Bhaya v. Westinghouse Elec. Corp.

• Citation: 922 F.2d 184
• Decision Date: 24 January 1991
• Docket Number: No. 89-2063,89-2063
• Parties: 54 Fair Empl.Prac.Cas. 1078, 55 Empl. Prac. Dec. P 40,462, 31 Fed. R. Evid. Serv. 1379 Lal R. BHAYA, and Richard Carner, and William J. Haessler, and Henry A. Parzick, and Earle Williams, Appellants, v. WESTINGHOUSE ELECTRIC CORPORATION, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 184

922 F.2d 184

54 Fair Empl.Prac.Cas. 1078,

55 Empl. Prac. Dec. P 40,462,

31 Fed. R. Evid. Serv. 1379

Lal R. BHAYA, and Richard Carner, and William J. Haessler and Henry A. Parzick, and Earle Williams, Appellants, v. WESTINGHOUSE ELECTRIC CORPORATION, Appellee.

No. 89-2063.

United States Court of Appeals Third Circuit.

Argued Oct. 11, 1990.

Decided Dec. 28, 1990.

Rehearing and Rehearing In Banc Denied Jan. 24, 1991.

Alan P. Epstein (argued), Jablon, Epstein & Wolff, Philadelphia, Pa., for appellants.

Dona S. Kahn (argued), Anderson, Kill, Olick & Oshinsky, P.C., Philadelphia, Pa., for appellee.

Before MANSMANN, COWEN and ALITO, Circuit Judges.

OPINION OF THE COURT

ALITO, Circuit Judge:

This is an appeal from a final judgment following a jury verdict in favor of Westinghouse Electric Corporation ("Westinghouse") in a suit by five former Westinghouse engineers under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. Sec. 621 et seq. The plaintiffs contend that the district court erred in granting Westinghouse's motion for a new trial, in excluding certain evidence at the second trial, and in refusing to give a supplemental jury instruction at the second trial. We will affirm.

I.

The background of this case is set out in some detail in this court's prior opinion, Bhaya v. Westinghouse Electric Corp., 832 F.2d 258 (3d Cir.1987), which reversed the district court's entry of judgment notwithstanding the verdict following the first trial, and in the opinion of the district court granting a new trial on remand. Bhaya v. Westinghouse Electric Corp., 709 F.Supp. 600 (E.D.Pa.1989). ¹ Accordingly, a brief summary will suffice for present purposes.

The five plaintiffs held the position of "negotiation engineer" before Westinghouse eliminated that entire job progression in 1982. The plaintiffs claimed that Westinghouse eliminated their job progression, rather than making layoffs based on seniority from a pool consisting of the negotiation engineers and engineers in two other closely related job progressions (the "availability assurance engineers" and the "applications engineers"), because the negotiation engineers were older. After the first trial in 1985, the jury returned a verdict for the plaintiffs. Westinghouse then moved for a judgment notwithstanding the verdict, because of the asserted insufficiency of the evidence. In the alternative, Westinghouse sought a new trial because of alleged trial errors. The district court granted judgment notwithstanding the verdict and thus did not address the claimed trial errors that formed the basis for the new trial motion.

On appeal, this court reversed, holding that the evidence, when viewed in the light most favorable to the plaintiffs, was sufficient to support a judgment in their favor. 832 F.2d at 262. We therefore vacated the judgment notwithstanding the verdict but noted that the district court on remand could consider Westinghouse's as yet undecided motion for a new trial. Id. at 263.

On remand, the district court granted a new trial both on liability and damages. At the second trial, the jury found that Westinghouse was not liable, and the plaintiffs have appealed.

II.

A. We will first address the district court's decision to grant a new trial on liability. The district court's decision was based on the admission, over objection, of testimony by one of the plaintiffs, Henry Parzick, concerning out-of-court statements supposedly made at a Westinghouse management meeting. On direct examination, Parzick stated that his immediate supervisor, Thomas Kinlin, had related a discussion about the termination of the negotiation engineers that had occurred at the meeting in Kinlin's presence. ² Asked what Kinlin had told him, Parzick testified as follows:

Somebody in that meeting brought up the point that they might be violating ... the labor laws of their contract.

When plaintiffs' counsel asked Parzick to state "exactly what Mr. Kinlin said, to the best of [his] recollection," Parzick testified:

A statement was made that maybe we shouldn't be eliminating this group. Maybe we're doing something illegal or against the contract, and Mr. Nick Kulokoski, who was the personnel manager of the division, said, let's give it a try. What do we have to lose?

Thus, Parzick related out-of-court statements made by three individuals: Kinlin, who allegedly recounted the discussion at the management meeting; an unidentified attendee at the meeting, who allegedly brought up the point that "they might be violating ... the labor laws of their contract" and said that "[m]aybe [they] were doing something illegal or against the contract"; and Kulokoski, the division personnel manager, who allegedly responded, "let's give it a try. What do we have to lose?"

In granting a new trial on liability, the district court focused on the statements of the unidentified attendee. The court concluded that the statements were not hearsay because they were offered, not for the truth of the matter asserted, but to show the meaning of Kulokowski's response ("let's give it a try. What do we have to lose?"), which would have otherwise been meaningless. 709 F.Supp. at 602-03. While holding that admission of these out-of-court statements was not barred on hearsay grounds, the district court concluded that the unidentified declarant's statements were probably irrelevant (and thus inadmissible under Fed.R.Evid. 402) and that, even if relevant, they should have been excluded under Fed.R.Evid. 403. 709 F.Supp. at 603-04. The court explained that while the unidentified attendee reportedly said that the layoffs might be "illegal," he never stated that they might violate the ADEA. The court observed that the unidentified attendee's comments might just as well have concerned the possible violation of the collective bargaining agreement or labor laws but that these possible violations were immaterial in an age discrimination case. Id. Thus the court concluded that the unidentified declarant's statements should have been excluded or, in the alternative, accompanied by a cautionary instruction. Id. Applying the new trial standard set out in McQueeny v. Wilmington Trust Co., 779 F.2d 916, 928 (3d Cir.1985), the district court held that the erroneous admission of this testimony necessitated a new trial because it was "quite possible" that Westinghouse's "substantial rights" had been affected. 709 F.Supp. at 604.

B. When the granting or denial of a new trial is contested on appeal, substantial deference must generally be given to the decision of the trial judge, "who saw and heard the witnesses and has the feel of the case which no appellate printed transcript can impart" (Cone v. West Virginia Pulp & Paper Co., 330 U.S. 212, 216, 67 S.Ct. 752, 755, 91 L.Ed. 849 (1947)). In Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 36, 101 S.Ct. 188, 191, 66 L.Ed.2d 193 (1980), where a new trial was granted based in part on erroneous evidentiary rulings, the Supreme Court stated that "[t]he authority to grant a new trial ... is confided almost entirely to the exercise of discretion on the part of the trial court." See also Waldorf v. Shuta, 896 F.2d 723, 737 (3d Cir.1990); Honeywell v. American Standards Testing Bureau, 851 F.2d 652, 655 (3d Cir.1988), cert. denied, 488 U.S. 1010, 109 S.Ct. 795, 102 L.Ed.2d 787 (1989); Link v. Mercedes-Benz of North America, Inc., 788 F.2d 918, 921-22 (3d Cir.1986); Silverii v. Kramer, 314 F.2d 407, 413 (3d Cir.1963) ("It is well settled that the granting or refusing of a new trial is a matter resting in the sound discretion of the trial judge and his action thereon is not reviewable upon appeal, save in the most exceptional cases").

Particular deference is appropriate in the present case because the decision to grant a new trial rested on an evidentiary ruling that was itself entrusted to the trial court's discretion. Indeed, a trial judge's decision to admit or exclude evidence under Fed.R.Evid. 403 may not be reversed unless it is "arbitrary and irrational." ³ United States v. DePeri, 778 F.2d 963, 973-74 (3d Cir.1985), cert. denied, 475 U.S. 1110, 106 S.Ct. 1518, 89 L.Ed.2d 916, 475 U.S. 1110, 106 S.Ct. 1518, 89 L.Ed.2d 916 and 476 U.S. 1159, 106 S.Ct. 2277, 90 L.Ed.2d 720 (1986); United States v. Friedland, 660 F.2d 919, 929 (3d Cir.1981), cert. denied, 456 U.S. 989, 102 S.Ct. 2268, 73 L.Ed.2d 1283 (1982); United States v. Long, 574 F.2d 761, 767 (3d Cir.) ("If judicial self-restraint is ever desirable, it is when a Rule 403 analysis of a trial court is reviewed by an appellate tribunal"), cert. denied, 439 U.S. 985, 99 S.Ct. 577, 58 L.Ed.2d 657 (1978).

Applying these deferential standards of review, we sustain the trial judge's decision to grant a new trial in this case. The trial court's conclusion that the testimony at issue should have been excluded under Fed.R.Evid. 403 was unquestionably neither arbitrary nor irrational but reflected an appropriate assessment and weighing of the prescribed considerations. Relevant evidence may be excluded under Rule 403 "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jurors." Here, the trial judge had solid grounds for concluding that the out-of-court statements at issue had little if any relevance or probative value and that they created a substantial danger of "unfair prejudice," "confusion of the issues," and "misleading the jurors."

The out-of-court statements had little if any relevance or probative value because they lacked any appreciable link to age discrimination or the ADEA. According to Parzick's testimony, the unidentified attendee specifically mentioned that terminating the negotiation engineers might violate "the labor laws of their contract" or "the contract." The most natural interpretation of this testimony is that it referred to a possible breach of the collective bargaining agreement. But in an age discrimination case,...