Mirlis v. Greer ( 2020 )

17‐4023‐cv (L)
Mirlis v. Greer
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term 2018
(Argued: May 22, 2019 Decided: March 3, 2020)
Docket Nos. 17‐4023‐cv (L); 18‐416‐cv (Con); 18‐507‐cv (Con)
ELIYAHU MIRLIS,
Plaintiff‐Appellee,
LAWRENCE DRESSLER,
Interested Party‐Appellee,
‐ against ‐
DANIEL GREER, RABBI, YESHIVA OF NEW HAVEN, INC.,
Defendants‐Appellants,
AVIAD HACK,
Appellant.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT
Before:
CHIN and CARNEY, Circuit Judges, and SANNES, District Judge.*
* Judge Brenda K. Sannes, of the United States District Court for the Northern
District of New York, sitting by designation.
Appeal from a final judgment of the United States District Court for
the District of Connecticut (Shea, J.), following a jury trial, awarding plaintiff‐
appellee $21,749,041.10 in compensatory damages, punitive damages, and
interest against his former high school and its chief administrator. Plaintiff‐
appellee alleged that the administrator sexually abused him for several years
when he was a student at the high school. Defendants‐appellees appeal,
asserting error in (1) the district courtʹs jury instructions; (2) its rulings with
respect to the administratorʹs invocation of his Fifth Amendment privilege
against self‐incrimination; (3) its denial of a new trial or remittitur on the basis
that the juryʹs award of $15 million in compensatory damages was excessive; and
(4) its denial of a motion for relief from judgment based on newly discovered
evidence.
AFFIRMED.
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.
CHIN, Circuit Judge:
In this diversity case, plaintiff‐appellee Eliyahu Mirlis sued
defendants‐appellees Daniel Greer and Yeshiva of New Haven, Inc. (ʺYeshivaʺ),
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 Greerʹs invocation of his Fifth
Amendment privilege against self‐incrimination; (2) the district court abused its
discretion in its handling of Greerʹs invocation of his Fifth Amendment rights; (3)
the district court erred in refusing to order a new trial or remittitur in light of the
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size of the juryʹs award of compensatory damages; and (4) the district court erred
in denying defendantsʹ motion for relief from judgment based on newly
discovered evidence. We affirm.1
BACKGROUND
I. The Facts
On appeal following a jury verdict, ʺwe view the facts of the case in
the light most favorable to the prevailing party.ʺ 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
1 On January 26, 2018, at the request of interested party‐appellee Lawrence
Dressler, the district court ordered the public release of portions of a video deposition of
appellant Aviad Hack, a witness in the case. Hackʹs appeal of that decision is addressed
in a separate opinion, also filed today.
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anal sex, and mutual masturbation, at several locations in New Haven, including
Yeshiva, motels, and Greerʹs home, as well as in Philadelphia.
Mirlis suffered physical, emotional, and psychological injuries as a
result of Greerʹs 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. Mirlisʹs psychologist, a specialist in post‐
traumatic stress disorder (ʺPTSDʺ) 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 Yeshivaʹs administrators had knowledge of the
abuse but failed to report Greer to law enforcement as required by Connecticut
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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 Greerʹs 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.
Appʹx 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 ʺmay 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,ʺ and that the jury could choose to ʺtotally disregard
the evidence of the assertion of the Fifth Amendment by Mr. Greer.ʺ Appʹx at 54.
His request was denied.
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B. Trial
At trial, at the start of his direct examination and in response to
questions from Mirlisʹs 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 ʺcovering up and allowing sexual abuse at the schoolʺ
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 ʺdocuments that pertain to Rabbi
Greerʹs sexual relationship with Eli Mirlis and any underage children.ʺ Id. at 43‐
44. He then invoked the privilege when asked whether he was ʺdenying that
[he] assaulted Eli Mirlis when [Mirlis] was a child.ʺ 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 witnessʹ 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
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in the case. The law requires the witness, if heʹs 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, Greerʹs counsel requested a standing
objection to the line of questioning. The district court, however, ruled that the
2
Greer invoked the privilege when asked whether he: (1) ʺsexually abused and
assaulted other minor boys, including a man named Aviad Hack,ʺ D. Ct. Doc. No. 230
at 48; (2) taught religious and secular studies at Yeshiva, id. at 51‐52; (3) taught Mirlis, id.
at 57; (4) taught communal service, ethics, theology, and Jewish history, id. at 58; (5)
ʺforce[d] . . . Mirlis to have sex with [him] when he was a childʺ at various New Haven
addresses, id. at 95; (6) ʺmolested [Mirlis] in [Greerʹs] bedroom,ʺ id. at 95; (7) had ʺsex
with [Mirlis] at a motel in Branford,ʺ id. at 96; (8) ʺforce[d] [Mirlis] to have sex with
[him] at a motel in Paoli,ʺ id. at 96; (9) ʺforce[d] [Mirlis] to have sex with [him] when
[Mirlis] was a child at a hotel in Philadelphia,ʺ id. at 96‐97; (10) had ʺsex with [Mirlis]
when he was a child at the land in Hamden,ʺ id. at 97; and (11) ʺgot . . . Mirlis when he
was a child to become involved sexually with [Greer] by showing him pornography,ʺ id.
at 98. Greer did not invoke the privilege and essentially denied the allegation when
asked whether he had sex with Mirlis ʺ[o]n a blanket out in the woods on some land in
Hamden.ʺ Id. at 97.
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objections had to follow each question. The district court thereafter overruled
several additional objections from Greerʹs counsel, but it eventually sustained the
objections as it determined that the questions had become ʺcumulative.ʺ Id. at 98.
Subsequently, Mirlisʹs counsel referred to Greerʹs invocation of the privilege on
cross‐examination and during summation.
In addition to Greerʹs testimony, Mirlis presented other extensive
evidence of Greerʹs 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 Greerʹs 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 witnessʹs 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
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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
ʺpunitive damages should be assessed againstʺ 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 juryʹs award of $15 million in compensatory damages, $5 million
in punitive damages (calculated in accordance with Connecticut common law as
the amount of attorneysʹ fees, representing one‐third of the juryʹs 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
Yeshiva filed a motion for new trial, or in the alternative, for remittitur on June
3 See, e.g., Berry v. Loiseau, 614 A.2d 414, 435 (Conn. 1992) (punitive damages
limited to expense of litigation, including attorneysʹ fees, less taxable costs); Waterbury
Petroleum Prods., Inc. v. Canaan Oil & Fuel Co., 477 A.2d 988, 1004 (Conn. 1984) (same).
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28, 2017. They argued that the ʺevidence presented at trial simply cannot
support the juryʹs exorbitant verdict in this case, which is dramatically out of step
with non‐economic damage awards by juries in cases involving similar claims of
sexual abuse, both in Connecticut and throughout the country.ʺ D. Ct. Doc. No.
172 at Attachment #1. Later, on October 27, 2017, Greer and Yeshiva filed a
motion for relief from final judgment, pursuant to Rule 60(b)(2), arguing that
new evidence in the form of testimony from a former teacher at Yeshiva would
undermine the credibility of Mirlis and Hack and would likely have led to a
different verdict had it been presented at trial. On December 8, 2017, ruling from
the bench, the district court denied both motions.
This appeal followed.4
DISCUSSION
Greer and Yeshiva challenge (1) the district courtʹs instructions to
the jury on the invocation of the privilege; (2) the district courtʹs handling of
Greerʹs invocation of the privilege; (3) the denial of their motion for a new trial or
remittitur based on the purported excessiveness of the juryʹs compensatory
4 In 2019, Greer was convicted on four counts of risk of injury to a minor in
violation of Connecticut law, and he was sentenced to 20 yearsʹ imprisonment, to be
suspended after he serves 12 years. See Docket, State v. Greer, NNH‐CR17‐0177934‐T.
Greer has appealed that decision.
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damages award; and (4) the denial of their motion for relief from judgment based
on newly discovered evidence. We discuss each issue in turn.
I. Jury Instruction on Fifth Amendment Privilege
Greer and Yeshiva acknowledge that the district courtʹs jury
instruction set forth the ʺcorrect statement of law ‐‐ at least in part.ʺ Defs.‐Apps.
Br. at 15. They argue, however, that more extensive instructions were warranted
given the ʺcontroversial and emotional natureʺ of the allegations of sexual abuse
of a minor in this case. Id. In particular, they contend that the district court
should have included language to the effect that the privilege ʺmay 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.ʺ Appʹx at 54; see Defs.‐
Apps. Br. at 15‐17. We are not persuaded.
A. Applicable Law
We review a district courtʹs instructions to the jury de novo. Uzoukwu
v. City of New York, 805 F.3d 409, 414 (2d Cir. 2015). ʺJury instructions are
erroneous if they mislead the jury or do not adequately inform the jury of the
law.ʺ Id. For a verdict to be set aside based on an erroneous jury charge, the
appellant must show that the ʺerror was prejudicial in light of the charge as a
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whole.ʺ E.g., Turley v. ISG Lackawanna, Inc., 774 F.3d 140, 153 (2d Cir. 2014)
(internal quotation marks omitted).
In Brinkʹs Inc. v. City of New York, we upheld the admission of
evidence of witnessesʹ invocations of the privilege where the district court
instructed the jury that a ʺwitness ha[s] a constitutional right to decline to answer
on the ground that it may tend to incriminate him [and] you may, but need not,
infer by such refusal that the answers would have been adverse to the witnessʹ
interest.ʺ 717 F.2d 700, 707 (2d Cir. 1983) (alterations in original) (internal
quotation marks omitted); see also F.D.I.C. v. Fid. & Deposit Co. of Md., 45 F.3d 969,
979 n.5 (5th Cir. 1995) (holding jury instruction was proper where district court
stated ʺ[a] witness has a constitutional right to decline to answer on the grounds
that it might tend to incriminate himʺ and jury ʺmay draw an inference for or
against a partyʺ); Leonard B. Sand et al., 4 Modern Federal Jury Instructions: Civil,
Instruction 75‐5 (2019) (ʺ[I]n civil cases, you are permitted, but not required, to
draw the inference that withheld information would have been unfavorable to
the defendant.ʺ).
We have addressed whether a party‐witness suffers prejudice from a
courtʹs adverse inference instruction regarding the privilege. In Woods v. START
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Treatment & Recovery Centers, Inc., we held that the party suffered ʺacute
prejudiceʺ where the jury instructions included language permitting the jury to
infer that, but for the assertion of the privilege, the party would have answered
ʺyesʺ when asked whether she had been accused of unethical conduct. See 864
F.3d 158, 170‐71 (2d Cir. 2017). In Woods, the district courtʹs instruction
effectively directed the jury to adopt the negative inference. Noting the
questionable probative value of the adverse inferences there, we held that
admission of the invocations and the instruction were improper.5
B. Application
We conclude that the district courtʹs jury instruction here was
neither erroneous nor unfairly prejudicial.
As to the claim of error, the district court advised the jurors that they
ʺmay, but are not required to, inferʺ from Greerʹs invocation of the privilege that
his ʺanswer would have been adverse to [his] interest.ʺ D. Ct. Doc. 153 at 15.
5 In Woods, the court instructed the jury that ʺyou may infer that the plaintiffʹs
answers at the deposition, if she had not refused to answer, would have been ʹyesʹ to the
questions asked.ʺ 864 F.3d at 170. Moreover, most of the disputed questions asked
whether the plaintiff had been accused of something, and, as we noted, mere
accusations have little, if any, probative value. Id. Other questions asked whether the
plaintiff had ever been convicted of ʺany immoral or unethical conduct,ʺ and these
questions risked the admission of evidence of prior convictions that did not meet the
requirements of Federal Rule of Evidence 609(a)(2). Id. 170‐71.
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This instruction was an accurate statement of the law and was not materially
different from the adverse inference instruction we approved in Brinkʹs. And
while Greer desired additional language to advise the jury of its ability to ʺtotally
disregard the evidence of the assertion of the Fifth Amendment by [] Greer,ʺ
Appʹx at 54, there is no requirement that jury instructions be favorable to a party,
see Riverwoods Chappaqua Corp. v. Marine Midland Bank, N.A., 30 F.3d 339, 346 (2d
Cir. 1994) (ʺWhile a more specific instruction might have been helpful, there is no
basis for concluding that the jury was given a misleading or inaccurate
impression of the law.ʺ); see also Coquina Invs. v. TD Bank, N.A., 760 F.3d 1300,
1309 n.8 (11th Cir. 2014) (ʺ[W]hen the instructions, taken together, properly
express the law applicable to the case, there is no error even though an isolated
clause may be inaccurate, ambiguous, incomplete or otherwise subject to
criticism.ʺ (internal quotation marks omitted)); Fid. & Deposit Co. of Md., 45 F.3d
at 979 (holding that district court did not err in ʺnot cautioning the jury that the
Fifth Amendment may be invoked by an innocent partyʺ); cf. United States v.
Green, 599 F.3d 360, 378 (4th Cir. 2010) (holding that even though ʺʹa more
specific instruction might have been desirableʹʺ and the ʺproposed instruction
may have more adequately presented his defense theory,ʺ a district court does
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not abuse its discretion where defendantʹs proposed instructions were ʺclearly
coveredʺ by the district courtʹs instruction (citation omitted)). Greer and Yeshiva
do not cite any example of a case where the instruction they requested was
actually given.
As to the claim of prejudice, the district courtʹs instruction to the jury
was not prejudicial. Unlike in Woods, where the instruction suggested that the
jury should assume the negative inference, the instruction here did not invite
prejudice against Greer by implying that Greerʹs silence should be construed as
an outright admission. Accordingly, the district courtʹs jury instruction was
proper.
II. Invocation of the Privilege
Greer does not dispute the relevance of questions concerning
incidents of sexual abuse against Mirlis, but he argues that the series of questions
that elicited his invocation of the privilege were cumulative and unduly
prejudicial, and that the district court ʺerred in its decision not to prohibit, or
reasonably limit, questioning about critical and potentially inflammatory
allegations of sexual abuse.ʺ Defs.‐Apps. Br. at 27‐28. We hold that the district
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court did not abuse its discretion in admitting the evidence of Greerʹs invocation
of the privilege in the manner that it did.
A. Applicable Law
ʺWe review for abuse of discretion the district courtʹs admission into
evidence of a witnessʹs invocation of the Fifth Amendment.ʺ Woods, 864 F.3d at
170 (citation omitted). To be admissible, a witnessʹs invocation of the Fifth
Amendment privilege against self‐incrimination must satisfy Federal Rules of
Evidence 401 and 403. See LiButti v. United States, 107 F.3d 110, 124 (2d Cir. 1997);
Brinkʹs, 717 F.2d at 710. Under Rule 401, evidence is relevant if it ʺmakes a
consequential fact more or less probable.ʺ In re 650 Fifth Ave. & Related Props., 934
F.3d 147, 171 (2d Cir. 2019) (citing Fed. R. Evid. 401). We have held that
factfinders may draw ʺadverse inferences against parties to civil actions when
they refuse to testify in response to probative evidence offered against them.ʺ
Woods, 864 F.3d at 170 (quoting Baxter v. Palmigiano, 425 U.S. 308, 318 (1976)); see
650 Fifth Ave., 934 F.3d at 171; Brinkʹs, 717 F.2d at 707 (ʺThe privilege is merely an
option of refusal, not a prohibition of inquiry and it is universally conceded that
the question may be put to the witness on the stand. . . .ʺ (internal quotation marks
omitted)).
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Relevant evidence, however, may be excluded ʺif its probative value
is substantially outweighed by a danger of . . . unfair prejudice . . . or needlessly
presenting cumulative evidence.ʺ Fed. R. Evid. 403. ʺWhile [the analysis under
Rule 403] is case specific, the mere fact that a Fifth Amendment invocation is
ʹdamningʹ to a partyʹs position does not preclude its introduction,ʺ but
ʺinvocations that cross the line to ʹinflammatoryʹ are more likely to fail under
Rule 403.ʺ 650 Fifth Ave., 934 F.3d at 171 (quoting Brink’s, 717 F.3d at 710).
As a function of its discretion under Rule 403, a district court
controls the form in which evidence of the privilege invocation reaches the jury.
Id. at 171‐72 (distinguishing between content and form with respect to admission
of evidence that the witnesses invoked the privilege); Rad Servs., Inc. v. Aetna Cas.
& Sur. Co., 808 F.2d 271, 277 (3d Cir. 1986). And the dramatization of a partyʹs
presentation of evidence may ʺtip[] the Rule 403 scale from ʹdamningʹ to
ʹinflammatory.ʹʺ 650 Fifth Ave., 934 F.3d at 172 (quoting Brinkʹs, 717 F.2d at 710).
The dissent in Brinkʹs foreshadowed the issue of factfinders being
induced to draw prejudicial adverse inferences from a witnessʹs privilege
invocation by counselʹs ʺsharpʺ practice of conducting a ʺsystematic interrogation
of witnesses on direct examination . . . know[ing] they will assert the privilege
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against self‐incrimination.ʺ 717 F.2d at 715 (Winter, J., dissenting). One principal
concern was that a party would ask fact‐specific, leading questions ʺdesigned to
suggest to the jury that but for the privilege the answer in each case would have
been ʹyesʹʺ and ʺinevitably invite[] jurors to give evidentiary weight to questions
rather than answers.ʺ Id. at 716. The dissent was also concerned that the strategy
would ʺeffectively den[y] the right of cross‐examination since the witness cannot
even be made to explain why the privilege has been invoked, much less to
contradict the intended inference.ʺ Id. On the other hand, it was precisely these
kinds of questions ‐‐ fact‐specific, leading questions ‐‐ that the majority in Brinkʹs
held were permissible. Id. at 715‐16 (dissent quoting questions).
We revisited the issue surrounding dramatization of a witnessʹs
privilege invocation in 650 Fifth Avenue. There, the district court permitted the
Government to present the jury with videotapes of witnesses, who did not testify
at trial, ʺdeclining to answer question after question during their depositions.ʺ
650 Fifth Ave., 934 F.3d at 172. We held that the ʺparad[ing] of videotapes, which
the Government strategically spread out across multiple days of trial, was
substantially more prejudicial and redundant than probativeʺ because ʺ[t]he
videotapes repeatedly reminded the jury of the witnessesʹ decisions not to
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testifyʺ and ʺrepeatedly put the Governmentʹs incriminating questions in the
jurorsʹ minds ‐‐ questions the parties agreed were not evidence and that the court
allowed the Government to submit as an exhibit.ʺ Id.
In evaluating the risk of unfair prejudice that may result from the
manner in which a party introduces his evidence, we may compare the district
courtʹs course of action against evidentiary alternatives. Id. (reasoning that
district court could have employed ʺ[s]ubstantially less prejudicial and
redundant alternativesʺ such as a stipulation or a more limited showing of
videotape evidence of witnessesʹ invocation of the privilege); accord Fed. R. Evid.
403 advisory committeeʹs note to the 1972 proposed rules (ʺavailability of other
means of proof may also be an appropriate factorʺ in deciding whether to
exclude on grounds of unfair prejudice); Old Chief v. United States, 519 U.S. 172,
184 (1997) (holding that probative value of evidence ʺmay be calculated by
comparing evidentiary alternativesʺ).
B. Application
Because Greer and Yeshiva concede that his invocation of the
privilege was relevant, we focus on whether the elicitation of that evidence at
trial withstands scrutiny under Rule 403. It does. While the evidence of Greerʹs
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invocation of the privilege against self‐incrimination was surely ʺdamning,ʺ it
was not unfairly prejudicial, and the district court did not abuse its discretion in
admitting the evidence in the manner that it did.
First, Greerʹs invocation of the privilege was highly probative. His
refusal to answer such basic questions as whether he forced Mirlis to have sex
with him when Mirlis was a child is telling. ʺSilence is often evidence of the most
persuasive character.ʺ United States ex rel. Bilokumsky v. Tod, 263 U.S. 149, 153‐54
(1923) (quoted with approval in Baxter, 425 U.S. at 319).
Second, there was substantial independent evidence to corroborate
the inference. See Baxter, 425 U.S. at 318 (ʺ[T]he Fifth Amendment does not
forbid adverse inferences against parties to civil actions when they refuse to
testify in response to probative evidence offered against them.ʺ); Doe ex rel. Rudy‐
Glanzer v. Glanzer, 232 F.3d 1258, 1264 (9th Cir. 2000) (ʺ[A]n adverse inference can
be drawn when independent evidence exists of the fact to which the party refuses to
answer.ʺ). Of course, Mirlis testified in painful detail as to Greerʹs abuse of him;
he was subjected to cross‐examination, and the jury believed him. There was
other evidence of Greerʹs abuse of Mirlis as well, including the assistant
principalʹs testimony. Clearly, the jury did not base its decision ʺsolelyʺ on
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Greerʹs refusal to testify. See Cerro Gordo Charity v. Firemanʹs Fund Am. Life Ins.
Co., 819 F.2d 1471, 1482 (8th Cir. 1987).
Third, the district court gave the jury limiting instructions during
Greerʹs testimony and again at the end of the trial. Indeed, after Greer had
answered a few questions about whether he had invoked the privilege at his
deposition and whether he intended to invoke the privilege at trial, he asserted
the privilege only once before the district court intervened to give a limiting
instruction. After Greer invoked the privilege a few more times, the court
reminded the jury ʺ[s]ame instruction as before.ʺ D. Ct. Doc. No. 230 at 95. And
soon thereafter, the district court sustained the objection on the grounds the
questions had become cumulative. Mirlisʹs counsel ceased asking questions
about the sexual assaults.
Fourth, Greer asserted the privilege inconsistently. He answered
many questions, including questions inquiring as to whether he had sexually
abused Mirlis when he was a student. For instance, shortly after invoking the
privilege, Greer denied that he had sexually abused Mirlis in the woods in
Hamden. Greer also invoked the privilege in response to questions with no
apparent implication that Greer had engaged in criminal conduct, such as
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whether he taught religious and secular studies. As the district court observed,
the jury was likely swayed by ʺGreerʹs selective invocation of his rights rather
than by his assertion of the [privilege].ʺ D. Ct. Doc. No. 300 at 28.
In 650 Fifth Avenue, where the Government presented a ʺparade of
videotapes,ʺ ʺspread out across multiple days of trial,ʺ of witnesses at their
depositions refusing to answer question after question, we concluded that ʺthe
district courtʹs failure to moderate the Governmentʹs extreme tactic was an abuse
of discretion.ʺ 650 Fifth Avenue, 934 F.3d at 172. Here, Mirlisʹs use of Greerʹs
invocation of the privilege was not extreme, and the district court in fact
moderated the presentation of the evidence. Accordingly, we conclude that the
district court did not abuse its discretion in permitting the evidence of Greerʹs
invocation of the privilege in the circumstances here.
III. Motion for New Trial or Remittitur
Greer maintains that the district court erred in denying his motion
pursuant to Rule 59 for a new trial or remittitur because there was insufficient
proof of Mirlisʹs noneconomic damages and that the $15 million jury verdict was
ʺshocking.ʺ Defs.‐Apps. Br. at 32‐48. We are not persuaded, in light of similar
awards by juries and courts in Connecticut.
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A. Applicable Law
We review for abuse of discretion a motion under Federal Rule of
Civil Procedure 59 for remittitur or new trial. Munn v. Hotchkiss Sch., 795 F.3d
324, 335 (2d Cir. 2015); In re Methyl Tertiary Butyl Ether (MTBE) Prods. Liab. Litig.,
725 F.3d 65, 112 n.34 (2d Cir. 2013). ʺ[I]n deciding remittitur motions in diversity
cases, federal courts apply federal procedural standards and state substantive
law.ʺ Imbrogno v. Chamberlin, 89 F.3d 87, 90 (2d Cir. 1996); accord Munn, 795 F.3d
at 335.
ʺUnder Connecticut law, a court may grant remittitur only when the
jury verdict is excessive as a ʹmatter of law.ʹʺ Imbrogno, 89 F.3d at 90 (quoting
Peck v. Jacquemin, 491 A.2d 1043, 1052 (Conn. 1985)). The size and scope of the
juryʹs verdict must be supported by the record. Munn, 795 F.3d at 335‐36.
If the district court concludes, after examining and
comparing similar jury awards in Connecticut, that the
verdict in the instant case is excessive as a matter of
Connecticut law, it should order a new trial on the issue
of damages, unless the plaintiffs agree to remit that
portion of the jury verdict deemed excessive.
Imbrogno, 89 F.3d at 90.
In considering a damages award, ʺa trial court must evaluate
ʹwhether the juryʹs award falls somewhere within the necessarily uncertain limits
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of just damages or whether the size of the verdict so shocks the sense of justice as
to compel the conclusion that the jury [was] influenced by partiality, prejudice,
mistake or corruption.ʹʺ Munn, 795 F.3d at 335 (quoting Birgel v. Heintz, 301 A.2d
249, 252 (Conn. 1972) (alteration in original)). A jury award may not be set aside
merely because it exceeds what the court would have awarded. Saleh v. Ribeiro
Trucking, LLC, 32 A.3d 318, 323 (Conn. 2011) (citing Campbell v. Gould, 478 A.2d
596, 600 (Conn. 1984)).
There are only a few decisions in Connecticut addressing the size of
a jury award in cases concerning sexual abuse of a minor, but they are
instructive. For example, in Iino v. Spalter, the court denied a motion to set aside
a $15 million jury verdict against a defendant based on claims that he sexually
abused the plaintiff from the time she was six years old until she was seventeen.
192 Conn. App. Ct. 421, 477 (2019). In Doe v. Boy Scouts of Am. Corp., 147 A.3d 104
(Conn. 2016), the Connecticut Supreme Court upheld an award of $7 million for
three incidents of sexual assault against a minor victim. And in Blair v. LaFrance,
the court awarded $75,200 for economic damages; $500,000 for noneconomic
damages; and $167,800 in punitive damages based on claims that the defendant
sexually molested the plaintiff several times before the plaintiffʹs sixteenth
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birthday. No. CV 980149622S, 2000 WL 1508232, at *5 (Conn. Super. Ct. Sept. 27,
2000).
B. Application
The district court did not abuse its discretion in denying Greerʹs
motion for a new trial or remittitur because the verdict is not excessive as a
matter of Connecticut law. While Greer argues that Mirlis lacked evidence to
support the award of noneconomic damages, there was ample evidence in the
record of Mirlisʹs physical, emotional, and psychological injuries. In addition to
Mirlisʹs own testimony, his wife and psychologist both testified that Mirlis had
issues with intimacy, forming emotional attachments, and vulnerability with
others. Mirlisʹs wife explained that Greerʹs abuse had a significant, negative
impact on their married life and that Greerʹs continued presence in Mirlisʹs life
was a source of discord between her and Mirlis. Mirlisʹs psychologist, an expert
in PTSD and childhood trauma, indicated that even with treatment, the sexual
abuse Mirlis suffered as a minor would have lifelong consequences for him. The
jury clearly credited the witnessesʹ testimony in finding Greer and Yeshiva liable
and awarding compensatory damages of $15 million.
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The amount of compensatory damages is undoubtedly high, but we
are not persuaded that a new trial or remittitur is warranted under Connecticut
law. The award here is not excessive when compared to the awards in the cases
cited above. Here, the record indicates that Mirlis suffered repeated abuse for
approximately three years, from the time he was fourteen until he was seventeen
years old. At certain points, Mirlis was abused for hours at a time, on a weekly
basis. The first time Greer abused Mirlis, he plied Mirlis with alcohol, pretended
to care about Mirlis and his family, acknowledged Mirlisʹs parentsʹ financial
struggles, and then kissed him. Eventually the abuse included oral sex, anal sex,
mutual masturbation, and watching pornography together ‐‐ while Mirlis was a
sophomore, junior, and senior in high school and Greer was a 60‐something year
old man.
On a per incident basis, the $15 million verdict falls within the range
of noneconomic damages that have been upheld by Connecticut courts in cases
of sexual abuse. See Boy Scouts, 147 A.3d at 111, 128 (permitting a $7 million
award for three incidents of sexual assault on a ten‐ or eleven‐year old); Doe v.
Thames Valley Council for Cmty. Action, Inc., 797 A.2d 1146, 1151 n.1 (Conn. 2002)
(upholding a total award of noneconomic damages of $220,000 to minors who
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were sexually assaulted by their school bus driver); Sciola v. Shernow, 577 A.2d
1081, 1084 (Conn. 1990) (holding that trial court erred in ordering remittitur of
$323,833.34 of a $400,000 jury verdict to plaintiff on claims that her dentist
sexually assaulted her while she was sedated). Mirlis testified that Greer
sexually abused him weekly during his sophomore year (when he was fourteen
years old) and somewhat less often during his junior and senior years (but still at
least every three or four weeks), and therefore he was sexually assaulted dozens
of times.6 Based on the evidence presented at trial, we are not persuaded that the
juryʹs award ʺshocks the sense of justice.ʺ Consequently, we conclude that the
district court did not abuse its discretion in denying the motion for a new trial or
remittitur. Greerʹs challenge to the amount of the verdict fails.
IV. Motion for Relief from Final Judgment
Finally, Greer contends that newly discovered evidence, a former
Yeshiva teacherʹs recounting of Mirlisʹs interactions with Hack while the two
6 In his appellate brief, Mirlis estimates that he was sexually assaulted ninety times
over the course of three academic years. In denying the motion for a new trial, the
district court noted that the $15 million award would amount to ʺroughly $300,000 per
episodeʺ using fifty as the number of incidents, which it concluded was ʺnot out of lineʺ
with other cases. D. Ct. Doc. No. 300 at 32.
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were at Yeshiva, would have changed the outcome of the trial by discrediting the
testimony of Mirlis and Hack. This argument is without merit.
A. Applicable Law
This Court reviews a district courtʹs ruling on a Rule 60(b) motion
for abuse of discretion. Devlin v. Transp. Commcʹns Intʹl Union, 175 F.3d 121, 132
(2d Cir. 1999). ʺRule 60(b) allows relief from a judgment or order when evidence
has been newly discovered or for any other reason ʹjustifying relief from the
operation of the judgment.ʹʺ Id. at 131‐32 (quoting Fed. R. Civ. P. 60(b)(2), (6)).
As we have explained,
[T]he movant must demonstrate that (1) the newly
discovered evidence was of facts that existed at the time
of trial or other dispositive proceeding, (2) the movant
must have been justifiably ignorant of them despite due
diligence, (3) the evidence must be admissible and of
such importance that it probably would have changed
the outcome, and (4) the evidence must not be merely
cumulative or impeaching.
United States v. Intʹl Bhd. of Teamsters, 247 F.3d 370, 392 (2d Cir. 2001) (internal
quotation marks omitted); accord State St. Bank & Tr. Co. v. Inversiones Errazuriz
Limitada, 374 F.3d 158, 178 (2d Cir. 2004); Westerly Elecs. Corp. v. Walter Kidde &
Co., 367 F.2d 269, 270 (2d Cir. 1966) (per curiam) (citing Kolan v. Csengeri, 268 F.2d
239, 240 (2d Cir. 1959) (per curiam)).
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B. Application
The motion for relief from final judgment relied on a witness who
purportedly came forward only after learning of the verdict in the case, but the
motion papers did not identify the witness by name and was supported only by
affidavits from two attorneys and Greer. One of the lawyers reported that the
individual claimed that Mirlis was his student when he taught at Yeshiva from
2002‐2004 and that Mirlis engaged in ʺunusual behaviorʺ and was a ʺfrequent
liar.ʺ Appʹx at 432. The lawyer also reported that the witness observed that
Mirlis and Hack had a ʺvery unusualʺ relationship that was ʺnot a normal
student/teacher relationship.ʺ Id.
The district court did not abuse its discretion in denying the motion.
It concluded that even assuming Mirlis engaged in ʺbad behavior,ʺ ʺthe jury
could reasonably have viewed such behavior as evidence of the mental toll of
Greerʹs abuse upon Mirlis.ʺ D. Ct. Doc. No. 300 at 53. We agree with this
assessment. Moreover, as to the evidence that Mirlis was a frequent liar and that
he and Hack had an unusual relationship, to the extent the evidence was
admissible at all, it was merely impeachment evidence. Greer and Yeshiva cross‐
examined Mirlis at length at trial, and they had an opportunity to attack Hackʹs
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credibility as well at his deposition. The district court did not err, much less
abuse its discretion, in concluding that the proposed additional evidence from
the unnamed teacher would not have changed the outcome of the case and did
not warrant relief from judgment.
CONCLUSION
For the reasons set forth above, we AFFIRM the judgment of the
district court.
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