ORDER

MARK R. ABEL, Magistrate Judge.

This matter is before the Court on defendant The Ohio State University's ("OSU") July 22, 2014 motion for a new trial or in the alternative, for a remittitur (doc. 359).

A jury trial commenced on June 3, 2014. The jury returned a verdict for plaintiff Sheryl Szeinbach on her claim that OSU was liable for coworker retaliation in violation of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"). The jury awarded her damages in the amount of $513,368.00.

I. Arguments of the Parties

A. Defendant The Ohio State University

Defendant maintains that it should be granted a new trial because the jury verdict was unfairly influenced by the egregious misconduct of plaintiff's counsel. OSU argues that a new trial is warranted under Rule 59 of the Federal Rules of Civil Procedure when a jury verdict has been influenced by pervasive misconduct of counsel. OSU's arguments assert the following facts. Plaintiff's counsel's improprieties permeated the entire trial. Despite the Court's efforts to negate the effect of counsel's repeated misconduct, a cautionary instruction could not effectively eliminate the prejudicial harm to OSU. Plaintiff's counsel displayed obstinate behavior and a disdain for the integrity of the court.

Plaintiff's counsel's misconduct. OSU argues that plaintiff's counsel impermissibly interfered with OSU's cross-examination of Sheryl Szeinbach. Mr. Rosenberg's pattern of prejudicial speaking objections, violations of the spirit of the separation of witness, and comments on the court's rulings began on the first day of trial. On the second day of trial, Mr. Rosenberg interfered with OSU's right to cross-examine Dr. Szeinbach with incessant speaking objections and outbursts. His most outlandish and prejudicial misconduct occurred at the end of the second day of trial when he accused OSU's counsel of altering exhibits in the presence of the jury.

OSU asserts that the redirect examination of Dr. Szeinbach was replete with leading questions and attempts to have her interpret what other people had written. During the direct examination of Jennifer Moseley and throughout the trial, Mr. Rosenberg testified despite the court's instruction that he could not testify, used depositions improperly, made speaking objections, failed to lay a proper foundation for refreshing a witness's recollection, asked leading questions, asked questions calling for speculation, put words in witness's mouth, and discussed other witnesses' testimony.

Plaintiff's counsel repeatedly insinuated that OSU and its witnesses were wasting the jury's time. He repeatedly attempted to justify his violations of evidentiary and trial practice rules to move things along, which sent a message to the jury that OSU was wasting their time rather than conforming with court rules.

OSU also contends that Mr. Rosenberg repeatedly blurted out comments that demeaned and discredited the court's rulings in front of the jury. Despite the court's frequent admonishments, Mr. Rosenberg's misconduct continued throughout the trial. OSU's attempt to present its case in an straightforward, professional manner was overshadowed by Mr. Rosenberg's flagrant disregard for the rules of court. His conduct was neither isolated nor inadvertent. Mr. Rosenberg routinely resorted to outbursts and improper questioning of the Court's rulings. OSU is entitled to a new, fair trial to "protect the due and orderly administration of justice and maintain the authority and dignity of the court." Roadway Express v. Piper, 447 U.S. 752, 764 (1980).

Damages. In the alternative, OSU argues that the amount of the verdict awarded by the jury exceeds the statutory cap of Title VII and is speculative. Dr. Szeinbach has remained employed by OSU as a full professor with tenure and has received a pay raise every year. Because she did not lose her job, OSU maintains that Dr. Szeinbach is not eligible for an award of front pay or back pay. Additionally, Dr. Szeinbach dismissed her salary differential claim. Plaintiff only sought to recover damages related to the harm to her reputation in her small academic community. During plaintiff's redirect examination testimony, Dr. Szeinbach testified that she is not asking to receive more pay from OSU. Defendants argue that the jury's entire award of damages is for nonpecuniary losses including emotional distress and reputation harm, which cannot exceed $300,000 under the statute and must be reduced as a result.

OSU maintains that the award clearly exceeds the amount which, under the evidence in the case, was the maximum that a jury could reasonable find to be compensatory for the plaintiff's loss. According to defendant, the jury's award exceeded the damages cap imposed by § 1981a(b)(3) and is excessive based on the evidence. Furthermore, if the award is allowed to stand, it would result in a manifest injustice to OSU.

Because a general verdict form was used instead of a special verdict form, it is difficult to ascertain the elements of the jury's award. Defendant believes that the jury intended to award the maximum amount for compensatory damages under Title VII in addition to the $213,368 about which Dr. Schondelmeyer testified. Dr. Schondelmeyer opined as to the difference between what Dr. Szeinbach earns at OSU and what she could have earned if she chose to seek employment at another university between 2007 and 2014. Defendant maintains, however, that the undisputed evidence is that Dr. Szeinbach never sought or applied for positions outside of OSU. The only paid position that plaintiff testified about was at the University of Arkansas in or around 2006. Dr. Szeinbach testified that she had no offer of employment from the University of Arkansas and that on her own volition, she stopped pursuing a position there. She has no evidence that any such position was filled. Dr. Szeinbach further testified that she had not really looked for a job until "this can be cleaned up." Vol. I, 163:11. Defendant argues that because of the absence of any evidence of any pecuniary amount for which OSU could be legally responsible, the $513,368 damage award can only constitute compensatory damages subject to the statutory cap.

OSU further argues that Dr. Schondelmeyer's comparison of the salaries at OSU with other universities as reported by the American Association of Colleges of Pharmacy ("AACP") is factually incorrect. Dr. Schondelmeyer's calculations were based on the salary surveys of calendar year institutions whose faculty have twelve-month contracts instead of academic year institutions like OSU, whose faculty have nine-month contracts. Dr. Schondelmeyer testified that with a nine-month contract, faculty teach in the fall and spring semesters and are off during the summer, at which time they are encouraged to bring in research projects on their own to pay their own salary and to compensate them, but they are not paid by the university.

Dean Brueggemeier confirmed that OSU tenure track faculty have nine-month appointments. As dean, he compared OSU salaries with Big Ten colleagues and the AACP reported salaries, and OSU salaries were typically in the mid-range for AACP for academic year appointments. Dr. Schondelmeyer's comparison of Dr. Szeinbach's salary with the calendar year data from AACP is like comparing apples and oranges. To make an accurate comparison of Dr. Szeinbach's OSU salary to that of other universities, Dr. Schondelmeyer should have used the AACP salary surveys for academic year institutions. Had he done so, Dr. Szeinbach's salary would have been in the mid-range. As a result, OSU maintains that there is no factual basis to support Dr. Schondelmeyer's conclusion that Dr. Szeinbach's salary would have been higher at another institution.

Defendant argues that an award based upon Dr. Schondelmeyer's testimony is purely speculative. Dr. Szeinbach never looked for a position outside of OSU and has never applied for any of the positions reported by the AACP salary surveys. Additionally, there is no evidence that there were openings for positions in her field to which she could have applied.

OSU further argues that the amount of the award is excessive based on the evidence. The evidence indicates that Dr. Szeinbach had stressors in her life unrelated to OSU and that the stress about which Dr. Szeinbach testified emanated from the research misconduct investigation, and OSU prevailed on those claims. Plaintiff's medical records and her treating physician's testimony indicate that plaintiff was treated for stress related to the death of her husband and her lawsuit, neither of which is compensable. Plaintiff's husband was ill from July 2008 until his death in June 2010. The research misconduct investigation lasted from June 2007 to May 2008.

B. Plaintiff Sheryl L. Szeinbach

Plaintiff argues that OSU has not met its heavy burden of presenting concrete evidence needed to secure a new trial. None of OSU's complaints rise to the level of objectionable conduct detailed in the case law relied upon by OSU. Plaintiff's attorney never deliberately prevented OSU from obtaining a fair and impartial trial or engaged in conduct that had a controlling impact on the jury's verdict. Mr. Rosenberg simply sought to serve his client's interest zealously within the bounds of the law. Plaintiff argues that if OSU truly believed that it was prejudiced, it would have either asked for a mistrial or requested that the jury receive curative instructions to address any juror bias caused by Mr. Rosenberg. Plaintiff maintains that the Court administered the courtroom with a firm hand that prevented OSU from suffering any jury bias.

II. Discussion

A. Motion for a New Trial

OSU's complaints concerning Mr. Rosenberg's conduct fall into five general categories:

• Repeatedly using deposition testimony despite warnings and/or explanations regarding proper cross-examination techniques;

Before setting out the facts related to these five areas of alleged misconduct by plaintiff's counsel and considering the impact of the alleged misconduct on the jury's verdict, it is necessary to outline the issues determined by the jury at trial. Plaintiff presented three claims to the jury: (1) OSU retaliated against Dr. Szeinbach for her opposition to unlawful employment practices; (2) OSU retaliated against Dr. Szeinbach for her filing an EEOC charge; and (3) OSU condoned, tolerated or encouraged Dr. Balkrishnan's retaliation against Dr. Szeinbach for her support of Dr. Seoane Vazquez's charge of discrimination and/or retaliation. The jury returned verdicts for defendant on plaintiff's first two claims and for plaintiff on her claim for coworker retaliation. With respect to plaintiff's claim based on coworker retaliation, the jury was instructed as follows:

I will now discuss each of the general categories of misconduct in turn and consider whether counsel's conduct introduced information or evidence to the jury in violation of the court's orders or the Rules of Evidence that should not have been before the jury and whether that information or evidence likely influenced the jury to reach a verdict that it otherwise would not have made.

epeatedly using deposition testimony despite warnings and/or explanations regarding proper cross-examination techniques.OSU maintains that despite repeated instruction from the court, Mr. Rosenberg improperly cross-examined witnesses. For example, Mr. Rosenberg stated that Dr. Moseley had seen a document during her deposition. Vol. IV, 53:10-13. OSU maintains that he placed deposition transcripts on the video monitor prior to establishing a need to refresh a witness's recollection. See Vol. IV, 22:9-12. OSU also cites to a portion of the trial transcript in which Mr. Rosenberg attempted to ask the same question that he asked during the deposition of witness without laying a proper foundation.1

Mr. Rosenberg was instructed to take Dr. Moseley's deposition transcript off the monitor and the Court denied his requests to display the transcript. On none of the occasions OSU relies on was any evidence or information improperly introduced to the jury. Most often the witnesses were having difficulty remembering events from six or more years before. Mr. Rosenberg, instead of giving the witness an opportunity to read their deposition transcript to refresh their recollection, attempted to display the deposition transcript on the elmo or to read it to the jury. Once the witnesses had the opportunity to read or hear their deposition testimony, they reaffirmed that testimony. While displaying ignorance of the rules of evidence, Mr. Rosenberg's conduct was not calculated to improperly influence the jury's verdict. Further, he did not get evidence before the jury that was prejudicial in anyway to defendant. Nor did he cause the jury to hear testimony that the rules of evidence prohibited them from hearing. At worst, he prematurely presented to the jury facts that the witnesses then testified to once they had the opportunity to refresh their recollections. It is true that on occasion, Mr. Rosenberg was argumentative with witnesses and was reprimanded by the Court. But OSU fails to explain how Rosenberg's arguing with the witnesses and being reprimanded prejudiced it, rather than damaging him in the eyes of the jurors.

Being discourteous to the Judge. OSU asserts that Mr. Rosenberg repeatedly resorted to outbursts and improper questioning in response to rulings made by the Court. Specific statements objected to by OSU has been placed in italics in the excerpts below.

Vol. IV, 28:25-29:19 (emphasis added). I did not take Mr. Rosenberg's "apples and oranges" comment to be disrespectful or argumentative. He thanked the Court and then moved on to another topic with the witness.

On several occasions, Mr. Rosenberg responded to rulings sustaining an objection by repeating "sustained?" I agree that this questioning of evidentiary rulings reflects poorly on Mr. Rosenberg, but I do not believe that his statements prejudiced OSU.

In the following exchange, Mr. Rosenberg was examining a witness about an email (PX 166) Dr. Balkrishnan sent to College of Pharmacy faculty and administration that included his whistleblower complaint against Dr. Szeinbach. The email itself was admitted into evidence. Moreover, the point of this line of examination was to demonstrate that Dr. Balkrishnan violated the confidentiality provisions of the University's research misconduct policy; and when asked, the witness testified that it did. Vol. IV, 57:18-58:17.

Id. 56:24-25 and 57:3-16.

During his direct examination of Dr. Cynthia Carnes, who was an assistant professor the time of the events at issue in the trial and OSU's representative at trial,2 Mr. Rosenberg attempted to impeach her with her deposition testimony:

Vol. V, 66:14-67:19. I find Mr. Rosenberg's abandonment of his attempted impeachment by telling the jury that he has made his point and that the jury understood it to be troubling. The comments were clearly impermissible.

To determine what impact the comments may have had on the jury it is necessary to look at the deposition testimony underlying plaintiff's counsel's attempt to impeach Dr. Carnes. During her deposition, Dr. Carnes testified that she wanted Szeinbach's duplicate publication academic misconduct charge resolved quickly, and that she recalled telling someone that "if there are findings that it's true, that [removal of Dr. Szeinbach from the College] would be the appropriate action." Carnes Dep., p. 83, Doc. 127, PageID 10842. Mr. Rosenberg then asked:

Id., p. 83:2-22.

Defendant chose not to examine Dr. Carnes until the defense case. Then Dr. Carnes testified that she had been unhappy about Dr. Szeinbach's lack of collegiality and professional behavior during faculty meetings, her absence from the College of Pharmacy, and, in general, her failure to share the load of a faculty member by preparing for and participating in committee service and the workload of the Pharmacy Practice Division. Vol. XII, 53:19-54-25. In 2006, she and other faculty members took these concerns to Dean Brueggemeier. Id., 53:14-18. Defendant's counsel then directly addressed the attempted impeachment:

Id., 57:10-58:21.

On balance, plaintiff's counsel's attempted impeachment of Dr. Carnes was consistent with the rules of evidence and defendant's counsel had the opportunity to present Dr. Carnes' explanation of her answer to the deposition question during their client's case. While inappropriate, Mr. Rosenberg's comment that he had made his point and that the jury understood it did not, even when considered together with other similar comments during the course of the trial, deprive defendant of a fair trial.

The next exchange cited by defendant is an example of Mr. Rosenberg failing to properly establish a foundation for impeaching a witness and failing to follow the Court's directions to let witnesses, who were struggling to recall events that occurred six or seven years before, review their deposition testimony to see if it refreshed their recollection before impeaching them. The witness Mr. Rosenberg was questioning, Dr. Kinghorn, had sat on committees that had investigated the research misconduct charges against both Dr. Szeinbach and Dean Brueggemeier. He was having trouble remembering in which case the committee did not get exhibits. Vol. V, 169:22-170:4. Mr. Rosenberg asked the witness whether one of the differences between the committees' investigation and disposition of the charges against Dr. Szeinbach (recommended further investigation) and Dean Brueggemeier (recommended dismissal of the charges) was that Brueggemeier had just become the Dean. Id., 170:19-24. When Dr. Kinghorn said he disagreed, Mr. Rosenberg asked to approach the witness:

Vol. V, 170:25-171:9. I did not view Mr. Rosenberg's interrogative as disrespectful. An attorney cross-examining a witness is processing a lot of information simultaneously. Mr. Rosenberg simply did not process that I had sustained the objection. When I explained the ruling, he accepted it and moved on.

The next example cited by defendant occurred during the examination of Dr. Cynthia Carnes, a faculty member at the time of the events at issue in the trial and now an Associate Dean of the College of Pharmacy and OSU's representative during the trial. Mr. Rosenberg was examining her about the email Dr. Balkrishnan sent to COP faculty and administrators about his research misconduct charge against Dr. Szeinbach:

Vol. V, 84:11-22. At this point, defendant's counsel objected, and defendant now argues that Mr. Rosenberg's response to the Court's ruling was disrespectful:

Vol. V, 84:24-86:3 (emphasis added). Mr. Rosenberg did then follow the Court's direction and moved on to another line of examination, abandoning his attempt to impeach Carnes.

Mr. Rosenberg's statements were unnecessarily argumentative and failed to accord proper respect to the Court, but I fail to see how his statements prejudiced OSU even though his demeanor in the courtroom lacked professionalism. To the extent that OSU argues that the comments demeaned the Court in the eyes of the jury, I do not find that argument supported by the overall record of the trial. Mr. Rosenberg was not deliberately baiting the Court or trying to gain some tactical advantage by disagreeing with a ruling. In my view, he was merely floundering and trying additional arguments to see if the Court would reverse its ruling.

In my experience, disagreeing with a judge is not likely to gain the jury's approval. A judge is the authority figure in the courtroom. Jurors accept the judge as the person in charge and look upon the judge with respect. If anything, litigators lose points with the jury when they unnecessarily prolonge a dispute about the Court's ruling. Nothing in Mr. Rosenberg's conduct suggested that he was intentionally engaging in exchanges with the Court for the purpose of gaining favor with the jury.

At times, Mr. Rosenberg was discourteous to opposing counsel. The following example offered by defendant took place when defendant's counsel's cross-examined Dr. Au, formerly an OSU College of Pharmacy professor, who had testified on direct that she had been forced out of OSU. Vol., VII, 57:8-11. Defendant's counsel questioned Dr. Au about Optimum Therapeutics, her pharmaceutical research company which is located in California:

Id., 125:19-126:4. Plaintiff's counsel's objection to this question was overruled. Dr. Au testified that work on some of the grants was done at OSU, but when OSU took away the space where she was doing the research she moved the equipment and research with the permission of the University to Optimum. 126:13-127:16. She testified that she was now working on the grants at her own company, Optimum, because "I don't have a job at Ohio State anymore." Id., 128:1-8.

Vol. VII, 128:11-15 (emphasis added). Once again, Mr. Rosenberg's comment was inappropriate, and he was admonished. Defense counsel's line of questioning (aren't you making more money now than you did at OSU) was at best marginally relevant to the attempted impeachment, and it is difficult to see how Rosenberg's comment, considered with other comments of a similar nature, unduly influenced the jury.

Despite repeated admonishments from the Court, Mr. Rosenberg did make more inappropriate statements:

Vol. IX, 103:5-18(emphasis added). It is my practice to permit re-cross examination rarely. I followed that practice during this trial. Mr. Rosenberg's "come on" comment was totally unacceptable, and I immediately reprimanded him. He made an appropriate apology; and he limited his re-cross examination to the one question. Id., 103:21-104:3.

Mr. Rosenberg was firmly reprimanded when he was disrespectful to the Court. In the following exchange, Mr. Rosenberg attempted to continue to argue a ruling in the presence of the jury, and the Court directed him to come to sidebar. The witness, Dr. Milap Nahata, had been called by plaintiff as a witness in her case. Dr. Nahata was now testifying as a witness in the defense case. Defendant's counsel objected to a question on the cross-examination of Dr. Nahata about an email from Dr. Balkrishnan (PX22) on the ground that the question was not within the scope of direct examination:

Vol. XI, 144:12-145:16.

Although I agree with defendant's position that Mr. Rosenberg failed to accord proper respect to court rulings by improperly questioning or commenting on rulings, I cannot find any instances where Mr. Rosenberg introduced evidence or information to the jury as a result of his inappropriate comments. I recognize that Mr. Rosenberg frequently apologized once he was reprimanded, and I do not believe that his conduct prejudiced OSU. In fact, I find that conduct such as that exhibited by Mr. Rosenberg was just as likely to prejudice the jury against plaintiff rather than defendant.3

Blaming OSU's counsel for wasting the jury's time. OSU argues that plaintiff's counsel repeatedly tried to justify his violation of evidentiary and trial practice rules to move things along. OSU maintains that these statements sent the message to the jury that OSU was wasting the jurors' time when in fact OSU was conforming to court rules. This first example occurred during Mr. Rosenberg's cross-examination of Dr. Charles Brooks, who sat on the CII investigating a research misconduct charge Dr. Enrique Seoane Vazquez brought against Dean Brueggemeier. Mr. Rosenberg asked Dr. Brooks whether he ever asked anyone at OSU to look into retaliation issues raised in a letter Dr. Seoane Vazquez wrote that was attached to his complaint against Dean Brueggemeier. Dr. Brooks responded that he could not remember. Vol. V, 232:20-233:9. Mr. Rosenberg then asked and obtained permission to approach the witness. He asked Dr. Brooks to look at page 199, lines 12 through 14 of his deposition transcript. Id., 233:11-14.

Vol V, 233:21-234:11 (emphasis added).

The second example is also during Dr. Brooks examination. He was asked to confirm that several exhibits were the Dean's journal articles that were reviewed by the CII.

Vol. V, 239:17-240:9, 241:1-5, 241:17-19, 241:25-242:8. Mr. Rosenberg stated that if OSU was willing to stipulate to the exhibits, Mr. Brooks would not have to go through the process of matching up the articles to the CII report. OSU, however, did not agree to stipulate to the documents. Mr. Rosenberg's request for a stipulation was not unreasonable. Vol. V, 67:17-19. The decision whether to stipulate or not to a party's request is a tactical decision made at trial. OSU was not required to stipulate to Mr. Rosenberg's requests. A refusal to stipulate, however, may prove unwise when little is to be gained by forcing a party to go through a lengthy process when there is no arguable basis for questioning their authenticity.

OSU also contends that Mr. Rosenberg's references to his need to call Mr. Dasta as a witness and the length of Mr. Balkrishnan's video deposition were prejudicial. See Vol. VIII 142:1-3 ("MR. ROSENBERG: Your Honor, I only — I only got this witness because they wouldn't stipulate to that what he said was true. Otherwise, he wouldn't even be on the screen.") and Vol. VI, 128:16-17 ("I didn't expect a three-hour Raj Balkrishnan video. So, I apologize to everybody. That was not my intent."). Neither of the incidents were relevant to any material issue to be decided by the jury. Mr. Rosenberg's comment about "a three-hour Raj Balkrishnan video" was not tied in anyway to OSU's counsel:

Id., 128:9-17. If anything, Mr. Rosenberg was apologizing to the jury for his own miscalculation.4

I note, however, that Mr. Rosenberg's continued insistence that exhibits had been changed on the basis that deposition exhibit stickers had been removed was wholly without merit. It was counsel's responsibility to review the exhibits before trial and become familiar with them. It only confuses a jury, and potentially the court and counsel, to have two exhibit stickers on an exhibit. It is the better practice to provide the jurors with a clean copy of the exhibit with only the trial exhibit sticker affixed to it.

"Testifying". Mr. Rosenberg was advised on several occasions that he could not testify. The instances cited by defendants, however, do not show that Mr. Rosenberg's conduct likely influenced the jury to reach a verdict that it otherwise would not have made.

Mr. Rosenberg improperly read portions of Dr. Moseley deposition in an effort to show that a closing letter was typically sent to mark the closing of an investigation. Plaintiff did not prevail on her claim against OSU for retaliation, and any information that was presented to the jury during this examination did not prejudice OSU. See Vol. IV, 20:21. Mr. Rosenberg identified the handwriting on PX1 as that of Mr. Gibson, but this statement was unlikely to have any bearing on any issue before the jury. See Vol. 54:2-3. The handwritten note on PX1 appears to state "went beyond." When discussing JX9, Mr. Rosenberg answered a question asked by Dr. Moseley as to the date of Dr. Balkrishnan's whistleblower complaint and stated that "Raj has already admitted it in his deposition". Vol. IV 59:24-60:18. Mr. Rosenberg acknowledged that there was no date on the whistleblower complaint but stated it was in May. Vol. IV 62:22. In response to a statement by Dr. Moseley, he said,"That's my recollection, too." Vol IV. 66:25. Mr. Rosenberg made several attempts to ask Dr. Moseley whether any other CII had been formed to examine what he characterized as "citation issues." The Court instructed Mr. Rosenberg to refer to the whistleblower complaint, which he did. Id., 77:14-78:17. Counsel for OSU objected that failing to cite her previous article was only part of the charge, and in response, Mr. Rosenberg stated, "[the witness] knows — everyone knows the answer." Vol IV. 80:14. OSU's objection was overruled, and Dr. Moseley testified that she did not remember any other CII formed to look into citation issues. Id., 80:18-21. Defendant objects to other statements made by Mr. Rosenberg. See Vol. IV at 84:9-10 (ROSENBERG: "We talked about it, already, many times. It's Raj's ADR proposal"5); Id. at 94:5-6 (ROSENBERG: "We looked at this in your deposition. It is an editorial comment published about Raj's two publications"6); Id. at 103:1 (ROSENBERG: "In your deposition you said it was"7); Id. at 106:19-21 (ROSENBERG: "That's exactly what you said in your deposition. And Dr. Kinghorn said that the CII got this letter. And that's on his deposition at page 103"8). Although these examples may reflect poor wording on the part of counsel, I cannot say that Mr. Rosenberg's examination of Dr. Moseley allowed him to expose the jury to evidence that was not otherwise admissible or, indeed, evidence that was not already in the record or was not later admitted into the record.

Dr. Szeinbach alleged that two types of retaliation occurred. First, members of management at OSU and/or OSU's College of Pharmacy retaliated against her by pursuing an unjustified research misconduct investigation and allowing the disclosure of confidential information related to this investigation. Second, plaintiff Szeinbach alleged that her co-faculty member Dr. Balkrishnan retaliated against her for her opposition to unlawful employment practices by providing information to those investigating the complaints of Seoane Vazquez's discrimination and/or retaliation claims and/or her charges filed with the EEOC. Mr. Rosenberg's examination of Dr. Moseley primarily concerned Dr. Szeinbach's first claim.9 Because the jury found for OSU on plaintiff's first claim, OSU cannot show that any improprieties on the part of Mr. Rosenberg prejudiced it on issues related to that claim.

OSU maintains that Mr. Rosenberg repeatedly testified during his cross-examination of Dean Brueggemeier. In questioning Dean Brueggemeier about complaints he received concerning Dr. Szeinbach's statements to a prospective faculty member, Mr. Rosenberg stated "[t]he only documents produced that I've ever seen are Raj doing it. I've never seen anybody else do it." Vol. XI, 43:17-18. Preceding this comment, Mr. Rosenberg questioned Dean Brueggemeier about a conflict between the Dean's deposition testimony about Dr. Balkrishnan's statements during a Promotion and Tenure Committee meeting considering whether Dr. Seoane Vazquez should be given tenure and an audiotape of that meeting. Dean Brueggemeier responded:

Id., 42:16-43:25. While Mr. Rosenberg should not have made the comment, defendant does not assert that the statement was in any way inaccurate. Plaintiff's counsel did not further pursue whether there was any communication in writing about Dr. Szeinbach's conduct toward Dr. Shaw.

In response to Dean Brueggemeier's statement that attorneys are frequently present at CII meetings, Mr. Rosenberg stated "That's not what all the CII members said." Vol. XI, 54:4. Again, the Court instructed Mr. Rosenberg not to testify.

OSU argues that Mr. Rosenberg violated the spirit of Rule 615 of the Federal Rules of Evidence, which requires a court, upon a party's request to exclude witnesses so that they cannot hear other witnesses' testimony. OSU maintains that Mr. Rosenberg repeatedly discussed prior trial testimony during his direct and cross examination of witnesses.

While examining Dr. Carnes, Mr. Rosenberg stated that Dr. Hayton told him that Dr. Szeinbach asked him to investigate the allegation that Dr. Balkrishnan was harassing one of her students. Vol. V, 60:5-6. Although his statement was perhaps phrased improperly, it is clear from the context that Mr. Rosenberg's intent was not to testify but to recall for Dr. Carnes testimony she, as OSU's representative, had heard earlier in the trial in preparation for asking her a question about the same subject matter. OSU did not object. In its briefs, OSU fails to provide any explanation as to how this statement prejudiced it.

Similarly, OSU objects to Mr. Rosenberg's statement, "You are correct on that, Dr. King[horn]. You're absolutely right that what happened was, Raj sends out one email; Sheryl responds back with a response, which is quoted here." Vol. V, 131:4-6. But OSU fails to articulate how this statement was prejudicial. JX19 is the email exchanged referred to by Mr. Rosenberg, and OSU did not object to its admissibility. Mr Rosenberg's statement was factually accurate: Dr. Balkrishnan sent the August 13, 2007 email to the College of Pharmacy faculty, and Dr. Szeinbach responded with her August 21, 2007 email. JX19.

Mr. Rosenberg also stated that Dr. Szeinbach's article was never retracted. Vol. V, 218:11-13. Dr. Kinghorn agreed with Mr. Rosenberg's statement that the article was never retracted and acknowledged that a "retraction" is a term used to describe a different situation.

OSU cites to many examples of Mr. Rosenberg asking witnesses about prior statements or testimony given by other witnesses. OSU fails to provide any statement made by Mr. Rosenberg revealing information prejudicial to OSU or not legally admissible that likely influenced the jury to reach a verdict that it otherwise would not have made.

Speaking objections. The Court reminded counsel early in the trial, that "if you're going to have a long speaking objection, please ask to come to the sidebar." Vol. II, 60:19-20. Most of the speaking objections referenced in defendant's brief concern the cross-examination of Dr. Szeinbach. OSU maintains that Mr. Rosenberg's speaking objections interfered with defense counsel's ability to cross examine Dr. Szeinbach. While Mr. Rosenberg did make speaking objections, nothing contained in those objections introduced evidence or information to the jury that pertained to an element of plaintiff's claim. I do agree that Mr. Rosenberg's speaking objections were disruptive to the flow of the cross-examination.

The first example of a speaking objection occurred when defense counsel questioned Dr. Szeinbach about the research misconduct charge filed against Dr. Balkrishnan:

Vol. II, 35:20-37:17. The apparent thrust of this cross-examination is that Dr. Szeinbach's August 21, 2007 email included the following sentence:

JX 19, p. 2, bottom. However, the objection was elicited by an ambiguity in defense counsel's question. Mr. Rosenberg accurately stated that Dr. Szeinbach never filed a research misconduct complaint against Dr. Balkrishnan.10 Defense counsel's statement about a "whistleblower complaint" being filed August 10 further muddied the waters, eliciting Mr. Rosenberg's "It's night and day" comment. While that comment was uncalled for, and the Court admonished him, defense counsel's questions were confusing and their factual predicate unclear. Once defense counsel clarified that she was talking about the "discrimination and retaliation" language in the email and the August 2007 EEO charge Dr. Szeinbach filed naming Dr. Balkrishnan, plaintiff's counsel did not interfere with defense counsel's cross-examination on that topic.

In defendant's next example,11 defense counsel asked Dr. Szeinbach whether Jessie Au had helped look into Dean Brueggemeier's and Dr. Balkrishnan's publication practices. Dr. Szeinbach responded, "I don't know about now. I don't know. Maybe at one time, yes." Vol. II, 115:15-22. Asked again whether in February-March 2008, after the CII voted to refer one of the research misconduct charges against her for further investigation Dr. Au helped look into Dean Brueggemeier's and Dr. Balkrishnan's publication practices, Dr. Szeinbach said, ". . . after the CII rejected my, you know, said that my publications violated policy then I may have, you know, talked to her then." Id., 116:5-11. Defense counsel then asked:

Id., 116:15-118:21.

Mr. Rosenberg's first objection came after defense counsel shifted the question from whether Szeinbach talked with Au and Seoane Vazquez about the Dean's and Dr. Balkrishnan's research practices, to whether she talked with them about their research misconduct. Dr. Szeinbach's answer was that she then had no knowledge of a research misconduct investigation for the Dean's or Dr. Balkrishnan's publications. After the objection, defense counsel returned to the earlier question — whether Dr. Szeinbach talked with Au about the Dean's and Dr. Seoane-Vazquez's research practices; and plaintiff's counsel interposed no further objection. To the extent that Mr. Rosenberg's objection and comment interrupted the flow of cross-examination, the interruption was warranted because defense counsel's question had changed, and Dr. Szeinbach had made a responsive answer to the new question.

Defendant next points to Mr. Rosenberg's comments when objecting during defense counsel's cross-examination of Dr. Szeinbach. The first example occurred during cross-examination about letters Dr. Szeinbach and her husband wrote to a journal editor about a publication by Dr. Balkrishnan:

Vol. II, 105:12-106:17. First, Mr. Rosenberg did ask to approach the bench. When permission was denied, he was forced to make his objection in the hearing of the jury. Second, to the extent the letter may have contained factual assertions relevant to material disputed issues of fact, it was hearsay.

Defense counsel then continued with the same line of questioning:

Vol. II, 113:20-114:11. Here defense counsel appeared to want to communicate to the jury the contents of the letter rather than question Dr. Szeinbach about the central underlying fact issue regarding her communication to the journal editor, whether she and her husband jointly acting to discredit Dr. Balkrishnan. The letter from the journal editor assumes that they were, but there is no direct evidence in the record that they were. And both Dr. Szeinbach and her husband denied acting jointly. Id., 111:15-113:19.

The next examples involve Dr. Szeinbach's compensation:

Vol. II, 170:14-19. Dr. Szeinbach had testified earlier that money she earned on contracts went to pay for data collection and to fund students and other people working on the projects. Id., 158:5-25.

The next comment defendant contends was improper regarded her raises in pay as a full professor at OSU:

Vol. 185:24-186:15. While it is true that speaking objections interrupt the flow of the examination, I cannot say that Mr. Rosenberg's objections prevented OSU from conducting a fair cross-examination of Dr. Szeinbach. Further, the statement was accurate. Dr. Szeinbach had withdrawn her pay raise claim before trial.

Mr. Rosenberg's insinuation that counsel for OSU improperly altered Dr. Szeinbach's tax documents is more problematic. That suggestion was wholly unjustified. Mr. Rosenberg questioned the authenticity of the documents solely based on the fact that the deposition exhibit stickers had been removed, the Bates numbers not imaged, and the documents placed in a different order than the deposition exhibit. Mr. Rosenberg did object to these documents and question the authenticity of the documents on the afternoon of June 4.12 At that time, counsel for OSU did not ask for a sidebar conference. Mr. Rosenberg asked to approach for a sidebar conference. See Vol. II 193:13-15. The following exchange occurred in the presence of the jury:

Vol. II, 196:16-198:14; 199:8-17; 200:1-17. After having made vigorous objections to the authenticity of the tax returns, Mr. Rosenberg later withdrew his objection. Vol. II 196:16-24. On June 5, with the jury out of the courtroom, counsel for OSU responded to Mr. Rosenberg's insinuation that OSU had altered the tax returns. Counsel for OSU stated that Mr. Rosenberg's conduct before the jury was outrageous and that he should acknowledge that he was wrong when he stated the documents were altered and apologize to the jurors. Vol. III, 4:2-4. The jury was instructed as follows:

Vol. III, 14:4-19. The jury was provided with a clear statement that the documents in question had not been altered in any manner. Furthermore, the jury was informed that Mr. Rosenberg had the documents in his possession no later than the start of trial. Given the fact that Dr. Szeinbach herself appeared to question the validity of the documents even though they were identical to the ones she filed with the IRS, the Court's statement to the jury would appear to undermine her credibility in the eyes of the jury rather than that of counsel for OSU. I find that Mr. Rosenberg's conduct was unprofessional and wholly unacceptable, but it was not done with deliberate intent to discredit defendant's counsel in the eyes of the jury. Further, given the Court's instruction, I find it implausible that his comments did undermine their credibility.

To determine whether there is a reasonable probability that the verdict of a jury was influenced by improper conduct that warrants that the verdict be set aside, a court must examine, on a case-by-case basis, the totality of the circumstances, including the nature of the comments, their frequency, their possible relevancy to the issues before the jury, the manner in which the parties and the court treated the comments, the strength of the case, and the verdict itself. City of Cleveland v. Peter Kiewit Sons' Co., 624 F.2d 749 (6th Cir. 1980). I will discuss each of these factors in turn.

While I agree that counsel for plaintiff made inappropriate comments at times, including challenges to the court's orders, I cannot say his comments were "deliberate, intentional and calculated to improperly get inadmissible information before the jury for the purpose of unfairly prejudicing the jury against plaintiff." Park West Galleries, Inc. v. Global Fine Art Registry, LLC, 732 F.Supp.2d 727 (E.D. Mich. 2010). When reprimanded, Mr. Rosenberg promptly and frequently apologized. I believe that his apologies were sincere and that he attempted to comply with the orders of the court despite his failure to do so at times.

The relevance of OSU's complaints concerning the conduct of Mr. Rosenberg and the real issues before the jury varied. At times, it would have been reasonable to expect Mr. Rosenberg's missteps to harm his client rather than prejudice OSU.

The manner in which the parties and the Court treated comments made by plaintiff's counsel do not support granting defendant's motion for a new trial. When he overstepped the bounds of the rules of evidence and acceptable trial practice, if I had believed Mr. Rosenberg's conduct merited sanctioning beyond my instructions to the jury, I would have imposed them. Counsel for plaintiff was consistently and firmly reprimanded by the Court. OSU does not support its motion with incidents in where it objected and the Court failed to act appropriately. OSU never sought sanctions against plaintiff's counsel or sought a mistrial. Presumably, OSU was willing to take its chances with the jury as evidenced by its failure to seek a mistrial.

As for the strength of the case, I believe that it was a close case based on the verdict in favor of defendant on two of plaintiff's claims and the length of the jury deliberations. To decide this case, the jury had to make credibility determinations and to evaluate each party's position as to the salient facts. Defendant has not pointed to any evidence that was improperly before the jury that might have influenced their verdict.

The verdict itself does not suggest that jury's decision was based on improper, inflammatory and unfairly prejudicial information rather than admissible evidence. Here, OSU does not argue that Mr. Rosenberg made inflammatory statements such as the case in City of Cleveland v. Peter Kiewit Sons' Co. or Park West Galleries, Inc. v. Global Fine Art Registry, LLC. Rather, OSU maintains that counsel's failure to abide by the procedural and evidentiary rules prejudiced the jury against it. While the Federal Rules of Civil Procedure and Federal Rules of Evidence ensure that fair administration of court proceedings, counsel's lapses do not constitute the egregious, prejudicial, and deliberate misconduct necessary to justify a new trial.

B. Motion for a Remittitur

OSU argues that the amount of damages awarded must be reduced as a matter of law because the amount exceeds the maximum amount of compensatory damages for nonpecuniary losses:

42 U.S.C. § 1981a(b)(3)(D).

Plaintiff argues that the jury awarded $213,368.00 for lost back pay opportunities, which is not subject to the cap on noneconomic compensatory damages. The purpose of a back pay award is to make the plaintiff whole, that is, to place her in the position she would have been in but for discrimination. In Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975), the Supreme Court held that an award of back pay should only be denied for reasons that would not frustrate the statutory purpose of eradicating discrimination and "and making persons whole for injuries suffered for past discrimination." Id. at 421. Absent exceptional circumstances, back pay should always be awarded when a Title VII violation is found. Rasimas v. Michigan Dept. of Mental Health, 714 F.2d 614, 626 (6th Cir. 1983).

Dr. Schondelmeyer provided a comparison of salaries at OSU with other universities as reported by the American Association of colleges of Pharmacy ("AACP"). Defendant argues that his analysis is flawed. His calculations were based on the salary surveys of calendar year institutions whose faculty have twelve month contracts. OSU faculty have nine month contracts. See Vol. VI, 124:19-125:4. In response to the Court's question regarding the difference between a nine month and a twelve month contract, Dr. Schondelmeyer stated:

Vol VI, 125:17-126:14. Although Dr. Schondelmeyer testified that there were not as many positions on a nine month calendar and that it was likely that Dr. Szeinbach would have obtained a position on a twelve month contract, Dr. Schondelmeyer's testimony does not provide a factual basis to support the damages award. There are significant differences between the duties of a professor on a nine month contract and one on a twelve month contract. Dr. Schondelmeyer failed to acknowledge that a person on a twelve month contract is paid more because the length of the contract is greater. Although OSU pays Dr. Szeinbach over 12 months, she is paid for work that is performed over a nine month period. Dr. Szeinbach only performs for three quarters of the time compared to a person on a twelve month contract. A person earning $154,381 on a twelve month contract who only worked for nine months of their month contract would earn $115,785.75, considerably less than the $129,189. Dr. Schondelmeyer's testimony fails to account for the fact that a professor on a nine month contract has the opportunity to work on their own research projects and earn compensation from outside the university. Dr. Schondelmeyer's comparison of Dr. Szeinbach's salary under a nine month contract with salaries under twelve month contracts is flawed and cannot be used to support his conclusion that her salary would have been higher at another university. Although Dr. Szeinbach's salary would have been higher under a twelve month contract at another university, her work responsibilities would have differed significantly in that she would have been required to perform an additional three months worth of work under the contract.

In the alternative, I conclude that plaintiff is not entitled to an award of back pay because she remained employed by OSU and was not demoted. Had plaintiff succeeded on her salary differential claims, she could have been awarded back pay, but plaintiff dismissed those claims. Back pay consists of lost money and benefits from the employer who discriminated against the plaintiff. See Kaiser v. Buckeye Youth Center, 812 F.Supp. 118, 119 (S.D. Ohio 1983)("The plain language of the statute restricts the term "back pay" to the compensation for performing work for the employer who discriminated against the worker ("reinstatement or hiring of employees, with or without back pay . . .")."). Plaintiff does not cite to any case law for the proposition that back pay is pay that would have been earned from employment other than with the employer who engaged in discriminatory conduct. The Fifth Circuit held that Section 2000e-5(g) does not require "that the employer liable for back pay be the same entity for whom the plaintiff would have worked had he not suffered unlawful retaliation" Nassar v. University of Texas Southwestern Medical Center, 674 F.3d 448, 454-455 (5th Cir. 2012).13 The Nassar decision is at odds with the Sixth Circuit's ruling in Kaiser. Because this Court is bound by the Sixth Circuit's decision in Kaiser, I conclude that plaintiff is not entitled to an award of back pay for employment she might have obtained in the absence of Dr. Balkrishnan's retaliatory conduct.

OSU also seeks to reduce the $300,000.00 compensatory damages award on the basis that the verdict is "an affront to the victims of true civil rights violations." This request is denied. Dr. Szeinbach and OSU each had the opportunity to present their story to the jury. The jury considered all the evidence before it and reached a decision on the merits of plaintiff's claims. I am unwilling to second guess the decision reached by nine jurors. Plaintiff introduced evidence suggesting that Dr. Balkrishnan filed his whistleblower complaint against Dr. Szeinbach based on her support of Dr. Seoane-Vazquez's claims of discrimination and retaliation. A reasonable juror could find that OSU tolerated Dr. Balkrishnan's actions, which included communicating the existence of the research misconduct investigation into Dr. Szeinbach's publication practices to professionals throughout the academic community. As a result, remittitur is not appropriate under these circumstances.

III. Conclusion

Defendant The Ohio State University's July 22, 2014 motion for a new trial or in the alternative, for a remittitur (doc. 359) is GRANTED in part and DENIED in part. Defendant's motion for a new trial is DENIED. The jury verdict is REDUCED by $213, 368.00 because plaintiff is not entitled to an award of back pay.