07-3685-cv(L), 08-3302-op(con)
Mercado v. One Beacon Insurance Group


                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                      SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO
SUMMARY ORDERS FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY THIS COURT’S LOCAL RULE 32.1 AND FEDERAL RULE OF APPELLATE PROCEDURE
32.1. IN A BRIEF OR OTHER PAPER IN WHICH A LITIGANT CITES A SUMMARY ORDER,
IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST ONE CITATION MUST
EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION:
“(SUMMARY ORDER).” A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF
THAT SUMMARY ORDER TOGETHER WITH THE PAPER IN WHICH THE SUMMARY
ORDER IS CITED ON ANY PARTY NOT REPRESENTED BY COUNSEL UNLESS THE
SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS PUBLICLY
ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
HTTP://WWW.CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE
AVAILABILITY OF THE ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE
REFERENCE TO THAT DATABASE AND THE DOCKET NUMBER OF THE CASE IN WHICH
THE ORDER WAS ENTERED.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 16th day
of December, two thousand nine.

Present:
            ROBERT A. KATZMANN,
            DEBRA ANN LIVINGSTON,
            GERARD E. LYNCH,
                        Circuit Judges.
________________________________________________

JENNY MERCADO,

               Plaintiff-Appellant,

                      v.                             Nos. 07-3685-cv(L), 08-3302-op(con)

ONE BEACON INSURANCE GROUP, MICHAEL J. ROSS, ROBERT J. SAMBRATO,
JENNIFER N. SANTORO, KENNETH J. PAGANINI, ROBERT J. DOOLAN,

               Defendants-Appellees.

________________________________________________
For Plaintiff-Appellant:       PAUL J. MARGIOTTA , Bay Shore, NY

For Defendants-Appellees:      ROGER H. BRITON , Jackson Lewis LLP, Melville, NY


       Appeal from the United States District Court for the Eastern District of New York
(Gleeson, J.).

       ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and

DECREED that the judgment of the district court be and hereby is AFFIRMED.

       Plaintiff-Appellant Jenny Mercado appeals from the judgment of the district court entered

in favor of defendants following a jury trial. We assume the parties’ familiarity with the facts

and procedural history of the case.

       Mercado argues that “[t]he trial judge abused his discretion when he interjected himself

into the proceedings because he conducted inappropriate cross-examinations of witnesses as well

as disrupted the flow of testimony.” She further argues that the judge’s impatience with her

attorney was blatant and extensive to the point of being prejudicial. “In reviewing a challenge to

a trial judge’s conduct, we determine not whether the trial judge’s conduct left something to be

desired . . . but whether the judge’s behavior was so prejudicial that it denied a party a fair, as

opposed to a perfect, trial.” Shah v. Pan Am. World Servs., Inc., 

, 98 (2d Cir. 1998)

(internal citation, quotation marks and alterations omitted). Trial judges may appropriately

clarify legal and factual issues to minimize possible confusion in the jurors’ minds. Anderson v.

Great Lakes Dredge & Dock Co., 

, 1131 (2d Cir. 1974). We have reviewed the

transcript of the trial and conclude that Mercado’s contentions lack merit. At all times, the trial

judge conducted himself appropriately, interjecting only to clarify witnesses’ statements or to cut

off inappropriate testimony. While the trial judge expressed impatience with both attorneys, he

did so out of the hearing of the jury and based on his legitimate concern with the attorneys’


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performance. See 

(“In our view, the remarks are indicative not of judicial

bias, but rather of the judge’s legitimate concern over the attorney’s performance at trial.”). The

trial judge’s behavior did not in any way prejudice Mercado’s case.

         Mercado further argues that the trial judge made several erroneous evidentiary rulings.

This Court reviews evidentiary rulings for an abuse of discretion. United States v. Kelley, 

, 174-75 (2d Cir. 2009). Mercado contends that the trial judge abused his discretion by

allowing Defendants’ Exhibit TTT-3, defendant Robert Sambrato’s telephone records, into

evidence because they had not been authenticated by the telephone company. The telephone

records, however, were not offered to prove that they were the telephone company’s actual

records, but to show that One Beacon Insurance Group had conducted an investigation of

Mercado’s allegations that Sambrato had called her at her home. They were therefore properly

authenticated by Sambrato’s testimony that they were the records he provided to One Beacon

Insurance Group. Mercado’s other allegations with respect to erroneous evidentiary rulings

similarly lack merit.

         We have considered the remainder of Mercado’s arguments and conclude that they lack

merit.

         Accordingly, for the foregoing reasons, the judgment of the district court is hereby

AFFIRMED.

                                               FOR THE COURT:
                                               CATHERINE O’HAGAN WOLFE, CLERK

                                               By:_________________________________




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