United States District Court, D. Colorado
SUZANNA F. DAILEY, Plaintiff,
NIKOS HECHT, Defendant.
ORDER RE POST-TRIAL MOTIIONS
Brooke Jackson, Judge
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
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).
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.
MOTIONS - FINDINGS AND CONCLUSIONS
Plaintiff's Motion for a New Trial, ECF No.
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
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.
Rulings during trial.
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
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. 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.
Impeaching deposition testimony.
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 ...