Opinion
Case No. A-04-CA-094-SS.
May 10, 2005
ORDER
BE IT REMEMBERED on the 10th -day of May 2005, the Court reviewed the file in the above-styled cause, and specifically, Plaintiff Capital Metropolitan Transportation Authority's ("Capital Metro") Motion for New Trial and Motion for Modified Judgment [#147]. Having reviewed the motion, the response, the relevant law, and the case file as a whole, the Court now enters the following opinion and orders.
Background
This case arises out of a contract between Plaintiff Capital Metro and Defendant Gillig Corporation ("Gillig") under which Gillig provided Capital Metro with 162 custom-made transit buses. After two of the 162 buses were destroyed by fire, Capital Metro brought suit against Gillig asserting causes of action for negligence, strict products liability, breach of contract, and breach of implied warranties. Prior to trial, Capital Metro abandoned its negligence and products liability causes of action. Capital Metro argued that all of the buses delivered by Gillig were unfit and failed to meet the specifications provided in the parties' contract in a number of respects that caused them to suffer damages in two ways. First, Capital Metro contended Gillig's failure to comply with the specifications provided in the parties' contract and its failure to deliver fit buses resulted in the fires in which two buses were lost. Second, it argued Gillig was obligated under the contract to rectify any inconsistencies between the specifications and the buses as delivered, which it had failed to do.
On March 7, 2005, the Court called this case for trial by jury. The jury heard four days of testimony and on March 11, 2005, the jury reached a verdict finding that Gillig had breached its contract with Capital Metro in only one limited respect and that Capital Metro had suffered zero damages as a result of the breach. The jury also found that Gillig did not breach any implied warranties in connection with the contract. Capital Metro now moves for a new trial, and in the alternative, for a modified judgment arguing: (1) the Court erred with respect to certain evidentiary rulings at trial; (2) the evidence adduced at trial "conclusively established" Capital Metro's breach of contract claims and damages resulting therefrom; (3) the Court erroneously failed to provide certain limiting instructions to the jury; (4) the Court improperly framed the breach of contract question in the verdict form provided to the jury; and (5) the Court gave the appearance of partiality towards Gillig during the trial. The Court considers each argument in turn.
Analysis
I. Capital Metro's Motion for Modified Judgment
Capital Metro does not identify the rule under which it brings its motion for "modified judgment," nor does it make any effort to show the motion is procedurally proper. However, based on the substance of the relief Capital Metro seeks, it is clear the "modified judgment" portion of its motion can only be characterized as a motion to alter or amend judgment, brought pursuant to Rule 59(e) of the Federal Rules of Civil Procedure, or a Rule 50 motion for judgment as a matter of law.
Under Rule 50, a party may seek judgment as a matter of law "after a party has been fully heard on that issue and there is no legally sufficient basis for a reasonable jury to find for that party on that issue" and "before submission of the case to the jury." FED.R.CIV.P. 50(a). In the event the party unsuccessfully urges such a motion at the close of all evidence, it may "renew its request for judgment as a matter of law by filing a motion no later than 10 days after entry of judgment." Id. 50(b). In arguing that it is entitled to a "modified judgment" because it "conclusively proved that Gillig breached the contract and that Gillig's breach resulted in damages," see Pl.'s Mot. for New Tr. Mot. for Modified Judg. at 7, Capital Metro is, in effect, seeking a judgment as a matter of law. See United States for use of Wallace v. Flintco Inc., 143 F.3d 955, 967-68 (5th Cir. 1998) (analyzing under the rubric of Rule 50 a plaintiff's contention that it "proved beyond a preponderance of the evidence, and as a matter of law" a breach of contract claim at trial). Since Capital Metro failed to move for judgment as a matter of law at the close of all evidence, however, it has waived its right to seek a post-verdict judgment in its favor. See id. at 968 ("If a party with the burden of proof has conclusively established all of the elements of its claim with evidence that the jury cannot reject, that party must move for judgment as a matter of law under Rule 50(a) at the close of all evidence in order to preserve its ability, in the event that the jury finds to the contrary, to move for judgment as a matter of law under Rule 50(b)."); McCann v. Tex. City Ref., Inc., 984 F.2d 667, 670 (5th Cir. 1993) ("[I]t is well established that a party waives the right to challenge the sufficiency of the evidence with a JNOV unless a motion for directed verdict is made or renewed at the close of all evidence."). Having failed to properly move for judgment as a matter of law at trial, the Court may not even consider such a request raised for the first time after the jury has reached a verdict. McCann, 984 F.2d at 671; see also Sulmeyer v. Coca Cola Co., 515 F.2d 835, 846 n. 17 (5th Cir. 1975) ("It would be a constitutionally impermissible re-examination of the jury's verdict for the district court to enter judgment n.o.v. on a ground not raised in the motion for directed verdict.").
Because Capital Metro failed to explicitly identify the rule under which it seeks a modified judgment, the Court also considers the possibility that Capital Metro intended to bring its motion under Rule 59(e). Under that rule, a party may move "to alter or amend a judgment . . . no later than 10 days after the entry of the judgment." FED.R.CIV.P. 59(e). However, a Rule 59(e) motion "`cannot be used to raise arguments which could, and should, have been made before the judgment issued.'" Rosenzweig v. Azurix Corp., 332 F.3d 854, 863 (5th Cir. 2003). Since Capital Metro's argument that the evidence it adduced at trial "conclusively proved" its entitlement to damages for breach of contract could, and should, have been raised as a Rule 50(a) motion at trial, Capital Metro may not seek a modified judgment under Rule 59(e) either. Accordingly, Capital Metro is constrained to rely on its motion for new trial in seeking relief from the judgment entered in this case.
II. Capital Metro's Motion for New Trial
A. Standard of Review
Under Rule 59(b), a party may file a motion for new trial "no later than 10 days after the entry of judgment." FED. R. CIV. P. 59(b). The district court should grant a new trial on the basis of an evidentiary challenge only "if the verdict is against the great weight of the evidence." Whitehead v. Food Max of Miss., Inc., 163 F.3d 265, 269, 270 n. 2 (5th Cir. 1998). In determining whether a new trial is warranted, the Court "need not take the view of the evidence most favorable to the verdict winner, but may weigh the evidence." Shows v. Jamison Bedding, Inc., 671 F.2d 927, 930 (5th Cir. 1982). However, a trial judge may not "order a new trial simply because he disagrees with the jury verdict." Rather, the court "must be convinced that the verdict is against the great weight of the evidence." Id.
A new trial may also be permitted if "it is reasonably clear that prejudicial error has crept into the record or that substantial justice has not been done." Sibley v. Lemaire, 184 F.3d 481, 487 (5th Cir. 1999) (quoting Del Rio Distrib., Inc. v. Adolph Coors Co., 589 F.2d 176, 179 n. 3 (5th Cir. 1979)). The burden of establishing the existence of harmful error rests with the party seeking the new trial. Id.
B. Alleged Error in the Admission and Exclusion of Evidence
1. Testimony of Doyle Young
Plaintiff first argues Doyle Young was improperly permitted to testify as a fact witness, even though he had only been designated as an "expert witness" in Defendant's pretrial designations. There are several problems with Capital Metro's position. First, neither the Federal Rules of Civil Procedure, nor the local rules of this District or any order entered in this case require that witnesses who are expected to be called to testify at trial about factual matters be specially designated as "fact witnesses." See FED. R. CIV. P. 26(a)(3)(A) (requiring parties to identify and provide contact information about all potential trial witnesses without distinguishing fact witnesses from expert witnesses); Local Court Rule CV-16(e)(5) (same). Moreover, Defendant's designation of Doyle Young clearly identifies him as a "non-retained expert" on the basis that his proposed testimony would draw both on his expert opinions and his personal knowledge of relevant facts. See Def.'s Second Supp. Designation of Testifying Experts at 2 ("This non-retained witness is a former employee of Plaintiff and has personal knowledge of, and is familiar with, Capital Metropolitan Authority's maintenance procedures and quality control procedures."). Moreover, since Young was identified by Capital Metro's own witnesses as its "project manager" for the acquisition of the buses involved in the lawsuit, and furthermore, since he was deposed by Capital Metro pursuant to an order of this Court, Capital Metro can hardly claim unfair surprise. Tr. Trans., Vol. II at 148, ll. 4-16; id., Vol. IV at 185, ll. 16-20.
In fact, prior to trial, Capital Metro itself designated Young as a witness it intended to call by means of deposition. Pl.'s Desig. of Witnesses at 7.
Moreover, Capital Metro failed to object to Young's testimony on the basis that his testimony was fact-based. Prior to Young's being called to the stand, Capital Metro moved to strike Young as a witness on the basis that Gillig failed to provide it with a Rule 26(a)(2)(B) expert report. Id., Vol. IV at 186, ll. 10-13. Although the Court refused to entirely prohibit Young from testifying on that basis, it made clear that Young would not be permitted to give testimony concerning any expert opinions he might have formed. Id. Vol. IV at 186, ll. 19-25; 187, ll. 1-2. At no time did Capital Metro object to Young's testifying from his personal knowledge of relevant facts.
Capital Metro also argues it was error to permit Young to give expert testimony. However, the Court granted Capital Metro the relief it sought with respect to the exclusion of expert opinions. Id. The Court did, however, place the burden on Capital Metro to make specific objections to any expert opinions that Gillig might attempt to introduce. Id. Capital Metro made one such objection, which the Court sustained. Id., Vol. IV at 250, ll. 6-10. In its motion, Capital Metro does not point to any expert testimony by Young that was improperly admitted. Accordingly, the Court has no basis on which to conclude any error whatsoever occurred, much less an error capable of causing prejudice or substantial injustice.
Next, Capital Metro argues Young was improperly permitted to give testimony with respect to documents he signed purporting to modify the specifications Capital Metro would be required to follow in building buses under the parties' contract. Plaintiff contends these documents were not admissible because they were not designated as potential exhibits in Gillig's pretrial submissions.
First, the Court sustained Capital Metro's objections at trial and declined to admit the documents themselves into evidence due to Gillig's failure to designate them prior to the trial. Id., Vol. V. at 51, ll. 9-18. However, Young's testimony that he signed documents authorizing changes to the bus specifications was plainly relevant and admissible. Capital Metro's theory of the case was that its initial Request for Proposal set forth each of the specifications Gillig was required to follow, and that no one from Capital Metro ever authorized, nor could they authorize, any deviation from those specifications. However, Elaine Timbes, Capital Metro's Executive Vice President for Business Operations and Strategy, testified that engineering change orders, also described as requests for approved equals, when authorized by Young in his capacity as project manager, trumped the specifications set forth in the Request for Proposal. Id., Vol. II at 151, ll. 4-21, 161, ll. 19-25, 162, ll. 1-3, 171, ll. 7-13. When Young took the stand, Capital Metro attempted to impeach his testimony that the Gillig buses met the contract specifications by implying that he never gave any written authorization to Gillig to change the bus specifications. Gillig was entitled on re-direct — whether it had designated the documents as exhibits prior to trial or not — to question Young on whether he had in fact given written authorization to make the changes.
At the trial, counsel for Capital Metro appeared to be under the mistaken impression that change orders signed by Young prior to the contract could not be part of the contract, but were merely "negotiations." Tr. Trans., Vol. V at 34-48. However, as the contract documents themselves reflect, and as testified to by Timbes, the engineering change orders were incorporated into the contract, and they took precedence over all other documents purporting to set forth contract specifications. Id., Vol. II at 171, ll. 7-13.
Capital Metro now argues that the documents about which Young testified contained incorrect information and led the jury to reach erroneous conclusions. The Court knows of no rule of evidence that would permit it to exclude testimony or exhibits on the basis of "incorrectness." The whole purpose of the trial is to allow the jury to make such determinations. Moreover, Capital Metro has not even attempted to present this Court with any evidence that Young's testimony pertaining to the documents was inaccurate. Capital Metro could have attempted to undercut Young's testimony on re-cross examination. To the extent Capital Metro complains that it was caught off-guard by the documents about which Young testified — a position the Court has already rejected — it could have presented the Court with an argument that more time would have changed the outcome of the trial. It has done neither. Thus, Capital Metro cannot now be heard to argue that it suffered any unfair prejudice as a result of Young's testimony.
2. Evidence of Acceptance and Waiver
Capital Metro also argues the Court erroneously admitted evidence pertaining to acceptance and waiver. Capital Metro's position at trial was that because Gillig failed to plead acceptance and waiver as affirmative defenses, it should not have been permitted to introduce any evidence tending to prove those defenses at trial.
Capital Metro has not explained why such evidence was erroneously admitted, much less that the evidence could have resulted in substantial prejudice. Most of the so-called "acceptance and waiver" testimony was simply recitations of portions of the contract documents themselves and statements about what actions Capital Metro took before and after receiving the buses from Gillig. Regardless of whether Gillig pleaded acceptance and waiver as affirmative defenses, the evidence challenged by Capital Metro went both to the existence of the breach of contract and to the issue of damages. For instance, Gillig presented evidence that Capital Metro personnel failed to point out any defects during the course of their pre-delivery inspection of the buses. The fact no inspector raised any such defects at the initial inspection is circumstantial evidence that the defects did not, in fact, exist. Moreover, this testimony could also appropriately give rise to an inference Capital Metro suffered no damages as a result of any breach of specifications.
After all, contrary to Capital Metro's assertions, the testimony concerning which items had actually been installed in the buses, and which had not, was far from univocal.
Additionally, Gillig was not, in fact, permitted to proceed on a defense it did not plead. Based on Capital Metro's objections, the Court declined to pose the jury with an interrogatory on waiver that was requested by Gillig. Id. Vol. V at 156, ll. 7-19. Finally, the jury was appropriately instructed with respect to the law governing breach of contract, and Capital Metro did not seek any limiting or curative instructions with respect to the issues of acceptance and waiver.
The Court also notes Capital Metro effectively waived its challenge to Gillig's acceptance and waiver evidence, because it clearly "opened the door" on those issues. See Industrias Magromer Cueros y Pieles S.A. v. La. Bayou Furs Inc., 293 F.3d 912, 924 (5th Cir. 2002) (holding that a district court properly permitted testimony on issues raised by the complaining party's opening statement). At trial, Capital Metro was the first to put acceptance and waiver in issue. During opening statement, counsel for Capital Metro argued to the jury that no actions it took could be construed to constitute acceptance of the buses or a waiver of its rights under the contract. Tr. Trans., Vol. II at 18-19. Capital Metro was also the first party to present evidence to the jury on acceptance and waiver. Id., Vol. II at 121-22.
3. Preventive Maintenance Evidence
Capital Metro argues the Court should have excluded evidence presented by Gillig at trial on the preventive maintenance performed by Capital Metro on the Gillig buses. Capital Metro also argues that the jury should have been given a limiting instruction on the relevance of preventive maintenance.
The fact that Capital Metro raises this argument for the first time on a motion for new trial is astounding, as the jury heard hours of testimony on preventive maintenance issues, and Capital Metro did not raise a single objection on the basis of relevance or the danger of unfair prejudice.
Capital Metro's argument is entirely unavailing as the preventive maintenance evidence was plainly relevant with respect to the issues of breach and damages. For instance, Gillig's expert, Leland Shields, testified that, in his view, Capital Metro's maintenance practices were the most likely cause of the two bus fires for which Capital Metro had brought suit. Id., Vol. V. at 99, ll. 2-13. The jury was entitled to rely on this testimony in rejecting Capital Metro's claim that its bus fire damages were the result of Gillig's breach of contract.
Additionally, Capital Metro adduced a great deal of testimony, itself, on preventive maintenance. One of Capital Metro's chief contentions at trial was that Gillig failed to provide it with a manual that correctly explained the required preventive maintenance schedule. It is difficult to imagine how the jury could determine whether Gillig breached its obligations in this respect without hearing testimony concerning, as Capital Metro put it, "the entire issue of preventive maintenance." Pl.'s Mot. for New Tr. Mot. for Modified Judg. at 4.
With respect to Capital Metro's argument that the preventive maintenance practices of Capital Metro had no bearing on whether the buses delivered by Gillig were inconsistent with the contract specifications, there is no reason to believe there was any danger of jury confusion on this issue. Furthermore, Capital Metro never requested a limiting instruction on the preventive maintenance evidence. The Court does not err by failing to give an instruction that is never requested. See Savoie v. Otto Candies, Inc., 692 F.2d 363, 370 (5th Cir. 1982) ("[W]here evidence is admissible for one purpose but not another, the burden is on the objecting party to request a proper limiting instruction.").
4. Field Service Bulletin (FS 2000-03)
Capital Metro argues the Court improperly admitted Defendant's Exhibit 25 into evidence, which is a Field Service Bulletin sent to Capital Metro by Gillig designated FS 2000-03 and dated November 10, 2000. Capital Metro argues the "bulletin was offered by Gillig in an attempt to misconstrue a duty by Capital Metro to perform preventive maintenance at the fuse panel." Pl.'s Mot. for New Tr. Mot. for Modified Judg. at 4. Capital Metro's argument fails for three reasons. First, the Court heard conflicting testimony about the relevance of the document outside the presence of the jury and was unable to conclude the document was irrelevant, misleading, or unfairly prejudicial. Second, the record reflects the document was incorporated by reference by another document already introduced into evidence by Plaintiff. Trial Tr., Vol. II at 139, ll. 12-20. Finally, there is no reason to believe the document would lead the jury to reach erroneous conclusions about whether Gillig had breached the contract specifications, since it had nothing to do with those specifications whatsoever.
5. Lay Opinion Testimony
Capital Metro contends the Court erred in excluding certain lay opinion testimony it sought to present at trial. In doing so, Capital Metro both mischaracterizes the Court's rulings and misrepresents the facts. In its motion, Capital Metro argues its president and CEO, Fred Gilliam, "was prepared to testify regarding each element of the retrofit," but that the Court somehow prevented him from doing so. Id. at 5. However, a review of the transcript reveals that none of its witnesses — Gilliam included — were prepared to give any such detailed testimony. Moreover, the Court sustained only one objection to Gilliam's testimony on the basis he was not qualified as an expert. The Court declined to permit him to answer an abstract question about whether a market existed for used transit buses. Tr. Trans., Vol. II at 64, ll. 5-7. However, Gilliam was permitted to testify, without objection, as to what Capital Metro would have to pay to replace the two burned buses. Id., Vol. II at 64, ll. 14-17. Moreover, Capital Metro was not prohibited from introducing any evidence with respect to the cost of the proposed retrofits on the remaining buses. Ultimately, Capital Metro has no one to blame but itself for its failure to present the jury with more appropriate damages evidence.
The facially incredible representations they have made to the contrary in their declarations are extremely distressing. At trial, Gilliam testified that Capital Metro had "budgeted" $24,000 per bus for the purpose of retrofitting the Gillig buses. Tr. Trans., Vol. II at 63, 1.20. On cross-examination, however, Gilliam testified that the $24,000 figure was simply "an estimate" on an incomplete design and that he did not even know who was responsible for creating it. Id., Vol. II at 92, ll. 2-11. Incredibly, in his post-trial declaration, he indicates he was prepared to give testimony at trial itemizing the costs of retrofitting the Gillig buses and identifying the total cost of each retrofit as $25,430. Pl.'s Mot. for New Tr. Mot. for Modified Judg., Ex. A ¶ 3. Timbes also testified at trial that the retrofit would cost $24,000 per bus, but that she did not know what that price included other than the installation of junction boxes. Tr. Trans., Vol. II at 132, ll. 1-18, 133, ll. 4-9. Nonetheless, Capital Metro submitted a post-trial declaration by Timbes that indicates she was prepared to give testimony on the $25,430 figure that is identical to the testimony Gilliam now contends he was prepared to give. Pl.'s Mot. for New Tr. Mot. for Modified Judg., Ex. C ¶ 3. Finally, Bryan Garner, Capital Metro's superintendent of maintenance, also testified at trial that the retrofit design was incomplete and gave a figure of $24,000 per bus, but he too contends he would have given the exact same testimony as Gilliam with respect to the itemization and the $25,430 figure if given the chance. Tr. Trans., Vol. IV at 22, ll. 13-18, 33, ll. 13-20; Pl.'s Mot. for New Tr. Mot. for Modified Judg., Ex. D ¶ 3.
Prior to trial, Capital Metro made the decision to proceed against Gillig solely on the theory Gillig breached contract specifications. The fact that Capital Metro failed to realize that in making this decision, it would become necessary for it to present specific, non-speculative expert testimony on the costs of making necessary bus repairs is simply not the fault of the Court.
6. National Highway Transportation Safety Administration Documents
Capitol Metro contends the Court erroneously excluded certain National Highway Transportation Safety Administration ("NHTSA") documents. It makes no attempt, however, to specify which documents form the basis of its objection, and the record appears to reflect only one NHTSA document was ever offered for admission as an exhibit. Id., Vol. III at 4, ll. 3-12. Capital Metro was permitted to elicit testimony about admissions in that document, which were made by Gillig with respect to the cause of the bus fires. Those admissions were the only arguably relevant portions of the document, and Capital Metro has failed to show how the underlying document itself, which contained a great deal of extraneous and potentially prejudicial information, would have made any ultimate difference to the jury. Id.
7. Animation DVD
Capital Metro contends it was improperly prohibited during its closing argument from presenting to the jury a computer animated video demonstration that purported to represent its experts' theory of how the two bus fires occurred. Much of the animation, however, was plainly unsupported by the evidence adduced at trial, and it could have only served to convey the false impression to the jury that the speculative theory of events it represented was how the fires "really" happened.
8. Photographs of New Flyer Buses
Capital Metro complains that photographs of buses made by New Flyer, a bus manufacturer with no involvement in the case, were improperly excluded. However, as Capital Metro admits, the Court permitted the photographs to be used for demonstrative purposes. Capital Metro argues, nonetheless, that "by failing to permit the jury to consider the photographs as evidence, the jury was prevented from obtaining a crucial understanding of the differences between buses that met contract specifications and Gillig buses that did not." Pl.'s Mot. for New Tr. Mot. for Modified Judg. at 7. This argument simply makes no sense. There was never any suggestion by any witness that the New Flyer buses were built according to the Gillig contract specifications, so any attempt to convince the jury that the photographs themselves represented the requirements of the contract would have been improper. In any event, the record reflects Capital Metro voluntarily acceded to the demonstrative limitation on this evidence. Trial Tr., Vol. IV at 24, ll. 12-15.
C. Whether the Jury's Verdict was Against the Great Weight of the Evidence
Capital Metro also contends it is entitled to a new trial because it conclusively proved its breach of contract claims as well as damages resulting therefrom. However, the jury was entitled to believe the testimony of Doyle Young, who stated that the Gillig buses met Capital Metro's specifications and that while working as project manager in connection with the Gillig contract, he gave the necessary authorization for each of the changes to the specifications Capital Metro had originally sought in its request for proposal. Id., Vol. IV at 250, ll. 11-16, 259, ll. 4-9; id., Vol. V at 55, ll. 20-24. Moreover, Leland Shields testified credibly that the bus fires in suit were the result of Capital Metro's own maintenance practices. Id., Vol. V. at 99, ll. 2-13.
Additionally, the burden was on Capital Metro to prove its case by a preponderance of the evidence. None of its witnesses were even able to testify that all documents constituting the contract were in the record. First, Gilliam testified only that "[t]he fire blanket was not installed," "[t]he junction box didn't have the covers, nor were they sealed," and "there were several other breaches of contract." Trial Tr., Vol. II at 63, ll. 3-5. He made no attempt, however, to identify the documents on which his understanding of the contractual requirements was based. Second, although Timbes testified about the contract documents themselves and indicated Capital Metro did not have "change orders" authorizing changes from the specifications set out in Capital Metro's Request for Proposal, she later admitted she "didn't remember" all the requests for approved equals, and that she had not seen all the engineering change orders. Id., Vol. II at 107, ll. 6-8, 161, ll. 19-23, 171, ll. 14-23. She also did not appear to have a command of how the technical specifications were integrated into the contract. Id., Vol. II at 164, ll. 3-9. Finally, Garner's testimony on Capital Metro's breach allegations drew exclusively on Capital Metro's Request for Proposal and did not foreclose the possibility that change orders or requests for approved equals existed that would have altered the required specifications. Id., Vol. IV at 7-10.
Moreover, as noted earlier, the testimony Capital Metro introduced with respect to damages was highly questionable. The jury was certainly entitled to find that Capital Metro failed to prove the majority of its breach of contract claims and that Capital Metro failed to prove the damages it alleged it suffered as a result of the breach.
D. Alleged Error in the Jury Charge and Verdict Form
Capital Metro also argues the Court erred by improperly "fragmenting" the breach of contract interrogatories it posed to the jury. At trial, Capital Metro argued Gillig had breached the parties' contract by providing buses that did not comply with a number of discrete technical specifications set forth therein. It argued it was entitled to damages on the theory that the failure to meet the specifications caused the two bus fires it suffered, and also, that it would have to spend a substantial sum of money to retrofit the buses. The testimony presented during the trial created a distinct possibility that the jury would find one or more, but not necessarily all, of the alleged specifications were breached. If the jury had done so, Capital Metro would only be entitled to damages for those specifications actually breached. This obvious possibility was realized when the jury found only one of six alleged contract specifications were actually breached by Gillig. Because the charge and verdict form were necessitated by the evidence adduced at trial, the Court declines to conclude they were either erroneous or unfairly prejudicial.
Capital Metro also complains that the Court surprised the parties by giving them a copy of the charge and verdict form "just minutes before the Court was to require the parties to begin closing argument." Pl.'s Mot. for New Tr. Mot. for Modified Judg. at 10. The record reflects, however, that the parties were given the charge the day before the parties gave their closing arguments. Tr. Trans., Vol. V at 159, ll. 3-7.
For example, even Timbes, Capital Metro's own witness, testified that Capital Metro approved the change in specifications with respect to the fire suppression system used in the buses. Tr. Trans., Vol. II at 155, ll. 9-25, 156, l. 1.
E. Appearance of Partiality
Finally, Capital Metro contends it is entitled to a new trial on the basis that the Court "made certain comments and engaged in certain behavior that gave the appearance of partiality toward Gillig and its counsel and antagonism toward Capital Metro and its counsel." Pl.'s Mot. for New Tr. Mot. for Modified Judg. at 11. It bases its contention primarily on two sets of allegations. First, it contends that "it is a virtual certainty" the jury heard the Court admonish its counsel concerning discovery abuses that came to light at trial. However, the record reflects the Court sent the jury out of the courtroom before admonishing Capital Metro's counsel. Trial Tr., Vol. IV at 162, ll. 12-25. The Court declines to conclude that it was more probable than not, much less "a virtual certainty," that the jury was able to hear the proceedings that took place in the courtroom while the jury was in the jury room. In any event, mere speculation that the jury overheard comments by the Court is an insufficient ground on which to base a motion for new trial. Rodrigues v. Ripley Indus., Inc., 507 F.2d 782, 787 (1st Cir. 1974).
At trial, it was represented to the Court that Capital Metro supplied Gillig with copies of maintenance records during discovery that reflected Capital Metro performed the required maintenance on the two burned buses substantially past the mileages recommended by Gillig. Capital Metro attempted to disavow these documents at trial by impeaching their credibility (albeit fairly unsuccessfully) through the testimony of Bryan Garner. Garner testified that the mileages reflected in the maintenance records were wholly inaccurate and that, although they were likely manually entered by the mechanics who performed the work on these buses, they had no bearing whatsoever on the actual mileage of the buses. After recessing the jury, the Court chided Capital Metro's counsel for supplying Gillig with documents on which it knew Gillig would base a substantial part of its defense, when it knew all along it would later take the position the documents contained false information.
As it turns out, the testimony of Garner, Gilliam, and Timbes — Capital Metro's key witnesses with respect to the issue of the breach of specifications — was considerably undermined by their insistence that the burned buses were maintained according to Gillig's recommended schedule despite indications to the contrary in the maintenance records. Thus, the Court did not, in the end, need to impose any sanction for Capital Metro's abuse of the discovery process, as it became clear Capital Metro's attempts to impeach the credibility of its own documents did more to undercut the credibility of its own witnesses and its case as a whole than they did to undercut Gillig's defense.
Capital Metro also contends the Court treated counsel for the two parties disparately. Specifically, it contends its counsel was required to stand at the lectern during the examination of witnesses and during closing arguments, whereas Gillig's counsel was permitted to move about the courtroom freely. The Court made clear at the outset of trial, however, that everything was to be done "from the lectern." Trial Tr., Vol. II at 7, ll. 15-20. Counsel for both parties were permitted, however, to move about the courtroom as necessary in making use of charts, exhibits, and computer projected images.
The Court did instruct Capital Metro's counsel to take his place at the lectern when he began making his closing statement in front of the jury box. Trial Tr., Vol. VI at 4, ll. 9-21. However, he was explicitly given permission to move around as necessary, and the Court even made an effort to deflect attention from counsel's mistake by passing it off to the jury as understandable confusion arising from the difference between federal and state practice. Id.
Additionally, there is little risk the Court's instruction to Capital Metro's counsel was perceived by the jury as a display of favoritism towards Gillig. The Court at different times was compelled to instruct counsel for both parties concerning courtroom decorum. For example, in the presence of the jury, the Court instructed counsel for Gillig of the need to stand when making objections. Id., Vol. II at 63, ll. 12-13. The Court is confident that, in the end, the jury had no basis on which to conclude the Court was partial towards Gillig and its counsel, and thus, Capital Metro's allegations of impartiality do not warrant a new trial.
Conclusion
In accordance with the foregoing:IT IS ORDERED that Plaintiff's Motion for New Trial and Motion for Modified Judgment [#147] is DENIED.