of law on any issue where the non-moving party has been fully heard 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). After careful review of the record, we conclude that
it was not error to dismiss Plaintiff’s pervasiveness claim.
In determining the existence of a hostile work environment, a court must examine the “totality
of the circumstances,” rather than assessing each piece of evidence in isolation. Andrews v. City of
Philadelphia, 895 F.2d 1469, 1484 (3d Cir. 1990). In making this determination, a court may look
to: (1) the frequency of the discriminatory conduct; (2) its severity; (3) whether it is physically
threatening or humiliating, or a mere offensive utterance; and (4) whether it unreasonably interferes
with an employee's work performance. Weston v. Pennsylvania, 251 F.3d 420, 426 (3d Cir. 2001)
(citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)). Importantly, the United States Court of
Appeals for the Third Circuit has held that when a plaintiff has a break in employment for many
months, the effects of any alleged harassment prior to the break can “dissipate.” Konstantopoulos v.
Westvaco Corp., 112 F.3d at 710, 715-16 (3d Cir. 1997).
In Konstantopoulos, the plaintiff alleged that she had suffered sexual harassment from April
1989 to August 1989, left her employment for eight months, and upon returning in April 1990 was
subjected to more sexual harassment. Id. at 712-14. The court found that the plaintiff could not
establish a hostile work environment as the “lingering effects” of the harassment that occurred from
April through August 1989 had dissipated by the time she returned to work in April of 1990. Id. at
716. The court emphasized that after leaving her employment in 1989, the plaintiff repeatedly stated
that she was “ready, willing and able to return to work.” These statements suggested that, in the
plaintiff's mind, the effects of the prior incidents had faded before she actually returned to work. Id.
The few incidents that occurred when the plaintiff returned to work, consisting of gestures made by
male coworkers' squinting their eyes and shaking their fists at her, were not sufficiently numerous or
severe enough to warrant the conclusion that the working environment remained hostile or abusive.
The principles enumerated in Kostantopoulos squarely apply here. The evidence presented
at trial conclusively established that Plaintiff was laid off for eight months, from August 2005 to April
2006. (Def.’s Trial Exs. 111, 112.) Plaintiff voluntarily returned to work and testified that generally,
upon her return from a layoff, Gilbert did not “act differently” than he had previously, and specifically
that when she returned from her layoff in April 2006, Gilbert stared at her breasts “all the time.”
(N.T. June 15, 2010, pp. 151, 170.) Thus, viewing the facts in the light most favorable to Plaintiff,
after her eight-month layoff, aside from the August 1, 2006 incident, the only possible evidence of
harassment established by Plaintiff was that Gilbert stared at her breasts. This type of conduct is not
sufficient to support a claim of severe or pervasive harassment. See Willauer v. Riley Sales, Inc.,
2009 WL 2959822, at *5 (E.D. Pa. Sept. 16, 2009) (finding that “[t]he conduct that [p]laintiff alleges
is not pervasive. Plaintiff’s charges are mostly of isolated incidents. The only conduct that occurred
with any frequency—the [breast] staring—was not severe.”)
Additionally, like the plaintiff in Konstantopoulos, Plaintiff indicated that she liked working
at Cleveland Steel and she thought she would be there until she retired. (N.T. June 15, 2010, p. 137;
N.T. June 23, 2010, p. 92.) As her counsel stated in her opening argument: “[S]he would always
come back to the same job. And she loved this job. She was good -- she thought -- she had a lot of
pride in what she was doing.” (N.T. June 15, 2010, p. 30.) Plaintiff’s willingness to return to work
after her layoff suggests that, in her mind, the effects of the prior incidents had dissipated before she
returned to work. See Konstantopoulos, 112 F.3d at 716.5
Further, Plaintiff was unable to point to any alleged harassment of other women in the period
between her return to work and August 1, 2006. Considering Plaintiff’s part-time status and her
We also refer to and incorporate our detailed explanation and ruling on this issue at trial.
(N.T. June 23, 2010, vol. 1, pp. 3-13.)
extended layoff, which ended just months prior to August 1, 2006, and after considering the totality
of the circumstances, we found the August 1, 2006 incident to be an isolated event that could not,
standing alone, be used to support a claim of continuing, pervasive harassment.6
On this issue, Plaintiff alleges “substantial prejudicial error” in that the Defendant was
allowed to present a “new theory of defense” based on payroll documents that were not produced in
discovery. Without any support, Plaintiff audaciously claims that Defendant purposely concealed
records of Plaintiff’s purported layoffs and then convinced the Court, ex parte, that there was no
dispute as to the timing and length of Plaintiff’s layoff. (Pl.’s Mot. ¶ 5.)
This alleged discovery violation was extensively addressed at the pretrial hearing held on June
14, 2010. (See N.T. June 14, 2010, pp. 22-47.) There, Defense counsel indicated she would offer
two witnesses to establish the dates of Plaintiff’s layoff: Ed Umstead, the General Manager of
Cleveland Steel’s Quakertown plant, and Ruth Stoudt, an administrative assistant, who would both
testify that Plaintiff was laid off from August 2005 to April 2006. (Id. at 37-38.) Plaintiff’s counsel
fails to mention that Umstead and Stoudt had previously been deposed. Defense counsel also advised
at the pretrial hearing that she would rely on Plaintiff’s tax return documents, which were in
Plaintiff’s possession at the time, to establish lapses in Plaintiff’s work schedule. Further, Defense
Plaintiff’s pervasive claim survived summary judgment based on her allegations that, in
addition to the August 1, 2006 incident and constant breast staring, Gilbert had on one occasion
pointed at her breasts like he was going to grab them and on another occasion told her to bend
over in a suggestive manner. Further, Plaintiff claimed that she was aware that other employees
had been harassed by Gilbert and complained about his behavior. (Summ. J. Op. 8.) We note
that no evidence of the eight-month layoff in the record was presented to this Court at the
summary judgment stage. (See Order on Def.’s Mot. for Reconsideration, Doc. No. 185.) Had
the same evidence been presented as was presented at trial, for the same reasons we granted (in
part) the motion for judgment as a matter of law, the claim would not have survived summary
counsel offered that she may rely upon Plaintiff’s payroll records to demonstrate Plaintiff’s
employment dates. Although Plaintiff’s payroll records had not been previously produced, they were
never requested during the discovery period by Plaintiff. (Id. at 36, 44.) Indeed, Plaintiff never filed
a motion to compel those documents or otherwise raised this issue. (Def.’s Resp. ¶ 5.) Nonetheless,
out of an abundance of caution, Defense counsel was ordered to send the payroll records to Plaintiff’s
counsel, which Plaintiff received prior to trial. Plaintiff’s counsel was advised that if she wished to
reconvene the depositions of Umstead and Stoudt, she could do so. This offer was declined. (N.T.
June 14, 2010, pp. 46-47.)
Plaintiff’s claim of “prejudicial error” regarding this discovery issue is meritless because
Plaintiff and her counsel knew, or could have easily determined, the days Plaintiff worked and when
the layoff occurred. Indeed, Plaintiff testified that she could obtain records of her employment using
the PIN assigned to her by the PA Unemployment Compensation office. (N.T. June 16, 2010, pp.
Most incredibly, Plaintiff’s counsel continues to claim error on this issue despite the fact that
Plaintiff confirmed that the information in the payroll records—the focus of this alleged “prejudicial
error”—was correct. (Id. at 167-70) (demonstrating Plaintiff agreed that the documents showed that
her last day of work in 2005 was August 4 and her first day of work in 2006 was April 3). Indeed,
Plaintiff’s counsel readily conceded that she was aware of her client’s on-again, off-again
employment. When asked how Plaintiff legitimately received unemployment compensation if she
was in fact employed at Cleveland Steel, Plaintiff’s counsel responded:
Because she was what they call a part-time employee, and she was subject to layoffs,
I guess at the company. Sometimes it would be a week here. Sometimes it would
be a month here. Sometimes it would be two months. Sometimes it would be more,
and it was scattered through the years.
(N.T. June 14, 2010, p. 23.) Given the unrefuted evidence that Plaintiff’s employment at Cleveland
Steel was sporadic, a point both Plaintiff and her counsel conceded, Plaintiff’s pervasive harassment
claim was properly dismissed pursuant to Konstantopoulos.
B. The Jury Verdict Was Not Against the Weight of the Evidence
Plaintiff next argues that the jury’s verdict regarding her “severe” discrimination claim was
against the weight of the evidence.7 A review of the trial record reflects that the jury’s verdict in no
way “resulted in a miscarriage of justice” or that the verdict “cries out to be overturned or shocks our
conscience.” See Reynolds v. Univ. of Pennsylvania, 747 F. Supp. 2d 522, 533 (E.D. Pa. 2010)
(citing Williamson v. Consol. Rail Corp., 926 F.2d 1344, 1353 (3d Cir.1991)).
At trial, Plaintiff testified that she never saw the box cutter when Gilbert pressed it against her,
but rather felt pressure on the side of her breast. She also testified that the box cutter was
closed—that is, the blade was inside its case—and that when the incident occurred, Gilbert did not
say anything threatening to her except “slow down.” (N.T. June 15, 2010, pp. 181-82; N.T. June 16,
2010, pp. 99-106.) There was also no evidence that Plaintiff was physically injured by the incident.
Courts have found that far more extreme incidents do not rise to the level of the severity
required for a hostile work environment. See e.g., Carattini v. Woods Servs., Inc., 2010 WL 447453,
Specifically, Plaintiff states that: (1) there is “no evidence that Ms. Rorrer was not
detrimentally affected by the pushing of a box cutter into her breast,” as there was copious
testimony that Plaintiff was so upset and frightened that she could not return to work, and thus, it
was an error to even submit the issue to the jury; (2) the verdict is contrary to the law as there
was “no evidence to support the verdict that plaintiff was not severely sexually harassed in such a
way as to alter the conditions of her employment;” and (3) the jury’s verdict that the incident was
not severe enough to affect the conditions of Plaintiff’s employment is against the weight of the
evidence. (Pl.’s Mot. ¶¶ 1-3.)
at *1, *3 (E.D. Pa. Feb. 4, 2010) (finding incident in which plaintiff claimed her coworker “grabbed
her breasts and vagina while both were working in a laundry room . . . that she screamed and exited
the laundry room . . . but that [her coworker] followed her and continued to harass her” did not rise
to the level of severity required for hostile work environment); Saidu-Kamara v. Parkway Corp., 155
F. Supp. 2d 436, 439-40 (E.D. Pa. 2001) (granting summary judgment for defendant on hostile work
environment claim where plaintiff asserted that her supervisor: (1) touched her breast, told her that
she looked “fresh” and propositioned her to join him later that evening; (2) made several suggestive
comments about plaintiff's eyes and offered his financial assistance if plaintiff would go out with him;
(3) removed a bottle of wine from his pants, offered plaintiff a drink and asked her to join him at a
hotel where they could have a “good time;” and (4) patted plaintiff on the breast and buttocks after
complimenting her on good work); McGraw v. Wyeth-Ayerst Labs., 1997 WL 799437, at *1-2 (E.D.
Pa. Dec. 30, 1997) (finding supervisor’s repeated requests for a date, kissing plaintiff without her
consent, “forcing his tongue into her mouth,” touching plaintiff's face, and yelling at her on one
occasion not severe enough to create a hostile work environment).
In addition, the jury considered the evidence in conjunction with the testimony of Defendant’s
expert, Dr. Annie Steinberg, a psychiatrist, who opined that Plaintiff’s emotional and mental problems
were more likely a result of her addiction to a powerful combination of psychotropic medications than
the box cutter incident. (N.T. June 22, 2010, pp. 84-104.) Based upon the evidence at trial, a
reasonable jury could find that Plaintiff, while clearly upset, did not find Gilbert’s conduct towards
her to be severe enough to render her work environment hostile or abusive.8
Plaintiff’s claim of severe harassment survived the motion for summary judgment
largely based on her allegation, viewed in a light most favorable to her, that there was evidence
that the blade to the box cutter was protruding, supporting her argument that the incident was a
C. Allegations Regarding the Admissibility of Evidence
1. Evidence of Vague, Undated Allegations of Sexual Harassment Were Properly
Plaintiff raises a number of allegations regarding the preclusion of alleged incidents of
harassment at Cleveland Steel where the time frame of the incidents was unknown or, where the
incidents occurred prior to Plaintiff’s employment. Without any cites to the record, dates of
occurrence or other support, Plaintiff claims it was an abuse of discretion to exclude evidence of
Gilbert’s “prior violent behavior at the workplace,” and “that he had sexually harassed women for
most of the 37 years that he worked at Cleveland Steel.” (Pl.’s Mot. ¶¶ 14, 35.) Plaintiff’s counsel
seems to be of the view that every alleged incident of harassment that ever occurred at Cleveland
Steel should have been admissible, despite the fact that no witnesses could establish even a general
time frame as to when such harassment occurred.9
Plaintiff conveniently fails to mention that she was permitted to present copious evidence of
alleged prior sexual harassment by Gilbert. (See e.g., N.T. June 18, 2010, pp. 29-30, 33-38)
(demonstrating that Plaintiff’s counsel asked questions at length about Gilbert allegedly staring at
women’s breasts, pinching coworker Phyllis Plate’s breasts and putting a screwdriver to coworker
physical attack that threatened her life. The evidence presented at trial did not support that
rendition of the incident.
For instance, Plaintiff alleges it was an error to exclude an incident in which Gilbert
allegedly stared at an unknown Cleveland Steel employee named Mary at an unspecified date.
(N.T. June 18, 2010, pp. 43-45.) Plaintiff also alleges error in our striking the testimony of
Cleveland Steel employee Phyllis Plate that Gilbert had “motioned towards touching her breasts”
when such incident had happened fifteen years prior to the alleged conduct in this case. (Pl.’s
Mot. ¶ 43; N.T. June 18, 2010, pp. 242-43.) Error is also alleged in our preclusion of Cleveland
Steel employee Conrad Reid’s testimony about Gilbert touching coworker Barbara Yeakel’s
breasts because Reid could not place it within the last ten years. (Pl.’s Mot. ¶ 44; N.T. June 21,
2010, pp. 214-16.)
Barbara Yeakel’s chest).10 Plaintiff also neglects to acknowledge that she was permitted to present
evidence of alleged prior incidents of harassment that could be placed within the ten years prior to
the trial—a more than ample time period.
Plaintiff next raises a series of claims regarding basic evidentiary rulings. Where the issue
under review is based on a matter such as an evidentiary ruling, the trial court's discretion is broad.
Klein v. Hollings, 992 F.2d 1285, 1289-90 (3d Cir.1993). As previously discussed, in reviewing
these types of claims, the court conducts a two-part inquiry: (1) whether an error was in fact
committed; and (2) whether that error was so prejudicial that denial of a new trial would be
“inconsistent with substantial justice.” Reynolds v. Univ. of Pennsylvania, 747 F. Supp. 2d 522, 534
(E.D. Pa. 2010) (citations omitted). In determining prejudice under the second prong, “a new trial
must be granted unless it is highly probable that [the erroneous ruling] did not affect the [objecting
party's] substantial rights.” Id. (quoting Bhaya v. Westinghouse Elec. Corp., 709 F. Supp. 600-02
(E.D. Pa. 1989)); see also FED. R. CIV. P. 61 (“Unless 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,
for setting aside a verdict, or for vacating, modifying, or otherwise disturbing a judgment or order.
At every stage of the proceeding, the court must disregard all errors and defects that do not affect any
party's substantial rights.”) In light of these standards, none of the claims raised by Plaintiff even
remotely reflects that a denial of a new trial would be “inconsistent with substantial justice.”
Plaintiff first claims the Court erred in sustaining an objection to the following question posed
to Cleveland Steel employee, Barbara Yeakel: “Did [Gilbert’s] staring at your breasts make you feel
Pretrial, Defendant’s motion in limine to preclude evidence of prior alleged harassment
was denied. (Doc. No. 181.)
uncomfortable?” (Pl.’s Mot. ¶ 14; N.T. June 18, 2010, p. 147.) The issues in this case did not
involve the subjective feelings of other employees at Cleveland Steel who were not parties to the
action. Even if this question was proper, its preclusion was certainly not so prejudicial as to entitle
Plaintiff to a new trial.
Plaintiff next claims that it was error to limit her case, and in particular her counsel’s closing
argument, solely to the conduct related to the August 1, 2006 box cutter incident, and to exclude
arguments regarding Gilbert’s other behavior, such as staring at Plaintiff’s breasts, following her
around the plant to scare her and working beside her, all of which allegedly contributed to the totality
of the circumstances of Plaintiff’s hostile work environment. (Pl.’s Mot. ¶ 13.) This claim, like
many others raised by Plaintiff, is directly refuted by the record.
As noted above, Plaintiff was permitted to introduce evidence of prior incidents of alleged
harassment by Gilbert. Plaintiff’s counsel also extensively spoke about this in her closing argument,
stating: “[Gilbert had] been doing it for a long time. The man liked breasts” and “One of the most
important pieces of information here is the incident with Barbara Yeakel.” (See N.T. June 23, 2010,
p. 144.) Further, the jury was instructed that it must look at the totality of the circumstances and that
prior incidents were admissible to determine whether they believed the incident was gender related.
(Id. at 18, 79.)
Plaintiff next alleges that it was an abuse of discretion for the Court to exclude incidents of
prior harassment suits against Cleveland Steel and Ed Umstead, who she claims had previously
sexually harassed other women approximately ten years prior to the incident that occurred here. (Pl.’s
Mot. ¶ 15.) The two suits at issue were filed by two sisters in 1997, and apparently alleged
inappropriate conduct by Umstead between 1995 and 1996. (Def.’s Mot. in Limine, Doc. No. 167.)
This issue was resolved as follows:
[T]he Umstead lawsuit is not admissible . . . because doing a probative prejudice
analysis, I find that the prejudicial effect on the defendant would far outweigh the
probative value of a lawsuit that occurred over 10 years ago that was settled, where
there was no liability finding at all on the part of this company.
I mean no one knows why the case was settled. Was it settled because the
company felt that Mr. Umstead acted completely inappropriately, and, therefore,
there was merit to the plaintiff’s allegations? Or was it settled because the company
thought it was [a] nuisance value settlement and it was appropriate to do so based on
No one knows that . . . .
(N.T. June 15, 2010, pp. 7-8.) This ruling does not amount to an abuse of discretion.
Similarly, Plaintiff also contends that it was an abuse of discretion for the Court to refuse to
admit evidence that Umstead sexually harassed her. (Pl.’s Mot. ¶ 16.) We did so because an exact
time and date as to when this alleged harassment occurred could not be established by Plaintiff.
Indeed, Plaintiff’s counsel acknowledged that Plaintiff could not remember when she was allegedly
touched by Umstead, but offered that a coworker, Barbara Yeakel, would testify that the incident
occurred in the summer of 2006. (N.T. June 18, 2010, p. 217.) Yeakel was then questioned about
this incident outside the presence of the jury, and indicated that she knew it was in the summer but
could not remember which year. (Id. at 219.) Because Plaintiff had worked at Cleveland Steel for
thirteen years, this incident was too vague and imprecise to be deemed admissible, especially because
Umstead was never a party to this action. (Id. at 219-20.)
2. Claims Related to a Lack of Adequate Sexual Harassment Training
In paragraphs 11, 12, 23 and 25 of her motion, Plaintiff alleges the Court wrongly excluded
evidence of Cleveland Steel’s sexual harassment policy and training. In order to establish the
existence of a hostile work environment against an employer, a plaintiff must prove the following:
(1) plaintiff suffered intentional discrimination because of her sex; (2) the discrimination was severe
or pervasive; (3) the discrimination detrimentally affected plaintiff; (4) the discrimination would
detrimentally affect a reasonable person of the same sex in the same position; and (5) the existence
of respondeat superior liability. Huston v. Proctor & Gamble, 568 F.3d 100, 104 (3d Cir. 2009). A
company’s sexual harassment training or policy is not implicated in the first four factors. As to the
fifth factor, when the “hostile work environment” is allegedly created by a victim’s non-supervisory
coworker, as was alleged here, employer liability “exists only if the employer failed to provide a
reasonable avenue for complaint or, alternatively, if the employer knew or should have known of the
harassment and failed to take prompt and appropriate remedial action.” Id.
Pretrial, Defendant filed a motion in limine to preclude evidence that Cleveland Steel did not
provide “sexual harassment training” to each of its employees. Based on the above precedent, we
denied this motion because sexual harassment training and policy could be relevant to determining
whether Defendant provided a reasonable avenue for complaint or took appropriate remedial action.
In reaching this decision, we noted that “the only evidence of ‘training’ that will be admissible, will
be evidence that relates to whether Defendant provided a ‘reasonable avenue of complaint.’ . . .
Unrelated evidence on the lack of training is not admissible.” (Doc. No. 181.)
We did not, as Plaintiff has suggested, rule sexual harassment training inadmissible. Rather,
we limited this evidence to what the law allows, which is Defendant’s training on how to report and
to respond to the reporting of sexual harassment. (N.T. June 15, 2010, pp. 4-9) (“So on the issue of
training and/or lack thereof, plaintiff . . . is certainly entitled to pursue that there was some
deficienc[y] on who to report to within this company. . . . And I think that this is also appropriate
under the remedial action prong of the case law . . .”). The testimony cited to by Plaintiff is consistent
with this ruling.11 In further support of her claim on this issue, Plaintiff also cites to pages 13-17 of
the trial transcript for June 11, 2010. However, this portion of the trial deals with voir dire. Further,
the remainder of the transcript passages cited by Plaintiff concern Plaintiff’s counsel’s use of leading
Finally, before her closing, Plaintiff’s counsel asked the Court if she could press her allegation
that “the managers who were supposed to take prompt and immediate action right after the incident
was reported to them, did not have sexual harassment training.” We permitted such references, but
reminded Plaintiff’s counsel that her comments would be limited to the context of whether “this
company [took] prompt and reasonable steps to remedy the situation. And the reason -- and the
reasonableness has to go to the alleged lack of training.” (N.T. June 23, 2010, vol. 1, pp. 80-81.)
We believe the rulings as to the sexual harassment policy and training were correct.
Nonetheless, even if the rulings were erroneous, Defendant’s training policy was only relevant to the
Have you ever had any training at Cleveland Steel concerning what
constitutes sexual harassment?
Your Honor, objection.
What’s your basis?
What difference does it make what other people - - first of all - you know my position on the training, and why would it be
relevant whether the company trains anyone other than Ms. Rorrer,
or Mr. Gilbert?
Your Honor, if I may?
You can answer the question.
Did anyone ever train you on who you were supposed to report
what you thought was sexual harassment to?
(N.T. June 18, 2010, pp. 144-46.)
fifth element of the Huston test—whether there was an avenue of complaint or whether Defendant
responded adequately to the alleged harassment. Indeed, Defendant properly notes that Title VII does
not require sexual harassment training for employees, nor does it require any employer to have a
particular kind of sexual harassment policy. (Def.’s Resp. ¶ 11.) The jury never reached either issue,
as it found Plaintiff did not believe that she suffered severe sexual harassment on August 1, 2006.
(See Doc. No. 207.) Thus, any evidentiary ruling on Defendant’s response to harassment did not
affect the verdict. See Mann v. Mack Trucks, Inc., 2008 WL 732140, at *3 (E.D. Pa. Mar. 19, 2008)
(finding that evidentiary rulings in employment action did not affect the jury’s verdict and denying
motion for new trial).
Plaintiff next raises a series of claims, all of which seem to pertain to Cleveland Steel’s sexual
harassment policy. Specifically, Plaintiff argues:
It was “error for the Court to determine that if the prior incidents of sexual
harassment did not rise to the level of hostile work environment, that the
company had no duty to correct prior incidents of sexual harassment.” (Pl.’s
Mot. ¶ 25.)
The “Court could not make a factual determination that the prior incidents
were not sexual harassment or did not constitute a hostile work environment,
as this was invading the province of the jury.” (Id. at ¶ 12.)
It was an error “to refuse to allow plaintiff’s counsel to argue that Gilbert’s
prior conduct was sexual harassment which the company had a duty to stop or
that the policy of the company was inadequate even after Defense counsel,
over the Court’s explicit instructions, argued the opposite in her closing on
two occasions.” (Id. at ¶ 25.)
The Court committed reversible error in instructing Plaintiff’s counsel that she
was not allowed to respond to Defendant’s closing in which Defendant argued
the efficacy of the company’s sexual harassment policy and the reporting of
the prior sexual harassment to supervisors. (Id. at ¶ 23.)
First, as noted previously, we correctly ruled that the issue of Defendant’s sexual harassment
policy and training was only a relevant consideration to the extent that it pertained to whether
Defendant provided a reasonable avenue of complaint and/or took prompt and appropriate steps to
remedy the August 1, 2006 incident. See Huston v. Proctor & Gamble, 568 F.3d 100, 104 (3d Cir.
Although the admissibility of evidence was framed along these lines, in her closing, Defense
counsel briefly discussed the efficacy of Defendant’s sexual harassment policy and to whom was the
proper person to report. (N.T. June 23, 2010, vol. 1, pp. 125-26, 132-33.) Despite Plaintiff’s protests,
this does not warrant a new trial. Even if this was error, the Court immediately instructed the jury to
disregard Defense counsel’s comments regarding Cleveland Steel employees Paul Gerhart and Phyllis
Plate—which we noted constituted only a very small percentage of Defense counsel’s closing—and
to consider only whether the Defendant made a prompt and adequate response after it learned of the
August 1, 2006 incident. (Id.) While Plaintiff’s counsel disagreed with our curative instruction,
arguing that she should be allowed to talk about whether or not Plate and Gerhart were supervisors
and whether or not information presented to them should have been passed up the chain, our
instruction was nevertheless appropriate. (N.T. June 23, 2010, vol. 1, 136-39.) Additionally, the
error was not prejudicial because the jury never reached the issue of Defendant’s response to the
alleged harassment. (See Doc. No. 207.)
Plaintiff next claims it was error to exclude evidence that the “supervisors” at Cleveland Steel
had heard rumors of sexual harassment of other women, which according to Defendant’s sexual
harassment policy and handbook, should have been reported to upper management. (Pl.’s Mot. ¶ 56.)
Based on her contention that Plate and Gerhart were supervisors, Plaintiff argued that evidence that
they had heard rumors of women complaining about Gilbert was relevant to whether Defendant knew,
or should have known, of prior alleged harassment. (N.T. June 21, 2010, pp. 147-49; see also N.T.
June 18, 2010, pp. 261-62.) However, there was no evidence that either Plate or Gerhart were
supervisors. In fact, both testified that they were not supervisors. (N.T. June 18, 2010, p. 247; N.T.
June 21, 2010, pp. 125-26, 146.) Therefore, the objections to Plaintiff’s questions of whether either
had heard that women were complaining about Gilbert were properly sustained, and, in any event,
such responses would have constituted hearsay. Even if any of these rulings were erroneous, they
were not prejudicial as the jury never reached the issue of Defendant’s avenue of complaint or
response to the alleged sexual harassment. (See Doc. No. 207.)
Plaintiff also alleges that it was error for the Court to exclude evidence that part-time workers
were not allowed to attend sexual harassment training sessions. (Pl.’s Mot. ¶ 52.) In support of this
claim, Plaintiff cites to questions asked of Cleveland Steel employee Barbara Yeakel. Our review of
the trial transcript reflects that the only question asked by Plaintiff’s counsel that was not allowed was
the following: “Do you know whether or not there was sexual harassment training that was held at
Cleveland Steel on a Friday that you did not attend?” (N.T. June 18, 2010, p. 150.) This question
seems unrelated to Plaintiff’s claim and, in any event, and as explained previously, we ruled pursuant
to Huston that counsel’s questions were outside the perimeters we set on “training” questions. (Id.
Plaintiff further contends that it was an error to exclude testimony that Gilbert had sexually
harassed other women after Plaintiff left her employment at Cleveland Steel. (Pl.’s Mot. ¶ 55.) The
incident allegedly giving rise to Plaintiff’s claimed post-traumatic stress disorder occurred on August
1, 2006. We are at a loss to understand how Gilbert’s alleged harassment after that date was relevant
or how that would warrant a new trial.
3. Claims Relating to Expert Witnesses
Plaintiff next claims it was error to refuse to allow her expert, Dr. Toborowsky, to testify
regarding how he relied on Defense expert Dr. Steinberg’s independent medical examinations. (Pl.’s
Mot. ¶ 18.) This testimony was excluded because Dr. Steinberg’s report had not been admitted into
evidence. Plaintiff fails to mention that Dr. Steinberg was also not permitted to testify regarding Dr.
Toborowsky’s report, and that the Court ruled that if Dr. Toborowsky wanted to remain in the
courtroom for Dr. Steinberg’s trial testimony, he could possibly be recalled as a rebuttal witness.
(N.T. June 17, 2010, pp. 252-53.)
Plaintiff chose not to have Dr. Toborowsky testify after Dr.
Steinberg and, therefore, she cannot now claim she was prejudiced.
4. Damage Claims
Plaintiff also asserts that the Court erred by limiting her medical damages through the date of
trial because she will be incapacitated for the rest of her life. (Pl.’s Mot. ¶ 38.) Aside from the fact
that there was no testimony to support the fact that Plaintiff will suffer from post-traumatic stress
disorder indefinitely, (see N.T. June 17, 2010, p. 70) (indicating Dr. Toborowsky’s opinion that
Plaintiff’s prognosis was “uncertain”), the jury did not find Defendant liable and thus any possible
error regarding damages is irrelevant. See Markovich v. Bell Helicopter Textron, Inc., 805 F. Supp.
1231, 1241 (E.D. Pa. 1992) (finding that “since the jury never reached the issue of damages because
it found that the bolt in question was not defective, any error relating to the damages instructions
would be harmless”).
5. Issues Related To Plaintiff’s Family, Finances and Counsel Letter
Plaintiff next claims it was an abuse of discretion to preclude her family from testifying about
her statements to them regarding her alleged emotional distress. (Pl.’s Mot. ¶ 21.) The Court
properly sustained hearsay objections to these questions, but allowed Plaintiff’s sister to testify as to
her observations of Plaintiff. (N.T. June 15, 2010, pp. 104-05.) Louis Rorrer, Plaintiff’s husband,
was also allowed to testify about Plaintiff’s nightmares and crying. Further, Plaintiff’s counsel was
permitted to show Plaintiff’s doctors’ records to Mr. Rorrer and question if he had witnessed the
symptoms listed. (See N.T. June 21, 2010, pp. 250-57.) Plaintiff was given more than enough
opportunity to establish her alleged condition.
Plaintiff’s next claim states: “It was error to preclude the plaintiff from asking questions
concerning the Rorrer’s financial condition, and it was even more prejudicial to allow the defense to
raise the issue of the Rorrer’s greed for money after unduly limiting the plaintiff’s examination.”
(Pl.’s Mot. ¶ 22.) Review of the trial transcript reflects that this issue essentially pertains to Plaintiff’s
financial motives in pursuing a lawsuit. This issue first arose when Plaintiff’s counsel asked
Plaintiff’s husband about having claimed bankruptcy in the 1990s, and how he felt about the
bankruptcy. After Defense counsel proffered that she did not intend to explore the bankruptcy on
cross-examination, Defendant’s objection regarding further questioning on this issue was sustained.
(N.T. June 21, 2010, pp. 252-53.)
Plaintiff also points to the testimony of Defendant’s expert, Dr. Steinberg, who stated: “The
second diagnostic impression I had was that Ms. Rorrer was potentially at least a partial malingerer
that these symptoms that she had were exaggerated for some secondary gain, some personal gain.
And typically that gain is somebody gets out of work or they get service compensation from the
military or they get a disability benefit . . . . ” (N.T. June 22, 2012, p. 64.) Plaintiff’s counsel
objected to this testimony claiming that she had been precluded from rebutting the inference that
Plaintiff was motivated by financial gain. All of this background aside, Plaintiff’s counsel was
ultimately allowed to re-call Mr. Rorrer and ask him questions about the bankruptcy, and re-call
Plaintiff, over Defendant’s objections, to rebut Dr. Steinberg’s opinion that she was malingering.
(N.T. June 22, 2010, pp. 64-66, 74-75, 123-26; N.T. June 23, 2010, vol. 1, pp. 74-75.) Under these
circumstances, we are at a loss to understand why a new trial is warranted.
Plaintiff also contends that evidence which established that her brother-in-law had been
involved as a plaintiff in a personal injury suit should not have been admitted. This evidence
established that Plaintiff’s brother-in-law had recently been involved in a significant lawsuit, and was
present at Plaintiff’s house when she came home from Cleveland Steel on August 1, 2006. As this
evidence could relate directly to Plaintiff’s motives to pursue a lawsuit, its admission was not error.
(N.T. June 15, 2010, pp. 107-08.)
Plaintiff next complains about the admission of a letter from Plaintiff’s counsel to Cleveland
Steel written approximately two weeks after the box cutter incident. (Def.’s Trial Ex. 4; Pl.’s Mot.
¶ 34.) This letter stated that Plaintiff was suffering from such anxiety that she was unable to return
to work. The letter was admitted only for the purpose of establishing that Plaintiff had, two weeks
after the incident, and without consulting a doctor, determined she could not return to work. Our
Order of May 19, 2010 addressed this issue and stated that the letter was admissible “with the
understanding that Plaintiff will have the opportunity to explain [it].” (Doc. No. 181.) Defendant
introduced the letter into evidence. When Plaintiff’s counsel later asked Plaintiff to read the letter
to the jury, Defense counsel suggested that the second paragraph be redacted, as this paragraph
requested that Defendant pay Plaintiff her salary until she could return to work. We determined that
if the paragraph were introduced, it would be unfair for the jury to have the impression that Plaintiff
was not compensated for her absence from work when in fact she received a substantial workers’
compensation award. Thus, we ruled that, unless Plaintiff’s counsel agreed to tell the jury that
Plaintiff was compensated through workers’ compensation, that paragraph should be omitted.
Plaintiff’s counsel did not do so and the paragraph was redacted. (N.T. June 16, 2010, pp. 224-26.)
There was no prejudice in redacting Plaintiff’s request for compensation.
Plaintiff next claims that it was “error to exclude as hearsay statements that the corporation’s
managers made to Louis and Lucy Rorrer during an investigation of the report of sexual harassment
. . . [and] an abuse of discretion to admonish [Plaintiff] for giving too much of an answer in response
to an open-ended question.” (Pl.’s Mot. ¶ 45.) Despite our clear directive that Plaintiff’s counsel
provide record cites to assist the Court in considering her claims of error, Plaintiff has failed to do so.
Consequently, we cannot examine the record and respond to this claim.
Plaintiff next contends it was an abuse of discretion to sequester Louis Rorrer from the
courtroom as he had previously been a plaintiff in the case and was necessary emotional support for
his “disabled wife.” At trial, in support of this position, Plaintiff’s counsel relied on a case where a
thirteen-year-old had been raped and needed her mother in the courtroom, and thus the sequestration
rule was relaxed. Certainly, the instant case is not comparable. Nonetheless, Plaintiff’s counsel
continues to make inflammatory, unsupported allegations, and urges that Defendant “forced the
sequestration to inflict emotional harm upon Mrs. Rorrer and not for any legitimate reason.” Plaintiff
further alleges that “[t]he Court knew this and failed to act.” (Id. at 48.)
Federal Rule of Evidence 615 states:
At a party’s request, the court must order witnesses excluded so that they cannot hear
other witnesses’ testimony. Or the court may do so on its own. But this rule does not
authorize excluding: (a) a party who is a natural person; (b) an officer or employee
of a party that is not a natural person, after being designated as the party’s
representative by its attorney; (c) a person whose presence a party shows to be
essential to presenting the party’s claim or defense; or (d) a person authorized by
statute to be present.
FED . R. EVID . 615. Defendant requested that all potential witnesses—including Louis Rorrer, who
was not a party—be sequestered. Defendant believed Mr. Rorrer was “the clean-up witness for the
plaintiff and sequestration was important so that his testimony would not be influenced by the prior
testimony of other fact witnesses.” (Def.’s Resp. ¶ 48.) Mr. Rorrer does not fit into any of the abovementioned exceptions to the sequestration rule, nor has Plaintiff argued that he did. Therefore, our
ruling was proper.
6. Miscellaneous Allegations of Improperly Admitted Evidence
Plaintiff alleges that the Court erred in allowing Defense counsel to bring a box cutter into the
courtroom “to frighten plaintiff and prejudice her fair trial,” and in refusing to remove the box cutter
from the courtroom. Plaintiff’s counsel goes on to state that the presence of the box cutter
“prejudicially impact[ed Plaintiff’s] ability to concentrate and forc[ed Plaintiff] to take extra
medication, thereby prejudicing her right to a fair trial and hampering her effective participation in
the trial.” (Pl.’s Mot. ¶ 4.) These claims are simply untrue and are directly contradicted by the record.
Contrary to Plaintiff’s representations, the box cutter, when not in the courtroom deputy’s
pocket, was kept out of the sight of everyone, especially the Plaintiff. The box cutter was never used
during the trial, nor was it ever seen by anyone in the courtroom. Plaintiff never testified or indicated
in any way that she could see the box cutter or that she was negatively impacted by having it in the
courtroom. In fact, the record reflects that Plaintiff’s counsel’s request that the box cutter be kept out
of the view of her client was honored. The trial transcript states as follows:
Bring in the jury, please.
Is someone going to use the box cutter in their opening?
No, Your Honor.
Okay. Mr. Sonnie has it.
Your Honor, I would ask the box cutter not be placed out on the
It’s right there, Ms. Sperling, where you can’t see it. So that’s
what you wanted, right?
(N.T. June 15, 2010, p. 24) (emphasis added.) This baseless, unsupported claim is yet another
example of Plaintiff’s counsel’s willingness to blatantly misquote the record.
Plaintiff next claims it was error to allow Defendant to admit exhibits during her case in chief.
(Pl.’s Mot. ¶ 46.) Plaintiff does not cite to any part of the record or to law to support this claim, nor
does she explain how she was prejudiced. Therefore, this claim fails.
Plaintiff also asserts it was error to allow Defense counsel to mention that Gilbert had
previously been sued. (Id. at 47.) Gilbert, Plaintiff’s alleged harasser, was a defendant in this case
until he was dismissed at the summary judgment stage. Plaintiff does not explain why this was error
or how she was prejudiced by this evidence. Thus, this claim also fails.
Plaintiff next raises additional claims about Gilbert, alleging it was an abuse of discretion to
allow Defense counsel to speak of Gilbert’s mental capacity in her opening statement. There, Defense
counsel noted that Gilbert was retarded, had a bad hand, had recently attempted suicide and that his
mother had just died. (Id. at 49.) In raising this issue, Plaintiff’s counsel neglects to mention that
in her opening statement she stated: “Richard Gilbert had some problems, and you'll see him on the
stand. He's weird. The women thought he was crazy.” (N.T. June 15, 2010, p. 31.) It is also worth
noting that Plaintiff’s counsel incredibly compared Gilbert to a serial murderer in her closing, stating:
“You know Allan [sic] Berkowitz, who’s named Son of Sam, was a low IQ person who had a lot of
social problems. It didn’t excuse him murdering people and it didn’t make other people safe.” (N.T.
June 23, 2010, p. 147.) We are at a complete loss to understand how Plaintiff’s counsel could
compare Gilbert to a serial murderer, while at the same time complain that Defense counsel described
his depression and decreased mental capacity. If Plaintiff’s counsel did not want Gilbert’s impaired
social skills addressed, she should not have opened the door to that issue during her opening
statement. (N.T. June 15, 2010, pp. 55-58.)
Plaintiff also contends that the Court erred in allowing Defense counsel “to play a simulation
of the box cutter incident in its opening statement which was never introduced at trial.” (Pl.’s Mot.
¶ 50.) Again, Plaintiff’s cites to the record in support of this claim have little bearing on this issue.
Nonetheless, it is unclear how Defense counsel’s opening reference to a demonstrative exhibit (D-17)
that simply depicted where Plaintiff and Gilbert were positioned, and subsequent failure to use this
exhibit amount to error necessitating a new trial. As the positioning of Plaintiff and Gilbert was
essentially undisputed, this claim is baseless.
Plaintiff next alleges it was error for the Court to restrict her counsel’s questioning of Gilbert
regarding his opinions on the breast size of Plaintiff and other Cleveland Steel employees, and how
frightened Plaintiff may have been by the August 1, 2006 incident. (Id. at 51.) Plaintiff’s counsel,
once again, misrepresents the record.
Over the objection of Defendant, Plaintiff’s counsel was permitted to ask Gilbert whether he
looked at his coworkers’ breasts and whether he tried to look down women’s shirts when they bent
over. (N.T. June 18, 2010, pp. 29-30.) However, Defendant’s objections to the following questions
posed by Plaintiff’s counsel were sustained: “Does Lucy Rorrer have large breasts?;” “Did you ever
notice whether or not Barbara Yeakel has large breasts?;” “How about Debbie Ohl, did you ever
notice whether or not she has large breasts?” (Id. at 28-29.) These types of questions are hardly
relevant, and border on offensive. In addition, Plaintiff has not even remotely explained how
precluding the answers to these questions caused any prejudice.
Furthermore, regarding the Court’s alleged restriction of Plaintiff’s counsel’s questioning of
Gilbert on whether Plaintiff was frightened, the record directly refutes Plaintiff’s allegations.
Plaintiff’s counsel asked numerous, redundant questions on this topic.12
D. Issues Arising from Jury Instructions
Under Federal Rule of Civil Procedure 51(c)(1), a “party who objects to an instruction or the
failure to give an instruction must do so on the record, stating distinctly the matter objected to and
the grounds for the objection.” FED. R. CIV. P. 51(c)(1). Further, “[m]erely proposing a jury
instruction that differs from the charge given is insufficient to preserve an objection.” Franklin
Prescriptions, Inc. v. New York Times Co., 424 F.3d 336, 339 (3d Cir. 2005). A party’s “failure to
object to either the court's instructions or the verdict sheet constitutes a failure to preserve its
presumed damages objection. Id. at 340 (citing Neely v. Club Med Mgmt. Servs., Inc., 63 F.3d 166,
200 (3d Cir.1995) (en banc)).
We note that a number of Plaintiff’s claims regarding jury instructions were not objected to on
the record and therefore have not been preserved. (See Pl.’s Mot. ¶¶ 6, 17, 37, 40.)
See N.T. June 18, 2010, pp. 40-43, 46-50, for Plaintiff’s counsel’s questioning of
Gilbert on whether Plaintiff was frightened, including the following exchange:
What did her face look like when she turned and looked at you
with the box cutter in her breasts?
Like she was scared.
Plaintiff first alleges that “[i]t was [an] error of great magnitude for the Court to refuse to
charge the jury to consider the totality of the circumstances in a case of sexual harassment.”13 As
noted above, Plaintiff has waived her right to raise this argument as she did not include the totality
of the circumstances language in her proposed jury verdict form or propose inclusion of such
language during the charge conference. (See Doc. No. 199.) In any event, “totality of the
circumstances” language was included in our instructions to the jury. (N.T. June 24, 2010, vol. 1, pp.
21-22.)14 This is yet another example of Plaintiff’s counsel’s willingness to raise claims that are
directly contradicted by the record.
Plaintiff also claims it was error to instruct the jury that the incident had to be “extremely
serious” and “involve physical harm” in order to be severe enough to affect Plaintiff’s working
environment. (Pl.’s Mot. ¶ 37.) Plaintiff’s counsel did not object to this instruction at any time—
either before or after this instruction was given. Moreover, Plaintiff’s counsel’s statement that our
instruction on the incident required the event to be “extremely serious” and involve physical harm is
We note that, once again, Plaintiff has not provided a citation to the record to support
her claim. Plaintiff cites to page 9 of the June 23, 2010 trial transcript, which does not pertain to
the instant issue.
It is important to understand that in determining whether a hostile
work environment existed at Cleveland Steel’s factory, you must
consider the evidence from the perspective of a reasonable woman
in the same position. That is, you must determine not just whether
Lucy Rorrer was offended, but whether a reasonable woman would
have been offended or harmed by the conduct in question.
You must evaluate the totality of the circumstances and
determine whether the alleged harassing behavior could be
objectively classified as the kind of behavior that would
detrimentally affect a reasonable person of the same sex and the
(N.T. June 24, 2010, vol. 1, at 21:20-22:6) (emphasis added.)
misleading and inaccurate. The Court’s instructions regarding a hostile work environment were
proper and included a full explanation of what that term entails. (See N.T. June 24, 2010, vol. 1, pp.
20-21.) The phrases relied upon by Plaintiff were referred to as follows:
A hostile work environment can be found only if there’s extreme conduct amounting
to a material change in the terms and conditions of employment. Moreover, isolated
incidents, unless extremely serious and involving physical harm, will not amount to
a hostile work environment.
(Id. at 21:6-10.) This statement does not, as Plaintiff represents, instruct that the August 1, 2006
incident must have been “extremely serious” and involve “physical harm.” Rather, it instructs that
“isolated incidents, unless extremely serious and involving physical harm, will not amount to a hostile
environment.” Further, our instruction was in accord with Title VII case law. See Faragher v. City
of Boca Raton, 524 U.S. 775, 788 (1998) (stating that single or isolated incidents are insufficient to
affect a change in the terms and conditions of employment, and thus constitute a hostile work
environment, “unless extremely serious”) (emphasis added); see also Alfano v. Costello, 294 F.3d
365, 374 (2d Cir. 2002) (stating that a single incident, unless extraordinarily severe, does not meet
the threshold of severity necessary to establish a hostile work environment).
Plaintiff next claims it was error to refuse to instruct the jury that the proper test for the
subjective prong of a hostile environment case is whether or not Plaintiff had proven that she was
detrimentally affected by the harassment, and not whether or not “she believed Mr. Gilbert’s August
1, 2006 conduct towards Ms. Rorrer was severe enough to render her work environment hostile or
abusive.” (Pl. Mot. ¶ 40.) This claim is baseless for several reasons.
First, the Third Circuit’s Model Civil Jury Instruction 5.1.5 states that a plaintiff must “believe”
her work environment is hostile or abusive. Our instruction was entirely consistent with what the
Third Circuit recommends:
Fourth -- and these are the elements that the plaintiff has to
prove -- Lucy Rorrer believed that Gilbert’s conduct towards
her on August 1st was so severe that her work environment
was hostile or abusive as a result of his conduct such that Ms.
Rorrer was detrimentally affected.
(N.T. June 24, 2010, vol. 1, p. 18.) Moreover, Plaintiff’s counsel specifically suggested and agreed
to the “detrimentally affected” language she now complains about:
And I like much better the wording that you used in the cases
that you’ve cited, rather what her belief was whether or not the
work environment was hostile or abusive. The language that
you used in your summary judgment motion at page 9 -summary judgment order at page 9 was, “Did the
discrimination detrimentally affect the plaintiff?”
“. . . And I thought perhaps the compromise could be, hostile
or abusive as a result of Richard Gilbert’s conduct such that
the plaintiff was detrimentally affected.”
“Yes, that’s fine.”
(N.T. June 23, 2010, vol. 2, pp. 12 -16.)
Similarly, Plaintiff claims it was prejudicial error to “confound the jury” in the Final Verdict
Form regarding question three, which read: “Do you find that Ms. Rorrer proved by a preponderance
of the evidence that she believed that Mr. Gilbert’s August 1, 2006 conduct towards Ms. Rorrer, was
severe enough to render her work environment hostile or abusive?” (Doc. No. 207.) Plaintiff
contends that the question should have read: “Was the conduct severe or pervasive enough to render
her work environment hostile or abusive?” Plaintiff suggests that a second question then should have
been posed, which should have read: “Did the conduct detrimentally affect Ms. Rorrer?” (Pl.’s Mot.
¶ 17.) We are at a loss to understand how the difference in the two questions constitutes error.
Moreover, during the jury instruction charge conference, Plaintiff’s counsel did not request that the
questions be separated and, in any event, the question on the Final Verdict Form tracked the language
used in the actual instruction language, which Plaintiff’s counsel specifically agreed to. Thus,
Plaintiff has waived her right to raise this argument.
Plaintiff additionally argues it was error for the Court to submit the Final Verdict Form to the
jury without giving counsel a chance to comment or correct the final version. (Id.) This claim is also
directly refuted by the record, which clearly reflects extensive discussion with Plaintiff’s counsel
regarding the verdict form. (N.T. June 23, 2010, vol. 2, pp. 53-62.).
Plaintiff further asserts that it was error to refuse to instruct the jury that Defendant could be
responsible for the subsequent decisions of Plaintiff’s treating physicians. (Pl.’s Mot. ¶ 7.)
support of this claim, Plaintiff cites to Restatement of the Law of Torts § 457, which reads:
If the negligent actor is liable for another’s injury, he is also liable for any additional
bodily harm resulting from acts done by third persons in rendering aid which the
other’s injury reasonably requires, irrespective of whether such acts are done in a
proper or negligent manner.
RESTATEMENT (FIRST ) OF TORTS § 457. We refused to give this instruction because Plaintiff was
unable to present us with any precedent to support the position that a defendant in a Title VII or
PHRA case can be held responsible for the subsequent negligent decisions of a treating physician.
(See N.T. June 23, 2010, vol. 1, pp. 165-66; N.T. June 24, 2010, vol. 1, pp. 6-7.)
Plaintiff also complains about our additional instruction given in response to Plaintiff’s
counsel’s statement in closing that Cleveland Steel was responsible for the treating decisions of
Plaintiff’s physicians.15 This is simply not the law in a Title VII case and thus a follow-up instruction
was warranted. This instruction simply stated: “In addition, an additional instruction, members of
the jury, is that Cleveland Steel is not responsible for treating decisions of Ms. Rorrer’s physicians,
including the prescription medications that she was on.” (N.T. June 24, 2010, vol. 1, p. 37.)
Regardless, the jury never reached the issue of whether Cleveland Steel was liable for whatever
injuries Plaintiff may have suffered, and thus responsibility for any harm caused by Plaintiff’s
physicians is irrelevant. (See Doc. No. 207.)
Next, citing the entire charge conference as support, Plaintiff claims it was error to refuse to
instruct the jury generally as she requested. (Pl.’s Mot. ¶ 36.) This objection is overly broad and is
not specific enough to properly address. See Franklin Prescriptions, Inc. v. New York Times Co., 424
F.3d 336, 339 (3d Cir. 2005) (“Merely proposing a jury instruction that differs from the charge given
is insufficient to preserve an objection.”). While Plaintiff does point to the Court’s limitation of the
“severity test to the events of August 1, 2006” and “the unnecessary and prejudicial length and scope
of the jury interrogatories” as examples of the Court’s alleged errors, she fails to provide appropriate
cites to the record and law to support her contention. Regarding the limitation of the severity test, we
In her closing argument, Plaintiff’s counsel stated:
The Judge will instruct you that Cleveland Steel is actually responsible. If they’re
responsible for anything, they’re not only responsible for her emotional distress,
they’re also responsible if the doctors are mistreating her. They’re also
responsible for the doctors giving her too much medication because the law
doesn’t say if I hit somebody with a car and they break their leg and it should have
gotten better but the doctor accidentally amputates the leg, that I’m not
responsible for the broken leg and the amputation. I have to pay more money
because somebody else messed up, because I started the injury. So all of this stuff
about Lucy Rorrer being overmedicated is nothing in this case . . . .
(N.T. June 23, 2010, vol. 1, pp. 145-146.)
dismissed the pervasive claim in granting Defendant’s Rule 50 motion and thus the only issue for the
jury was whether the August 1, 2006 incident was severe. In accordance with that ruling, evidence
of Defendant’s responses to alleged prior incidents was irrelevant. Furthermore, even if our ruling
was in error, there is no prejudice because the jury never reached the question of whether Defendant’s
response to the alleged harassment was appropriate. (See Doc. No. 207.)
With respect to the length and scope of the jury interrogatories, Plaintiff had an adequate
opportunity to make objections during the lengthy discussion between the Court and counsel on June
23, 2010. (See N.T. June 23, 2010, vol. 2, pp. 53-62.) Although Plaintiff’s counsel (Ralph E. Lamar,
IV) did in fact object to the separation of questions six and seven, he conceded that he “was not
concerned about the number of questions” on the Final Verdict Form. (Id. at 59:1-5.) Additionally,
Plaintiff made no specific objections regarding the general scope or length of the interrogatories. In
any event, the jury only completed three questions so there is no prejudice.
Plaintiff’s counsel also asserts that the Court instructed her in an unidentified telephone
conference that she should be prepared to prove to the jury the five elements of a hostile environment
case, but that the Court then gave instructions on seven elements, “leading the jury to believe that
plaintiff’s counsel was deliberately misleading them.” (Pl.’s Mot. ¶ 39.) As Plaintiff does not
provide a cite to the record and we have no memory of this conversation, we simply do not know
how to respond to this claim, and can only state that the instructions given to the jury were taken
from the Third Circuit Model Jury Instructions.
E. Court’s Alleged Prejudice Against Plaintiff’s Counsel
The remainder of Plaintiff’s claims revolve around her counsel’s belief that the Court treated
her unfairly and intentionally prejudiced her case in retaliation for her decision not to settle the matter.
We have thought long and hard as to whether further judicial resources should be expended to
respond to each and every claim on this issue raised by Plaintiff. Indeed, we are confident that a
complete review of the trial record reflects that the Court went to great lengths to be fair and impartial
to both parties. That being said, because most of Plaintiff’s claims are either totally refuted by the
record or unnecessarily inflammatory, we will take the time to respond to most of these allegations.16
As we have continually stressed, all of the Court’s resolutions of the unending disagreements
between counsel were conducted outside the presence of the jury. The record squarely bears this out.
The Supreme Court has commented on situations where allegations are raised that a trial judge was
[O]pinions formed by the judge on the basis of facts introduced or events occurring
in the course of the current proceedings, or of prior proceedings, do not constitute a
basis for a bias or partiality motion unless they display a deep-seated favoritism or
antagonism that would make fair judgment impossible. Thus, judicial remarks during
the course of a trial that are critical or disapproving of, or even hostile to, counsel,
the parties, or their cases, ordinarily do not support a bias or partiality challenge.
Liteky v. United States, 510 U.S. 540, 555 (1994); see also Johnson v. Trueblood, 629 F.2d 287, 291
(3d. Cir. 1980) (finding that a judge’s statements made at a settlement conference are not necessarily
“extrajudicial,” provided they are based on the Court’s evaluation of the evidence and “other
materials outlining the nature of the case”).
Regarding her claims of lack of impartiality, Plaintiff first contends that it was a prejudicial
error to fail to stop Defendant’s counsel from “misbehaving in the courtroom.” Plaintiff inaccurately
cites to one incident to support this claim, claiming that the Court singled her out “to turn around in
her chair and apologize to the gallery for shaking her head on one occasion in disagreement with
We note that, while we do not address all of Plaintiff’s allegations of prejudice, we
have reviewed the remaining claims asserted by Plaintiff and find that they are without merit.
defense counsel’s arguments.” (Pl.’s Mot. ¶ 29.) Once again, this claim is not supported by the
As this trial was held during the summer, many summer interns and clerks visited the
courtroom to observe the trial. After contending with counsel’s constant bickering and personal
attacks on each other, it was the Court’s hope that alerting the attorneys that many clerks, interns,
and young lawyers were observing would motivate them to act in a more professional manner.
Towards the end of trial, and after days of this unprofessional behavior, the Court ordered both
counsel to turn around and face the gallery:
“ . . . I want both lawyers to turn around -- and
look -- turn around -- I’m ordering you to both
turn around and look into the -- look into the
courtroom. I’m ordering both of you to turn
To do -- where?
-- and look into the courtroom. Thank you.
Sitting in the courtroom for the last week and
a half -- all right, Ms. Sperling, thank you -have been clerks, summer clerks, law students
and persons who have come into this
courtroom and who would have hoped that
they would have learned something about the
professionalism of -- of lawyers in this
(N.T. June 23, 2010 , vol. 1, p. 134) (emphasis added.) Contrary to Plaintiff’s counsel’s claim that
she was singled out, both lawyers were admonished. Plaintiff’s counsel’s citing to this occurrence
as an example of the Court’s lack of impartiality is, unfortunately, just a continuation of her
unprofessional approach to this case.
Plaintiff’s counsel also alleges that the Court’s “disregard and disdain” for her led Defendant’s
counsel to make “even more constant personal attacks.” (Pl.’s Mot. ¶ 29.) Plaintiff cites to the
following exchange in support of this claim:
Mrs. Kohart is muttering things under her breath, such
All right. Stop muttering things under your breath.
-- such as, “Mrs. Sperling must be on drugs.”
I did not say that.
All right. Look -- all right. Do -- do we need to take
this up right now –
How dare you!
Do we need to take this up now with these good folks
(N.T. June 18, 2010, pp. 275-76.) This exchange should be embarrassing to both attorneys and is
illustrative of the level of contention between them.
In a similar vein, Plaintiff claims that the Court reprimanded Plaintiff’s counsel for unethical
behavior, but did not reprimand Defendant’s counsel for similarly unethical behavior. Plaintiff
makes three specific allegations, all of which are baseless. (Pl.’s Mot. ¶ 57.)
Plaintiff’s counsel first alleges that Defense counsel violated Rule 4.2 of the Rules of
Professional Conduct by contacting her witness, Barbara Yeakel, after Yeakel indicated she was
represented by counsel. Based on this allegation, a hearing was held in the middle of the trial, and
Yeakel testified about a phone call she allegedly received from Defendant’s counsel. (N.T. June 18,
2010, pp. 232-36, 301-11.) We permitted Plaintiff’s counsel to question Yeakel on this and the
Court then asked: “Based on that record, Mrs. Sperling, do you have any motions?” Plaintiff’s
counsel responded: “No, Your Honor.” (Id. at 310-311.) Thus, Plaintiff’s counsel was afforded the
opportunity to pursue this issue, but declined to do so.
Second, Plaintiff alleges that Defense counsel should have been reprimanded for questioning
a witness about having been previously represented by Plaintiff’s counsel. (Pl.’s Mot. ¶¶ 54, 57.)
Plaintiff’s counsel objected to questioning on this issue, and at sidebar, Defense counsel agreed to
table the matter. (N.T. June 18, 2010, pp. 175-77.) Neither party brought up the issue again.
Third, Plaintiff claims that based on the Court’s ruling on a motion in limine, it was
prejudicial error for the Court to fail to correct Defense counsel for having “unfairly mention[ed]
workers’ compensation at least four times,” and for admitting a medical record that discussed
workers’ compensation. (Pl.’s Mot. ¶ 26, 57.) The Court granted Plaintiff’s “Motion in Limine to
Exclude Evidence of Plaintiff Lucy Rorrer’s Receipt of Workers’ Compensation Benefits” (Doc. No.
130) “to the extent that Plaintiff has moved to preclude the jury from considering evidence of the
workers’ compensation payments to Plaintiff” (Doc. No. 181).
compensation” was mentioned briefly in the course of the trial: Defense counsel described what
Plaintiff had told the judge in her workers’ compensation case in her opening argument;17 Defense
counsel cited to the workers’ compensation record for impeachment purposes;18 and Plaintiff’s
“Now Mrs. Rorrer told -- what I just told you happened, was what
Mrs. Rorrer said to Phyllis Plate, it is what she told Rich Mayo, the
plant manager, it is what she told the EEOC, it is what she told a
Judge in Doylestown in Workers' Compensation --”
(N.T. June 15, 2010, p. 52.)
Do you have the Worker's Comp transcript?
Could we -- could we abide by prior rulings, please, in reference to
expert referred to the transcript of a workers’ compensation hearing during cross-examination on two
occasions.19 None of these instances even remotely indicated that Plaintiff had previously been
awarded workers’ compensation.
The brief references to workers’ compensation noted above, including two by Plaintiff’s
expert witness, do not in any respect necessitate a new trial. Moreover, the jury never addressed the
issue of damages and thus Plaintiff was not prejudiced by these references. (See Doc. No. 207.)
Plaintiff continues to point to the Court’s alleged “bias” in claim thirty-three with a laundry
list of complaints. Plaintiff’s counsel complains about the Court’s alleged refusal to sanction
Defense counsel for her “unethical conduct” in using ex parte conversations with Louis Rorrer, her
misuse of the subpoena power, her ex parte conversations with represented witnesses and her
influencing of witnesses not to talk to Plaintiff’s counsel. There are no cites to the record to support
these allegations nor is there any factual support offered by Plaintiff. (Pl.’s Mot. ¶ 33.)
Plaintiff also asserts that the Court erred in directing the jury to disregard Dr. Toborowsky’s
testimony concerning “a proper second interview with the plaintiff.” She claims the interview was
Oh, yes, Your Honor.
(N.T. June 16, 2010, p. 103.)
Am I correct that this is a transcript of testimony?
DR. TOBOROWSKY: It looks like it’s a Worker’s Compensation hearing.
Okay. Now, you didn’t have an opportunity to review Ms. Rorrer’s
sworn testimony about this incident before you issued your
DR. TOBOROWSKY: You mean in the Worker’s Comp hearing transcript?
(N.T. June 17, 2010, pp. 166, 168.)
“not a discovery violation, it was not done in bad faith and was not prejudicial.” Plaintiff further
claims the Court abused its discretion in allowing Defendant to cross-examine the doctor on the
“alleged discovery violation.” (Id. at 19.)
Upon further review and reflection of the sanctions levied against Plaintiff’s counsel for
discovery violations, we stand by our conclusion that such sanctions were proper and warranted. Our
reasoning for these sanctions is fully explained in our Order of September 20, 2010 (Doc. No. 236).20
Plaintiff also objects to having been sanctioned for arriving late in violation of this Court’s
Order. (Pl.’s Mot. ¶ 53.) What Plaintiff’s counsel does not mention is that due to the incessant
bickering between counsel, which caused inordinate delays for the jury, the Court instituted a
schedule whereby counsel were to meet and confer regarding exhibits and other trial issues before
the jury was seated. On the first day that this schedule was to be implemented, Plaintiff’s counsel
arrived late, and was not prepared to discuss or exchange exhibits. (N.T. June 18, 2010, pp. 5-7.)
It was noted, however, that if Plaintiff’s counsel began to abide by the Court’s orders we would
consider lifting the sanctions, which we did on June 23, 2011. (N.T. June 18, 2010, p. 226; N.T.
June 23, 2010, vol. 1, p. 72.)
In paragraph twenty-seven, Plaintiff’s counsel lays out a litany of complaints and accusations
against the Court, which she proclaims definitively demonstrate that the Court belittled her, “openly
derid[ed] plaintiff’s case in front of . . . the jury” and called into question her professionalism,
especially for her crying episodes during the course of the proceedings. We take the time here to
examine the record, which, not surprisingly, demonstrates that counsel’s claims are baseless, and
We note that Plaintiff’s counsel appealed this Order on September 30, 2010 despite the
fact that the present motion for new trial was pending. The Third Circuit dismissed the appeal
for lack of jurisdiction on January 25, 2011. (Doc. No. 247.)
reflects counsel’s continued willingness to misquote the record.
The record cites supplied by Plaintiff’s counsel in support of the above-mentioned claims
reflect the following:
The Court stating, “ that’s [an] example . . . of a proper question,” (N.T. June 15,
2010, p. 18);
The Court directing Plaintiff’s counsel, when making an objection, not to speak
directly to Defense counsel but to simply state her objection, (N.T. June 16, 2010, p.
The Court advising Plaintiff’s counsel at sidebar, and out of the hearing of the jury,
that it appeared to be a waste of time to require the defense to subpoena numerous
custodian of records witnesses to authenticate documents where the authenticity of
those documents was not in dispute, (id. at 146-47);
Asking Plaintiff’s counsel to remain at counsel table while Defense counsel showed
her exhibits, (id. at 158-59);
Noting, outside the presence of the jury, that the constant disagreements by both
counsel was causing the jury to become impatient, (N.T. June 17, 2010, pp. 123, 25253); and
Requiring Plaintiff’s counsel to ask non-leading questions of her expert. (Id. at 234.)
These comments are nothing more than the Court exercising its duties to manage a difficult trial and
rule on objections.21
Plaintiff also alleges the Court showed a lack of impartiality in placing settlement negotiations
on the record. (Pl.’s Mot. ¶ 27(b).) Plaintiff’s counsel has again misrepresented the record.
Settlement discussions in this case were ongoing, and at the request of Defense counsel in the
middle of trial, the Court agreed to take one last stab at resolving this matter. As part of these
We also stand by our view that crying in an ex parte conversation to a Judge’s law clerk
about how a trial continuance may affect a lawyer’s personal life, is unprofessional. We find it
offensive that Plaintiff’s counsel has accused the Court of sexism in expressing this view. (See
Pl.’s Mot. ¶ 27(b) n.3.)
discussions, the Court requested each counsel keep the settlement proposals confidential, and
advised that, during the course of the discussion, specific numbers would not be disclosed unless the
Court viewed that to be productive. It soon became apparent to the Court that settlement of the
matter was not realistic. When we returned to the courtroom, the Defense settlement offer was
placed on the record outside the presence of the jury. (N.T. June 17, 2010, pp. 3-6.) As this
information did not pertain to anything Plaintiff had told the Court, we are at a loss as to how this
issue warrants a new trial.
While it is completely accurate that the Court viewed the total compensation offered to
Plaintiff through workers’ compensation ($200,000–paid) and the discrimination claims
($150,000–offered) to be an overassessment of the value of Plaintiff’s claims, we certainly disagree
that Plaintiff’s refusal to conclude this litigation for that amount somehow influenced our rulings in
this matter. We extended every courtesy and benefit of the doubt to Plaintiff and, as noted
previously, allowed her counsel much greater latitude than Defense counsel thought was permissible.
Plaintiff also accuses the Court of finding “extensive and unfounded fault with plaintiff’s
counsel so as to make it difficult for her to present the plaintiff’s case.” (Pl.’s Mot. ¶ 27(c)
(improperly designated as ¶ 27(b).) She further alleges that the Court commented on testimony “in
a way designed to help the defendant win its case” and that the “lack of judicial demeanor was
evidenced in front of the jury by its facial expressions and clear visual clues of his dislike of
plaintiff’s counsel.” (Id.) These allegations are not only incorrect and unsubstantiated, but are also
extraordinarily insulting. They further demonstrate Plaintiff’s counsel’s apparent inability to reflect
on her own inappropriate behavior.
Lastly, I note that criticism of counsel was in no way as one-sided as Plaintiff’s counsel
portrays. A fair reading of the record reflects numerous occasions where Defense counsel was
reprimanded. (See e.g., N.T. June 17, 2010, p. 123 (“. . . I cannot delay this trial any longer, due to
th[e] constant and incessant disagreements by counsel, and inability to, in my view, present any type
of coherent dignified presentation to . . . this jury.”); N.T. June 18, 2010, p. 295 (“. . . this whole
issue is created, in my view, due to the unparalleled level of unprofessionalism and contentiousness
between these two counsel . . . . I continue to believe, I could be wrong, the Jury clearly sees it and
they’re clearly disgusted with both of you, clearly[.]”)) The contentious relationship between
counsel and the constant objections from both sides made this a long, unpleasant trial. Importantly,
all of the discussions regarding both counsel’s conduct were addressed outside of the jury’s presence,
and thus, such criticism does not warrant the grant of a new trial.
For the reasons stated herein, Plaintiff’s motion for a new trial will be denied. Our Order
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