BURNETT v. OCEAN PROPERTIES LTD et alREPLY to Response to Motion re MOTION for New TrialD. Me.March 1, 20191 UNITED STATES DISTRICT COURT DISTRICT OF MAINE RYAN BURNETT, Plaintiff, v. OCEAN PROPERTIES, LTD., and AMERIPORT, LLC, Defendants. ) ) ) ) ) ) ) ) ) ) ) / CASE NO. 2:16-cv-00359-JAW DEFENDANT, AMERIPORT, LLC’S REPLY IN SUPPORT OF THE MOTION FOR NEW TRIAL AmeriPort, LLC (“AmeriPort”), pursuant Federal Rules of Civil Procedure 50 and 59 and District of Maine Local Rule 7(c), respectfully timely submits its Reply to Plaintiff’s Opposition to AmeriPort, LLC’s Motion for New Trial [DE 214] (the “Opposition”),1 filed by Plaintiff, on February 5, 2019.2 I. Mooney’s Testimony Should Have Been Admitted. Plaintiff offers no meaningful response to AmeriPort’s exhaustive detailing of Plaintiff’s pre-discovery-cutoff knowledge of Mooney’s involvement, including the pre-discovery-cutoff witness lists, and the pre-discovery-cutoff examinations in depositions of Mooney’s emails. Plaintiff does not dispute that he was aware of Mooney’s “involvement in Burnett’s request for 1 Plaintiff inadvertently captioned the Opposition [DE 214] as an opposition to “Ocean Properties, Ltd.’s Motion for New Trial”; however, the introductory paragraph makes clear that the Opposition is directed at AmeriPort’s Motion for New Trial [DE 197]. 2 As AmeriPort joined Ocean Properties, Ltd.’s Motion for New Trial [DE 201], and because Plaintiff incorporated his arguments from his Opposition to OPL’s Motion for New Trial, AmeriPort joins OPL’s forthcoming Reply in Support of its Motion for New Trial. Case 2:16-cv-00359-JAW Document 220 Filed 03/01/19 Page 1 of 7 PageID #: 2557 2 accommodation.” See Opp., at pp. 2-4. Indeed, he could not as the quoted language comes from Plaintiff’s own pre-discovery-cutoff witness list. See Pl.’s Witness List [DE 144], at 4. AmeriPort does not argue and never argued, as Plaintiff incorrectly contends, in the Motion for New Trial that Plaintiff “should have known Mooney had relevant information.” Opp., at pp. 2-3. Plaintiff had actual knowledge. To be clear, Plaintiff’s counsel examined Darsaoui on Mooney’s emails on May 31, 2017—long before the discovery cutoff in August 2017. Plaintiff then listed Mooney on Plaintiff’s own witness list before discovery ended and certified discovery was complete. That Plaintiff then introduced an email exchange at trial between Darsaoui and Mooney wherein Mooney stated the doors were compliant makes one thing clear—Plaintiff was not concerned with the facts, but the strategic advantage of prohibiting AmeriPort from putting on its case to show its good faith. There was no prejudice to Plaintiff at any stage, pre- or post- discovery and certainly not during trial. Plaintiff rests only on the shaky ground that Defendants made their own choice not to call Mooney to testify on whether the building was ADA compliant when the building was constructed, Opp., at 4 (citing Trial Tr. [DE 190], at p. 181; ln. 3-25). Just before Plaintiff’s citation to the transcript, the Court clearly excluded any testimony as to the testing that Mark Mooney performed on the doors that are the subject of Plaintiff’s complaints, Trial Tr [DE 190], at p. 178, and appears to have prohibited AmeriPort from explaining the email, which included ADA compliance when the building was constructed, Trial Tr. [DE 190], at p. 180; ln. 3-8. Plaintiff offers no rebuttal to AmeriPort’s case law holding that Mooney need not be qualified as an expert because he is a fact witness, see Motion [DE 197], at 5, no rebuttal to the case law from this Court that denied a motion to strike a witness, see Motion [DE 197], at 6, and Case 2:16-cv-00359-JAW Document 220 Filed 03/01/19 Page 2 of 7 PageID #: 2558 3 no rebuttal to the case law that a party is exempt from supplementing disclosure if the information required in the initial disclosure is known or available to the opposing party, see Motion [DE 197], at 6. Plaintiff’s attempt to undercut the manifest prejudice to AmeriPort misses the mark as well.3 First, Plaintiff’s Motion in Limine barely mentions testimony. Motion in Limine [DE 159]. At best, Plaintiff’s motion sought the exclusion of “photographic evidence that Defendants produced . . . .” Id. Second, Plaintiff argues that AmeriPort’s opening statement was contrary to a specific instruction by the Court not to mention door testing during opening and that AmeriPort knew that the door testing was the subject of a Motion in Limine. Opp. [DE 214], at 4. However, the Court’s instruction was not specific to Mark Mooney or door testing for that matter. Trial Tr. [DE 190], at pp. 10-11. The Court precluded certain topics from being mentioned during opening, neither Mooney nor door testing was mentioned. Trial Tr. [DE 190], at pp. 10-11. In the context of this discussion, Plaintiff’s counsel did bring up his Motion in Limine, but, again, as set forth above, the Motion in Limine to which Plaintiff refers did not seek to exclude Mark Mooney’s testimony. Accordingly, to correct the patently unfair prejudice to AmeriPort, a new trial should be granted at which Mooney should be permitted to testify. II. Plaintiff’s Improper Comments in Closing Argument Requires a New Trial. Plaintiff concedes the statements in closing were error, and focuses his argument solely on whether those errors were harmless. Plaintiff, again, ignores the authority presented by AmeriPort, 3 In denying Mr. Mooney as a witness on measured compliance, the Court recognized the significance of Mooney’s potential testimony saying to counsel for Ameriport “I know the ruling places you at a disadvantage…” Trial Tr. [DE 190], at p. 180; ln. 18. Case 2:16-cv-00359-JAW Document 220 Filed 03/01/19 Page 3 of 7 PageID #: 2559 4 see Motion [DE 197] at 9, which states that the closing arguments for a specific damages amount are reversible error (thus, they cannot be harmless). Plaintiff advances, as a primary argument, that because other cases have awarded larger amounts of damages (in the tens of millions), the exact same comments made here are somehow less prejudicial. No courts hold that error is “less reversible” because the damage award is $650,000 instead of $10 million. Plaintiff’s second argument—that the calculation argument was harmless—fails because Plaintiff misreads AmeriPort’s cited authority. Opp. [DE 214], at 6. Plaintiff’s mistake could not be more fundamental. Plaintiff contends that Bielunas v. F/V Misty Dawn, Inc., 621 F.3d 72, 79 (1st Cir. 2010), shows why Plaintiff’s error in closing (now conceded) is harmless. To be clear, Bielunas addresses improper closing argument in the absence of objection during closing. Thus, the error was not analyzed under an appellant-friendly reversible/harmless error analysis. They were analyzed under the very strict, plain error analysis, which is used when counsel fails to object and preserve the error for appellate review. Most certainly, because the errors here were objected to, they will fall within a harmless error analysis. Regarding Plaintiff’s Golden Rule violation (also conceded), in Plaintiff’s Opposition, see [DE 214] at 7-8, Plaintiff does not rebut or discuss the cases raised in the Motion, see [DE 197] at 10-12. Finally, under the “totality of the circumstances test,” the nature of the comments were very serious and went to the heart of the issue of damages. The fact that the comments were rhetorical, as Plaintiff argues, is beside the point. Even the court acknowledged the seriousness of Plaintiff’s counsel’s violation. Trial Tr. [DE 192], at p. 369; p. 24-371; ln. 12. Paired with the Case 2:16-cv-00359-JAW Document 220 Filed 03/01/19 Page 4 of 7 PageID #: 2560 5 weakness of Plaintiff’s case (no evidence that Defendant suffered any damages)4 and the maxed damages award, the “totality” weighs in favor of a new trial. Finally, regarding a curative instruction, this Court acknowledged the bind that Plaintiff’s counsel put the defense and the Court in when the Court stated: “Yeah, the cure is worse than the problem. . . .” Trial Tr. [DE 192], p. 372; ln. 3-4. This Court recognized that the damage was done, and the bell could not be un-rung. This Court can correct the reversible error and expedite the resolution (avoiding the unnecessary expense to Plaintiff and AmeriPort of an appeal) by granting a new trial that would occur without the improper closing arguments so that the parties can proceed swiftly toward a resolution. III. Questioning on Plaintiff’s Hunting Activities Should Have Been Allowed. Finally, Plaintiff ignores that the jury was permitted to hear sympathetic evidence of his general difficulties associated with day-to-day living that were wholly unrelated to the sole request for accommodation (a door) at issue in this trial. Trial Tr. [DE 190], at pp. 56-58. AmeriPort was not permitted to rebut this testimony with evidence that Plaintiff was still able to hunt and shoot in the woods. Plaintiff argues that AmeriPort is conflating his emotional distress damages with the fact that “he is able to enjoy some aspects of his life.” But this misses the point. AmeriPort should have been able to question Mr. Burnett about his hunting because it was evidence of his physical ability. Whether he enjoyed hunting is irrelevant. His ability to hunt was evidence that directly contradicted his testimony about his difficulties with day-to-day living caused by passing through a door—something much less strenuous than plowing a wheelchair through irregular surfaces, mud 4 The evidence shows only that he acknowledged that he was able to access the facility every day; saw his supervisor every day; and never mentioned the need for automatic doors, other than in a single informal message to one of his supervisors. Trial Tr. [DE 190], at p. 97; ln. 17; Trial Tr. [DE 190], at p. 105; ln. 20. Case 2:16-cv-00359-JAW Document 220 Filed 03/01/19 Page 5 of 7 PageID #: 2561 6 and a rugged forest terrain while carrying and firing a rifle. Certainly the jury should have been able to judge Plaintiff’s credibility and contrast his complaints of a hard and harmful activity with his choice to tackle much more difficult obstacles in the wild. This is no different than an insurance company introducing video of a person (claiming he or she is having a hard time walking) that shows the person dancing at a night club. Undoubtedly, this would have made a major difference in the minds of any reasonable juror. Thus, AmeriPort should have been permitted to elicit testimony about the hunting and should have been permitted to admit documentary evidence about the hunting, and a new trial is warranted. VI. CONCLUSION For the reasons set forth above, and the grounds set forth in AmeriPort’s Motion for Judgement as a Matter of Law, incorporated herein, this Court should grant AmeriPort a new trial. Date: March 1, 2019 Respectfully submitted, AMERIPORT, LLC, By Its Attorneys /s/ Maureen M. Deskins /s/ Robert P. Hayes Germani Martemucci & Hill 43 Deering Street Portland, ME 04101 (207) 773-7455 e-mail: rhayes@gmh-law.com Local counsel Case 2:16-cv-00359-JAW Document 220 Filed 03/01/19 Page 6 of 7 PageID #: 2562 7 CERTIFICATE OF SERVICE I hereby certify that on March 1, 2019, I electronically filed the foregoing Reply in Support of Motion for New Trial using the CM/ECF system, which will send notification of such filings to counsel of record. Dated: March 1, 2019 /s/ Robert P. Hayes e-mail: rhayes@gmh-law.com GERMANI MARTEMUCCI & HILL 43 Deering Street Portland, ME 04101 (207) 773-7455 Case 2:16-cv-00359-JAW Document 220 Filed 03/01/19 Page 7 of 7 PageID #: 2563