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8th Cir. axes $900K verdict because lawyer told personal law school sex-harassment story at closing

Posted Apr 7, 2014 4:10 PM CDT
By Martha Neil

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A $900,000 jury award in an employment discrimination case, including $600,000 in punitive damages, has been reversed by a federal appeals court because a lawyer for the plaintiff during closing arguments told jurors that as a law student, she was sexually harassed by a professor.

The anecdote by attorney Brooke Timmer improperly helped vouch for the claims made by her client, Mindy Gilster, held the St. Louis-based 8th U.S. District Court of Appeal in its Friday opinion (PDF).

Saying that "the size of the damage award, while not beyond the bounds of rationality, suggests that counsel’s comment had a prejudicial effect," the appellate panel ruled that a new trial would be required to remedy the unfair remarks by Timmer in the Northern District of Iowa case.

"Counsel’s vouching and sympathy-arousing personal experience were directly aimed at enhancing these damages," the appeals court said. "Given the jury’s decision to award Gilster $40,000 for past emotional distress, $200,000 for future emotional distress, and $600,000 punitive damages, we cannot say that this improper argument did not accomplish the purpose which it was clearly intended to accomplish, namely, the enhancement of damages.”

Gilster sued her former supervisor and employer, the Sioux City branch of Primebank, in 2010, alleging that her supervisor spoke to her and touched her inappropriately. Although he was reprimanded by the bank when she complained in 2009, Gilster was fired after she filed with the Iowa Civil Rights Commission in 2011, the Des Moines Register recounts.

In her closing argument in the 2012 federal district court trial, Timmer praised her client for being courageous enough to complain and said she herself had been sexually harassed by a professor when she was a third-year law student at Drake University but had not spoken up. Although opposing counsel objected to her argument, the trial judge overruled, later admitting that this had been a mistake but finding that the defense had not been unduly prejudiced.

"I had been a student bar association president for the last year, and I was well respected and liked by my peers. I had a great relationship with the dean of the law school because of my role as president," Timmer told the jury in Gilster's case. However, "I refused to stand up for myself. It takes great strength and fearlessness to make a complaint against your supervisor."

Timmer told the Des Moines Register she expects to seek en banc review of the appellate ruling by the full 8th Circuit.

She also said Drake's law school had reached out to her in 2012 after hearing of the sexual harassment claim she made in a closing argument (Timmer said she had done so in more than one case, but no longer uses the anecdote). However, the newspaper article doesn't explain what resolution, if any, resulted.

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