United States District Court, E.D. Texas, Sherman Division
DALE A. WILKERSON
UNIVERSITY OF NORTH TEXAS, By and Through its Board of Regents
MEMORANDUM OPINION AND ORDER
L. MAZZANT UNITED STATES DISTRICT JUDGE
before the Court is Plaintiff Dr. Dale A. Wilkerson's
Motion for New Trial (Dkt. #169). Having considered the
motion and the relevant pleadings, the Court finds that the
motion should be denied.
December 10 and 13, 2018, the parties tried this case to a
jury (Dkt. #157; Dkt. #158; Dkt. #159; Dkt. #160). On
December 13, 2018, the jury returned a verdict finding that
Defendant the University of North Texas, by and through its
Board of Regents, would not have renewed Plaintiff's
employment but for Plaintiff's act of testifying,
assisting, or participating in an investigation, proceeding,
or hearing under Title IX (Dkt. #162). Accordingly, on
December 20, 2018, the Court entered Judgment on the Jury
Verdict ordering that Plaintiff take nothing. The Court then
dismissed Plaintiff's case with prejudice. On January 17,
2019, Plaintiff filed his Motion for New Trial (Dkt. #169).
Defendant filed a response to the motion on January 31, 2019
(Dkt. #170). Plaintiff did not file a reply to the
Rule 59(a) of the Federal Rules of Civil Procedure, a new
trial can be granted to any party to a jury trial on any or
all issues “for any reason for which a new trial has
heretofore been granted in an action at law in federal
court.” Fed.R.Civ.P. 59(a). “A new trial may be
granted, for example, if the district court finds the verdict
is against the weight of the evidence, the damages awarded
are excessive, the trial was unfair, or prejudicial error was
committed in its course.” Smith v. Transworld
Drilling Co., 773 F.2d 610, 613 (5th Cir. 1985).
However, “[u]nless justice requires otherwise, no error
in admitting or excluding evidence-or any other error by the
court or a party- is grounds for granting a new trial . . . .
At every stage of the proceeding, the court must disregard
all errors and defects that do not affect any party's
substantial rights.” Fed.R.Civ.P. 61.
entitled to a new trial, Plaintiff must show that the verdict
was against the great weight of the evidence, not merely
against the preponderance of the evidence. Taylor v.
Seton Healthcare, No. A-10-CV-650 AWA, 2012 WL 2396880,
at *2 (W.D. Tex. June 22, 2012) (citing Dresser-Rand Co.
v. Virtual Automation, Inc., 361 F.3d 831, 838-39 (5th
Cir. 2004); Shows v. Jamison Bedding, Inc., 671 F.2d
927, 930 (5th Cir. 1982)). A jury verdict is entitled to
great deference. Dresser-Rand Co., 671 F.2d at 839.
“Weighing the conflicting evidence and the inferences
to be drawn from that evidence, and determining the relative
credibility of the witnesses, are the province of the jury,
and its decision must be accepted if the record contains any
competent and substantial evidence tending fairly to support
the verdict.” Gibraltar Savings v. LDBrinkman
Corp., 860 F.2d 1275, 1297 (5th Cir. 1988).
moves for a new trial contending (1) the greater weight of
the evidence; (2) a discovery abuse; (3) jury confusion; (4)
erroneous evidentiary rulings by the Court; and (5) improper
or inflammatory jury arguments made by Defense Counsel all
warrant a new trial (Dkt. #169). Defendant opposes each of
Plaintiff's arguments (Dkt. #170).
Greater Weight of the Evidence
sections, Plaintiff argues that the Court should grant a new
trial because the verdict is against the great weight of the
evidence (Dkt. #169 at pp. 3-5, 6). Although Plaintiff provides
authority to support his argument, Plaintiff does not cite
evidence demonstrating that the verdict is against the great
weight of the evidence (See Dkt. #169 at pp. 3-5).
Instead, Plaintiff provides only a factual synopsis of the
case (Dkt. #169 at p. 6). None of the facts alleged by
Plaintiff show that the verdict-finding that Defendant did
not terminate Plaintiff because he participated in a Title IX
investigation-demonstrate that the verdict is against the
great weight of the evidence. As a result, Plaintiff does not
meet his Rule 59(a) burden in these sections. See
Taylor, 2012 WL 2396880, at *2 (citing Dresser-Rand
Co., 361 F.3d at 838-39; Shows, 671 F.2d at
930); Jones v. Ruiz, 478 Fed.Appx. 834, 835 (5th
Cir. 2012) (quoting Sibley v. Lemaire, 184 F.3d 481,
487 (5th Cir. 1999)).
next claims that Defendant failed to produce a memorandum
from Dr. Kimi King (the “September Memorandum”)
and other members of the “CAS Ad Hoc Committee”
to Provost Warren Burggren (Dkt. #169 at pp. 7-9). “A
district court also has discretion to grant a new trial on
the basis of newly discovered evidence.” Randle v.
Tregre, CV 15-395, 2016 WL 760770, at *2 (E.D. La. Feb.
26, 2016) (citing Diaz v. Methodist Hosp., 46 F.3d
492, 495 (5th Cir. 1995)). “In deciding whether newly
discovered evidence is sufficient to warrant a new trial, the
district court should consider whether the evidence: (1)
would probably have changed the outcome of the trial; (2)
could have been discovered earlier with due diligence; and
(3) is merely cumulative or impeaching.” Diaz,
46 F.3d at 495 (citing Osburn v. Anchor Labs., Inc.,
825 F.2d 908, 917 (5th Cir. 1987); Johnston v.
Lucas, 786 F.2d 1254, 1257 (5th Cir. 1986); La
Fever, Inc. v. All-Star Ins. Corp., 571 F.2d 1367, 1368
(5th Cir. 1978)). “The burden is on the movant to
demonstrate that the new evidence ‘clearly weighs in
favor of a new trial.'” Randle, 2016 WL
760770, at *2 (quoting Diaz, 46 F.3d at 495).
argues Defendant's failure to produce the September
Memorandum prejudiced Plaintiffs ability to develop his case:
In great detail this memo lays out what happened as reported
by highly educated, competent witnesses contemporaneously
with the occurrence of the events. Plaintiff was greatly
handicapped by not having this document when taking the
depositions of Provost Burggren and Dean Goven. Both Burggren
and Goven professed to not remember significant facts about
the [Plaintiffs] case, even though it fell to them to decide
[Plaintiffs] fate. Therefore what they did, when they did it,
what they said and heard were vital to the development of
Plaintiff s case. Plaintiff was greatly handicapped in taking
these depositions because the memorandum that [Plaintiff]
timely requested was not produced by Defendant. Similarly the
document was not available at trial to refresh memories and
to impeach inaccurate testimony.
(Dkt. #169 at p. 7). Defendant responds that to the extent
there is a discovery abuse, the abuse does not merit a new
trial because the information contained in the September
Memorandum document is simply a “recapitulation of
information already contained in the College-level grievance
report, packaged to address larger administrative concerns of
faculty members [(the “July Report”)].”
(Dkt. #170 at p. 7). The Court begins with the cumulative or
impeaching factor identified in Diaz before
addressing the other two factors.
Cumulative or Impeaching
newly-discovered evidence is merely cumulative or impeaching,
it is less likely to warrant a new trial. See Diaz,
46 F.3d at p. 495. Plaintiff explains that had he possessed
the September Memorandum during the trial and at depositions,
he would have used the document to “refresh memories
and to impeach inaccurate testimony, ” not as direct
evidence (Dkt. #169 at p. 7). Accordingly, the September
Memorandum is impeaching.
September Memorandum is also cumulative of the July Report.
The July Report contains findings and conclusions from the Ad
Hoc College of Arts and Sciences (“CAS”)
Grievance Committee (the “Committee”) formed to
review Plaintiff's complaint that Department Chair
Patricia Glazebrook refused to renew Plaintiff's contract
(Dkt. #125-10). As Plaintiff attached the July Report to his
September 28, 2018, summary-judgment response, the Court
assumes Defendant timely produced the July Report.
September Memorandum is a letter written to Provost Burggren
from former members of the Committee addressing three
concerns regarding the Committee's July proceedings: (1)
Glazebrook's obstructionist behavior before the
Committee; (2) the CAS Dean's decision to by-pass the
fact-finding function of the Committee; and (3) how
Defendant's decision could affect future lecturers (Dkt.
#169-2). There are many similarities between the July Report
and September Memorandum.
begin, the authors of the documents are similar. Martin
Schwartz, Rebecca Dickstein, Kimi King, Irene Klaver, and
Brian Richardson authored the July Report (Dkt. #169-2).
Martin Schwartz, Rebecca Dickstein, and Kimi King authored
the September Memorandum (Dkt. #125-10). Although the
recipients of the documents are different, they are similar
in so far as they are high-level administrative staff for
Defendant (Dkt. #125-10; Dkt. #169-2).
contents of the documents are also similar. Both documents
address Glazebrook's obstructionist behavior (Dkt.
#125-10 ¶¶ 4(c), 5-8, and at p. 5; Dkt. #169-2 at
p. 1). Moreover, both documents state the Committee's
view that Plaintiffs termination was “arbitrary and
capricious.” For example, in the July Report, the
Committee found that “Glazebrook's actions were
arbitrary an capricious given [Plaintiffs] glowing
evaluations from Glazebrook herself (Dkt. #125-10 at p. 5).
In the September Memorandum, the former Committee members
found that the arbitrary and capricious nature of Plaintiff s
termination set a precedent that reflected poorly on
Defendant (Dkt. #169-2 at p. 2).
Court is only able to determine one difference between the
contents of the documents. In the September Memorandum, the
former Committee members lament the CAS Dean's decision
to by-pass the Committee (Dkt. #169-2 at pp. 2-3). Although
the July Report addresses Glazebrook's failure to follow
Defendant's bylaws, it does not address the CAS
Dean's decision to by-pass the Committee (See
Dkt. #125-10). Considering the extent of the similarities
between the July Report and September Memorandum, the Court
finds that the September Memorandum is largely cumulative of
the July Report. As the September Memorandum is cumulative
and impeaching, this factor weighs against granting
Changed the Outcome of Trial
state that the September Memorandum would be
“invaluable to Plaintiff s lawyers in deposing
defendant's witnesses and in cross examining these
witnesses at trial” and Defendant's failure to
produce the document was “extremely harmful to
Plaintiff in preparing and presenting his case.” (Dkt.
#169 at p. 9). However, besides the impeaching value
identified above, Plaintiff does not explain how the
September Memorandum might have changed the outcome of the
trial. Overall, the Court agrees with Defendant that much of
the information contained in the September Memorandum was
available to Plaintiff from other sources and Plaintiff did,
or could have, presented the other sources to the jury (Dkt.
#170 at p. 9). Consequently, Plaintiff does not meet his
burden of showing that the September Memorandum would have
changed the outcome of trial had Plaintiff possessed the
document during trial.
Could Have Been Discovered Earlier with Due
difficult for the Court to address the final factor.
Plaintiff explains that while Defendant produced nearly 1,
000 documents, it did not produce the September Memorandum
(Dkt. #169 at p. 7). However, Plaintiff does not state (1)
when he received the September Memorandum; (2) whether
Defendant eventually produced the document; and, if not, (3)
how Plaintiff discovered the document.
Defendant is in the best position to clarify why the
September Memorandum was not timely produced, Defendant
provides no explanation. Instead, Defendant hides behind the
burden of persuasion to avoid the issue:
Regardless, even [Plaintiff] admits that “Defendant
produced almost 1000 documents, ” Dkt. No. 169 at p. 7,
while making no effort to outline why this document failed to
surface until after [Plaintiff] lost at trial. Given that
[Plaintiff] bears the burden of demonstrating that the
information could have been discovered earlier with due
diligence, [Plaintiff] cannot meet this prong with such a
(Dkt. #170 at p. 9).
Court's Order Governing Proceedings required the parties
to produce, “A copy of all documents, electronically
stored information, witness statements, and tangible things
in the possession, custody, or control of the disclosing
party that are relevant to the claim or defense of any
party.” (Dkt. #24 at p. 4). As Defendant produced the
July Report, the Court assumes Defendant could have also
discovered the September Memorandum and would have considered
the document relevant. Therefore, the Court finds the
September Memorandum could have been discovered with due
diligence. However, as the previous two factors did not favor
a new trial, the Court finds this final factor-standing
alone-does not entitle Plaintiff to a new trial. As a result,
Plaintiff does not meet his burden of demonstrating that
Defendant's discovery abuse clearly weighs in favor of a
s jury confusion section contains two arguments: (1) the
Court should set aside the verdict due to jury confusion and
(2) the Court incorrectly charged the jury ...