A federal judge’s admonishment of defense counsel at trial does not equate to enough evidence that the conduct warranted granting the plaintiff’s motion for a new trial, the judge ruled.

An Eastern District of Pennsylvania jury handed up a complete defense verdict in October in favor of Cornell University, finding the school was not negligent when it came to student gymnast Randall Duchesneau’s paralyzing injury at the campus gym.

One of the defense lawyers had made reference in front of the jury that a redacted waiver form was not the original document but rather one pieced together at the direction of the judge. Such a comment could have had an influence on the jury’s verdict, the plaintiff argued.

"This court disapproved of — and still disapproves of — defense counsel’s conduct," U.S. District Judge C. Darnell Jones II said in his opinion denying the motion for a new trial. "Yet, due to the jury’s finding that defendant Cornell University was not negligent, any error in this case was harmless."

Duchesneau was seeking $57 million in damages from Cornell in the case, Duchesneau v. Cornell University.

In the midst of the 18-day trial, the defense introduced a waiver form signed by Duchesneau as part of his joining the gymnastics club on Cornell’s campus. Under prior rulings from Jones, only portions of the waiver form could be introduced so the parties crafted a new form with the parts that were allowed into evidence as well as the signature line, said Joe H. Tucker Jr. of Tucker Law Group, one of Cornell’s counsel, at the time of the verdict.

New York law applied in this case and, according to plaintiff’s attorney Kenneth Rothweiler, the state has "a waiver-busting statute" that barred Duchesneau’s signed waiver from being introduced. Rothweiler had said the judge "split the baby" by allowing into evidence the portion of the form that outlined the risks associated with performing gymnastics in the gym. Rothweiler had said the plaintiffs went through great pains to keep from the jury any suggestion of, or reference to, the waiver.

When defense counsel Richard B. Wickersham Jr. of Post & Schell showed the waiver form to a witness and in front of the jury, he noted to Jones that the form was prepared at the request of the court.

"’I didn’t know if it was appropriate for you to give an instruction to the jury that this is not the actual document but was something that you asked counsel to piece together,’" Wickersham said, according to Jones’ opinion.

Rothweiler objected to that statement and Jones held a sidebar in which he said he was "hurt" by Wickersham’s action and asked whether Rothweiler would be filing any motions, according to court filings.

Rothweiler said he didn’t want to request a mistrial midway through the trial. Jones then informed Rothweiler that Jones would allow him to file a motion for mistrial after the verdict even if the jury found against Duchesneau. Rothweiler filed motions for both a mistrial and new trial, arguing similarly in each that the jury could only infer from Wickersham’s statements that the original signed form spoke to issues of waiver or assumption of the risk.

In his opinion denying Duchesneau’s motion for a new trial, Jones repeatedly noted the "vitriol" between some of the plaintiff’s counsel and some of the defense counsel throughout the case. But in terms of whether that had an impact on the jury’s verdict, Jones said the only situation he could fathom impacting the jury was when during a lunch break the courtroom deputy told the court the jury could overhear counsel for both sides engaged in a shouting match in the courtroom.

"That alone should speak volumes about the need for civility in the courtroom," Jones said.

But none of the instances cited by Duchesneau regarding mentions of the waiver could be viewed as having an impact on the jury’s decision, Jones said, noting they didn’t go toward the issue of whether Cornell was negligent. Tucker had pointed out at the time the post-trial motions were filed that the waiver issue went to the assumption of the risk, a question the jury didn’t reach because it first found Cornell was not negligent.

Jones said in his opinion that the jury’s finding rendered moot the other issues in the case, including the waiver issue.

Jones also noted that Duchesneau devoted a lot of time in his motion to the court’s admonishment of Wickersham at sidebar in an effort to equate the court’s reaction to an inference that the jury was harmed by the alleged misconduct. Jones said in a footnote that his comments at sidebar warranted a contextual explanation.

Jones said he is well aware of Wickersham’s reputation as an accomplished trial attorney given Wickersham appeared before Jones several times when Jones was a Philadelphia Court of Common Pleas judge.

"Based on those experiences, this court had a certain expectation of conduct — expectations that defense counsel failed to meet on this occasion," Jones said. "The primary reason this court said it was ‘hurt’ by counsel’s actions was not because this court believed the jury was prejudiced; rather, because of this court’s years of experience with counsel, this court could not fathom that counsel would patently disobey the motion in limine order and the court’s directives as he did."

Jones said a better word than "hurt" may have been "disappointed."

Jones’ opinion dealt solely with Duchesneau’s motion for a new trial. In a separate one-page order, Jones addressed the motion for a mistrial and said in a footnote that the court’s sua sponte preservation of the motion for mistrial was not authorized by the Federal Rules of Civil Procedure.

Tucker said Cornell was very pleased with Jones’ rulings.

"We were always comfortable with the jury’s verdict of no negligence, which was rendered in less than two hours after a five-week trial," Tucker said.

Rothweiler said he plans to appeal Jones’ ruling on the broader issue that even the redacted version of the waiver agreement should not have been let into evidence under the New York statute.

Wickersham did not return a call for comment.

Gina Passarella can be contacted at 215-557-2494 or at gpassarella@alm.com. Follow her on Twitter @GPassarellaTLI.

(Copies of the eight-page opinion in Duchesneau v. Cornell University, PICS No. 13-0439, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •