The Appellate Division, Second Department decided the case of Cheathem v. Ostrow, (2009-04453) on Nov. 21, holding that the trial court did not abuse its discretion in limiting the scope of cross-examination:
At trial, the plaintiff testified that her employer, defendant Stephen Ostrow, required her to play the game “Simon Says,” and that during this game, he instructed her to hop on one foot and expose her bare chest to him. Although the plaintiff did not testify about this event during her deposition, the plaintiff was not asked in her deposition whether she testified to every alleged instance of sexual harassment. Under these circumstances, the use of the plaintiff’s deposition testimony to impeach this portion of her trial testimony would have been confusing and unfairly prejudicial, and the Supreme Court properly precluded defense counsel from doing so.
The plaintiff worked for a small employer who persisted in seeking sex and groped and touched her over the course of two weeks, causing her to quit her job because she couldn’t take it anymore. At deposition, counsel asked her to describe the harassment. Each time, she testified about more incidents. But plaintiff was never asked the “close out” question that would box her in, “have you told me everything he did to you?”
So, at trial she testified for the first time that her employer wanted to play “Simon Says” at work. He took off his shirt, suggesting that she do the same.
This case is a reminder to be sure to ask the closing question, “have you told me everything about …” to be able to impeach at trial.
In sexual harassment cases, it is quite common for plaintiffs to remember more incidents as time passes. It is also often the case that the plaintiff in a sexual harassment case is treating with a therapist who may trigger a memory about a sexual harassment incident that had before been forgotten or suppressed. If the deposition has not asked the “boxed in” question, have you told me everything question, then the memory will allow for surprises at trial.
It is somewhat ironic that “Simon Says” game played and testified to for the first time at trial, was admissible and created a visual for the jury that may have been the basis for the $25,000 pain and suffering award in this case.
Lindy Korn practices at The Law Office of Lindy Korn and can be reached at firstname.lastname@example.org or (716) 856-KORN (5676).