Doty v. Sewall
| Decision Date | 09 January 1990 |
| Docket Number | 89-1675,Nos. 89-1305,s. 89-1305 |
| Citation | 908 F.2d 1053 |
| Parties | 134 L.R.R.M. (BNA) 2746, 116 Lab.Cas. P 10,250, 30 Fed. R. Evid. Serv. 777 Arthur DOTY, Plaintiff, Appellee, v. Richard SEWALL, et al., Defendants, Appellants. Arthur DOTY, Plaintiff, Appellant, v. Richard SEWALL, et al., Defendants, Appellees. . Heard |
| Court | U.S. Court of Appeals — First Circuit |
Gabriel O. Dumont, Jr., with whom Dumont and Morris, Boston, Mass., was on brief, for Richard Sewall.
Mark D. Stern, P.C., Somerville, Mass., with whom Michael Altman, Silverglate, Gertner, Fine and Good, Boston, Mass., Arthur Fox, Public Citizen Litigation Group, Washington, D.C., were on brief, for Arthur Doty.
Before BREYER, Chief Judge, and TORRUELLA and CYR, Circuit Judges.
Local 42, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Richard Sewall, the former secretary-treasurer of Local 42, and the Estate of Frank Salemme, 1 the former president of Local 42, (hereinafter collectively referred to as "Local 42"), appeal from the judgment entered by the United States District Court for the District of Massachusetts, and request that a new trial be granted. Arthur Doty cross-appeals from the district court's decision to deny an award of prejudgment interest. For the reasons discussed below, we affirm the district court's decision on all issues raised, with one exception.
The facts underlying Local 42's contentions are not new to this court. Having previously dealt with another aspect of this case, and recited therein the relevant facts in some detail, we content ourselves here with only a brief factual summary. The interested reader is referred to Doty v. Sewall, 784 F.2d 1 (1st Cir.1986), for a more complete exposition.
In September, 1980, Arthur Doty, who characterizes himself as a "vocal critic" of the Teamsters, sought entry into Local 49. There is some argument about whether he was properly admitted into that Local, but the litigation centered around Doty's subsequent application to, and membership in, Local 42. The case essentially involved three claims under the Landrum-Griffin Act, 29 U.S.C. Sec. 153, et seq. 2 Doty charged that Local 42, through its officers, Sewall and Salemme, unlawfully delayed Doty's transfer into Local 42, that these same defendants mistreated Doty once he became a member with regard to his participation in union meetings, and that, during the course of the litigation, they unlawfully removed him as union steward at his place of employment. Doty also accuses Sewall of assault and battery, and raises a state civil rights claim.
After finding against all three defendants on all three Landrum-Griffin claims, the jury awarded Doty $250,000 in compensatory damages, as well as $150,000 in punitive damages against Local 42, $100,000 against Sewall and $50,000 against the Estate of Frank Salemme. Doty also received $2,000 on the assault and battery claim.
As part of the district court's rulings on post-trial motions, the court rescinded its prior award of prejudgment interest on the compensatory award, which was reduced to $210,000 as a result of a $40,000 settlement involving other defendants who are neither part of this case, nor part of this appeal. The court also rescinded its earlier award of prejudgment interest on the damages granted for the assault. All parties appeal.
On appeal, Local 42 contends that the jury's verdict should be vacated, and that a new trial should be granted, because, during the course of the twelve day trial, Doty presented approximately thirty-seven items of allegedly impermissible evidence or argument which prejudiced the jury. These thirty-seven items can be grouped into four subject headings for purposes of analysis, and we discuss them below, seriatim.
Local 42 argues that, throughout the trial, Doty presented testimony, exhibits and statements of counsel which were not only inadmissible, but which also were intended to play on the prejudices of the jury by reinforcing a stereotype of the Teamsters' leadership as criminal, violent and mob connected. It complains that Doty's attorney's references to the Teamsters as a tightly run, Stalinist-type organization, and his association of the Teamsters with Hitler by reading an article in a newsletter referring to Hitler, were so prejudicial that a new trial is mandated.
Doty contends that Local 42 exaggerates the significance of the allegedly impermissible evidence and argument, and thus that the district court did not commit error by refusing to grant Local 42's motions for a new trial or judgment notwithstanding the verdict. We agree.
We note, first, that of the fifteen items of allegedly impermissible argument or evidence presented, Local 42 failed to object to twelve of them when made or offered. 3 Although Local 42 made a motion in limine to exclude much of the disputed evidence, the district court did not grant the entirety of the motion, preferring to defer judgment until the evidence was offered at trial. This court has recently held that a pre-trial motion in limine is not sufficient to preserve an issue for appeal where the district court declines to rule on the admissibility of the evidence until the evidence is actually offered. United States v. Vest, 842 F.2d 1319, 1326 (1st Cir.), cert. denied, 488 U.S. 965, 109 S.Ct. 489, 102 L.Ed.2d 526 (1988). See also Wilson v. Waggener, 837 F.2d 220, 222 (5th Cir.1988); Hendrix v. Raybestos-Manhattan, Inc., 776 F.2d 1492, 1502-04 (11th Cir.1985); Collins v. Wayne Corp., 621 F.2d 777, 784 (5th Cir.1980); J. Weinstein & M. Berger, 1 Weinstein's Evidence p 103 at 103-17 to -20 (1989); Fed.R.Civ.P. 103(a)(1). But see Sheeny v. Southern Pac. Transp. Co., 631 F.2d 649, 652-53 (9th Cir.1980); American Home Assur. Co. v. Sunshine Supermarket, Inc., 753 F.2d 321, 324 (3d Cir.1985). We do not diverge from that rule today. Since we find that "a timely objection or motion to strike ... stating the specific ground of objection," Fed.R.Evid. 103(a)(1), was not made with regard to twelve of the claims of error, the issues were not properly preserved for appeal. See United States v. Figueroa, 818 F.2d 1020, 1025-26 (1st Cir.1987); Lakin v. Daniel Marr & Son Co., 732 F.2d 233, 236 (1st Cir.1984); Gagliardi v. Flint, 564 F.2d 112, 116 (3d Cir.1977), cert. denied, 438 U.S. 904, 98 S.Ct. 3122, 57 L.Ed.2d 1147 (1978).
Absent substantial injustice, error cannot be predicated on a ruling that admits or excludes evidence, when an objection to the ruling was not made at trial. Fed.R.Civ.P. 61; Fed.R.Evid. 103(a), (d); J. Weinstein & M. Berger, 1 Weinstein's Evidence p 103 at 103-8. Upon review, we see no plain error on the part of the district court in permitting the admission of evidence, largely in the form of testimony, of which Local 42 now complains.
Of the three evidentiary items actually objected to at trial, and thus reviewable by this court, Fed.R.Evid. 103(a)(1), two of the objections were granted, thus leaving only one item subject to our scrutiny. 4 At trial, Local 42 objected, after extensive testimony about the organizational structure of the Teamsters, to the witness being asked how the Teamsters were run, i.e., in an autocratic or dictatorial fashion. The district court overruled the objection on the grounds that, because the witness had already extensively testified about the Union, he was entitled to give his personal opinion about the way the Teamsters were run.
Under Fed.R.Evid. 103(a), this court must review a challenged evidentiary decision to determine whether "a substantial right of the party is affected." "When evidence is charged to have been improperly admitted, any error is more likely to be found harmful, and thus reversible, if the evidence is substantively important, inflammatory, repeated, emphasized, or unfairly self-serving." S. Childress & M. Davis, 1 Standards of Review 239 (1986). As this court has previously espoused, no substantial right of the party is affected where the evidence admitted was cumulative as to other admitted evidence. Garbincius v. Boston Edison Co., 621 F.2d 1171 (1st Cir.1980). Finding, as we do, that the testimony was cumulative, and thus did not affect a substantial right of Local 42, we need not decide whether the decision to admit the evidence was error. Even if it was error, the error was harmless. Fed.R.Evid. 103(a).
Local 42 next contends that Doty introduced evidence of his and other Teamster members' alleged mistreatment by Locals other than Local 42 to show the likelihood of Local 42 misconduct in this case, and that such evidence should have been excluded. Doty argues that this evidence was probative with regard to his theory that Local 42 was part of a Teamster conspiracy to suppress dissent by a group calling itself the Teamsters for a Democratic Union ("TDU"). Local 42 responds that, as the district court noted, no conspiracy theory was alleged by Doty at any time prior to trial.
Although this court has made it clear that evidence of prior bad acts is inadmissible to show that a defendant acted in conformity therewith, Lataille v. Ponte, 754 F.2d 33 (1st Cir.1985) (referring to Fed.R.Evid. 404(b)), we have difficulty in accepting Local 42's claim of error now when it failed to make appropriate objections at trial. Despite the assurances of the district court that it would exclude evidence of misconduct of Teamsters who were not defendants, of the sixteen allegations of error made to this court, Local 42 made only about half of them at trial. Finding that no substantial right of the party was affected by the admission of the evidence not objected to, for the same reasons detailed above, see Fed.R.Evid. 103(a), we review only those eight items to which objection was made below.
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