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In a case of first impression, the 2nd U.S. Circuit Court of Appeals ruled that the introduction of testimony by four lay witnesses, which stated that plaintiff’s mistreatment by her supervisor was racially motivated, violated Rule 701(b) of the Federal Rules of Evidence, in a case brought under Title VII and � 1981. Hester v. BIC Corp., 2000 WL 1299592 (2d Cir. 9/14/00) (Newman, Jacobs and Cardamone, Cir. Judges). The court concluded that by admitting the testimony, the district court had committed a reversible error and, on this basis, overturned the jury verdict in plaintiff’s favor. Plaintiff Annie Hester, an African-American, alleged that her involuntary transfer was the result of “sabotage” by her supervisor, who had failed to train her or to provide her with performance feedback. Ms. Hester alleged that her supervisor’s actions were racially motivated, and she offered the testimony of four co-workers who confirmed that she was “neglected” by her supervisor. Further, three co-workers offered their opinions to the jury that the neglect “must have been” on account of her race. The jury returned a verdict in Ms. Hester’s favor for $10,000 in compensatory damages. The 2nd Circuit began its analysis by noting that a lay witness may offer opinion testimony under Rule 701(a) if, as here, it is based on the witness’ own observations. The issue for the court was the applicability of Rule 701(b), which prohibits the “admission of opinions which would merely tell the jury what result to reach.” The court reasoned that in assessing the admissibility of the testimony, the trial court must be aware that the costs of the lay opinion increases and the benefits decrease when the opinion reaches the ultimate issues in the case. The court acknowledged that it had not yet ruled on the question of whether “a lay witness can opine about the employer’s discriminatory motivation without personal knowledge of facts that formed the basis of the employer’s adverse action.” The court emphasized that none of Ms. Hester’s witnesses were decision-makers, nor had they personal knowledge of the relevant decision-making process. The court further reasoned that there was no “automatic jump” from being a harsh manager to being a racist. “One purpose of Rule 701(b) is to prevent lay witnesses from suggesting that the jury take such a jump.” The court concluded that the lay opinion testimony here violated Rule 701(b), as all four witnesses were allowed to improperly draw an inference of discrimination for the jury. And further, since the prejudice to the employer was significant, the court ruled that a new trial was warranted. For defendant/appellants, Orrick Herrington & Sutcliffe, LLP, by Michael Delikat, New York; for plaintiff/appellees, Leavy Rosenberg & Hyman, by Stephan J. Hyman, New York.

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