In Picarella v. HSBC Securities (USA) Inc., 2018 WL 627517 (2d Cir. Jan. 31, 2018) (Summary Order) – an employment discrimination case – the Second Circuit declined to upset a jury verdict and resulting judgment in favor of defendant HSBC. Plaintiff asserted claims of retaliation under Title VII of the Civil Rights Act of 1964 and the New York State Human Rights Law.
On appeal, he asserted that he was entitled to a new trial because of allegedly improper comments made by defendant’s counsel during opening statements, cross-examination of plaintiff, and summation.
The court disagreed.
“[A] party seeking a new trial on the basis of opposing counsel’s improper statements to the jury faces a heavy burden, as rarely will an attorney’s conduct so infect a trial with undue prejudice or passion as to require reversal.”
Applying the law, the court held:
Of the allegedly improper comments, only Picarella’s challenge to counsel’s opening statement is even arguably preserved. In any event, none warrants a new trial. There was nothing improper about counsel commenting on Picarella’s salary. In context, these statements were intended only to show that HSBC’s continuing to pay Picarella a salary was inconsistent with any common-sense notion of retaliation. Nor were HSBC counsel’s arguments on summation—to the effect that this case was about greed, opportunism, and exceptional laziness and that Picarella was making a “mockery” of the law—“so inflammatory or so unsupported by the record as to affect the integrity of the trial and entitle [Picarella] to a new trial,” Marcic, 397 F.3d at 127. HSBC’s theory of the case was that Picarella showed poor performance beginning well before he complained of the sexual harassment of a coworker and that he complained primarily to protect himself from being fired. “A district court is entitled to give attorneys wide latitude in formulating their arguments.” Reilly v. Natwest Mkts. Grp. Inc., 181 F.3d 253, 271 (2d Cir. 1999). Furthermore, the District Court instructed the jury three times—before opening statements, before summations, and during its charge—that statements and arguments made by counsel were not evidence. Cf. Tesser v. Bd. of Educ., 370 F.3d 314, 322 (2d Cir. 2004).
It therefore concluded that there was neither abuse of discretion nor plain error, and therefore affirmed the district court’s January 4, 2017 judgment.