1 8

- 3407

- c v Small v. Cuer

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT = S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NO TATION A SUMMARY ORDER @ ). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second Circuit, 1 held at the Thurgood Marshall United States Courth ouse, 40 Foley Square, in the 2 City of New York, on the 7 t h day of M a y , two thousand twenty

. 3 4 PRESENT: RAYMOND J. LOHIER, JR. , 5 JOSEPH F. BIANCO , 6 MICHAEL H. PARK, 7 Circuit Judges

. 8

------------------------------------------------------------------ 9 PAMELA S. SMALL , 10 11 Plaintiff

- Appell ee , 12 13

v. No. 1 8

- 3407

- c v 14 15 CARL CUER , INDIVIDUALLY AND AS A 16 CORRECTIONS OFFICER FOR THE NEW YORK 17 STATE DEPARTMENT OF CORRECTIONS 18 AND COMMUNITY SUPERV ISION , 19 20 Defendant

- Appell ant, 21 222 STATE OF NEW YORK, NEW YORK STATE 1 DEPARTMENT OF CORRECTIONS AND 2 COMMUNITY SUPERVISION, ATTICA 3 CORRECTIONAL FACILITY, JAMES CONWAY, 4 INDIVIDUALLY AND AS SUPERINTENDENT 5 FOR ATTICA CORRECTIONAL FACILITY, 6 SANDRA DOLCE, INDIVIDUALLY AND AS 7 DEPUTY SUPERINTENDENT OF PROGRAMS 8 FOR ATTICA CORRECTIONAL FACILITY, 9 10 Defendants

. ∗ 11

------------------------------------------------------------------ 12 FOR APPELLANT : J AMES M

. W UJCIK , Dadd, Nelson, 13 Wilkinson & Wujcik, Attica, NY

. 14 15 FOR APPELLEE: J ENNIFER A. S HOEMAKER (Alina 16 Nadir, on the brief ), Underberg & 17 Kessler LLP, Rochester, NY

. 18 19 Appeal from a judgment of the United States District Court for the 20

Western District of New York ( William M. Skretny , J udge )

. 21

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 22

AND DECREED that the amended judgment of the D istrict C ourt is AFFIRMED

. 23

Defendant

- appellant Carl Cuer appeals from a n amended judgment and 24
damages award against him following a jury trial and from a decision of the 25

∗ The Clerk of Court is directed to amend the caption as set forth above

.3 District Court (Skretny, J. ) granting in part and denying in part his motion under 1

Rule 59 of the Federal Rule s of Civil Procedure for a new trial or remittitur. The 2
jury awarded more than $ 7 million in total to plaintiff

- appellee Pamela Small on 3

her discrimination, hostile work environment, and retaliation claims against 4
Cuer and other defendants, including the New York State Department of 5
Corrections and Community S ervice, under Title VII , the New York State Human 6
Rights Law (NYSHRL) , and 42 U.S.C. § 1983

. 1 On appeal, Cuer argues that the 7
District Court erred in precluding certain expert testimony and in only partially 8
granting his motion for a new trial or remittit ur. We assume the parties’ 9
familiarity with the underlying facts and the record of prior proceedings, to 10
which we refer only as necessary to explain our decision to affirm. 11

We review Cuer’s challenge to the admissibility of expert testimony under 12
a “highly deferential” abuse

- of

- discretion standard, sustaining the D istrict 13

C ourt’s decision unless it is “manifestly erroneous.” Restivo v. Hessemann , 846 14
F.3d 547, 575 (2d Cir. 2017) (quotation marks omitted ). We find no such error 15

1 The other defendants filed and then later withdrew a separate appeal. This appeal

concerns only Cuer’s challenges to the amended judgment entered against him.4 here. Cuer had the burden to show that the testimony was admissible by a 1
preponderance of the evidence. See United States v. Williams , 506 F.3d 151, 160 2
(2d Cir. 2007). The District Court precluded Cuer’s proffered expert from 3
testifying about three tests that purported to identify exaggeration or 4
malingering by Small, but only after concluding that Cuer failed to offer any 5

evidence in favor of the reliability of any of the tests or otherwise rebut Small’s 6
challenge to the tests

. T he District Court thus served its essential 7
“gatekeep [ing] function” to ensure that expert opinions are based on a “reliable” 8
methodology “reliably applied

. ” Restivo , 846 F.3d at 575 (quotation marks 9
omitted) ; see Fed. R. Evid. 702. Nor did the District Court err when it decided 10

not to hold an evidentiary hearing on the challenged tests. Such hearings are 11
not an absolute requirement, see Williams , 506 F.3d at 161, and Cuer did not 12
request one. Finally, we reject Cuer’s argument that the Distri ct Court applied 13
the wrong standard when it cited a Florida state court case that excluded one of 14

the challenged tests under the so

- called Frye standard. T he District Court’s 15
ruling does not suggest that it was confused about the applicable standard , and, 16
in any event, the District Court was permitted to consider Frye ’s “general 175 acceptance” test as a relevant factor “bearing on the [reliability] inquiry.” See 1

Daubert v. Merrell Dow Pharms., Inc. , 509 U.S . 579, 594 (1993). 2

We also find no error in the District Court’s decision on Cuer’s Rule 59 3

motion. We “conduct a narrow review of [a] district court’s decision on a 4
motion for remittitur or a new trial for abuse of discretion[,] . . . giv[ing] the 5

ben efit of every doubt to the judgment of the trial judge

. ” Dancy v. McGinley , 6

843 F.3d 9 3, 113 (2d Cir. 201 6 ) (quotation marks omitted). As an initial matter, 7
we observe that the District Court granted Cuer’s motion in part and that Small 8
accepted a signif icant remittitur , reducing the $3. 85 million compensatory 9
damages award against Cuer to $2.88 million

. At oral argument, Cuer’s counsel 10
affirmatively waived any argument that the damages award was duplicative, 11
conceding that Cuer’s challenge on appeal is limited to whether the damages 12
award against him was excessive. But Cuer offers little more than conclusory 13

assertions th at the reduced award remained excessive. He does not challenge 14
the sufficiency of unrebutted trial testimony that Small suffered approximately 15
$2.3 million in economic damages

. Likewise, t he non

- economic and punitive 16
damages awards were supported by evid ence of Cuer’s egregious conduct , 176 including sending Small threatening messages, making unwanted advances after 1
she asked him to stop, filing a false complaint accusing her of an inappropriate 2
relationship with an inmate, and violating an order of protectio n

. The damages 3
award against Cuer was also supported by testimony that Small suffered 4
significant physical, psychological, and emotional harms as a result

. In sum, we 5
conclude that the District Court’s reduced award was supported by the trial 6

record. 7
Finally, we conclude that the District Court did not ab use its discretion in 8
holding th at Cuer forfeited any objection to the jury instructions or verdict sheet 9
by failing to object to either

. See Brown v. City of New York , 862 F.3d 182, 187 10
(2d Cir. 2017); Anderson Grp., LLC v. City of Saratoga Springs , 805 F.3d 34, 46 11
(2d Cir. 2015). Cuer’s assertion on appeal that he objected during an off

- the

12
record conference is belied by the fact that, as he conceded at oral argument, 13
when given the opportunity to memorialize any objections on the record, Cuer 14

made none

. 157 We have considered Cuer’s remaining arguments and conclude that they 1
are without merit. For the foregoing reasons, the judgment of the District Court 2

is AFFIRMED. 3

FOR THE COURT: 4 Catherine O = Hagan Wolfe, Clerk of Court 5