KENGERSKI v. THE ALLEGHENY COUNTY JAIL et al
Filing
235
ORDER denying 215 Motion for Declaration of Mistrial. Signed by Judge J. Nicholas Ranjan on 12/14/2022. (bjb)
Case 2:17-cv-01048-NR Document 235 Filed 12/14/22 Page 1 of 6
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JEFFREY KENGERSKI,
Plaintiff,
v.
COUNTY OF ALLEGHENY,
Defendant.
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2:17-cv-1048-NR
MEMORANDUM ORDER
Before the Court is Defendant Allegheny County’s motion for declaration of
mistrial (ECF 215). After Plaintiff’s counsel’s opening statement at trial, Defendant
moved for a mistrial, on the basis that Plaintiff’s counsel made allegedly prejudicial
statements in her opening. The Court denied that motion, without prejudice. After
the verdict, the Defendant renewed the motion for a mistrial. The Court ordered
briefing on the issue, which is now complete. For the following reasons, the motion
is DENIED.
Because Defendant’s motion for mistrial seeks a new trial, the Court is guided
by the more general standard for granting a new trial under Federal Rule of Civil
Procedure 59. Rule 59 permits a court to order a new trial after a jury trial “for any
reason for which a new trial has heretofore been granted in an action at law in federal
court.” Fed. R. Civ. P. 59(a)(1)(A). “A new trial is extraordinary relief which should
be granted only where extraordinary justifying circumstances are present.” Bistrian
v. Levi, 517 F. Supp. 3d 335, 345 (E.D. Pa. 2021) (cleaned up). Whether to grant a
motion for a new trial rests in the trial court’s discretion. Blancha v. Raymark Indus.,
972 F.2d 507, 512 (3d Cir. 1992) (citing Allied Chem. Corp. v. Daiflon, Inc., 449 U.S.
33, 36 (1980)); see also Fineman v. Armstrong World Indus., Inc., 980 F.2d 171, 207
(3d Cir. 1992) (“In matters of trial procedure such as that involved here, the trial
Case 2:17-cv-01048-NR Document 235 Filed 12/14/22 Page 2 of 6
judge is entrusted with wide discretion because he is in a far better position than we
to appraise the effect of the improper argument of counsel.” (cleaned up)).
Defendant seeks a mistrial on grounds that “Plaintiff’s counsel made repeated
and serious improper statements in her opening statement.” ECF 216, p. 1 (cleaned
up). Where the grounds for mistrial rest on claims of misconduct by counsel, “courts
have uniformly required misconduct by counsel to be extremely pervasive and
egregious before a new trial will be granted.” Richard P. ex rel. R.P. v. Sch. Dist. of
Erie, No. 03-390, 2006 WL 2847412, at *10 (W.D. Pa. Sept. 30, 2006) (McLaughlin,
J.) (cleaned up), aff’d sub nom. Richard P. ex rel. Rachel P. v. Sch. Dist. of Erie, 254
F. App’x 154 (3d Cir. 2007). “In reviewing allegedly improper remarks by counsel
that have been objected to, the appropriate query consists of whether (1) the remarks
were improper, and (2) the improper remarks made it reasonably probable that the
verdict was influenced by the prejudice resulting from the remarks.” Id. (cleaned up).
The Court has considered the parties’ briefs and reviewed the at-issue
statements, and finds that counsel’s remarks were not improper, and it was not
reasonably probable that any resulting prejudice influenced the verdict. This is so
for the following three reasons.
First, the Court’s instructions to the jury dulled the impact of any allegedly
improper statements made in the openings. The Court provided clear instructions to
the jury at both opening and closing as to the kind of evidence, such as documents
and testimony, as well as circumstantial evidence, it could properly consider in
reaching its verdict. 1
Additionally, after the parties’ opening statements, the Court gave a clear
limiting instruction to the jury (at Defendant’s request) that opening statements are
ECF 229, 16:20-17:5 (Day 1 transcript) (Court: “The other type of evidence is
circumstantial evidence. Circumstantial evidence is proof of one or more facts from
which you could find another fact. . . . You should consider both kinds of evidence
that are presented to you. The law makes no distinction in the weight to be given to
1
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not evidence. 2 ECF 216-1, 26:2-21. The jury was thus aware at the beginning of trial,
and reminded throughout trial and at closing, what evidence it could consider and
how it could consider that evidence. See United States v. Somers, 496 F.2d 723, 738
(3d Cir. 1974) (in criminal trial, any prejudice from “overly-dramatic, unnecessary
characterizations” in government’s opening was neutralized by length of trial and
curative jury instructions from the court).
Second, as to the statements themselves, Defendant identifies approximately
30 purportedly problematic statements from Plaintiff’s opening. Defendant vaguely
claims and without any direct citations to the record outside of Plaintiff’s counsel’s
opening that these statements refer to facts and evidence that Plaintiff did not prove
or used inappropriately. ECF 216, ¶¶ 1-3. After careful consideration of the trial
transcript, the Court disagrees with Defendant’s characterization.
Plaintiff
presented either direct or circumstantial evidence related to most, if not all, of the
either direct or circumstantial evidence. You are to decide how much weight to give
any evidence.”); ECF 232, 147:1-5 (Day 4 transcript) (Court: “As I mentioned at the
beginning of the trial, certain other things, however, are not evidence such as opening
statements, arguments, questions and comments by the attorneys, the attorney’s
representing the parties in this case, and closing arguments. Those are not
evidence.”); id. at 147:18-25 (Court: “The evidence in this case consists not only of the
testimony from the witnesses and the documents which have been offered into
evidence and shown to you, but also includes such fair and reasonable inferences as
properly flow from the facts which are not disputed or which you believe to be true.
This is sometimes referred to as circumstantial evidence. And is simply indirect proof
of one or more facts from which you could find another fact.”)
ECF 229, 65:3-10 (Day 1 transcript) (Court: “I just want to emphasize one point that
I made earlier. You’ve heard the opening statements of the lawyers. Opening
statements are not evidence in the case. The lawyers put their openings to try to
present to you the evidence they intend to present during the course of this trial, the
evidence that will be presented, the testimony and exhibits. That’s what’s to be
considered in reaching your verdict.”).
2
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factual statements counsel made in her opening. See, e.g., ECF 225-1; ECF 225-2.
Consider the following examples:
Opening Statement
Citation [ECF 216-1]
Support in Trial Record
3:24-4:2
4:4-5, 10-12
ECF 230, 25:22-26:23; ECF 231, 167:17-169:9
ECF 230, 25:22-26:23, 30:10-21; ECF 231, 167:17-169:9
ECF 230, 43:3-9, 50:18-51:25, 52:11-25, 150:19-151:7,
153:18-154:4, 162:6-19, 167:19-169:10, 169:14-170:9;
4:25-5:7, 5:8-10, 14-18,
ECF 231, 171:17-173:25, 182:12-25, 194:22-195:21; Ex.
21-22
40
6:4-10; 7:8-10,12-14, 17- ECF 231, 100:2-19, 133:17-134:12, 193:14-194:17; Ex.
18, 23-25; 8:3-6, 10-12
32; Ex. 40
ECF 230, 37:5-38:22, 89:8-25, 112:21-113:4; ECF 231,
11:19-24; 12:2-4
36:20-38:14; 53:17-25; Exs. 53, 55
12:14-18; 12:24-13:1
ECF 231, 53:17-25, 213:14-214:17
13:17-21
ECF 231, 100:15-19, 111:5-25; 114:17-22; 115:8-14
14:3-7
ECF 231, 111:5-115:21
ECF 231, 34:13-19; 157:15-22; Wainwright deposition
14:19-21; 15:2-5, 8-12
transcript, ECF 68-4, p. 12, 95:1-20
16:6-7, 9-10, 18-21
ECF 230, 55:16-57:14
ECF 230, 37:5-38:22, 89:8-25, 112:21-113:4; ECF 231,
16:25-17:1
36:20-38:14, 161:2-163:12
In the end, Defendant’s allegations more reasonably go to disagreements with
the jury’s conclusions as a matter of the sufficiency of the evidence, but “courts are
not free to reweigh the evidence and set aside a verdict merely because the jury could
have drawn different inferences or conclusions or because judges think that another
result would be more reasonable.” Mroz v. Dravo Corp., 429 F.2d 1156, 1161 (3d Cir.
1970) (citations omitted).
Third, even if Plaintiff’s counsel’s opening statement hadn’t been supported by
the ultimate trial evidence, counsel’s statements were otherwise not so improper or
so prejudicial to Defendant to warrant a declaration of a mistrial. For example, the
purported “personal attack” on Warden Harper was merely a reference to the nature
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of circumstantial evidence, and nothing more. Compare ECF 229, 16:21-17:1 (Court:
“Circumstantial evidence is proof of one or more facts from which you could find
another fact. If someone walked into the courtroom wearing a raincoat covered with
drops of water and carrying a wet umbrella, that would be circumstantial evidence
from which you could conclude it was raining.”), with id. at 31:5-18 (Plaintiff’s
counsel: “Circumstantial evidence is evidence from which you can conclude some
other thing. The example that [the Court ] gave is that somebody comes in from the
outside and their coat is wet. You can conclude based on his wet coat that it is raining
outside. . . . When Warden Harper testifies and he tells you that the reason Mr.
Kengerski was terminated was because of those reports that he got from those
officers, have a look at his coat because it’s going to be wet.”).
To the extent Plaintiff failed to present evidence for all of the statements made
in counsel’s opening, Defendant was free to make—and did, in fact, make—that point
to the jury. See U.S. v. Gambone, 314 F.3d 163, 179 n.11 (3d Cir. 2003) (“[D]efense
counsel did nothing improper by pointing out that the government did not prove every
fact alleged in the indictment or raised in opening statements.”); see, e.g., ECF 233,
18:15-20 (“You heard a lot of testimony about retaliation and other things McCallrelated and factions. Nothing about Tucker being in a faction. There is nothing [in
the record] to question the motive or credibility of Officer Tucker. She gives a report
that says that her superior officer told her to put false information in a report. It
makes sense.”); id. at 20:7-11 (“The next thing is Officer Coulter, Sergeant Coulter.
You heard a good bit of testimony about him. But what you didn’t hear was Sergeant
Coulter’s report making any real difference in Warden Harper’s investigation because
Sergeant Coulter had no first-hand knowledge of anything.”); id. at 21:2-3 (“Now we
have Sergeant Brown. You didn’t hear much about him. Because there’s nothing to
hear.”); id. at 24:12-15 (“[W]here is the retaliatory animus that Warden Harper is—
has to have in order for plaintiff to prevail? But where is it? Where do we have any
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record of it in our case?”); id. at 29:6-12 (“There’s no evidence that Warden Harper is
in a faction. He’s not involved in any of these things. There’s no evidence that Tucker
or Brown were involved in any of these. Again, looking at the things in November,
does it make sense that the evidence in November supports the warden’s decision to
terminate Mr. Kengerski? This is a diversion.”).
In short, based on the record before the Court, the “extraordinary relief” of a
mistrial on the basis of Plaintiff’s counsel’s opening is not appropriate.
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For all of these reasons, this 14th day of December, 2022, it is hereby
ORDERED that Defendant’s motion for declaration of mistrial (ECF 215) is
DENIED.
BY THE COURT:
/s/ J. Nicholas Ranjan
United States District Judge
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