BURNETT v. OCEAN PROPERTIES LTD

UNITED STATES DISTRICT COURT

DISTRICT OF MAINE

RYAN D. BURNETT, )

)

Plaintiff, )

)

v. ) 2:16-cv-00359-JAW

)

OCEAN PROPERTIES, LTD. )

and AMERIPORT, LLC, )

)

Defendant. )

ORDER DENYING AMERIPORT LLC’S POST-TRIAL MOTIONS

Faced with an adverse verdict in this action for failure to accommodate in

violation of the Maine Human Rights Act, 5 M.R.S. §§ 4551 et seq., and

the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101 et seq., a defendant

filed several post-trial motions to vacate, or in the alternative, reduce the jury’s

verdict. The Court denies the motions.

I. BACKGROUND

On November 1, 2018, at the close of a three-day trial, a jury returned a verdict

for Plaintiff Ryan Burnett and awarded $150,000 in compensatory damages and

$500,000 in punitive damages. Jury Verdict at 1 (ECF No. 179) (Verdict); Jury

Punitive Damages Verdict at 1 (ECF No. 180). As part of its verdict on compensatory

damages, the jury made the following findings of fact: (1) that Ocean Properties was

an employer or joint employer of Mr. Burnett; (2), that Ocean Properties and

AmeriPort were integrated employers of Mr. Burnett; and (3) that Mr. Burnett’s

employer had more than 500 employees when he worked there. Verdict at 1-2.

Judgment was entered on behalf of Mr. Burnett on November 13, 2018. J. (ECF No.

188).

On December 11, 2018, AmeriPort, LLC (AmeriPort) filed a renewed motion

for judgment as a matter of law, a motion for a new trial, and a motion for remittitur.

Def. Ameriport, LLC’s Mot. for J. as a Matter of Law (ECF No. 196) (Def.’s Rule 50(b)

Mot.); Def., Ameriport LLC’s Mot. for New Trial (ECF No. 197) (Def.’s Mot. for New

Trial); Def., Ameriport, LLC’s Mot. for Remittitur (ECF No. 198) (Def.’s Mot. for

Remittitur). On February 5, 2019, Mr. Burnett responded in opposition to each of

AmeriPort’s motions. Pl.’s Opp’n to Def. Ameriport’s Mot. for J. as a Matter of Law

(ECF No. 213) (Pl.’s Opp’n to Rule 50(b) Mot.); Pl.’s Opp’n to Def. Ocean Properties,

LTD.’s Mot. for New Trial (ECF No. 214) (Pl.’s Opp’n to Mot. for New Trial); Pl.’s

Opp’n to Def. Ameriport’s Mot. for Remittitur (ECF No. 211) (Pl.’s Opp’n to Mot. for

Remittitur). On March 1, 2019, AmeriPort replied. Def., Ameriport, LLC’s Reply to

Mot. for J. as a Matter of Law (ECF No. 219) (Def.’s Reply Rule 50(b) Mot.); Def.,

Ameriport, LLC’s Reply in Support of the Mot. for New Trial (ECF No. 220) (Def.’s

Reply Mot. for New Trial); Def., Ameriport, LLC’s Reply in Support of the Mot. for

Remittitur (ECF No. 221) (Def.’s Reply Mot. for Remittitur).

II. MOTION FOR JUDGMENT AS A MATTER OF LAW

A. Positions of the Parties

1. AmeriPort’s Motion

AmeriPort LLC (AmeriPort) moves for judgment as a matter of law pursuant

to Federal Rules of Civil Procedure 50 and 59 and District of Maine Local Rule 7.

Def’s Rule 50(b) Mot. at 1. AmeriPort advances three arguments in support of its

position.1 First, it contends that Mr. Burnett’s administrative charge is defective and

does not put Ocean Properties on notice of the conduct raised in Mr. Burnett’s

Complaint. Id. at 2 (citing First Am. Compl. (ECF No. 7); Pl.’s Tr. Ex. 63, EEOC

Complaint of Discrimination (EEOC Charge)). According to AmeriPort, because Mr.

Burnett failed to exhaust his administrative remedies before filing suit for damages

under the ADA and the MHRA, compensatory and punitive damages are not

available. Id. Second, AmeriPort argues that the trial record established that Mr.

Burnett was “able to perform the essential functions of his job without

accommodation . . . [and] his claim must fail as a matter of law because he never

established that automatic or push-button doors were necessary for him to perform

the essential functions of his job.” Id. at 9-10. Third, AmeriPort contends that Mr.

Burnett “failed to establish that the Defendants acted with malice or reckless

indifference,” therefore, the Court erred in instructing the jury on punitive damages,

and the jury’s punitive damages verdict should be overturned. Id. at 11.

As evidence of its first argument, AmeriPort states, “Plaintiff’s trial was about

a single failure to accommodate, that [Ocean Properties] and AmeriPort purportedly

ignored, an August 28, 2014 request for an accommodation for heavy wooden doors—

this was never included in the Charge.” Id. at 2 (emphasis supplied). AmeriPort

contends that this argument “has been raised and is ripe” because AmeriPort and

1 AmeriPort also “joins and adopts Ocean Properties, Ltd.’s separate Motion for Judgment as a

Matter of Law, filed on December 11, 2018, and incorporates it as if fully set forth therein.” Def.’s Mot.

at 1.

Ocean Properties raised Mr. Burnett’s failure to exhaust administrative remedies in

its Partial Motion to Dismiss, its Answer and Affirmative Defenses, and its Final

Pretrial Memoranda. Id. (citing Mot. to Dismiss for Lack of Jurisdiction at 4 (ECF

No. 19); Answer to Am. Compl. at 12 (ECF No. 20); Final Pretrial Mem. at 1 (ECF No.

84)). According to AmeriPort, “discrete discriminatory acts are not actionable if time

barred, even when they are related to acts alleged in timely filed charges.” Id. at 4

(citing Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002); Ledbetter v.

Goodyear Tire & Rubber Co., Inc., 550 U.S. 618, 639 (2007)). AmeriPort states that

the administrative claim serves the important purpose of giving notice to the EEOC

and the employer of the alleged violation, which allows the employer to take

corrective action.” Id. at 5 (citing Thornton v. United Parcel Serv., Inc., 587 F.3d 27,

31 (1st Cir. 2009); Powers v. Grinnel Corp., 915 F.2d 34 (1st Cir. 1990)).

Second, AmeriPort contends that judgment as a matter of law should be

granted in its favor because Mr. Burnett’s request for push-button door access was

not necessary for him to perform the essential functions of his job, and therefore was

not a “reasonable accommodation.” Id. at 7. It cites this Court as stating in its prior

order on the Defendants’ motion for summary judgment that when an employer has

already taken “plainly reasonable” measures to accommodate an employee’s

disability, summary judgment should be granted in the Defendant’s favor. Id. (citing

Mot. for Summary J. at 63 (ECF No. 81) (Mot. for Summary J.)). AmeriPort also

states that the plaintiff bears the burden of showing that the requested

accommodation would effectively enable him to perform his job. Id. (citing Reed v.

LePage Bakeries, Inc., 244 F.3d 254, 259 (1st Cir. 2001); Corujo Martinez v. Triple-S,

Inc., 519 F. Supp. 2d 201, 216 (D.P.R. 2007)). The Defendant claims that “the record

evidence established that Mr. Burnett was able to perform the essential functions of

his job without accommodation.” Id. at 9 (citing Trial Tr. Vol. I at 85, 107 (ECF No.

190) (Trial Tr. I); Trial Tr. Vol II at 284-85 (ECF No. 191) (Trial Tr. II)).

Finally, AmeriPort argues that Mr. Burnett failed to satisfy his burden of

providing malice or reckless indifference by a showing of clear and convincing

evidence as required to prove punitive damages. Id. at 10 (citing 42 U.S.C. §

1981a(b)(1); 5 M.R.S. § 4613(2)(B)(8)(c); Batchelder v. Realty Res. Hosp., LLC, 2007

ME 17, ¶ 20, 914 A.2d 1116, 1123). AmeriPort notes that courts have exercised

caution in allowing punitive damages and have set limits on their availability. Id. at

11 (citing Kolstad v. Am. Dental Assoc., 527 U.S. 526, 535-36 (1999); Kinnon v. Kwong

Wah Rest., 83 F.3d 498, 508 (1st Cir. 1996) (citing Lee v. S. Home Sites Corp., 429

F.2d 290, 294 (5th Cir. 1970)); Aladdin Mfg. Co. v. Mantle Lamp Co., 116 F.2d 708,

717 (1st Cir. 1941) (alteration in ordering)). AmeriPort also cites Marcano-Rivera v.

Pueblo Intern., Inc. 232 F.3d 245, 249 (1st Cir. 2000), in which the First Circuit

affirmed the district court’s decision not to instruct the jury on punitive damages

where the plaintiff “had failed to generate any facts that would demonstrate that the

defendant was aware that its actions were in violation of federal law.” Def.’s Rule

50(b) Mot. at 12-13 (citing Marcano-Rivera, 232 F.3d at 254). Here, AmeriPort states

that “Plaintiff presented no evidence that AmeriPort or Ocean Properties, Ltd., knew

that their failure to provide Plaintiff with automatic or push-button doors was a

violation of federal law.” Id. at 14.

2. Ryan Burnett’s Opposition

In response, Mr. Burnett argues that AmeriPort is “severely limited in the

arguments it can advance at this stage” because “a post-trial motion for judgment can

be granted only on grounds advanced in the pre-verdict motion.” Pl.’s Opp’n to Rule

50(b) Mot. at 1-2 (quoting Robles-Vazquez v. Tirado Garcia, 110 F.3d 204, 206 (1st

Cir. 1997)). According to Mr. Burnett, AmeriPort made no motion for judgment as a

matter of law prior to the verdict in this case, and Ocean Properties only moved for

judgment as a matter of law on whether Mr. Burnett had established Ocean

Properties and AmeriPort to be integrated or joint employers. Id. at 2 (citing Trial

Tr. II 269:16-21). Mr. Burnett avers that if the Court were to proceed on the merits

of AmeriPort’s arguments, the burden for successfully challenging a jury’s verdict is

that the Defendant “must prove that ‘as a matter of law, the facts and inferences are

such that no reasonable fact finder could have reached a verdict against the movant.’”

Id. at 2 (citing Palmquist v. Shinseki, 808 F. Supp. 2d 322, 338-339 (D. Me. 2011)

(quoting Webber v. Int’l Paper Co., 326 F. Supp. 2d 160, 165 (D. Me. 2004))).

Furthermore, Mr. Burnett states that in ruling on a post-trial motion for judgment

as a matter of law, the Court must view the evidence in the light most favorable to

the non-movant, “drawing all reasonable inferences in its favor.” Id. (quoting

McMillan v. Mass. Soc’y for the Prevention of Cruelty to Animals, 140 F.3d 288, 299

(1st Cir. 1998)).

In answer to AmeriPort’s contention that Mr. Burnett’s administrative charge

did not specifically list Ocean Properties and is therefore defective, Mr. Burnett

argues that there is a clear identity of interests between Ocean Properties and

AmeriPort, which allows the action to proceed. Id. at 3 (citing Russell v. Enter. Rent-

A-Car Co. of R.I., 160 F. Supp. 2d 239, 254 (D.R.I. 2001)). Mr. Burnett also contends

that the theory of constructive notice applies “when the original and added parties

are so closely related in business or other activities that it is fair to presume the added

parties learned of the institution of the action shortly after it was commenced.” Id.

(quoting Hernandez Jimenez v. Calero Toledo, 604 F.2d 99, 102-103 (1st Cir. 1979)).

Here, Mr. Burnett argues, the parties are sufficiently related because the same

attorney represented both AmeriPort and Ocean Properties at trial, and “Mr. Burnett

received contradictory documentation about who his employer was.” Id. at 4.

In response to AmeriPort’s related contention that Mr. Burnett did not include

his request for push-button doors in the Complaint, Mr. Burnett contends that

pursuant to the scope of investigation doctrine, his allegation is encompassed in the

charge “because it reasonably could have been discovered in the Commission’s

investigation.” Id. at 5 (citing Davis v. Lucent Technologies, Inc., 251 F.3d 227, 233

(1st Cir. 2001); Thornton v. United Parcel Service, Inc., 587 F.3d 27, 31-32 (1st Cir.

2009)). Mr. Burnett notes that the administrative charge referenced the issue of the

doors not being handicap accessible. Id. (citing EEOC Charge).

Mr. Burnett distinguishes the cases AmeriPort cited in support of its

contention that Mr. Burnett’s request for automatic doors was not reasonable. Id. at

6. According to Mr. Burnett,

There is a marked difference between the questionable conflict-

avoidance mechanism requested by the employee in Reed [,102 F. Supp.

2d at 35], which did not actually concern the essential functions of the

plaintiff’s job, and the request for a recording device in Pollack despite

a lack of apparent benefit, and Burnett’s reasonable request to have a

door to his workplace that he could effectively enter.

Id. at 7-8.

Finally, Mr. Burnett opposes AmeriPort’s contention that he failed to meet his

burden of showing that AmeriPort “acted ‘with malice or reckless indifference to the

plaintiff’s federally protected rights’ to warrant an award of punitive damages.” Id.

at 8 (citing Che v. Mass. Bay Transp. Auth., 342 F.3d 31, 41 (1st Cir. 2003) (quoting

Kolstad, 527 U.S. at 535)). Mr. Burnett cites the record evidence demonstrating that

AmeriPort employee Lori Darsaoui failed to respond to Mr. Burnett’s request, failed

to investigate the possibility of installing automatic doors, and did not recall

discussing the issue with Mr. Burnett, even when Mr. Burnett subsequently injured

his wrist trying to get through the door. Id. at 9-11 (citing Trial Tr. II 305:10-19; id.

231:4-12; id. 231:15-232:8; Trial Tr. I. 71:19-72:12; id. 76:1-5).

Mr. Burnett further points out that the Court denied AmeriPort’s request not

to instruct the jury on punitive damages, explaining on the record that “it seems to

me that the evidence here of an employee . . . repeatedly struggling to get in the front

door, asking for an accommodation and never having a response may be evidence of

reckless indifference to the rights of the employee.” Id. at 10 (citing Trial Tr. I 315:3-

17).

3. AmeriPort’s Reply

In reply, AmeriPort reiterates its argument that it raised the alleged

deficiencies in Mr. Burnett’s charge in pre-verdict motions. Reply to Resp. to Mot. for

J. as a Matter of Law at 1 (ECF No. 19) (Def.’s Reply Rule 50(b) Mot.). As such,

according to AmeriPort, “[t]he issue has been raised, and the Court should consider

the motion as deferred under Rule 50(a), which allows it to be renewed at this

juncture.” Id. at 1-2.

AmeriPort also repeats its contention that Mr. Burnett’s specific request for

automatic doors was not included in the Plaintiff’s charge and refutes Mr. Burnett’s

argument that the scope of the investigation doctrine applies, because of “the level of

specificity as to the other allegations.” Id. at 2. Furthermore, according to AmeriPort,

if Mr. Burnett’s request for automatic doors fell within the scope of the investigation,

it is time barred. Id. at 2-3. On whether Mr. Burnett met his burden of proving

malice or reckless indifference to support an award of punitive damages, AmeriPort

argues that he did not meet the clear and convincing evidence standard. Id. at 5 n. 2

(citing Batchelder, 2007 ME 17, ¶ 20, 914 A.2d 1124). AmeriPort repeats its

contention that Mr. Burnett “presented no evidence that AmeriPort knew that its

failure to accommodate Plaintiff’s request for push-button doors was a violation of

federal law.” Id. at 5.

4. Oral Argument

During oral argument, AmeriPort took the position that because the doors at

issue were ADA compliant, it was not required to respond to Mr. Burnett’s request

for accommodation. The company contends that Mr. Burnett’s request was

inherently unreasonable if the doors were compliant with the ADA. The Court

requested that the parties provide controlling supplemental authority on the issue.

Def. AmeriPort’s Statement of Case Authorities (ECF No. 236). In its filing, AmeriPort

referred the Court to the following cases: Kvorjak v. State of Maine, 259 F.3d 48, *52-

*54 (1st Cir. 2001); Charette v. St. John Valley Soil & Water Conservation Dist., 332

F.Supp.3d 316, *361-362 (D. Me. 2018); Kezer v. CMMC, 2012 ME 54, ¶¶ 26-27;

McBride v. BIC Consumer Products Mfg. Co., Inc. 583 F.3d 92, 99-101 (2nd Cir. 2009);

Rehling v. City of Chicago, 207 F.3d 1009, 1016-1016 (7th Cir. 2000). Id. at 1-2.

Mr. Burnett’s response to this argument is two-fold. First, he contended that

no evidence was presented at trial to prove that the doors were, in fact, ADA

compliant. Second, he argued that the provisions of the ADA and relevant case law

do not support AmeriPort’s claim that proving ADA compliance eliminates the

company’s obligation to engage in the interactive process and provide reasonable

accommodations to a disabled employee in order to enable them to perform the

essential functions of his or her employment. In support, Mr. Burnett filed a

statement of supplemental authorities, which includes Higgins v. New Balance

Athletic Shoe, Inc., 194 F.3d 252, 264 (1st Cir. 1999); Sanchez-Rodriguez v. AT&T

Mobility PR, Inc., 673 F.3d 1, 12 (1st Cir. 2012); and Tobin v. Liberty Mutual Ins. Co.,

553 F.3d 121, 136 (1st Cir. 2009). Statement of Case Authorities by Ryan Burnett at

1-2 (ECF No. 235).

B. DISCUSSION

1. Legal Standard: Judgment as a Matter of Law

Federal Rule of Civil Procedure 50(a) governs the procedure for a judgment as

a matter of law. Generally, once a party has been fully heard on an issue at trial,

and the court finds that a reasonable jury would not have a legally

sufficient evidentiary basis to find for the party on that issue, the court

may: (A) resolve the issue against the party; and (B) grant a motion

for judgment as a matter of law against the party on a claim or defense

that, under the controlling law, can be maintained or defeated only with

a favorable finding on that issue.

FED. R. CIV. P. 50(a).

“It is well-established that arguments not made in a motion for judgment as a

matter of law under Rule 50(a) cannot then be advanced in a renewed motion for

judgment as a matter of law under Rule 50(b).” Costa-Urena v. Segarra, 590 F.3d 18,

26 n.4 (1st Cir. 2009) (citing Correa v. Hosp. San Francisco, 69 F.3d 1184, 1196 (1st

Cir. 1995) ( “As the name implies, a renewed motion for judgment as a matter of law

under Fed. R. Civ. P. 50(b) is bounded by the movant's earlier Rule 50(a) motion.”);

James W. Moore, 5A MOORE'S FEDERAL PRACTICE 50.08 (2d ed. 1994) (“[A]ny

argument omitted from the [Rule 50(a)] motion made at the close of evidence is

waived as a ground for judgment under Rule 50(b).”). As noted by the Court of

Appeals for the First Circuit, “[t]he 2006 Amendments to the Federal Rules of Civil

Procedure were intended to solidify this requirement.” Jones ex rel. U.S. v. Mass.

Gen. Hosp., 780 F.3d 479, 487-88 (1st Cir. 2015) (citing FED. R. CIV. P. 50 advisory

committee’s note, 2006 amendments (“Because the Rule 50(b) motion is only a

renewal of the preverdict motion, it can be granted only on grounds advanced in the

preverdict motion.” (Emphasis added))).

The standard of review for motions for judgment as a matter of law requires

the Court “to view the evidence ‘in the light most favorable to the nonmoving party,

drawing all reasonable inferences in its favor.’” McMillan, 140 F.3d at 299 (quoting

Morrison v. Carleton Woolen Mills, Inc., 108 F.3d 429, 436 (1st Cir. 1997)). A jury

verdict should not be set aside as a matter of law “unless there was only one

conclusion the jury could have reached.” Id. (citing Conway v. Electro Switch Corp.,

825 F.2d 593, 598 (1st Cir. 1987)). Specifically, the Court's review “is weighted

toward preservation of the jury verdict;” the Court will uphold the jury verdict “unless

the evidence was so strongly and overwhelmingly inconsistent with the verdict . . .

that no reasonable jury could have returned [it].” Rodowicz v. Mass. Mut. Life Ins.

Co., 279 F.3d 36, 41–42 (1st Cir. 2002) (internal quotations omitted). In making its

determination, the court “may not make credibility determinations or weigh the

evidence,” as these are functions of the jury. Reeves v. Sanderson Plumbing Prod.,

Inc., 530 U.S. 133, 150–51 (2000) (citations omitted).

2. Analysis

a. AmeriPort’s 50(a) Motion

As a threshold issue, the parties dispute whether AmeriPort made a motion for

judgment as a matter of law pursuant to Rule 50(a).2 The record reflects that

2 The Plaintiffs contend that “AmeriPort made no pre-verdict motion for judgment as a matter

of law . . . Therefore, the Court’s review is constrained at this juncture.” Pl.’s Opp’n at 2. Upon

following the close of evidence, after the jury was excused, the Defendants jointly

moved for a directed verdict on two of the three arguments AmeriPort now brings in

its instant 50(b) motion. Trial Tr. II 313:9-316:8. The Defendants first argued that

no evidence of reckless disregard or malice was introduced at trial to support a jury

instruction on punitive damages. Id. 313:15-23. The Court found that evidence was

brought that could support a reasonable jury’s finding of reckless disregard or malice

and denied the motion to bar a punitive damages instruction. Id. 315:9-316:2.

Second, Defendants argued that Mr. Burnett’s request for automatic doors was not a

reasonable accommodation because the evidence showed he was able to perform the

essential functions of his job without it. Id. 316:3-8. The Court denied the motion

after concluding that whether the accommodation was reasonable was a mixed

matter of law and fact that should properly be considered by the jury. Id. 318:8-11.

AmeriPort failed to argue in its 50(a) motion, however, that Mr. Burnett was

barred from obtaining a damages award because he did not specifically state his

complaint regarding automatic doors in his administrative charge. This limitation,

as set forth in Rule 50(b) and as established in the body of relevant case law, is

unequivocal. “The movant cannot use . . . a [renewed] motion [for judgment as a

matter of law] as a vehicle to introduce a legal theory not distinctly articulated in its

close-of-evidence motion for a directed verdict.” Correa, 69 F.3d at 1196. AmeriPort

contends that its argument is purely legal in nature and does not rely on the evidence

reviewing the trial record, the Court finds that the Plaintiffs are mistaken, as the Defendants brought

a motion for judgment as a matter of law on two of the three arguments they renew here following the

close of evidence. See Trial Tr. II at 313:9-316:8.

in the record; therefore, it is “ripe for this Court’s adjudication at this time.” Def.’s

Rule 50(b) Mot. at 3. It also notes that it raised the issue in pre-trial motions, so it

should not be barred for failing to allege it in a 50(a) motion.3 Id. AmeriPort cites no

caselaw in support of its contention that raising an issue in a pre-trial motion is

construed by the courts as complying with Rule 50(b) or that an exception to the Rule

50 requirements exists in such circumstances.

Although circuits vary in the rigidity with which they define a 50(a) motion for

purposes of appellate review, the First Circuit has consistently held that moving for

judgment as a matter of law under Rule 50(a) is “a prerequisite for later consideration

of the legal sufficiency of the evidence.” Jusino v. Zayas, 875 F.2d 986, 991 (1st Cir.

1989); see also Keisling v. SER-Jobs for Progress, Inc., 19 F.3d 755, 758 (1st Cir. 1994);

Correa, 69 F.3d at 1196. The First Circuit has also held that raising an argument in

a motion for summary judgment does not substitute for the required 50(a) motion.

Jones, 780 F.3d at 488 (“After trial, a party may not invoke any sufficiency challenges

included only in a motion for summary judgment”). The Court concludes that because

AmeriPort failed to assert its argument regarding the sufficiency of the

administrative charge during trial, it is precluded from making the argument in the

form of a renewed motion under Federal Rule of Civil Procedure 50(b).

3 AmeriPort asserts that it raised the issue of the allegedly defective charge in its motion to

dismiss, its Answer and Affirmative Defenses, its final pretrial memorandum, and it raised the issue

regarding the availability of damages in a motion in limine. Def.’s Mot. at 3 (citing Mot. to Dismiss for

Lack of Jurisdiction (ECF No. 19) (Defs.’ Mot. to Dismiss); Mot. in Limine to Exclude Evidence and/or

an Award of Damages or Relief Other Than Inj. Relief (ECF No. 106) (Defs.’ Mot. in Limine); Final

Pretrial Memorandum by AmeriPort LLC, Ocean Properties Ltd. (ECF No. 83) (Defs.’ Pretrial

Memorandum)).

b. Merits

Even setting aside procedural errors that limit the availability of judgment

under Rule 50(b), AmeriPort fails to meet the stringent standard that must be met to

overturn a jury verdict. To obtain a judgment as a matter of law, AmeriPort must

demonstrate that the facts introduced at trial, including all reasonably available

inferences, “are such that no reasonable factfinder could have reached a verdict

against [it].” Webber, 326 F. Supp. 2d at 165 (citing Santos v. Sunrise Med., Inc., 351

F.3d 587, 590 (1st Cir. 2003)). AmeriPort does not clear this high hurdle with respect

to its three arguments, and the court will not disturb the jury’s verdict.

i. Defective Administrative Charge

AmeriPort contends that the administrative charge Mr. Burnett filed against

the Defendants is defective for two reasons: first, because “the Charge fails to name

OPL and therefore does not give OPL any notice that it—a legally distinct entity—

needed to engage in an interactive process . . .,” and second, because Mr. Burnett did

not include a request for an accommodation for heavy wooden doors specifically in the

charge. Def.’s Rule 50(b) Mot. at 2. AmeriPort states that it raised the first argument

in its motion to dismiss and the second argument in a motion in limine and in its pre-

trial memorandum. Defs.’ Mot. in Limine at 2; Pretrial Mem. at 1. Neither argument

was raised at trial, however.

With respect to AmeriPort’s contention that the Court should consider whether

Mr. Burnett failed to exhaust his administrative remedies by failing to list OPL in

his administrative charge, AmeriPort first avers that its argument is ripe for review

because it is purely legal in nature, and does not require a review of the trial record.4

Def.’s Rule 50(b) Mot. at 3. This argument is flawed. First, the Court denied the

Defendants’ motion to dismiss on the basis that “a more detailed factual record is

necessary to determine if the two entities share an identity of interest.” Order on

Mot. to Dismiss at 1 (ECF No. 37). Second, the Defendants never argued at trial that

the administrative charge was defective.5

AmeriPort also contends that the EEOC charge is defective because Mr.

Burnett’s request for an accommodation for heavy wooden doors was not included in

the Charge, and “damages are not recoverable in a civil action when a complainant

has failed to properly notify the employer administratively.” Def.’s Mot. at 2. As

with its first argument, AmeriPort does not identify any evidence in the trial record

that shows it raised the issue regarding Mr. Burnett’s claim that it failed to respond

to his request for push-button doors in his EEOC charge.

The Rule 50 motion is available only “if a party has been fully heard on an

issue during a jury trial.” FED. R. CIV. P. 50(a)(1); Williamson v. Horizon Lines LLC,

No. CV-06-119-B-W, 2008 WL 2222052, at *1 (D. Me. Feb. 11, 2008) (citing Summers

4 Moreover, the Court notes that if the argument were purely legal and not influenced by any

evidence brought at trial, the appropriate vehicle to advance such an argument is a motion for

summary judgment, especially given that the Court rejected the argument on the Defendants’ motion

to dismiss, noting that “[w]hether the identity of interest exception applies requires a more detailed

factual record . . . and is better suited for resolution at summary judgment.” Order on Mot. to Dismiss

at 18 (quoting DePaolo v. Ocean Properties, No. 2:16-cv-468-NT, 2017 U.S. Dist. LEXIS 12793, at *5

(D. Me. Jan. 31, 2017)). The Defendants failed to include this argument in their motion for summary

judgment, and instead seek to bring it in a procedurally improper 50(b) motion.

5 The corporate relationship between AmeriPort and Ocean Properties was a central issue at

trial, and evidence in the record was brought by both parties to prove or disprove the corporate

structure of Ocean Properties and the relationship between the two entities. However, neither party

contends that the argument raised here—that Mr. Burnett’s charge was defective—was raised at trial,

and the Court’s review of the transcript confirms this fact.

v. Delta Air Lines, Inc., 508 F.3d 923, 928–29 (9th Cir. 2007); Jaasma v. Shell Oil

Co., 412 F.3d 503, 506 n.4 (3d Cir. 2005) (stating that the trial court acted

prematurely in granting a Rule 50(a) motion before the commencement of

trial); Echeverria v. Chevron USA Inc., 391 F.3d 607 (5th Cir. 2004) (concluding that

a Rule 50 motion should not be acted upon until the non-movant has presented all its

evidence)).

Here, the Defendants never argued at trial that Mr. Burnett’s administrative

charge was defective; therefore, the Court cannot analyze whether “a reasonable jury

would . . . have a legally sufficient evidentiary basis to find for the party on that

issue.” FED. R. CIV. P. 50(a)(1). A Rule 50(b) motion cannot be used as a means for

a party to re-litigate the Court’s determination of an issue raised in pre-trial motions

when the issue has not been raised subsequently at trial. Moreover, the fact that

AmeriPort raised a defense in pre-trial motions but not at trial, and brought no Rule

50(a) motion at the close of evidence, “did nothing to put the district court or

defendants on notice that [the Plaintiff] would argue that, as a matter of law, the

defendants had failed to put forth sufficient admissible evidence such that no jury

could return a verdict in defendants’ favor.” Jones, 780 F.3d at 489 (internal citation

omitted). The Court rejects AmeriPort’s request for judgment as a matter of law on

the issue.

ii. Reasonable Accommodation

AmeriPort contends that a judgment as a matter of law should be granted in

its favor because Mr. Burnett failed to prove that push-button doors were a

reasonable accommodation, as they are not necessary for him to perform the essential

functions of his job. Def.’s Mot. at 6. AmeriPort contends that “record evidence

demonstrated that Mr. Burnett was not only able to perform the duties of his position,

but exceeded his employer’s expectations without the requested accommodation.” Id.

at 10.

The ADA and Maine Human Rights Act require employers to assist an

otherwise qualified employee who has a disability by providing reasonable

accommodations that would enable him to perform his job. 42 U.S.C. §

12112(b)(5)(A); 5 M.R.S. § 4572. “In order to prove ‘reasonable accommodation,’ a

plaintiff needs to show not only that the proposed accommodation would enable her

to perform the essential functions of her job, but also that, at least on the face of

things, it is feasible for the employer under the circumstances.” Reed, 244 F.3d at

259. Whether an employer failed to grant a reasonable accommodation is a question

of fact to be determined by the jury. Valle-Arce v. Puerto Rico Ports Auth., 651 F.3d

190, 201 (1st Cir. 2011).

Here, sufficient evidence was presented at trial for a reasonable jury to

conclude that Mr. Burnett’s request for automatic doors was a reasonable

accommodation, as it would enable him to enter the building without difficulty and

perform the essential functions of his job.6 For example, Plaintiff’s Exhibit 58 is an

6 AmeriPort’s argument has a Catch-22 ring. JOSEPH HELLER, CATCH-22 (1961). Mr. Burnett

could perform his job if he could open the door to the workplace, but because he cannot open the door

to his workplace, he cannot perform his job. From the Court’s perspective, the concepts of reasonable

accommodation in the ADA and Maine Human Rights Act are sufficiently broad to capture not just an

employee’s duty station but also his access to the place of employment in the first place. The Court is

deeply skeptical about AmeriPort’s claim that an employer could actively discriminate against a

email from Mr. Burnett to acting office manager Nick Robertshaw, in which Mr.

Burnett states, “Nick, I am request[ing] that we need to put push button automatic

doors in for the entry of building. Doors are heavy and hard to hold open while I push

myself [through] without them closing on me.” Pl.’s Tr. Ex. 58 at 1. Mr. Burnett also

testified at trial:

MS. WHITE: Tell us a little bit more about – we keep talking

about the heavy wooden doors, but what exactly was the issue with the

doors once you started working at the end of 2013 at the new reservation

call center?

MR. BURNETT: They were heavy pull out doors that had the piston

on the top so they automatically close, and with the downward slope to

enter the building, the doors would be closing on me as I would enter

and I would have to kind of fight the door off as I push myself through.

MS. WHITE: And when you say the slope, why was that a

problem?

MR. BURNETT: It's just a negative slope to make me roll backwards.

I have to put more force in going forward and fighting the door and the

slope to go backwards.

Trial Tr. I 73:25-74:11. Mr. Burnett also testified that he injured his wrist trying to

access the building, as recorded in an incident report. Pl.’s Tr. Ex. 60 at 1 (“Ryan

twisted wrist opening the front door, while trying to wheel himself through the

door.”).

MS. WHITE: Showing you now Plaintiff's Exhibit 60; can you tell

us what this is, Mr. Burnett?

MR. BURNETT: One morning in entering work, I pulled on the door

to open up and quickly tried to push myself through and when I did, my

wrist popped, snapped, made my hand kind of tingly. It was nothing that

disabled employee’s ability to get inside its building so long as once inside, the employee could perform

assigned work.

lasted. I had a conversation with my immediate supervisor entering the

building after I got upstairs and she filed this incident report for me.

MS. WHITE: Did anything else come of that? Did you go to the

doctor, did you meet –

MR. BURNETT: Nothing long-lasting. It was just a momentarily of

pulling on the heavy door.

Trial Tr. I 75:11-75:22.

“A directed verdict is proper at the close of plaintiffs' case only when the

plaintiffs' evidence, viewed in [the] light [most favorable to the nonmovant], would

not permit a reasonable jury to find in favor of the plaintiffs on any permissible claim

or theory.” Murray v. Ross-Dove Co., 5 F.3d 573, 576 (1st Cir. 1993). Here, the Court

finds that a reasonable jury could find the evidence of the difficulty Mr. Burnett faced

in accessing his workplace supports the conclusion that his request for an

accommodation of automatic doors was reasonable. The Court, therefore, declines to

disrupt the verdict on this basis.

iii. ADA Accessibility and the Interactive Process

AmeriPort contends that the doors themselves were compliant with ADA

accessibility standards; therefore, the company was under no obligation under the

ADA to engage with Mr. Burnett on his request for an accommodation with regard to

the doors. As support, AmeriPort cites the following cases: Kvorjak, 259 F.3d at 52-

54; Charette, 332 F. Supp. 3d at 361-362; Kezer, 2012 ME 54, ¶¶ 26-27; McBride, 583

F.3d at 99-101; Rehling, 207 F.3d at 1016-1016. Def. AmeriPort’s Statement of Case

Authorities at 1-2.

As an initial matter, the Court does not find that the evidence admitted at trial

supports a finding that the doors at issue were in fact compliant with the ADA. Even

if this conclusion were supported by the record evidence, the Court does not find that

any of the cases cited by AmeriPort support its theory of the law, and the Court is not

aware of any other caselaw that stands for this proposition. The First Circuit states

in Kvorjak that a company’s rejection of a “request for the accommodation without

further discussion” “is not a failure to provide a reasonable accommodation that

amounts to a violation of the ADA” when the facts support “a finding that the plaintiff

could perform the duties of the job, with or without reasonable accommodation.” 259

F.3d at 52-53. Charette and cases from other Circuit Courts of Appeal support the

same proposition. Whether the doors already met ADA accessibility standards is a

separate question from whether a request for accommodation is reasonable under the

law. The First Circuit stated unequivocally that under the ADA, “an employer who

knows of a disability yet fails to make reasonable accommodations violates the

statute.” Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 264 (1st Cir.1999).

To prove a failure to accommodate claim, the plaintiff must show: (1) that he is

disabled within the meaning of the ADA; (2) that he was able to perform the essential

functions of the job with or without a reasonable accommodation, and (3) that the

employer, despite knowing of the plaintiff’s disability, did not reasonably

accommodate it. Rocafort v. IBM Corp., 334 F.3d 115, 119 (1st Cir. 2003) (citations

omitted). Whether an employer has a duty to engage in the interactive process,

therefore, does not depend on whether it has met separate accessibility requirements

under the ADA.

vi. Punitive Damages

Finally, AmeriPort contends that it is “entitled to judgment as a matter of law”

because the Court erred in instructing the jury on punitive damages and because Mr.

Burnett failed to establish by a standard of clear and convincing evidence that

AmeriPort acted with malice or reckless indifference as is required to support a

punitive damages award. Def.’s Rule 50(b) Mot. at 11.

Under § 1981a(b)(1), “[a] complaining party may recover punitive damages

under this section against a respondent . . . if the complaining party demonstrates

that the respondent engaged in a discriminatory practice or discriminatory practices

with malice or with reckless indifference to the federally protected rights of an

aggrieved individual.” In Kolstad, 527 U.S. at 534, the United States Supreme Court

defined “the terms ‘malice’ and ‘reckless indifference’ as they relate to the standard

for punitive damages under Title VII and the ADA.” Marcano-Rivera, 232 F.3d at

254 (citing Kolstad, 527 U.S. at 534). For punitive damages to be available, “an

employer must at least discriminate in the face of a perceived risk that its actions

will violate federal law . . ..” Kolstad, 527 U.S. at 536. Whether sufficient evidence

exists to support punitive damages is a question of law. Marcano-Rivera, 232 F.3d at

254 (citing EEOC v. Wal–Mart Stores, Inc., 187 F.3d 1241, 1244 (10th Cir. 1999)).

Following the close of evidence, AmeriPort moved for judgment as a matter of

law and requested that the Court abstain from instructing the jury on punitive

damages. The Court denied the motion, stating:

It seems to me – and I’m not—I don’t know what the jury is going to do

with this case, but it seems to me that the evidence here of an employee

struggling—repeatedly struggling to get in the front door, asking for an

accommodation and never having a response may be evidence of reckless

indifference to the rights of the employee.

Now, fortunately, I’m not required to make that evaluation, but there’s

sufficient evidence . . . on this record that not responding is indifference

and not responding, simply forcing the employee to face the burden of

trying to open the door in a wheelchair, heavy wooden door in a

wheelchair, may be sufficient. I'm not saying it will, but it may be

sufficient to reach -- to allow the jury to infer that the employer was

indifferent to his rights, and that indifference was reckless.

Trial Tr. II 315:2-17.

In its Rule 50(b) motion, AmeriPort renews its argument that Mr. Burnett

failed to show, by clear and convincing evidence, that AmeriPort acted with malice or

reckless indifference to his federally protected rights. According to AmeriPort,

[T]here was a total absence of evidence showing that Lori Darsaoui, the

only person handling HR functions for AmeriPort, could have acted

willfully or with reckless indifference. Darsaoui’s testimony was clear

and unequivocal: “I was aware that the doors were ADA compliant and

I wanted to be sure because I don’t have knowledge of the regulations,

make sure that nothing had changed and that we were still in

compliance.”

Def.’s Reply Rule 50(b) Mot. at 5-6 (citing Trial Tr. II 244:2-4).

The Court disagrees. As argued by Mr. Burnett, and as stated by the Court in

response to the Defendants’ Rule 50(a) motion, “the jury heard evidence that showed

a pattern of at least reckless indifference to Mr. Burnett’s federally protected right to

request a reasonable accommodation.” Pl.’s Opp’n to Rule 50(b) Mot. at 8-9. The jury

heard no evidence to show that any employee of AmeriPort or Ocean Properties ever

responded to Mr. Burnett’s request for accommodation and Mr. Burnett testified that

“no one ever responded to or followed up with him about the accessibility issue that

he raised in his email.” Id. at 9-10 (citing Trial Tr. I 71:19-72:12; 76:1-5). The record

shows the only action taken by Ms. Darsauoi was sending two emails to a

maintenance worker inquiring as to whether the doors were ADA compliant when

they were built. Trial Tr. II 227:14-228:24. Although Ms. Darsaoui testified that she

was unfamiliar with the specific requirements of the ADA, id. 229:6-10, a reasonable

jury could still conclude that Ms. Darsaoui was aware that requirements to

accommodate Mr. Burnett’s disability existed under the ADA, and that she was aware

that AmeriPort risked violating Mr. Burnett’s federally protected rights under the

ADA, but still failed to communicate with Mr. Burnett or look into whether his

requested accommodation was reasonable. This pattern of failure to respond

occurred with Ms. Darsaoui’s work station in close proximity to the building entrance,

where Mr. Burnett continued to struggle daily to get through the door in his

wheelchair. Trial Tr. I 94:2-18. Furthermore, an incident report was completed after

Mr. Burnett injured his wrist opening the door months after his original request; the

record reflects that AmeriPort still did not consider his request or communicate with

Mr. Burnett after this incident. Id.

The evidence also shows that human resources personnel within Ocean

Properties, which Mr. Burnett testified is one of the largest hotel companies in the

world, were made aware of Mr. Burnett’s complaint. See Pl.’s Tr. Ex. 59. Plaintiff’s

Exhibit 59 is an email chain between Nicholas Robertshaw, who Mr. Burnett testified

was a supervisor at the call center, Lori Darsaoui, Joyce Dawson, who Ms. Darsaoui

testified is her supervisor, is an employee of the Ocean Properties corporate office,

Trial Tr. II 230:6-11, and Cedric Rothkegel, who, according to Ms. Darsaoui, works

in the human resources department at Ocean Properties’ corporate office. Trial Tr. I

130:8-13. The same day he received it, Nicholas Robertshaw forwarded the “Chatter”

message from Mr. Burnett to Joyce Dawson and copied Ms. Darsaoui, stating “I know

I’m not supposed to be working but I didn’t want to let this go too long without you

seeing this. He sent it to me privately through chatter.” Pl.’s Tr. Ex. 59 at 1. Mr.

Robertshaw’s email was forwarded by Ms. Darsaoui to Mr. Rothkegel. Id. Ms.

Darsaoui testified that she could contact Mr. Rothkegel or other human resources

personnel at the corporate office for guidance on human resources questions. Trial

Tr. I. 130:8-13. She stated that although she handles human resources issues for the

call center, “I can contact them for knowledge so that I can make the best decision

possible for my location.” Id. This evidence demonstrates that human resources

personnel in the corporate office of Ocean Properties were made aware of Mr.

Burnett’s request for an accommodation of automatic doors, and that Mr. Rothkegel

specifically was in the position to advise Ms. Darsaoui on her human resources

questions.

AmeriPort argues that under Kolstad, “a positive element of conscious

wrongdoing is always required” to support an award of punitive damages, and that

there is no evidence of conscious wrongdoing here. Def.’s Reply Rule 50(b) Mot. at 12

(citing Kolstad, 527 U.S. at 538). Viewing the evidence in the light most favorable to

Mr. Burnett, the Court disagrees. As explained above, the record shows that two

individuals in the corporate office of a large hotel company, one of whom works in the

human resources department, were aware of Mr. Burnett’s request, which supports

a reasonable jury finding that the organization knew their actions were in violation

of federal law. In Vera v. Alstrom Power, Inc., for example, the court upheld an award

of punitive damages to a former employee, citing the employer’s size and

sophistication as a relevant factor in the employer’s awareness of federal anti-

discrimination law. 189 F. Supp. 3d 360, 380 (D. Conn. 2016). Furthermore, although

Kolstad rejected a requirement that egregious conduct must be shown to support a

punitive damages award, “[e]gregious misconduct may certainly be ‘evidence of the

requisite mental state . . ..” 527 U.S. at 535 (citations omitted). As noted by the Court

in its reasoning for rejecting the Defendants’ 50(a) motion, repeatedly ignoring a

paraplegic employee’s request for an accommodation to allow him to more easily

access his workplace could be viewed by a jury as the type of egregious misconduct

that shows AmeriPort was aware it risked violating Mr. Burnett’s rights in failing to

accommodate him.

Taking the evidence as a whole, the jury could have reasonably concluded that

AmeriPort acted with reckless difference in failing to acknowledge or address Mr.

Burnett’s request for an accommodation. AmeriPort’s 50(b) motion is, therefore,

denied on the issue of punitive damages.

III. MOTION FOR A NEW TRIAL

AmeriPort moves, in the alternative, for a new trial pursuant to Federal Rules

of Civil Procedure 50 and 59. Def.’s Mot. for New Trial at 1.

A. Positions of the Parties

1. AmeriPort’s Motion

In its motion, AmeriPort contends that it did not receive a fair trial for four

reasons. First, according to AmeriPort, “a fact witness properly disclosed according

to pre-trial disclosures was prohibited from testifying during the trial.” Id.

AmeriPort contends that it “was prejudiced by Plaintiff’s move to strike Mark Mooney

as a witness during the trial even after his intended testimony had been disclosed

and after the defense had made extensive reference to his intended testimony during

[its] opening statement.” Id. at 2. AmeriPort argues that: [p]rior to trial, Plaintiff

filed a Motion in Limine to prohibit Mark Mooney from utilizing photographs of the

door pressure gauge during his testimony. . . It was not until mid-trial that he first

raised his objection to allowing Mark Mooney to testify in any form. This objection

was an ambush to AmeriPort’s case.” Id. at 3.

AmeriPort’s second basis for a new trial is that Plaintiff’s counsel improperly

suggested specific award amounts during her closing arguments. According to

AmeriPort, “[c]ourts have long recognized that statements of counsel’s opinions or

personal beliefs have no place in a closing argument . . .” Id. at 8 (quoting Polansky

v. CNA Ins. Co., 852 F.2d 626, 628 (1st Cir. 1988); see also United States v. Young,

470 U.S. 1 (1985); United States v. Cresta, 825 F.2d 538, 555 (1st Cir. 1987); NLRB v.

Friendly Ice Cream Corp., 677 F.2d 170, 171 n.1 (1st Cir. 1982); Olenin v. Curtin &

Johnson, Inc., 137 U.S. App. D.C. 281, 424 F.2d 769 (D.C. Cir. 1970)). It also cites

First Circuit caselaw prohibiting an attorney from arguing a specific amount of

damages to the jury, id. at 9 (citing Bielunas v. F/V Misty Dawn, Inc., 621 F.3d 72,

79 (1st Cir. 2010); Wilson v. Brandlees of New Eng., Inc., 250 F.3d 10, 23 n.25 (1st

Cir. 2001)), and contends that outside of the First Circuit, courts have found this error

to be reversible error. Id. (citing Waldorf v. Shuta, 896 F.2d 723 (3d Cir. 1990)).

AmeriPort argues that Plaintiff’s counsel also erred in her closing argument

because she violated the “Golden Rule” in asking the jurors to “imagine how difficult

life is for Mr. Burnett.” Id. at 10 (citing Trial Tr. 352:7; id. 336:18; id. 353:9). This,

according to AmeriPort, is “prohibited in the First Circuit.” Id. at 11 (citing Granfield

v. CSX Transp., Inc., 597 F.3d 474, 491 (1st Cir. 2010)). AmeriPort argues that “in

combination, these errors are so prejudicial that a failure to grant Defendants a new

trial will result in a grave miscarriage of justice.” Id. at 12.

Finally, AmeriPort says that it was not allowed to rebut repeated evidence of

Mr. Burnett’s physical limitations with “impeachment evidence of his otherwise

active lifestyle.” Id. at 12. According to AmeriPort, Plaintiff’s counsel “opened the

door” by discussing Mr. Burnett’s disability, and it should have been allowed to “rebut

his evidence with documentation, photographs, and cross examination demonstrating

that Plaintiff, apparently, still had the ability to hunt and shoot in the woods.” Id. at

13. This disparity, AmeriPort argues, was unfairly prejudicial. Id. at 14.

2. Ryan Burnett’s Opposition

Mr. Burnett opposes AmeriPort’s request for a new trial. Pl.’s Opp’n to Mot.

for New Trial at 1. First, Mr. Burnett contends that the Court properly excluded

evidence in response to his motion in limine after AmeriPort failed to inform him that

their contractor tested the doors in question and determined them to be ADA

compliant until “the eve of trial.” Id. at 2 (citing Mot. in Limine (ECF No. 159)). Mr.

Burnett states that Federal Rule of Civil Procedure 26 required AmeriPort to disclose

the information during the discovery period. Id. at 3. Regardless of discovery

violations, Mr. Burnett argues that “the Court never prohibited Mr. Mooney from

testifying.” Id. (emphasis in original). Mr. Burnett says that instead, “the parties

discussed with the Court the parameters of Mooney’s testimony, and his email stating

that the doors to Plaintiff’s workplace were ADA compliant when the building was

constructed. Defendants made their own choice not to call Mooney to testify on that

subject.” Id. at 3-4 (citing Trial. Tr. I. 181:3-25). Despite the fact that “the Court

specifically instructed counsel not to mention the door testing issue during her

opening,” she did so; therefore “AmeriPort has suffered no injustice that would

require a new trial.” Id. at 4.

In response to AmeriPort’s argument that Mr. Burnett’s testimony of his

physical difficulties was unfairly prejudicial, Mr. Burnett argues that because he had

the burden to prove emotional distress, “the Court gave Plaintiff some latitude to

elicit testimony that might satisfy this burden,” but cautioned him not to “overdo” it

such that he prejudiced AmeriPort. Id. at 5 (citing Trial Tr. I. 65:3-21).

Finally, addressing the alleged errors of Plaintiff’s counsel during her closing

argument, Mr. Burnett argues that the alleged errors “must be viewed alongside the

actual verdict returned by the jury, in order to determine if the statement unduly

prejudiced or affected the outcome of the trial.” Id. Mr. Burnett argues that

“although it may have been error, the numbers mentioned in closing were

intentionally low so as to avoid inflaming the jury to return a potentially high

number”, which would have been considered prejudicial. Id. at 6 (citing Waldorf, 896

F.2d at 743). He says that in light of the verdict, which was significantly higher than

the amount mentioned, the error was harmless. Id. Mr. Burnett cites caselaw

stating:

[I]n evaluating counsel’s error during trial to determine if it warrants a

new trial, the court must examine “the totality of the circumstances,

including (1) the nature of the comments; (2) their frequency; (3) their

possible relevance to the real issues before the jury; (4) the manner in

which the parties and the court treated the comments, including any

curative instructions; (5) the strength of the case, and (6) the verdict

itself.”

Id. at 7 (quoting Bartlett v. Mutual Pharmaceutical Company, Inc., 760 F. Supp. 2d

220, 253 (D.N.H. 2011) (citing Granfield, 597 F.3d at 490)). Applying the above

factors to the case, Mr. Burnett argues, that the comments were “rhetorical in nature,

. . . were few in number”, and appeared to have “had little effect on [the jury’s]

ultimate deliberations”, pointing to harmless error. Id. at 7- 8.

Mr. Burnett also argues that AmeriPort failed to object to the specific amount

stated by Plaintiff’s counsel and rejected the Court’s offer of a curative instruction

when the issue was raised by the Court. Instead, AmeriPort moved for a mistrial,

but requested that the judge not rule on the motion until the jury returned with a

verdict. Id. at 6-7 (citing Trial Tr. III. 372). Mr. Burnett states that “[a]fter the jury

returned a verdict of $150,000.00, Defendants renewed their motion for mistrial,

which was denied pending briefing on these motions for new trial.” Id. at 7 (citing

Trial Tr. III 386:2-17).

3. AmeriPort’s Reply

In response, AmeriPort reiterates its contention that it complied with the

relevant discovery rules with regard to witness Mark Mooney’s testimony. Def.’s

Reply Mot. for New Trial at 1-2. The company then states the following:

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, Pl.’s Opp’n to Mot. for

New Trial at 4 (citing Trial Tr. I 181:3-25). 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, id. 178, and appears to have prohibited

AmeriPort from explaining the email, which included ADA compliance

when the building was constructed, id. 180: 3-8.

Def.’s Reply Mot. for New Trial at 2. AmeriPort also contends that the motion in

limine on the issue of the demonstrative aids “barely mentions testimony,” id. at 3

(citing Mot. in Limine (ECF No. 159), and it refutes Mr. Burnett’s contention that

AmeriPort discussed Mr. Mooney’s testimony in its opening statement against an

instruction of the Court. Id. (citing Trial Tr. I. 10-11).

With regard to what it considers Mr. Burnett’s conceded errors during closing

arguments, AmeriPort contends that it did object to the error, preserving it for

appellate review, and requiring the Court to conduct a harmless error analysis. Id.

at 4. AmeriPort disagrees with Mr. Burnett’s characterization of the errors as

harmless. Id.

B. Discussion

1. Legal Standard

Pursuant to Federal Rule of Civil Procedure 59(a), a party can move for a new

trial, “after a jury trial, for any reason for which a new trial has heretofore been

granted in an action at law in federal court.” FED. R. CIV. P. 59(a)(1). When assessing

a motion for a new trial, a trial judge has limited discretion, and “may not grant a

motion for a new trial merely because he or she might have reached a conclusion

contrary to that of the jurors.” Conway, 825 F.2d at 598–99. Instead, as the First

Circuit has cautioned, a trial judge may only set aside a verdict “if he or she believes

that the outcome is against the clear weight of the evidence such that upholding the

verdict will result in a miscarriage of justice.” Id.

2. Analysis

a. Mark Mooney’s Testimony

AmeriPort argues that a new trial is warranted because it was prejudiced by

the fact that Mark Mooney, a contractor for AmeriPort, was prohibited by the Court

from testifying at trial. Def.’s Mot. for New Trial at 1. AmeriPort does not provide

any citation to the trial record in support of its position. Mr. Burnett, in response,

argues that Mr. Mooney was never prohibited from testifying at trial; the Defendants

simply failed to call him as a witness. Pl.’s Opp’n Mot. for New Trial at 2. The Court

agrees that it did not prohibit Mr. Mooney from testifying at trial, but instead set

limits on the contents of his testimony as a sanction for AmeriPort’s failing to comply

with the Rule 26(a) disclosure requirement. Trial Tr. I. 177:2-178:8. AmeriPort

cannot now convince the Court that it was prejudiced by the Court’s limitation on Mr.

Mooney’s testimony on whether he tested the doors and determined them to be ADA

compliant when the Court’s prohibition was the direct result of AmeriPort’s own

discovery violation.

The Court heard the parties on the issue at length during trial, examined the

relevant interrogatories and disclosures provided as exhibits by the parties, and

concluded that the Defendants did not disclose evidence of specific tests performed by

Mark Mooney to determine ADA compliance within the applicable discovery deadline,

and therefore, Mr. Mooney would not be allowed to testify about the specific tests he

performed. On October 30, 2018, the first day of trial, the Court addressed the

Mooney issue:

THE COURT: My ruling on this is that it seems to me that the

question of what Mark Mooney did in December of 2013 and January of

2014 is central to the defendant's defense, and it's a highlight of what

the defendant is going to say in terms of why they believe that they were

not required to take any action in response to the complaint about the

doors because the defendants' contending that they were already ADA

compliant. That seems to me to be something that the defendant should

have revealed and should have revealed long prior to October 24th of

2018 when that happened. We're in trial on October 30, 2018. The jury

was picked -- when was the jury picked in this case?

MS. WHITE: October 1, Your Honor.

THE COURT: Right. So, it was even after the jury was selected,

and I believe that -- I credit the plaintiff's representation because I think

it's logical that had they been aware of this specific test that Mr. Mooney

ran back in December of 2013 and January of 2014, they would have

taken some action in further discovery or in furtherance of their

prosecution of the case. That action could have been to depose Mr.

Mooney and find a basis of -- the test that he ran, but also, it seems to

me, that the plaintiff would likely have sought an expert to test Mr.

Mooney's test against more -- against a separate expert to determine

whether those tests were in compliance with the ADA. So, what I'm

worried about, frankly, is trial by ambush. That this information was

known or should have been known by the defendants perhaps as early

as December of 2013, January of 2014. It wasn't revealed until October

24, 2018, and I'm not going to allow it.

Trial Tr. I. 177:2-178:8.

Later in the discussion, the parties debated whether an e-mail exchange with

Mark Mooney would be admitted, and if so, how the Defendants could respond, given

the Court’s ruling defining the parameters of his testimony and excluding evidence

of the specific tests performed by Mr. Mooney that the Defendants failed to reveal

during discovery. Id. 178:9- 181:22.

THE COURT: ...[A]gain, the disclosures are serious business and

they're not to be gamed, and it seems to me that the whole purpose of

disclosure is to alert the other party this is what -- these are the people

we know have knowledge and this is a general view of their knowledge,

and therefore you can rely on this to frame your own discovery in your

case. And when the discovery is not complete, then it places the other

party at a disadvantage. I know that the ruling places you at a

disadvantage, but it's a consequence of your failure to be as fulsome and

as appropriate as you should have been -- I'm not blaming you

individually as an attorney -- but your client should have been more

forthcoming and said we've got this guy Mooney and this is what he

knows and alerted the defendant -- the plaintiffs. So, I mean I hear you

that it places you in a difficult position, but I don't know that I can save

you from the position you yourself created.

MS. DESKINS: I understand, Your Honor. So, I think the way that

we can address this is I think that Mark Mooney can explain his

response to the e-mail without talking about the testing. He can say that

the doors were original and they never changed and not talk about

testing at all.

THE COURT: I think that's implicit in his -- that's implicit in what

he said, basically. The -- he said when the building was built, they were

ADA compliant. You knew that, Ms. White, correct? You didn't know the

basis for it, but you knew that that's what he believed.

MS. WHITE: Yes, Your Honor.

THE COURT: And why don't you talk to each other about whether, given

the ruling I've just made that excludes the specific tests which I think

should have been revealed, what the parameters of his testimony can be

so that when he gets up there, he's not going to blurt out something

that's in violation of the Court order and yet allows him to testify to the

substance of his own e-mail, which you've had for some period.

Id. 180:10-181:21.

Not only did the Court not prohibit the defendants from calling Mark Mooney

as a witness, as AmeriPort contends, defense counsel herself acknowledged during

trial that she could still call Mr. Mooney as a witness, and communicated her plan

for his testimony to the Court in light of the parameters the Court placed on his

testimony. Id. AmeriPort’s representation that the Court prohibited Mr. Mooney

from testifying is fundamentally incorrect and directly contradicted by the record.

The Court rejects the argument.

b. Moose Hunting Photograph

Next, AmeriPort contends that it was prejudiced by the Court’s exclusion of a

photograph of Mr. Burnett taking part in the Maine Moose Hunt, which it would have

used to rebut the “repeated, self-serving evidence of Plaintiff’s physical ability and

physical issues. . . with impeachment evidence of his otherwise active lifestyle.” Def.’s

Mot. for New Trial at 12. Mr. Burnett responds that evidence of Mr. Burnett hunting

“had no relevance to the ADA accommodation issue before the Court.” Pl.’s Opp’n

Mot. for New Trial at 4.

Shortly before trial, Mr. Burnett filed a motion in limine, one subject of which

was the admissibility of a photograph of Mr. Burnett moose hunting. Mot. in Limine

(ECF No. 159). In the motion, Mr. Burnett asked the Court to exclude the evidence

of Mr. Burnett hunting as unfairly prejudicial under Federal Rule of Evidence 403.

Id. at 6. The motion remained pending at the start of trial. Prior to opening

arguments, the Court stated that it would not allow defense counsel to refer to Mr.

Burnett hunting during her opening statement. Trial Tr. I 11:14-20. The Court and

defense counsel had the following exchange:

THE COURT: . . . The other one was something about him hunting; did

you intend to refer to that in your opening?

MS. DESKINS: I wasn’t going to specifically talk about hunting, no.

THE COURT: Okay. Well, I’m not going to allow that.

Id. Consistent with her promise, defense counsel did not discuss hunting in her

opening statement and did not raise hunting in her cross-examination of Mr. Burnett.

On the third day of trial, Mr. Burnett called Jaclyn Goodwin as a witness. Id.

255:22-267. Direct examination by Attorney White, cross-examination by Attorney

Hayes, and redirect examination by Attorney White were completed without relevant

controversy. Id. 255:22-264:16. Then, during defense counsel’s re-cross-examination

of Ms. Goodwin, Attorney Hayes asked:

MR. HAYES: On the weekends, is there any particular activities

you enjoy together?

MS. GOODWIN: It varies from weekend to weekend.

MR. HAYES: Okay. What about now in the fall, hunting season;

do you enjoy hunting?

Plaintiff’s counsel objected and asked that the discussion take place at sidebar. Id.

265:18-22. The following discussion ensued:

MS. WHITE: It's already out. No door's been opened to hunting.

MR. HAYES: The picture may very well be out, Your Honor, but

the testimony that was provided is that his day is hard enough that he

doesn't need to be opening doors -- to open the door, and my whole point

is that his -- recreationally, he puts himself in these situations that –

THE COURT: Why didn't you approach the bench?

MR. HAYES: I apologize, Your Honor.

THE COURT: Well, that's not a little apology.

MR. HAYES: I'm sorry, Your Honor?

THE COURT: The question already is in front of the jury about his

hunting.

MR. HAYES: My apologies, Your Honor. I was not aware that the

Court ruled that hunting was out.

THE COURT: Well, you knew it was an issue.

MR. HAYES: I knew that -- my understanding was –

THE COURT: There was a motion in limine.

MR. HAYES: The motion in limine, my understanding, was

related -- related to the photograph, not to –

THE COURT: Only to the photograph?

MR. HAYES: That was my understanding.

THE COURT: What was the purpose of the photograph?

MR. HAYES: The purpose –

THE COURT: To demonstrate he was hunting.

MR. HAYES: To demonstrate his ability to engage in –

THE COURT: Right.

MR. HAYES: -- activities.

THE COURT: I'm going to sustain the objection.

Id. 265:21-266:25.

The Court has judicial discretion to control the manner of questioning

witnesses pursuant to Federal Rule of Evidence 611, which states: “[t]he court should

exercise reasonable control over the mode and order of examining witnesses and

presenting evidence so as to: (1) make those procedures effective for determining the

truth; (2) avoid wasting time; and (3) protect witnesses from harassment or undue

embarrassment.” FED. R. EVID. 611. Furthermore, “[t]o the extent practicable, the

court must conduct a jury trial so that inadmissible evidence is not suggested to the

jury by any means.” FED. R. EVID. 103(d). Here, defense counsel, despite knowledge

of a pending motion in limine, despite the Court’s clear instruction to counsel that

the hunting would not be raised before the jury, and despite defense counsel’s promise

not to raise the issue in her opening statement, asked Ms. Goodwin about hunting

during re-cross-examination, in the presence of the jury, without approaching the

bench to determine whether the testimony would be admissible. In the context of the

trial, the Court viewed defense counsel’s blurting out the issue of hunting as an

egregious violation of the clear implication of its instruction to defense counsel that

there would be no reference to hunting until the Court ruled on its admissibility.

As a result, even though the jury is instructed not to consider questions by

lawyers as evidence, the question presented an issue, namely hunting, before the jury

without first giving the Court an opportunity to rule on its admissibility. The Court,

which has a duty to control the manner of questioning at trial, sanctioned the

Defendants for its impermissible questioning by sustaining the Plaintiff’s objection.

AmeriPort cannot now claim that it was prejudiced by the Court’s exclusion of

evidence of Mr. Burnett engaging in moose hunting, when such exclusion was the

direct result of AmeriPort’s own improper questioning of a witness.

Furthermore, there is no evidence of prejudice. The Court allowed limited

questioning during Plaintiff’s counsel’s direct examination of Mr. Burnett regarding

his disability and its impact on his day-to-day life. As noted by Mr. Burnett, this

questioning was limited by the Court to avoid unfair prejudice. For example, the

Court excluded evidence of the cost of parts to repair Mr. Burnett’s wheelchair,

explaining:

THE COURT: My thought about this is he can -- he's got a claim

for emotional damages as a consequence of being unable to navigate the

front door, and the fact that he has to do so much in order simply to get

to work reflects his dedication to work and his importance to work in his

life, but it's not -- it is a limited amount to which you can squeeze on this

particular sponge. And he can testify that he makes a lot of efforts to get

to work, that he's repaired his truck, that he's -- he has already given us

an idea of what he goes through on a day-to-day basis to get to work, but

I don't think you need to overdo it and there's a point where the

relevance is overshadowed by its prejudicial impact.

Trial Tr. I 65:8-21.

AmeriPort argues that Mr. Burnett “opened the door by discussing difficulties

unrelated to the request for an automatic door; OPL and AmeriPort should have been

able to rebut his evidence with documentation, photographs and cross examination

demonstrating that Plaintiff, apparently, still had the ability to hunt and shoot in the

woods.” Def.’s Mot. for New Trial at 13.

The Court disagrees that Mr. Burnett “opened the door” as AmeriPort

contends. Mr. Burnett never contended he is unable to engage in recreational

activities because of his disability. He only testified to the fact that day-to-day

activities take him longer and are more involved and difficult than they would be for

a person who is not paraplegic. The Court does not find that AmeriPort was

prejudiced by exclusion of testimony on the subject of Mr. Burnett hunting.

Nor did defense counsel make an offer of proof. Although it might be assumed

that defense counsel was going to refer to the hunting photograph that was the

subject of the motion in limine, defense counsel made no record of what he expected

the evidence to be, when Mr. Burnett had been hunting, the circumstances of his

moose hunting, and whether his moose hunting undercut any of his trial testimony.

Defense counsel also did not ask the Court to excuse the jury so that the evidence

could be properly brought before the Court for a ruling.

Compounding the issue of prejudice is Plaintiff’s counsel’s representation at

oral argument that if the photograph of Mr. Burnett’s hunting had been admitted

into evidence or if, more broadly, evidence of his moose hunting had been admitted,

witnesses would have testified that Mr. Burnett had wished to go moose hunting for

an extended time and after he finally won the Maine moose hunting lottery, his family

made an extraordinary effort to transport him to moose hunting territory and to fix

him in a hunting blind, so that he could realize his dream of successfully hunting a

moose. Accepting Plaintiff’s counsel’s representation as an offer of proof, it is difficult

to conceive how AmeriPort was prejudiced by the exclusion of this topic. In fact, the

admission of the entire hunting story and AmeriPort’s attempt to undercut Mr.

Burnett’s credibility because he had engaged in a successful moose hunt might well

have harmed, not helped AmeriPort’s defense.

c. Suggestion of Specific Damages Amount

AmeriPort next contends that a new trial should be granted because Plaintiff’s

counsel committed harmful error in suggesting in closing argument specific damages

amounts for Mr. Burnett’s pain and suffering. Id. at 8. During her closing arguments

in the compensatory damages phase of trial, Ms. White stated:

MS. WHITE: We’re not here today to talk about whether they did

it on purpose or whether they just did it by mistake. Maybe it was just

someone overlooked something, but how it felt to Ryan is why we’re here

and the number that you put on that, there’s nothing specific that I can

tell you, which I do recognize makes your job difficult, but what I can

say is that we think it's significant. Do we think it’s, you know, 20,000,

50,000? I don’t know. I think it’s more significant, but it’s for you to

decide exactly what number you would put on this period of time in his

life, this two years, little over two years that he suffered this way every

day unnecessarily, again because here’s a law that says you can't do this

and they broke that law.

Trial Tr. III 354:2-15. At the time of the statement, AmeriPort did not object.7 Nor

did AmeriPort object at the conclusion of Ms. White’s closing argument. AmeriPort

7 The record does not support AmeriPort’s bald assertion that “AmeriPort and OPL undisputedly

objected in a timely fashion and moved for a mistrial” Def.’s Mot. for New Trial at 10 n.3. Neither

went on to complete its own closing argument, id. 354:24-362:17, and Ms. White put

on a rebuttal. Id. 362:23-366:25. After the Court read the jury instructions and

dismissed the jury for deliberations, it addressed counsel:

THE COURT: So, are there any objections to the instructions on

the part of the plaintiff?

MS. WHITE: No, Your Honor.

THE COURT: Any additions?

MS. WHITE: No.

THE COURT: Any objections on the part of the defendants?

MS. DESKINS: Yes. We would reassert our objection as to the

instruction on the number of employees.

THE COURT: Okay. Any additions?

MS. DESKINS: No, sir, Your Honor.

THE COURT: So, I have a problem and I don't know what the

solution is. I think you violated, Ms. White, the long-standing rule in the

1st Circuit not to mention a damage figure. You said was it 20,000 or

50,000, I don't know. That's a violation. You've got it in their head.

That's the first time in 15 years anyone's violated it. This is not news.

It's in Judge Hornby's summary of 1st Circuit authority concerning

closing arguments. It's set forth in Bartlett versus Mutual Pharmacy

Company, 678 F.3d 30 at 42, a 1st Circuit case (2012), in Bielunas versus

F/V Misty Dawn, Inc., 621 F.3d 72 at 79, 1st Circuit (2010), and the 1st

Circuit has said allowing counsel to request a dollar amount for pain

and suffering, or allowing counsel to do so, was error under 1st Circuit

precedent. They say lawyers cannot state in summation the number

they think jurors should award for pain and suffering, and it precludes

counsel from requesting a pain and suffering dollar amount in closing.

You did it a little subtly, but I've never heard anyone ever go near it. I've

heard lawyers say I can't suggest under 1st Circuit authority any dollar

amount, but I think you've stuck the 20 to 50 in their head and I don't

AmeriPort nor Ocean Properties ever objected to Mr. Burnett’s closing argument on such a basis. See

Trial Tr. III 369:24-372:22.

know what to do with it. There is a statement of one -- there was no

objection made to it, so they found it wasn't plain error on appeal for the

judge to have allowed the lawyer to make the argument. Let me tell you

what my problem is and, that is, I don't know how to fix it without

overemphasizing it and there was suggestion that -- in the Bartlett

matter, there was a suggestion that any amount mentioned by counsel

is not evidence. It may be better to leave it alone. I don't know. I'll be

guided by what you want me to do. Not what you -- you violated the rule

-- I'll be guided by what you want me to do. If you want me to say

something like any amount that counsel has suggested is not evidence

and should not be considered by you, I'll do that. I think it may be not

worth the candle, but that's what the 1st Circuit authority is, or I can

just leave it alone. Whatever -- I'll do what you want me to do.

MS. DESKINS: And I was aware when plaintiff's counsel mentioned

the number that if I stood up and objected that I would call attention to

it.

THE COURT: Right.

MS. DESKINS: And so I was in a situation where I couldn't -- was

going to be caught no matter what I did, and I'm sensitive to the Court's

position on it now that if the Court gives a curative instruction that we

will calling more attention to. So, we are in definitely a bind here. I don't

know how to fix this.

THE COURT: Okay. I don't either and that's the reason why I

didn't interrupt her. I just thought it would be –

MS. DESKINS: And I had the same problem. I couldn't stand on my

feet without calling attention to it.

THE COURT: Yeah, the cure is worse than the problem. So, I mean

I'll do what you want me to do.

MS. DESKINS: I understand.

THE COURT: I'll either ignore it or I'll instruct that -- I think the

only other way to do it is to do what Bartlett did and state that -- remind

them that any amount that counsel has suggested is not evidence.

MS. DESKINS: I think that would be calling attention to it. What I

think I'm going to do is make a motion for a mistrial on that issue

because the bell has been rung and you can't take that out, and now that

that figure has been out there, I guess I would ask the Court to reserve

until the jury comes back on that particular issue.

THE COURT: So, you're moving for mistrial, but you don't want me

to rule on it until they come back?

MS. DESKINS: Yes, sir.

THE COURT: So, if they come back at 20 or 50, you can say well,

they obviously were unduly influenced?

MS. DESKINS: Yes, sir.

THE COURT: Okay. I'll reserve judgment on it.

Id. 369:24-372:22.

As the Court stated when addressing counsel at trial, the First Circuit held in

Bielunas 621 F.3d at 79, that allowing counsel to suggest a damage award to the jury

in an opening statement or closing summation is error. Id. The Bielunas Court

explained:

We forbid counsel from asking jurors to consider the amount of a party’s

ad damnum in crafting a damage award, see Davis v. Browning–Ferris

Indus., Inc., 898 F.2d 836, 837–38 (1st Cir.1990); see also Wilson v.

Bradlees of New England, Inc., 250 F.3d 10, 23 n. 25 (1st Cir.2001)—and

we have cited approvingly a case outside this circuit for the point that

lawyers cannot state in summation the number they think jurors should

award for pain and suffering. See Davis, 898 F.2d at 837

(highlighting Waldorf v. Shuta, 896 F.2d 723 (3d Cir.1990)). Building

on this foundation, we held in an unpublished opinion

that Davis precludes counsel from requesting a pain-and-suffering

dollar amount in closing. Kimberly F. v. Mary Hitchcock Mem. Hosp. &

Hitchcock Clinics, Inc., No. 93–1438, 1993 WL 498026, at *9–10 (1st Cir.

Dec.3, 1993) (unpublished). Consistent with the Davis line of cases,

district judges in this circuit have stopped lawyers from doing just

that. See Wilson, 250 F.3d at 23 n. 25; see also generally Budet–Correa

v. United Parcel Serv., 322 F.Supp.2d 139, 141–42 (D.P.R. 2004)

(discussing and applying Davis and the like). Consequently, measured

by our precedents we conclude that the district judge here made a

mistake, and that the mistake is obvious enough.

621 F.3d at 79.

AmeriPort argues that any suggestion of a specific damages amount is

reversible error regardless of the facts of the case, citing Wilson, 250 F.3d at 10, and

Waldorf, 896 F.2d at 723. Def.’s Mot. for New Trial at 9. The Court does not view the

relevant caselaw as supporting this broad proposition. While the Wilson Court rejects

the plaintiff’s argument that the district court erred by failing to allow her to argue

an ad damnum to the jury, stating in dicta “it would have been reversible error for

the court to have allowed such an argument,” the case did not actually involve counsel

suggesting an ad damnum amount to the jury; therefore, the court did not address

what it means for the court to “allow such an argument.” 250 F.3d at 23 n.25 (citing

Davis, 898 F.2d at 837. Likewise, in Davis, the First Circuit concluded that a district

judge erroneously charged the jury according to state law practice regarding counsel’s

statement of the ad damnum amount, but that this did not rise to the level of plain

error. Id. at 837. In Waldorf, cited by the First Circuit in Davis, the Third Circuit

stated “[w]hile we hold that it is reversible error in this case, we recognize that each

record must be examined to determine whether such an error may have sufficiently

influenced the jury to constitute reversible error.” 896 F.2d at 744 n.31.

The issue was addressed most recently, and most directly, by the First Circuit

in Bielunas. 621 F.3d at 79. Like here, the defendant in Bielunas failed to object to

comments regarding a specific damages award in the plaintiff’s opening and closing

statements, leaving the challenge unpreserved. Id. at 78. The First Circuit therefore

evaluated the judge’s denial of the motion for new trial under the plain error

standard, which requires “the mistake must also be prejudicial in a sense that there

is a reasonable probability (not just a theoretical possibility) that it affected the

result, and the result must be unjust, too.” Id. at 79 (citing United States v.

Marcus, 560 U.S. 258 (2010); United States v. Padilla, 415 F.3d 211, 225 (1st Cir.

2005) (Boudin, C.J., concurring) (en banc)). The First Circuit questioned whether the

defendants could show, absent the comments of plaintiff’s counsel, that a different

damages award would have been returned by the jury, but ultimately based its

conclusion that the plain error standard was not reached based on the fact that the

district judge “made it clear that the lawyers’ statements and arguments were not

evidence and that the verdict must be reached on the evidence alone” and in light of

the lack of any objection on the issue at trial. Id. In conclusion, the Bielunas Court

stated, “[p]lain error is not an ‘appellant-friendly’ standard, and rightfully so: it keeps

parties from rolling the dice on a favorable verdict and then raising problems on

appeal that could have been easily fixed below.” Id. at 80 (citations omitted).

The trial record in this case supports review under a plain error standard.

AmeriPort did not object when Plaintiff’s counsel suggested a specific amount during

her closing statement, and did not object at the close of the argument or at the close

of trial. After the jury was excused for deliberations, the Court specifically asked the

parties if they objected to anything said during closing arguments. Both parties

stated they had no additional objections. The Court raised the error and asked

AmeriPort how it would like to proceed. AmeriPort moved for a mistrial, but asked

the Court to reserve ruling until the jury returned the verdict. AmeriPort rejected

the Court’s offer of a curative instruction.

To warrant a new trial, AmeriPort must demonstrate that it was prejudiced by

the statement of specific damages. It failed to do so, and the record does not support

a conclusion of prejudice. First, AmeriPort itself took no action at trial to mitigate

any prejudice. It did not object to the suggestion of a specific damages amount at any

time, even after being given a specific opportunity by the Court to do so. It was the

Court that raised the issue. Moreover, AmeriPort rejected the Court’s offer of a

curative instruction, which the Court views as a rejection of the opportunity to

mitigate any potential for prejudice. At the same time, the Court acknowledges that

defense counsel acted well within her discretion in concluding that as a matter of trial

strategy, it was wiser not to raise the issue in post-argument instructions because to

do so might emphasize the Plaintiff’s lawyer’s suggested figures.

Second, AmeriPort offers no argument that Plaintiff’s counsel’s suggestion of

$20,000 to $50,000 in damages, or a number “more significant”, Trial Tr. III 354:9-

12, had a reasonable probability of influencing the jury’s compensatory award of

$150,000. In Bielunas, the court questioned whether the defendant could show that

it was reasonably probable that the jury would have awarded a different amount if

plaintiff’s counsel had not suggested the specific amounts in his opening and closing

statements, where plaintiff’s counsel “pushed for a $2,500,000 damages award, which

he upped to $3,328,767 in his closing [and] the jury returned a $2,775,000 verdict . .

.” 621 F.3d at 75. Id. at 79. Here, the numbers are nowhere near as similar as those

in Bielunas, where the First Circuit questioned whether they presented a reasonable

probability of influencing the verdict. Furthermore, as in Bielunas, the Court in this

case instructed the jury that the opening statements and closing arguments of

counsel are not evidence in this case, Trial Tr. I 16:13:20, id. 23:24-24:4, and there is

nothing to suggest that the jury failed to heed the Court’s instructions and considered

the impermissible suggestion of a damages amount.

Finally, the Court does not view the jury’s award of $150,000 in compensatory

damages as an “unjust outcome”. As discussed in its order on co-defendant Ocean

Properties’ post-trial motions (ECF No. 240), the compensatory damages award of

$150,000 is supported by the record evidence of the harm caused to Mr. Burnett by

the Defendants when they failed to respond to his request for an accommodation. Id.

at 52-54. The Court may only order a new trial when “the outcome is against the

clear weight of the evidence such that upholding the verdict will result in a

miscarriage of justice.” Conway, 825 F.2d at 599. Here, despite the error of plaintiff’s

counsel, the outcome is supported by the evidence, and the Court denies the motion

for a new trial.

d. “Golden Rule”

Finally, AmeriPort alleges that “Plaintiff’s counsel made Golden Rule

arguments during closing arguments,” a violation which “constituted reversible error.

Def.’s Mot. for New Trial at 1, 11. According to AmeriPort, the following statements

violated the “Golden Rule”:

For that period of two years, he dreaded it not just the days he would go,

but can you imagine -- I mean sometimes we all dread going to work,

you know, after a weekend or something, but for him it was that much

worse because it just was a reminder every workday that he’s disabled,

people are looking at me, I feel ashamed, ignored and like I don’t matter,

and that’s exactly why we’re asking you to award damages . . . .

Trial Tr. III 352:7-18.

First, I want you to keep in mind that this is about the fact that he had

to fight and struggle just to get to work, and we all know that it can be

hard just to get to work every day and you've heard evidence about just

how hard it was for Mr. Burnett, and this was one more thing that he

had to do to struggle to try to be normal.

Id. 336:18-23. AmeriPort objected after the second statement, during the closing

argument. Id. 353:13-14 (“Your Honor, we’re getting a little bit into Golden Rule.

She keeps saying you, if you.”). The Court overruled the objection. Id. 353:15.

In the First Circuit, it is improper for counsel to “suggest[] to the jury that it

put itself in the shoes of a plaintiff to determine damages . . . because it encourages

the jury to depart from neutrality and decide the case on the basis of personal interest

and bias rather than on the evidence.” Forrestal v. Magendantz, 848 F.2d 303, 309

(1st Cir. 1988). Courts have held arguments that use the phrase “can you imagine”

to be impermissible under the Golden Rule, in some cases holding reversible error.

See Whitehead v. Food Max of Miss., Inc., 163 F.3d 265, 278 (5th Cir. 1998) ( “And I

want for you to just for a couple of seconds to see-when I say start, that's ten seconds.

Ten seconds. And can you imagine how it would feel to have a knife in your side or a

knife on your leg or a pistol at your neck for ten seconds?” was impermissible Golden

Rule argument constituting reversible error) (emphasis in original); compare with

Marcoux v. Farm Serv. and Supplies, Inc., 290 F. Supp. 2d 457, 465 (remarks such as

“[c]an you imagine if you broke your wrist like this and had to have it put back

together with plates and screws, what that must have been like?” did not violate the

Golden Rule “because they invited the jury to focus on the gravity of plaintiff’s

injuries, but did not tell the jurors directly or implicitly that they should award

plaintiff the sum of damages that they themselves would desire if they found

themselves ‘in the plaintiff’s shoes.’”).

In Okraynets v. Metropolitan Transportation Authority, the court

differentiated between cases like Marcoux, cited above, and those in which counsel

directly “asked jurors to compensate plaintiff ‘in such amounts as you jurors feel you,

yourselves, would like to be compensated if the conditions happened to you the same

as happened to [plaintiff]’” 555 F. Supp. 2d 420, 432 (S.D.N.Y. 2008) (quoting

Weintraub v. Zabontinsky, 19 A.D.2d 906, 244 N.Y.S.2d 905 (2d Dep’t 1963); (citing

Callaghan v. A Lague Express, 298 F.2d 349, 350–51 (2d Cir.1962) (concluding that

counsel cannot ask the jury to “treat [plaintiff] as you would like to be treated”)); Klotz

v. Sears Roebuck & Co., 267 F.2d 53, 54–55 (7th Cir. 1959) (plaintiff's counsel asked

jury to “give us the kind of deal that you would want to get”).

The Court views the comments made by Plaintiff’s counsel to be less direct,

and therefore less prejudicial, than those deemed impermissible Golden Rule

violations in analogous cases. Ms. White stated: “but can you imagine—I mean

sometimes we all dread going to work, you know, after a weekend or something, but

for him it was much worse because it was just a reminder every workday that he’s

disabled . . .” Trial Tr. III 352:7-18. This statement is a far cry from asking the jury

to put themselves in the shoes of the Plaintiff or the Plaintiff’s mother or father, as

in Forrestal, 848 F.2d at 303, or asking them to count to ten while imagining a knife

being held to their necks. Whitehead, 163 F.3d at 278.

Even if the comments were considered a violation of the Golden Rule, a court

must evaluate the case based on “the totality of the circumstances, including the

nature of the comments, their frequency, their possible relevancy to the real issues

before the jury, the manner in which the parties and the court treated the comments,

the strength of the case . . ., and the verdict itself” to determine whether “the remarks

constituted reversible error.” Forrestal, 848 F.2d at 309 (citing City of Cleveland v.

Peter Kiewit Sons’ Co., 624 F.2d 749, 756 (6th Cir. 1980)).

In this case, Plaintiff’s counsel did not specifically ask the jury to put

themselves in Mr. Burnett’s shoes, so the nature of the comments does not weigh in

favor of reversible error. With regard to frequency of the comments, AmeriPort

claims two Golden Rule violations, but the Court only views the “can you imagine”

comment of Plaintiff’s counsel as a possible violation8; this, too, points toward

harmless error. In contrast, the fact that Plaintiff’s counsel made the possible error

while describing the day-to-day harm suffered by Mr. Burnett, and then asked the

jury to award damages, weighs in favor of reversible error. So too, does the manner

8 The second claimed violation is Plaintiff’s counsel’s statement:

First, I want you to keep in mind that this is about the fact that he had to fight and

struggle just to get to work, and we all know that it can be hard just to get to work

every day and you've heard evidence about just how hard it was for Mr. Burnett, and

this was one more thing that he had to do to struggle to try to be normal.

Trial Tr. III 336:18-23.

The Court does not view this comment as a request for the jury to put itself in Mr. Burnett’s shoes,

but rather as a straightforward statement of the challenges Mr. Burnett faces.

in which the parties and the Court treated the comments, since AmeriPort timely

objected, and the Court overruled the objection. Finally, considering the strength of

the case and the verdict itself, the Court has already concluded that the compensatory

damages verdict of $150,000 is supported by the evidence in the trial record of the

harm suffered by Mr. Burnett as a result of the Defendants’ failure to respond to his

request, which points toward harmless error.

The Forrestal Court also considered the district court’s instructions to the jury

important to the analysis, concluding that “the district court effectively nullified the

effect of the Golden Rule argument” by instructing the jury repeatedly that it must

consider only the evidence when determining damages. 848 F.2d at 310. This Court

provided similar instruction to the jury to decide the case based only on the evidence

heard at trial. For example, in its preliminary instructions to the jury, the Court

stated:

The evidence from which you'll find the facts will consist of the

testimony of witnesses, documents and other things received into the

record as exhibits, and any facts to which the lawyers agree to or

stipulate or that the Court may instruct you to find. Certain things are

not evidence and must not be considered by you. I'll list them for you

now. Statements, arguments and questions by lawyers are not evidence.

Trial Tr. I. 16:18-21.

Mr. Burnett as the plaintiff has the burden of proving his case by what

is called the preponderance of the evidence. That means that the

plaintiff has to produce evidence which, considered in light of all of the

facts, lead you to believe that what the plaintiff claims is more likely

than not. To put it differently, if you were to put the plaintiff's and

defendants' evidence on opposite sides of the scales, the plaintiff would

have to make the scale tip somewhat on his side.

Id. 18:18-19:2.

I've just told you the opening statements by lawyers are not evidence.

The same applies to closing arguments. They are not evidence either. In

their closing arguments, the lawyers for Mr. Burnett and defendants

will attempt to summarize and help you understand the evidence that

was presented.

Id. 23:24-24:4.

The Court reinforced these preliminary instructions in its final instructions.

The Court stated:

In reaching your verdict, you may consider only the testimony and the

exhibits received into evidence. Certain things are not evidence and you

may not consider them in deciding what the facts are. I will list them

for you. Arguments and statements by lawyers are not evidence.

Id. 324:18-23.

The plaintiff, Ryan Burnett, has the burden of proving his case by what

is called the preponderance of the evidence. That means that Mr.

Burnett has to produce evidence that, when considered in light of all the

facts, lead[s] you to believe that what Mr. Burnett claims is more likely

true than not. If the plaintiff fails to meet this burden, the verdict must

be for the defendants.

Id. 324:4-10.

As the party bringing the claim, Mr. Burnett bears the burden of proof

to show both the existence and the amount of his actual damages by a

preponderance of the evidence. . ..

Id. 333:14-16. The Court views its preliminary and final instructions as likely having

a similar effect on the jury as the instructions provided by the district judge in

Forrestal.

Considering the totality of the circumstances surrounding the comments of

Plaintiff’s counsel, the Court concludes that they do not rise to the level of reversible

error such that a new trial is warranted. A trial judge must uphold a verdict unless

it is “against the clear weight of the evidence such that upholding [it] will result in a

miscarriage of justice.” Conway, 825 F.2d, 598-99. The Court sees no indication that

the errors made by Plaintiff’s counsel during her closing argument prejudiced the

Defendants, and the Court denies AmeriPort’s motion for a new trial.

IV. MOTION FOR REMITTITUR

AmeriPort advances identical arguments to those set forth in Ocean

Properties’ Motion for Remittitur (ECF No. 202), which was denied by the Court. The

Court, therefore, denies AmeriPort’s motion on the same basis.

V. CONCLUSION

The Court DENIES Defendant AmeriPort LLC’s Motion for Judgment as a

Matter of Law (ECF No. 196); Motion for New Trial (ECF No. 197), and Motion for

Remittitur (ECF NO. 198).

SO ORDERED.

/s/ John A. Woodcock, Jr.

JOHN A. WOODCOCK, JR.

UNITED STATES DISTRICT JUDGE

Dated this 30th day of September, 2019