A plaintiff (Thomas) recently saw his more than $600,000 jury verdict in a civil rights case against the NYPD crumble to dust due to an undisclosed agreement with a fact witness (Marrow) who testified in his favor. The court’s decision in the case, Thomas v. City of New York, is here.
There, the court granted defendants’ motion under Federal Rule of Civil Procedure 60(b)(3), which permits relief from a verdict for “fraud, misrepresentation or misconduct.”
Plaintiff sued under 42 U.S.C. 1983, alleging various civil rights abuses by the NYPD. He won. Shortly after judgment was entered on the jury’s verdict, it came to light that the plaintiff had entered into an agreement with a key fact witness under which the witness would receive a percentage of any recovery in the litigation.
When questioned at trial the witness failed to acknowledge that she stood to gain such a benefit if plaintiff won. Plaintiff also failed to disclose the agreement in discovery in response to requests that clearly encompassed it.
“Under New York law, an agreement to pay a fact witness in exchange for favorable testimony, where such payment is contingent upon the success of a party to the litigation is not permitted and against public policy.”
The agreement at issue clearly fell within that prohibition:
Marrow and Thomas agreed to a contingency arrangement in every sense of the word—she would benefit only if Thomas was successful and was financially liable if he lost. Her testimony was high-stakes for both Thomas’s case and her own wallet. As Defendants point out, this is a far cry from her timid admission that she might share in the award if Thomas chose to benefit her. This Agreement, and the steps taken to conceal it from Defendants, amounts to misconduct within the purview of Rule 60(b)(3).
The court also found that the “misconduct merits a presumption of substantial interference based on the adverse party’s intent”, reasoning:
Thomas and Marrow knowingly entered the Agreement and took conscious steps to hide it from Defendants’ attention. When asked point-blank about her stake in the case, Marrow did not mention the agreement. Instead, she tortured the truth and reduced her financial interest to one dependent on the whim of Thomas’s largesse. … Her failure to mention the newly-signed agreement reeks of underhanded dealing.
Thomas, for his part, entered an agreement that had the ability to affect Marrow’s testimony. He has not disputed signing the agreement, only its significance. … He then watched Marrow testify without the vaguest reference to the Agreement that he now contends was absolutely necessary to Marrow’s appearance in court on his behalf. He remained quiet despite his ongoing duty to disclose documents that “relate to the Incident, claims and subject matter of this litigation.” … Therefore, Thomas’s misconduct relating to the Agreement was intentional.
The court further rejected plaintiff’s “innocuous suggestion that he entered the agreement so that Marrow would appear in court” as a “nonstarter”, observing that plaintiff could have used a subpoena to compel her testimony.
The agreement was not merely cumulative of other questioning of the witness’ bias in the case as plaintiff’s then-girlfriend, given that she “testified convincingly, at times crying on the witness stand” such that if she “were impeached with the Agreement, the jury may well have thought differently of her and rejected her passionate testimony as nothing more than crocodile tears.”
This was key:
Marrow was the key witness on the issue before the jury of whether Defendants had probable cause to arrest Thomas for trespassing … and gave her version of events about Thomas’s custodial detention. These credibility issues went to the heart of the case. … [T]he jury was asked to resolve a stark factual dispute relying primarily on the credibility of those who testified. … On the issue of trespassing, all the jury had to rely on was Marrow’s word over the Defendants[.] … The jury was not required to believe the officers’ testimony over Marrow’s. When there was outstanding evidence that Marrow’s word was not her bond, but rather that she was bounded by a secret agreement, a reasonable jury could easily have weighed the conflicting accounts differently and in favor of the Defendants.
Finally, the court found that plaintiff’s misconduct warranted a new trial:
It is beyond cavil that final judgments should not be lightly reopened. … The fact that this case has proceeded to a jury trial and resulted in a verdict calls for the highest level of judicial restraint and interference with that verdict is an extraordinary measure. … In this case, however, it is a necessary one. Despite the virtue of judicial finality, allowing the verdict to rest under these circumstances would not be virtuous.
Defendants have established that the illicit agreement was entered, and once entered, at the very least, they had a right to know about it in order to fully and fairly prepare their case. Indeed, other cases could write off misconduct  as harmless … or as not amounting to substantial interference …, in eschewing the need for a new trial.
Here … credibility was the very heart of this case. There were no hard facts here: it was precisely Marrow’s credibility as a witness and Thomas’s credibility as a witness and litigant that the jury was called to weigh. Yet, with straight faces and concealed contract, Marrow and Thomas testified and the jury credited their testimony rather than the equally plausible tale recounted by the Defendants.
The court refused to “speculate as to the outcome had the Agreement been revealed sooner” but noted that this was unnecessary because Rule 60(b)(3) was not aimed at “correcting erroneous judgments stemming from the unobtainability of evidence” but rather “righting judgments which were unfairly procured.”
The court stopped short, however, of granting defendants’ motion to dismiss plaintiff’s complaint with prejudice, finding “no support for such a severe sanction … for an isolated, though egregious, incident of trial misconduct”, given that “at base, this is a credibility issue, which is best resolved by a jury.”
In sum, the take-away from this case is simple: if you are a party to litigation, don’t try to conceal harmful facts or documents. The problem here wasn’t the agreement itself (which carried a significant amount of risk) but rather the attempt to conceal it.