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Dailey v. Hecht

United States District Court, D. Colorado

October 20, 2017

SUZANNA F. DAILEY, Plaintiff,
v.
NIKOS HECHT, Defendant.

          ORDER RE POST-TRIAL MOTIIONS

          R. Brooke Jackson, Judge

         This order addresses (1) plaintiff's motion for a new trial, and (2) plaintiff's combined objections to defendant's bill of costs and motion for waiver of a supersedeas bond on appeal. The motions have been fully briefed.

         BACKGROUND

         Alleging that she was sexually assaulted by Nikos Hecht during a dinner party in Cabo San Lucas, Mexico in March 2014, Suzanna Dailey sued Mr. Hecht asserting claims of assault, battery and intentional infliction of emotional distress. Federal jurisdiction was based on diversity of citizenship. The case was tried to a jury May 16-19, 2017, resulting in the jury's determination that Ms. Dailey had not proved any of her three claims, and that the defendant had established that their encounter was consensual. Jury Verdict, ECF Nos. 200 (unredacted), 201 (jurors' names redacted).

         Final Judgment was entered in favor of the defendant on May 23, 2017, and as the prevailing party, Mr. Hecht was awarded his reasonable costs pursuant to Fed.R.Civ.P. 54(d)(1) and D.C.COLO.LCivR 54.1. ECF No. 202. Mr. Hecht submitted a bill of costs in the amount of $182, 518.07. ECF No. 203. However, the Clerk taxed costs in the amount of $45, 849.89. ECF No. 207.

         PENDING MOTIONS - FINDINGS AND CONCLUSIONS

         A. Plaintiff's Motion for a New Trial, ECF No. 206.

         In her combined motion and brief Ms. Dailey requests a new trial on grounds that several pretrial and trial evidentiary rulings “prejudiced Plaintiff's ability to tell her story.” ECF No. 206 at 1. The problem was that the story both parties wanted to tell included a great deal of “dirt” that they had dug up on each other. For example, Ms. Dailey wished to show the jury that Mr. Hecht had a history of drug problems, extramarital affairs, and abusive relationships. Mr. Hecht wished to show the jury that Ms. Dailey had a history that included securities fraud and shoplifting.

         The Court made it clear before and during the trial that it would not permit the trial to be sidetracked by marginally relevant (at best) and inflammatory evidence, and that the case would be tried on the facts of what happened that evening in Mexico. With that context in mind, I consider plaintiff's arguments for a new trial.

         1. Rulings during trial.

         First, Ms. Dailey complains that she was precluded from introducing evidence that Mr. Hecht had taken the opioid Percocet that evening, and that in the past, he had been an abuser of opioids and other drugs. She wished to use evidence of his “drug use” to challenge his ability to recall the events of the alleged assault. But she admits that the Court informed plaintiff's counsel (before trial and, as I recall, again during the trial) that plaintiff could introduce such evidence if she had medical evidence that his opioid use could affect his memory. She produced no medical evidence. Essentially plaintiff's counsel hoped the jury would infer that the type and amount of drugs Mr. Hecht consumed that day or before that day would have impaired his memory of the events that took place at the dinner party. Such an inference drawn by lay juror would amount to pure speculation.

         Second, she complains that she was precluded from introducing evidence that Mr. Hecht had a “mistress” to whom he had confessed that he hated his wife, which plaintiff believes would have contradicted his testimony that his was a close family. The one statement doesn't necessarily contradict the other. Mr. Hecht's family includes numerous individuals other than his wife, and several of them were present with him during the vacation in Cabo and the dinner party. Moreover, other evidence of the unhappy relationship between Mr. Hecht and his wife was admitted. Plaintiff's desire to introduce the specific statement made to his mistress was just one of several attempts plaintiff made to put before the jury Mr. Hecht's relationship with a woman named Brooke Warfel with whom he had engaged in an extra-marital affair, but who had also accused Mr. Hecht of abusive conduct.[1] To any extent that the statement could be viewed as relevant to the credibility of his testimony that his was a close family, as opposed to being improper character evidence, my judgment was and still is that its probative value would be substantially outweighed by a danger of unfair prejudice.

         2. Impeaching deposition testimony.

         Mr. Hecht apparently testified in his deposition that he had never hurt or threatened a woman. Ms. Dailey wanted to impeach the deposition testimony with evidence that Mr. Hecht had been in an abusive relationship with Ms. Warfel. Had he testified at trial that he had never hurt or threatened a woman, the door would have been opened, as the evidence arguably would have impeached the credibility of his trial testimony. But there was no such trial testimony, nor was the deposition put in evidence under Fed.R.Civ.P. 32(a)(3) (the deposition of a party may be used for any purpose). As such, this was improper impeachment and improper character evidence. The fact, if it was a fact, that Mr. Hecht had in the past been verbally or physically abusive to Ms. Warfel has no apparent relevance to whether his sexual contact with Ms. Dailey in March 2014 was consensual, other than as it relates to his alleged character trait of ...


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