Jury Verdict Thrown Out When Witness Sues Over Breach of Contract to Testify

Judge Carter on Tuesday ordered a new trial for the City of New York and two police officers after a jury had awarded a plaintiff more than $600,000 for unlawful arrest and excessive force. The basis for the reversal, which came after Judge Carter had denied the defendants' motion for judgment as a matter of law: The plaintiff's girlfriend, who had been a key witness corroborating the plaintiff's version of events, sued the plaintiff in state court in the Bronx for breach of the contract they had signed promising her 20% of the verdict in return for her testimony. As Judge Carter explained, he had denied the defendants' motion for judgment as a matter of law on October 23, 2012.

With that, the Court was satisfied that its work was done. But the ink on that Order was barely dry when on November 19, 2012, by letter from Plaintiffs counsel, the Court learned that Thomas had entered an agreement with Marrow ("Agreement") while trial was already under way. Dkt. No. 138, Declaration of Raju Sundaran ("Sundaran Decl."), Ex. A (Letter), B (Agreement). The Agreement was dated June 24,2012 and signed and notarized on June 30, 2012, three days before Marrow testified at trial. . . .

On July 31, 2012, acting on her purported rights under the Agreement, Marrow filed a summons with endorsed complaint against Thomas in the Civil Court of the City of the New York, Bronx County for "breach of contract or warranty for $25,000.00, with interest from 7/16/12" and for other claims.

The Bronx complaint was dismissed in December, and Judge Carter quoted at length the Bronx judge's questioning of the plaintiff in the federal court action during the hearing on the motion to dismiss.

The Court: Tell me what the contract is about. Thomas: She put what the contract together which I didn't want to sign. The Court: You did sign, so what does it mean? Thomas: She expect me to give her 20 percent. The Court: For what? Mr. Thomas: I don't know. The Court: You have to know. You signed it. You're not a fool, are you? Ms. Marrow: No, I'm not a fool. The Court: What does it mean 20 percent? Why? Mr. Thomas: Because she said I deserve that- The Court: No, no, no, come on. You're a tough guy. You survived a three week Federal trial suing cops and got a judgment for more than $600,000 for police brutality. What are you, like somebody if I blew at you, you fall down? Mr. Thomas: This is not how it came down. She forced me. I have it on video. I have it on video, I said I didn't want to sign the contract. The Court: But you signed it. What does that mean? Mr. Thomas: Doesn't mean anything to me. First of all, you can't be paid as a witness, to be a witness. The Court: Stop. That is part of my question. Do you think it's 20 percent so she can be a witness for you? Mr. Thomas: No, it's The Court: Look at me. Mr. Thomas: She wanted 20 percent. She said if you don't sign this, I'm not going to court. Simple and plain, and I explained this to my lawyer. The Court: No, no, no. Did she tell you it was 20 percent so she can testify on your behalf? Mr. Thomas: No, to come to court." The Court: For what? Hold on. Was that 20 percent to testify, or 20 percent to give you a cup of coffee when you're on trial? Mr. Thomas: She told me she wouldn't come to court. She wouldn't come to court if I didn't sign the paper for 20 percent. The Court: Come to court for what purpose?

Thomas: To testify for me.

Judge Carter ultimately ordered a new trial pursuant to Rule 60(b)(3), which permits relief from a verdict from fraud, misrepresentation or misconduct.