United States District Court, D. Colorado
EDWARD H. PHILLIPS, Plaintiff,
DUANE MORRIS, LLP, JOHN C. HERMAN, and ALLEN L. GREENBERG, Defendants.
ORDER DENYING PLAINTIFF'S MOTION FOR NEW TRIAL
ROBERT E. BLACKBURN, District Judge.
The matter before me is Plaintiff's Motion for New Trial Pursuant to Fed.R.Civ.P. 59(a) [#114],  filed August 11, 2014. I deny the motion.
I have subject matter jurisdiction pursuant to 28 U.S.C. § 1332 (diversity of citizenship).
II. STANDARD OF REVIEW
Plaintiff seeks a new trial on the ground that I erroneously excluded certain testimony during the trial of this case. When a case has been tried to a jury, a new trial may be granted "for any of the reasons for which new trial have heretofore been granted in actions at law in the courts of the United States." FED. R. CIV. P. 59(a)(1). In general, a motion for new trial "is not regarded with favor and should only be granted with great caution." United States v. Kelley, 929 F.2d 582, 586 (10th Cir.), cert. denied, 112 S.Ct. 341 (1991). The decision whether to grant a new trial is committed to the sound discretion of the trial court. Id.
A new trial may be warranted based on an allegedly improper evidentiary ruling only if such ruling was both clearly erroneous and so prejudicial that "it can be reasonably concluded that with or without such evidence, there would have been a contrary result." Hinds v. General Motors Corp., 988 F.2d 1039, 1049 (10th Cir. 1993). "Neither an error in the admission or exclusion of evidence nor an error in a ruling or order of the court, nor anything done or omitted by the court, can be grounds for granting a new trial unless the error or defect affects the substantial rights of the parties." Stewart v. South Kansas and Oklahoma Railroad, Inc., 36 F.Supp.2d 919, 920 (D. Kan. 1999).
Plaintiff alleges error in the refusal to allow his wife, Diane Phillips, a lay witness, to testify to a hypothetical question regarding whether she would have agreed to authorize payment to defendant Duane Morris, LLP, of a $250, 000 attorney fee had she known of certain unknown facts at the time payment was requested. Specifically, plaintiff's counsel inquired of Ms. Phillips:
I want you to assume that if you would have been told before they took the $250, 000 that they had not gotten a stay that would have deferred the judge's ruling and that they would have explained to you that that might have been their responsibility, would you have agreed to a $250, 000 fee?
(Def. Resp. App., Exh. B at 257.) I sustained defendants' objection to this question under Fed.R.Evid. 602 and 701, but permitted plaintiff to make an offer of proof in writing. ( See Plaintiff's Offer of Proof: Diane Phillips' Testimony Regarding the Payment of $250, 000 Fee to Duane Morris, LLP [#101], filed June 19, 2014.) Therein, plaintiff maintained that this question was proper and that he should be entitled further to inquire of Ms. Phillips as follows:
What would you have done about paying Duane Morris $250, 000 if on or before 12/29/2006, Duane Morris had told you and Mr. Phillips that they may not have acted reasonably in rejecting a proposed stay that, if requested, would have kept the court from issuing any order on the JMOL motion until after the end of 2006?
What would you have done if Duane Morris had told you that on or before 12/29/2006, their total fees were less than $98, 000?
( Id. at 4.) After considering the proffer, I reiterated and supplemented my original ruling, concluding that in addition to soliciting improper lay testimony, the proffered questions also were impermissibly leading, in violation of Fed.R.Evid. 611(c), were irrelevant under Rule 401 given Ms. Phillips's acknowledgment that she did not have any input into the decision to approve the fee vel non. Finally, I found that any marginal probativity that this line of questioning might have was substantially outweighed by the dangers of ...