Mirlis v. Greer

952 F.3d 36

Eliyahu MIRLIS, Plaintiff-Appellee,

Lawrence Dressler, Interested Party-Appellee,

v.Daniel GREER, Rabbi, Yeshiva of New Haven, Inc., Defendants-Appellants,Aviad Hack, Appellant.

Docket Nos. 17-4023-cv (L)

18-416-cv (Con)

18-507-cv (Con)

August Term 2018

United States Court of Appeals, Second Circuit.

Argued: May 22, 2019

Decided: March 3, 2020

Antonio Ponvert III, Koskoff Koskoff & Bieder, P.C., Bridgeport, Connecticut, for Plaintiff-Appellee.

Lawrence Dressler, pro se, New Haven, Connecticut, for Interested Party-Appellee.

David T. Grudberg, Carmody Torrance Sandak & Hennessey LLP, New Haven, Connecticut, for Defendants-Appellants.

Steven J. Errante, Lynch, Traub, Keefe & Errante P.C., New Haven, Connecticut, for Appellant.

Before: Chin and Carney, Circuit Judges, and Sannes, District Judge.^*

Chin, Circuit Judge:

In this diversity case, plaintiff-appellee Eliyahu Mirlis sued defendants-appellees Daniel Greer and Yeshiva of New Haven, Inc. ("Yeshiva"), a high school, alleging that Greer, a rabbi and the former chief administrator of Yeshiva, sexually abused him for several years while he was a student at the high school. At the conclusion of trial, the jury awarded Mirlis $15 million in compensatory damages, and thereafter the district court awarded $5 million in punitive damages and interest of $1,749,041.10, for a total award of $21,749,041.10.

Greer and Yeshiva appeal, principally on four grounds: (1) the district court erred in charging the jury on Greer's invocation of his Fifth Amendment privilege against self-incrimination; (2) the district court abused its discretion in its handling of Greer's invocation of his Fifth Amendment rights; (3) the district court erred in refusing to order a new trial or remittitur in light of the size of the jury's award of compensatory damages; and (4) the district court erred in denying defendants' motion for relief from judgment based on newly discovered evidence. We affirm.¹

BACKGROUND

I. The Facts

On appeal following a jury verdict, "we view the facts of the case in the light most favorable to the prevailing party." Jacques v. DiMarzio, Inc ., 386 F.3d 192, 195 (2d Cir. 2004) (citing Promisel v. First Am. Artificial Flowers, Inc ., 943 F.2d 251, 253 (2d Cir. 1991) ).

Greer is a rabbi and has been, at various times, the dean, director, treasurer, and president of the board of directors of Yeshiva, an orthodox Jewish high school in New Haven, Connecticut. Mirlis was a student at Yeshiva from Fall 2001 until Spring 2005. During that time, when Mirlis was fourteen to seventeen years old, Greer sexually abused him on a frequent, at certain points weekly, basis, sometimes for hours at a time. Mirlis recalled, inter alia , that Greer supplied him with alcohol and that he and Greer engaged in kissing, oral and anal sex, and mutual masturbation, at several locations in New Haven, including Yeshiva, motels, and Greer's home, as well as in Philadelphia.

Mirlis suffered physical, emotional, and psychological injuries as a result of Greer's sexual abuse. The lasting effect of that abuse was corroborated by his wife and his clinical psychologist. For example, Mirlis and his wife frequently argued over his continuing relationship with Greer during their marriage, and she believed he was emotionally detached and unable to trust or form relationships with others. Mirlis's psychologist, a specialist in post-traumatic stress disorder ("PTSD") and childhood trauma related to physical, emotional, and sexual abuse, conducted a forensic interview of Mirlis. He concluded that Mirlis was shut off emotionally, had lost his sense of trust, had difficulty with intimacy and vulnerability, continued to suffer from PTSD, and would continue to struggle with PTSD throughout his lifetime.

II. The District Court Proceedings

A. Pre-Trial

On May 3, 2016, Mirlis commenced this action alleging that Greer had sexually abused him and that Yeshiva's administrators had knowledge of the abuse but failed to report Greer to law enforcement as required by Connecticut law. In his third amended complaint, filed May 8, 2017, Mirlis asserted causes of action for negligence and negligent infliction of emotional distress against Yeshiva; recklessness and intentional infliction of emotional distress against Greer and Yeshiva; and sexual assault and battery against Greer.

Prior to trial, Greer moved for an order precluding Mirlis from calling him as a witness because he planned to invoke his Fifth Amendment privilege, on the grounds that the claims of sexual abuse and misconduct could give rise to criminal charges against him. At a pretrial conference on May 2, 2017, the district court denied the motion, without prejudice, to Greer's right

to object to specific questions where the invocation of the Fifth Amendment before the jury becomes cumulative, wastes time, or the probative value of [the evidence] is substantially outweighed by the danger of unfair prejudice.

App'x at 65; see also D. Ct. Dkt. No. 130 (minute order).

In addition, Greer and Yeshiva requested that the district court instruct the jury that the privilege "may have been asserted [by Greer] for a variety of reasons, including reasons unrelated to [his] guilt or innocence of any matters related to this case," and that the jury could choose to "totally disregard the evidence of the assertion of the Fifth Amendment by Mr. Greer." App'x at 54. His request was denied.

B. Trial

At trial, at the start of his direct examination and in response to questions from Mirlis's counsel, Greer acknowledged that at his deposition he had refused to testify about allegations that he sexually abused Mirlis at Yeshiva or was responsible for "covering up and allowing sexual abuse at the school" because he believed the answers could incriminate him. D. Ct. Doc. No. 230 at 40-41. Greer also indicated that he would invoke the privilege throughout trial. Soon thereafter, Greer agreed that he had invoked the privilege at his deposition when he was asked whether he had produced "documents that pertain to Rabbi Greer's sexual relationship with Eli Mirlis and any underage children." Id. at 43-44. He then invoked the privilege when asked whether he was "denying that [he] assaulted Eli Mirlis when [Mirlis] was a child." Id . at 46.

At that point, the district issued the following jury instruction:

A witness has a right under the Fifth Amendment to the Constitution to decline to answer questions on the ground that doing so may tend to incriminate him. However, you may, but are not required to, infer from such a refusal that the answer would have been adverse to the witness' interest and the interest of any parties in the case who are closely associated with the witness. You should consider any inference you may or may not choose to draw from a refusal to testify on Fifth Amendment grounds together with all other evidence in the case. The law requires the witness, if he's going to invoke his rights under the Fifth Amendment, to do so with regard to specific questions. And, therefore, it may be necessary for [counsel] to ask a series of questions, and it may be necessary for the witness, if he chooses to do so, to invoke his rights with regard to each question.

Id. at 47.

The direct examination continued, and Greer answered many questions about a variety of topics. But when he was asked questions about whether he engaged in sexual misconduct with Mirlis while Mirlis was a minor student at Yeshiva or related questions, Greer repeatedly invoked the privilege on the advice of counsel.² Meanwhile, Greer's counsel requested a standing objection to the line of questioning. The district court, however, ruled that the objections had to follow each question. The district court thereafter overruled several additional objections from Greer's counsel, but it eventually sustained the objections as it determined that the questions had become "cumulative." Id. at 98. Subsequently, Mirlis's counsel referred to Greer's invocation of the privilege on cross-examination and during summation.

In addition to Greer's testimony, Mirlis presented other extensive evidence of Greer's sexual abuse of him and the impact it had on him, including his own testimony as well as the testimony of his wife, his psychologist, and Aviad Hack (a former assistant principal at Yeshiva who testified via deposition that he was aware of but did not report Greer's abuse of Mirlis and that he also had a sexual relationship with Greer that began when he was a student).

At the close of the evidence, during its charge to the jury, the district court instructed the jury with respect to the Fifth Amendment as follows:

A witness has a right under the Fifth Amendment to the Constitution to decline to answer questions on the ground that doing so may tend to incriminate him. However, you may, but are not required to, infer from such refusal that the answer would have been adverse to the witness's interest and the interest of any parties in the case who are closely associated with the witness. You should consider any inference you may or may not choose to draw from a refusal to testify on Fifth Amendment grounds together with all the other evidence in the case.

D. Ct. Dkt. No. 233 at 450-51.

The jury reached a verdict in favor of Mirlis on each claim and awarded Mirlis compensatory damages of $15 million. It also found that "punitive damages should be assessed against" both Greer and Yeshiva. D. Ct. Dkt. No. 157.

C. Post-Trial

On June 6, 2017, the district court entered judgment, awarding, in addition to the jury's award of $15 million in compensatory damages, $5 million in punitive damages (calculated in accordance with Connecticut common law as the amount of attorneys' fees, representing one-third of the jury's award)³ as well as $1,749,041.10 in offer-of-compromise interest (in accordance with Conn. Gen. Stat. § 52-192a ), for a total award of $21,749,041.10 in favor of Mirlis against Greer and Yeshiva.

Pursuant to Federal Rule of Civil Procedure 59(a), Greer and...