A female police officer filed a sexual discrimination suit against a county police department. At trial the defense introduced evidence of plaintiff's alleged autoerotic and other sexual practices. However, before the evidence was introduced the defense counsel had been informed regarding the inadmissability under Rule 412 of the Federal Rules of Evidence of certain of plaintiff's sexual history. Moreover, the evidence was also inadmissible because the defense had not met the pre-trial time requirements of Rule 412 for introducing that evidence. After the evidence was introduced the district court gave curative instructions. Nevertheless, the jury rendered a defense verdict. Plaintiff's motions for a mistrial and a new trial were denied by the district court.
The court subsequently imposed sanctions of $5,000 to compensate plaintiff for her pain and suffering caused by her public embarrassment due to the testimony. Additionally, the court awarded her $5,000 for her additional attorney costs due to the issues raised by the improper testimony.
The Ninth Circuit, as Gregory P. Joseph reported in the June 23-30, 2003 issue of The National Law Journal, affirmed both awards. B.K.B. v. Maui Police Department, 276 F.3d 1091 (9th Cir. 2002). In doing so, the court noted:
"The purpose of the amended rule [412] is ‘to safeguard the alleged victim against the invasion of privacy, potential embarrassment and sexual stereotyping that is associated with public disclosure of intimate sexual details and the infusion of sexual innuendo into the factfinding process.' Advisory Committee Notes.
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"Here, because the alleged sexual behavior concerns the victim's fantasies or autoerotic sexual practices, the evidence is harmful and has no probative value."
The court added that, under the history of the case, "We cannot help but conclude that defense counsel's introduction of [the] testimony was a knowing and intentional violation of Rule 412." The court thus affirmed the award of the attorney fee sanctions under 28 U.S.C. § 1927.
The out-of-the-box portion of the case is the court's affirming of the $5,000 award for plaintiff's mental anguish under the "inherent powers" of the federal courts:
"The County argues that sanctions for compensatory damages to Plaintiff are unprecedented and beyond the scope of the court's inherent power. And yet, in Chambers [v. NASCO, Inc., 501 U.S. 32 (1991)], the Court delineated a broad range of situations for which a variety of sanctions were deemed appropriate, and noted that even outright dismissal of a lawsuit lies within the court's inherent power. The Court therefore reasoned that the ‘less severe sanction' of an assessment of attorneys fees was well within the court's authority as well. Id. at 43-45. Similar logic applies here, particularly given that none of the other federal rules or statutes govern the situation. See id. at 50 (‘[I]f in the informed discretion of the court, neither the statute nor the Rules are up to the task, the court may safely rely on its inherent power.')."
Finally, the court reversed the trial court's denial of plaintiff's motion for a new trial and remanded the case for a new trial.
Here is an arrow for the quiver of both plaintiff and defense counsel. This is authority for a court to go beyond the usual sanctions and for counsel to be creative in requesting appropriate sanctions.
Posted by ajlevy at July 21, 2003 5:11 PM