Opposition Brief — Washington Times Corp. v. Berman

In THE

Supreme Cont of the United States

OCTOBER TERM, 1996

THE WASHINGTON TIMES CORPORATION,

Petitioner,

v.

JULIE BERMAN

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

BRIEF FOR RESPONDENT IN OPPOSITION

JOHN M. BREDEHOFT *

ELAINE C, BREDEHOFT

CHARLSON & BREDEHOFT, P.C.

11260 Roger Bacon Drive

Reston, Virginia 20190

(703) 318-6800

Counsel for Respondent

* Counsel of Record

WILSON - Erpgs Printing Co., Inc. « 769-0096 - WASHINGTON, D.C. 20001

TABLE OF CONTENTS

TAR OP. REFERER RID ctncthenerrenecgsinvecnreeeyeneancesninns

REASONS FOR DENYING THE WRIT ....................

I, THE COURT OF APPEALS APPLIED SET-

TLED LAW IN AFFIRMING THE DETER-

MINATION OF THE TRIAL JUDGE THAT

PLAINTIFF’S CLOSING ARGUMENT WAS

NO WARRANT FOR A NEW TRIAL...

Il. THE COURT OF APPEALS PROPERLY DE-

CIDED, AS A MATTER OF LOCAL LAW,

THAT THE TIMES WAS NOT ENTITLED

TO A NEW TRIAL UNDER A STANDARD

OF PROOF WHICH THE TIMES DID NOT

iy tt APS yy |’ Re re ee ato a

RTI since teaitecineyvajpereereneninsmvinticnnsenditiileadabes

ii

12

16

ii

TABLE OF AUTHORITIES

Cases Page

Allstate Insur. Co. v. James, 845 F.2d 315 (11th

Chir, SEED: cvitenesenetbntannsetheinietiiensietdbeettiaibaecbieoes 5

American Trucking Assns. Inc. v. Smith, 496 U.S.

167, 110 S.Ct. 2328, 110 L.Ed.2d 148 (1990)... 15

Ayoub v. Spencer, 550 F.2d 164 (3d Cir.), cert.

denied, 482 U.S. 907 (1977) «..........-.i.-nnccenesecccseeess 5

BMW of North America, Inc. v. Gore, 116 §S.Ct.

1689, 64 U.S.L.W. 4835 (1996) ............-....0.02...... 4

Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct.

849, 80 L.Ed.2d 296 (1971) .................0....-00c.000.02. 15

Cooper v. Firestone Tire & Rubber Co., 945 F.2d

1108 (9th Cir. 1991) ................ - 12

Doe v. Johnson, 52 F.8d 1148 (7th Cir. 1995) ....... 8

Dyer v. Bergman & Associates, 657 A.2d 1182

. CDG, T9CS) essence Seen Se 14

Jonathan Woodner Co. v. Breeden, 665 A.2d 929

(D.0, 39GB) wadidsctenicnnkiedetee a 14

Kowalchuk v. United States, 176 F.2d 878 (6th Cir.

1949) ..... RSE ARBs Sr WN Pk NN! LSE ES 8

Martin v. Cavalier Hotel Corp., 48 F.3d 1848 (4th

Ce. TIDY ask itt nd nulacu tastes. 11

McCrary-El v. Shaw, 992 F.2d 802 (8th Cir. 1993) .. 8

Mendes v. Johnson, 389 A.2d 781 (D.C. 1978) ........ 15

Mosser v. Fruehauf Corp., 940 F.2d 77 (4th Cir.

ROD eri ccicsincccecccanesibteensauenicl Seatietebmnioaaaantebsies 11

New York Central R.R. Co. v. Johnson, 279 U.S.

310, 49 S.Ct. 300, 78 L.Ed. 706 (1929) ................ 9

Niehus v. Liberio, 973 F.2d 526 (7th Cir. 1992)... 8

Owens-Illinois Corp. v. Zenobia, 315 Md. 420, 601

BOG BS CIGD iii 18

Pacific Mutual Life Insurance Co. v. Haslip, 499

U.S. 1, 111 S.Ct. 1082, 118 L.Ed.2d 1 (1991)... 13

Pappas v. Middle Earth Condominium Ass’n, 968

F.2d 634 (Ba Cir, 1008) ue 5

Polansky v. CNA Insur. Co., 852 F. 2d 626 (ist Cir.

bj RRR Tred rae kh Seo Coe NT ERR HL, eh os 5

Richardson v. Marsh, 481 U.S. 200, 107 S.Ct. 1702,

OU RaDe. B OW CRIED cacccicieclccteicnslesinitubescieloncoten ss 11

iii

TABLE OF AUTHORITIES—Continued

Smith v. National R.R. Passenger Corp., 856 F.2d

= 2: 32 RNa Sa

United States v. St. Michael’s Credit Union, 880

¥ 26 G79 (ist Cir. 1968)...

Valbert v. Pass, 866 F.2d 237 (7th Cir. 1989)...

Other Authorities

8 Devitt, Blackmar & Wolff, Federal Jury Practice

and Instructions, Civil (4th Ed. 1987) § 72.16...

2 C. Wright, Federal Practice & Procedure § 489

SES af TS SESS RAE a US Sa ND an RN

Page

12

In THE

Supreme Court of the United States

OCTOBER TERM, 1996

No. 96-588

THE WASHINGTON TIMES CORPORATION,

Petitioner,

Vv

JULIE BERMAN

Res ondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

BRIEF FOR RESPONDENT IN OPPOSITION

Respondent Julie Berman, the prevailing plaintiff below,

respectfully requests that this Court deny the petition for

writ of certiorari seeking review of the unpublished per

curiam decision of the United States Court of Appeals

for the District of Columbia Circuit.

As the unanimous panel disposition by the Court of

Appeals makes plain, this case involves nothing more than

a straightforward application of settled law to the par-

ticular facts at issue. Ms. Berman, formerly a senior

graphics designer for The Times, alleged that she had

2

been discriminated against on the basis of her gender,

largely but not exclusively by a supervisory employee,

Donald Garlock, who had repeatedly stated to other em-

ployees that “he believed that the woman’s place was at

home raising children.” *

Shortly after Mr. Garlock arrived in Ms. Berman’s de-

partment, corporate promotions, in November of 1990,

he reduced Ms. Berman to tears—boasting of the fact to

Ms. Berman’s co-workers, and then posting a sign saying

“crybabies will be shot on sight.”” Mr. Garlock su-

spended Ms. Berman without warning and without cause.

Mr. Garlock took away hundreds of Ms. Berman‘s creative

job assignments—Ms. Berman was the “Senior Designer”

when Mr. Garlock arrived—and gave them to his male

subordinates, Ms. Berman was reduced to cut-and-paste

work, photocopying, and cleaning supplies. For each of

1 Stacey Chodash, a former female subordinate of Mr. Garlock,

was one of those who testified to a number of similar comments.

Ms. Chodash eventually resigned from The Times due to Mr.

Garlock’s gender-based abuse of her (and told human resources the

reason). By happenstance, Ms. Chodash later met Regan Davis,

another female former subordinate of Mr. Garlock, who testified

at trial that Ms. Chodash’s experiences “‘were so similar to mine,

it was just uncanny.” In the fall of 1990, immediately before Mr.

Garlock was assigned to supervise Ms. Berman and other women

in the corporate promotions department, Ms. Davis had a discussion

with Roger Ott, Mr. Garlock’s superior. According to Ms. Davis’

testimony, Mr. Ott told Ms. Davis that “he was aware of the situa-

tion with Don [Garlock] but he said not to worry, that there

weren’t going to have any other women work under him.” “[Hl]e

said that he was aware of the situation and that no other women

were going to work under Don” Garlock.

2 Mr. Garlock told a co-worker of Ms. Berman that in an earlier

supervisory position at The Times, “there was an occasion where

he had made a female employee cry. He said that he made her cry

and he smiled when he said this and he said, I hate crybabies.” In

January 1991, Mr. Garlock discussed Ms. Berman with this co-

worker, saying “I had a little talk with her and I think she under-

stands me now. I made her shake and I made her cry and I think

that she understands me now.”

3

these elements, the jury was presented with substantial

evidence that male employees were treated differently.

Ms. Berman complained of Mr. Garlock’s discrimina-

tion four times to human resources, and on other occa-

sions to Mr. Garlock’s supervisor, Peter Pitts. Ms. Ber-

man finally filed a charge of discrimination with the U.S.

Equal Employment Opportunity Commission. Other fe-

male subordinates of Mr. Garlock also complained to Mr.

Pitts and to The Times’ human resources director. The

Times took no action: Tracy Hoff, director of The Times’

human resources department, asked Ms. Berman only if

Mr. Pitts could “control” Mr. Garlock, which she knew

he could not.* No trace of any of these complaints—much

less of earlier documents prepared by human resources

indicating that Mr. Garlock’s abuse had forced another

female employee to resign—were to be found in Mr. Gar-

lock’s personnel file, and no discipline was ever imposed

against Mr. Garlock.

After more than a year of this abuse, Ms. Berman was

called in to meet with Ms. Hoff and Mr. Pitts. After Mr.

Pitts confirmed to Ms. Berman, “It doesn’t matter. It’s

your word against ours,” Ms. Berman quit. The properly-

instructed jury found that Ms. Berman’s working condi-

tions were made intolerable by this conduct, and that she

was forced to resign.

8 While Ms. Hoff repeatedly asked Ms. Berman whether Peter

Pitts could “control” Garlock, it was clear Mr. Pitts was not the

one to do so. Mr. Pitts called another female employee a “cu*t”

(and, at trial, lied under oath about it—according to witnesses

offered by The Times). Mr. Pitts told Ms. Hoff herself to “f**k

off.” After the latter incident, Ms. Hoff sent a memorandum to

Mr. Pitts noting his “vulgar,” “condescending and patronizing”

conduct, and warning that “[i]t would be difficult for me to support

your decision on a disciplinary matter when one of your employees

complains that you are too ... shall we say ‘brash.’” Of course,

Ms. Hoff did testify in support of Mr. Pitts’ decisions, after execut-

ing an agreement in which she promised to testify for The Times

in exchange for a substantial cash payment.

4

The case was tried over a four-week period, with sev-

eral interruptions, by Senior Judge William B. Bryant, a

highly experienced trial judge. The jury deliberated over

a period of days and returned a mixed verdict: finding for

The Times on Ms. Berman’s claim of hostile environment

sexual harassment, but in favor of Ms. Berman on her

claims of gender-based discrimination, constructive dis-

charge, and retaliation. The jury assessed modest com-

pensatory damages of $47,185, and a more substantial

punitive damages verdict in excess of $700,000.* | The

Times noted an appeal to the Court of Appeals for the

District of Columbia Circuit, which affirmed in a unani-

mous, unpublished, per curiam determination.’ The

Times’ petition for rehearing and suggestion for rehearing

en banc were denied.

REASONS FOR DENYING THE WRIT

I. THE COURT OF APPEALS APPLIED SETTLED

LAW IN AFFIRMING THE DETERMINATION OF

THE TRIAL JUDGE THAT PLAINTIFF’S CLOSING

ARGUMENT WAS NO WARRANT FOR A NEW

TRIAL

The Court of Appeals, noiize that “the district judge

carefully instructed the jury that statements cf counsel

* The amount of the punitive damages verdict is the only factor

which removes this case from the ordinary run of discrimination

claims. The Times’ petition for certiorari, however, does not chal-

lenge the amount of the punitive damages award.

5 The Court of Appeals, noting that during the pendency of the

appeal this Court had decided BMW of North America, Inc. v. Gore,

116 S.Ct. 1589, 64 U.S.L.W. 4835 (1996), ordered a limited remand.

The Court of Appeals noted the “three guideposts” set out by this

Court in Gore; held that the appellate court was “as well situated

as the district court to perform the comparisons called for by the

second and third of these guideposts,” and remanded the punitive

damages award for a determination of the first factor, “namely,

the reprehensibility of the defendant’s conduct.” App. at 13-14. The

Times does not petiiton for certiorari to review this aspect of the

decision of the Court of Appeals.

.

are not evidence, and . . . admonished the jurors to make

their decision based upon the evidence and not upon their

passions or sympathies,” found nothing—“after considera-

tion of the record as a whole”—to suggest that the trial

ae judge abused his discretion in denying The Times’ motion

for a new trial. App. at 10. In so holding, the Court of

Appeals was plainly correct.*

Essentially all of the isolated selections of closing argu-

ment of which The Times complains related to missing

documents: documents respecting which there was testi-

mony during trial but which were not introduced into evi-

dence by The Times. Among the missing documents to

which Ms. Berman’s counsel! referred in closing were (i)

) the notes of an “exit interview” given to The Times’

) human resources department, in which a female subordi-

| nate of Ms. Berman’s abusive supervisor placed The Times

on notice of the suyervisor’s inability to work with

women;” (ii) notes taken by Tracy Hoff, The Times’ di-

* Despite The Times’ attempt to inflate its argument into a con-

flict between the Circuits, nothing the Court of Appeals did in this

case applied any different standard than the one used in the four

cases cited by The Times. In each of those cases, the Courts of

Appeals applied settled law to determine whether, on the facts of

the particular case, a new trial was warranted. See Pappas v.

Middle Earth Condominium Ass’n, 963 F.2d 534, 540 (2d Cir.

1992); Polansky v. CNA Insur. Co., 852 F.2d 626, 628 (1st Cir.

1988) ; Allstate Insur. Co. v. James, 345 F.2d 315, 319-20 (11th Cir.

1988) ; Ayoub v. Spencer, 550 F.2d 164, 170 (3d Cir.), cert. denied,

482 U.S. 907 (1977). The Court of Appeals did the same thing in

this case.

Moreover, the conduct in each of the four cases upon which The

| Times relies was decidedly improper; nothing similar happened

in this case. For example, in Polansky, supra, counsel repeatedly

argued his own personal opinions and the issue of insurance. In

Pappas, swpra, the closing argument was intended to inflame the

Vermont jury against “outsiders” from New Jersey.

7 Ms. Stacey Chodash, who worked for Donald Garlock in late

1988 and early 1989, testified at trial. Ms. Chodash was hired as

a “graphic artist,” the same position Ms. Berman held. Mr. Garlock

told Ms. Chodash that “he believed that the woman’s place was at

PRS ER Semec Rees ere RAE ALF On OO ete eT Ae

rector of human resources, when Ms. Berman complained

to her of discrimination on multiple occasions in 1991,*

home raising children,” and referred to women as “bitches.” “[Hje

said to me... he believed women, it was their duty to stay home,

it was not their place to be in the work force, they didn’t belong

there.” Ms. Chodash encountered the same types of abuse to which

Ms. Berman testified. Mr. Garlock “would just look at me and he

would say, ‘um-um-um, you look good today.’"” “He just stared. He

wouldn’t stop. It wasn’t like a casual look at me. It wasn’t a glance.”

On “several occasions” Mr. Garlock placed his hand on Ms. Chodash’s

knee and thigh, making her uncomfortable and forcing her to leave

the room. Ms. Chodash was given “work for a graphic artist to do”

only “[vjery infrequently,” and that work “was simple paste-up.”

Mr. Garlock’s male subordinate “was doing all the graphic work for

the department.”

Ms. Chodash decided, after five months of this abuse, to resign.

Ms. Chodash arranged a formal exit interview. Immediately before

the exit interview she encountered another Times employee (the

son of the CEO of The Times) who asked Ms. Chodash why she

was leaving. “I told him because Don Garlock had been sexually

harassing me.” “He said, ‘Stacey, I would not say that at exi

interview.’ Ms. Chodash did, however, tell the truth at

interview. “I told her about my experiences at The Times from the

very day I started up till that date.” Ms. Chodash told The Times

personnel department “everything that [she] told this jury today.”

Liz Sommers from The Times’ personnel department “wrote every-

thing down.” These notes were not produced in discovery, and were

not intorduced into evidence by The Times.

* Ms. Berman complained to Tracy Hoff of The Times’ human

resources department at least four times about the abusive conduct

of Mr. Garlock. Ms. Hoff, by her own admission, took no action—

and lied to Ms. Berman by telling her that there had never been a

problém with Mr. Garlock before. Ms. Hoff herself had “investi-

gated” Ms. Chodash’s complaint against Mr. Garlock, concluding

that Ms. Chodash had lied without ever speaking to her.

After testifying for The Times on direct examination, in great

detail, as to each of several meetings with Ms. Berman in 1991 and

1991, much less what was said at any one of the meetings. Ms. Hoff

was also thoroughly impeached by her “settlement” with

Times: a $28,000 payment made between the first and second

sions of her deposition, in exchange

7

and (iii) documents underlying summary charts generated

by The Times during the course of the litigation, purport-

ing to show Ms. Berman's job assignments.°

The Times objected to some, but not all, of these ref-

erences during Ms. Berman’s closing argument and re-

buttal."* As articulated by The Times’ counsel, the basis

for objection was that it is “improper . . . to comment on

evidence that are [sic] absent, on documents that were not

introduced. That's improper. It’s like commenting on a

witness who doesn’t testify.” In this, The Times was

partly correct: commenting on evidence which has not

been introduced, in a civil trial, is similar to commenting

on a witness within the control of a party who does not

appear. However, it is black letter law that both forms

after which her memory “improved” markedly. The jury would

have been justified in disbelieving everything Ms. Hoff testified to

on the stand.

*Mr. Peter Pitts was Mr. Garlock’s supervisor at The Times.

Mr. Pitts testified at great length as to the work status reports

and summary charts submitted by The Times (and was, indeed, the

only defense witness on those exhibits). However, Mr. Pitts testi-

fied that he saw the summary charts for the first time on the stand

—and yet swore under oath that charts the accurately summarized

tens of thousands of entires on the status reports, an inherently

incredible statement. Mr. Pitts testified he had no idea who pre-

pared the charts and, in at least one case, had no idea what the

chart’s “scale” meant. —

% The same form of argument was made repeatedly by Ms.

Berman, without drawing an objection from The Times. Indeed,

Ms. Berman's rebuttal closed with the observation, “Now, I would

say compare these notes to Stacey Chodash’s exit interview but we

can’t. In the words of my four-year-old, poof, they are gone.” The

Times chose not to object to this or to more than a dozen other

references to missing documents throughout Ms. Berman's closing.

Failure to sustain The Times’ objections, if it were error, would

have been harmless, the same references having been made without

objection.

" This colloquy between counsel and the Court, omitted from The

Times’ petition, was before the Court of Appeals as page 288 of the

Joint Appendix.

of commentary are proper and appropriate. The issue is

even the subject of a standard federal jury instruction:

If a party fails to produce evidence which is under

his control and reasonably available to him and not

reasonably available to the adverse party, then [the

jury] may infer that the evidence is unfavorable to

the party who could have produced it and did not.

3 Devitt, Blackmar & Wolff, Federal Jury Practice and

Instructions, Civil (4th Ed. 1987) § 72.16 (Failure to

Produce Available Evidence).

There is a world of difference from arguing for a result

based on material which has not been introduced as evi-

dence (the situation in the cases cited by The Times in

its petition), and arguing—as Ms. Berman did here—that

the jury should draw an unfavorable inference from the

fact The Times had possibly-probative documents which

were not introduced.” Even where “[t]he record is barren

as to what actually happened to [the evidence], . . . it is

a permissible inference that if they were truly probative

.. . then the [party] would have produced [it].” Doe v.

Johnson, 52 F.3d 1148, 1161 (7th Cir. 1995).*

12 The jury heard testimony, for example, that the notes of Ms.

Chodash’s exit interview were given to “counsel.”

38 This principle is well-settled and not open to serious dispute.

See, e.g., McCrary-El v. Shaw, 992 F.2d 802, 812-18 (8th Cir. 1993)

(error to require proof that documents were destroyed since party

is “entitled to argue to the jury that [the opposing party] still had

the [evidence] and was refusing to produce it because it was

damaging to its case”); Niehus v. biberio, 978 F.2d 526, 530 (7th

Cir. 1992) (Posner, J.) (it “should be enough that the party could

have produced the evidence and that he surely would have done so

had the evidence been favorable to him”); United States v. St.

Michael’s Credit Union, 880 F.2d 579, 597 (1st Cir. 1989) (“the

failure of a party to produce available evidence that may help decide

an issue may justify an inference that the evidence would be un-

favorable to the party to whom it is available or whom it would

ordinarily be expected to favor”), quoting 2 C. Wright, Federal

Practice & Procedure § 489 (1982); Kowalchuk v. United States,

176 F.2d 878, 877 (6th Cir. 1949) (noting “the general rule is that

9

In sum, Senior Judge Bryant was correct when he told

The Times’ counsel during this colloquy that the docu-

ments referred to “don’t have to be put in evidence,” and

the Court of Appeals was correct when it affirmed the

trial court’s denial of The Times’ post-trial motions on

this ground.

Even if the law were otherwise as to the particular ex-

amples of argument on which The Times relies, both the

trial judge and the unanimous panel of the Court of Ap-

peals properly determined that prompt curative instruc-

tions obviated the need for a new trial.” Immediately

after Ms. Berman concluded her rebuttal, Senior Judge

Bryant began the charge to the jury. Mere moments after

the comment in rebuttal respecting Mr. Martin’s investi-

gatory style * (i.e., less than two pages of transcript later )

Senior Judge Bryant instructed the jury:

failure to produce available evidence which would help decide the

issue raises the inference that such evidence would be unfavorable

to that party if produced”).

This case is nothing at ali like New York Central R.R. Co. v.

Johnson, 279 U.S. 810, 49 S.Ct. 800, 78 L.Ed. 706 (1929), the sole

authority from this Court upon which The Times relies—although,

tellingly, a case which was neither discussed nor even cited by The

Times in any of its three briefs to the Court of Appeals. The issue

of curative instructions was not even raised in Johnson, where this

Court faulted the “failure of the trial judge . . . to make certain that

the jury would disregard” improper argument. 279 U.S. at 318,

49 S.Ct. at 308.

receiving the charge from the EEOC, but did not ask Ms. Reeman

for any of the specifics of her complaint. Mr. Martin also testified

for information, Mr. Martin testified that he did not produce a

copy of Ms. Chodash’s exit interview and did not produce a copy of

10

You are the sole and exclusive judges of the facts.

You alone determine the weight, the effect, and the

value of the evidence and the credibility of the wit-

nesses. You should determine the facts without prej-

udice, without fear or favor, solely from a fair con-

sideration of the evidence in the case... . You are

the sole and exclusive judges of the facts.

Senior Judge Bryant then continued:

The actions of the Court during the trial in ruling

on motions or objections by counsel or in comments

to counsel or in questions to witnesses or in sctting

forth the law in these instructions are not to be taken

by you as any indication of the Court’s opinion as to

how you, the jury, should determine the issues of fact.

If as a matter of fact the Court has expressed or inti-

mated in any fashion any opinion as to the facts you

are not bound by that opinion because what the ver-

dict shall be in this case is your sole and exclusive

duty and responsibility.

* * * ok

You must weigh and consider this case without re-

gard to sympathy, prejudice, passion for or against

any party in the case.

+ * * *

[Y jou may consider only the evidence properly ad-

mitted in the case[. E]vidence includes the sworn

testimony of witnesses, the exhibits which have been

admitted into evidence in the course of the trial, and

the facts stipulated to by counsel.

* * * *

the notes taken by Ms. Hoff in her January and March 1991 meet-

ings with Ms. Bermar. All in all, counsel’s argument that Mr.

11

I should reiterate and re-emphasize what isn’t evi-

dence. The statements of counsel are not evidence

and should not be considered as evidence... . I told

you at the outset of the trial that . . . after all the

evidence was in you would be exposed to the closing

arguments and closing statements of counsel and at

that time I believe I told you or cautioned you that

those statements were not evidence."*

a x ok *”

At the close of the case counsel are allowed to make

a closing argument. . . . [T]he statements of counsel

do not constitute evidence in themself.

ab Bs * 7”

Evidence was presented primarily through witnesses

who take the witness stand and testify. You as jurors

must consider and weigh the testimony of all the wit-

nesses who have appeared before you.

It is well-settled that the jury is presumed to have

followed these instructions. Richardson v. Marsh, 481 US.

200, 211, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987).

These “prompt instructions obviated any prejudice,” even

assuming any improper remark had been made.”

Finally, in the context of a trial which extended, with

some interruption, from the first week in February through

the first week in March 1995, the brief remarks isolated

by The Times are insubstantial." Even if the argument

1® At the beginning of trial, immediately after the jury had been

selected, Senior Judge Bryant instructed the jury, “In the first place,

I want to caution you that remarks of counsel, either opening state-

ments or their closing remarks, are not evidence. Evidence comes

from the witness stand.”

1 Martin v. Cavalier Hotel Corp., 48 F.3d 1348 (4th Cir. 1995)

(comments respecting supervisor having a sexually transmitted dis-

ease; any prejudice obviated by general curative instructions). See

Mosser v. Fruehauf Corp., 940 F.2d 77, 82 (4th Cir. 1991) (curative

instructions obviate any possibility of prejudice).

%8 The transcript of plaintiff's closing argument itself is about

forty pages long; The Times’ closing argument consumed more than

forty pages of transcript.

12

had been improper, and even if no curative instruction

at all had been given, the trial judge and the Court of

Appeals each correctly determined that “these statements

clearly did not so permeate the closing argument or the

Plaintiff's presentation during the three weeks of trial that

they could have prejudiced the jury or affected the

verdict.”

II. THE COURT OF APPEALS PROPERLY DECIDED

AS A MATTER OF LOCAL LAW, THAT THE TIMES

WAS NOT ENTITLED TO A NEW TRIAL UNDER

A STANDARD OF PROOF WHICH THE TIMES DID

NOT PROPOSE AT TRIAL

The Court of Appeals properly rejected The Times’

assertion, raised for the first time on appeal, that part

(but not all) of Ms. Berman’s claim for punitive dam-

ages should have been decided under a “clear and con-

vincing evidence” standard.” Since The Times did not

request that the jury be instructed on this standard, and

19 August 17, 1995 Memorandum Opinion of Senior Judge Bryant,

App. at 25. See App. at 10, July 22, 1996 Memorandum Opinion of

Court of Appeals (“in consideration of the record as a whole,” no

abuse of discretion in denying motion for new trial based on closing

argument). See generally Smith v. National R.R. Passenger Corp.,

856 F.2d 467, 472 (2d Cir. 1988) (two paragraphs of objectionable

material in over fifty pages of argument does not warrant reversal).

See also Cooper v. Firestone Tire & Rubber Co., 945 F.2d 1108, 1107

(9th Cir. 1991) ; Valbert v. Pass, 866 F.2d 237, 242 (7th Cir. 1989).

2° This argument relates solely to the recovery of punitive dam-

ages in excess of $300,000. Punitive damages of up to $300,000

are recoverable under Title VII of the Civil Rights Act, as amended

in 1991, 42 U.S.C. § 198la, and there is no claim that a “clear and

convincing evidence” standard applies to that recovery. In addition,

since the District of Columbia courts have uniformly held that the

D.C. Human Rights Act, D.C. Code §§ 1-2501 et seq., should be con-

strued in conformity with Title VII, it is not at all clear that the

District of Columbia courts would require “clear and convincing

evidence” for the recovery of punitive damages under that statute.

This is a thicket of local law which this Court need not, and should

not, enter.

13

since The Times did not object to the use of a “pre-

ponderance of the evidence” standard in actually instruct-

ing the jury, Fed. R. Civ. P. 51 provides a complete and

commonplace answer to The Times’ petition: “No party

may assign as error the giving or the failure to give an

instruction unless that party objects thereto before the

jury retires to consider its verdict, stating distinctly the

matter objected to and the grounds for the objection.”

There is no question but that The Times failed to comply

with Rule 51, and did not even raise this issue in the trial

court on post-trial motions.”

Moreover, The Times’ failure to request a “clear and

convincing evidence” instruction is not explicable on the

grounds that it was surprised by a subsequent change

in the law of the District of Columbia. As early as 1991,

this Court signaled that there is “much to be said in

favor of” a clear and convincing evidence standard for

punitive damages, noting that many states already re-

quired such.” Maryland, generally the source of the

common law of the District of Columbia, adopted a clear

and convincing evidence standard of proof for punitive

damage awards in 1992. Even the D.C. Court of Appeals

signaled that it might require clear and convincing evi-

dence for punitive damage awards, some four months

before the trial judge in this case decided The Times’

21 Again, The Times seeks to manufacture a “split” among the

circuits by pointing to other courts which have decided analogous,

but not identical, issues in a different way. What The Times’ peti-

tion ignores, however, is that in this case the issue of retroactivity

is one of local District of Columbia law. It is entirely permissible

for different federal Circuits to apply the diff laws of the

differing states and jurisdictions to reach different results. These

questions of local law are particularly ill-suited for resolution by

writ of certiorari.

22 Pacific Mutual Life Insurance Co. v. Haslip, 499 U.S. 1, 23 n.11,

111 S.Ct. 1082, 118 L.Ed.2d 1 (1991).

3 Owens-Illinois Corp. v. Zenobia, 315 Md. 420, 601 A.2d 683

(1992).

.4

post-trial motions.** There is nothing unforeseeable about

this change in the law; if The Times wanted the jury

instructed on a clear and convincing evidence standard

in this case, its failure to request that instruction is inex-

plicable and dispositive.

In sum, as the Court of Appeals correctly noted in Ms.

Berman’s case, the issue of whether punitive damages

under District of Columbia law must be proved by clear

and convincing evidence “was still open and undecided

at the time of the trial in this case; therefore, the super-

vening authority doctrine does not apply.” App. at 9.

This determination is entirely consistent with the manner

in which the local District of Columbia courts have han-

dled the issue. In Dyer v. Bergman & Associates, 657

A.2d 1132 (D.C. 1995), the D.C. Court of Appeals noted

that the standard of proof for punitive damages was still

unresolved, yet declined to resolve the issue because the

defendant in that case, like The Times here, had not

requested use of a “clear and convincing evidence” stand-

ard at trial.

The issue under local District of Columbia law of the

retroactive application of the change in the burden of

proof for punitive damages is fairly clear. Nothing in

the case which announced the principle, Jonathan Wood-

ner Co, v. Breeden, 665 A.2d 929 (D.C. 1995), suggests

in the slightest that the new standard of proof should

be applied retroactively, much less to cases pending on

appeal at the time of the Breeden decision. Under Dis-

trict of Columbia law, several “specific criteria” are used

to determine the application of a new rule of law to

pending cases: (i) the extent of reliance on the old rule

and the hardship to litigants if the new rule were to be

applied; (ii) avoidance of altering vested property rights;

* Dyer v. Bergman & Associates, 657 A.2d 1182 (D.C. 1995).

Dyer was argued to the D.C. Court of Appeals some six months

before the jury in Ms. Berman’s case was instructed.

15

(iii) the desire to award plaintiffs who seek to “initiate

just changes in the law”; and (iv) the “fear of burdening

the administration of justice by disturbing decisions

reached” under earlier precedent. Mendes v. Johnson,

389 A.2d 781, 789 (D.C. 1978). In this case, each of

these four factors counsels against disturbing the settled

verdict in favor of Mr. Berman; in particular, the burden

on the judicial system “has assumed great importance,”

and under District of Columbia law “[cJourts are acutely

aware of the potential impact on the judicial system that

retrospective application of such decisions, requiring reliti-

gation of cases already decided under prior rules, would

have and, consequently, have been reluctant to disturb

settled cases.” Mendes, supra, 389 A.2d at 791 (emphasis

added).

The new iteration of the evidentiary burden of a plain-

tiff under D.C. law can have no application to this case.

The question of whether the local courts of the District

of Columbia will determine that heightened burden to

apply retroactively, or in cases of this sort, is not one

which should occupy the time of this Court.**

5 This Court has refused repeatedly to apply new rules retro-

actively in civil cases. See generally Chevron Oil Co. v. Huson, 404

U.S. 97, 92 S.Ct. 349, 80 L.Ed.2d 296 (1971); American Trucking

Asens. Inc. v. Smith, 496 U.S. 167, 188-200, 110 S.Ct. 2828, 110

L.Ed.2d 148 (1990) (O’Connor, J., concurring).

16

CONCLUSION

For all of the foregoing reasons, the petition should be

denied.

Respectfully submitted,

JOHN M. BREDEHOFT *

ELAINE C. BREDEHOFT

CHARLSON & BREDEHOFT, P.C.

11260 Roger Bacon Drive

Reston, Virginia 20190

(703) 318-6800

Counsel for Respondent

November 14, 1996 * Counsel of Record