KROON v. NATIONAL RAILROAD PASSENGER CORP.

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ELOISE KROON,
Plaintiff,
v.
NATIONAL RAILROAD PASSENGER
CORP. d/b/a AMTRAK,
Defendant.
Case No. 23-cv-2948 (CRC)
MEMORANDUM OPINION AND ORDER
Plaintiff Eloise Kroon moves for a new trial on the ground that the Court improperly
admitted a single exhibit during the October 2025 trial of this employment discrimination case
against Amtrak. The Court will deny the motion.
I. 	Background
Ms. Kroon has worked for Amtrak for about 15 years. In 2022, she applied for a
different position with the organization. She interviewed and was offered the job. The hiring
manager, Thomas Teti, informed her that, if she accepted, her salary would be roughly $64,000.
That was below Kroon’s existing salary, so she declined the offer. She later sued for
employment discrimination. She alleged that Mr. Teti lowballed her on the offer because he did
not want a Black person to fill the position.
Amtrak answered, and the case proceeded to discovery. Evidence adduced during
discovery created disputes over the two main factual assertions supporting Kroon’s claim: first,
that a former co-worker of Kroon’s overheard comments made by Teti that reflected racial bias
on his part, thereby showing that the salary offer was discriminatory; and second, that Amtrak’s
salary policies permitted Teti to offer Kroon (as well as two white candidates who were offered
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the position) more than the $64,000 he offered all three—thereby revealing as pretextual
Amtrak’s facially legitimate explanation that the salary was the highest it could offer. With
factual disputes present on both issues, the Court denied Amtrak’s motion for summary judgment
and the case headed to trial. See Kroon v. Nat’l R.R. Passenger Corp., No. 23-cv-2948 (CRC),
2025 WL 660843, at *5 (D.D.C. Feb. 28, 2025).
Following a three-day trial and about three hours of deliberation, a jury returned a verdict
in favor of Amtrak. Kroon’s new trial motion centers on an evidentiary issue concerning the
second of the two factual assertions noted above. That issue played out as follows.
The parties exchanged exhibit and witness lists prior to trial. One of Kroon’s trial
exhibits—Kroon 1181—which she had relied on to defeat summary judgment, was what
appeared to be an Amtrak document listing pay bands for various job positions, including the one
Kroon was offered, effective July 1, 2019. The band for Kroon’s position is shown to be
$47,550 to $80,000. Kroon sought to introduce the document in her case in chief to refute
Amtrak’s anticipated position that it could not have offered Kroon more than the $64,000 it did.
Following a motion in limine from Amtrak, the Court engaged the parties in a discussion
of the admissibility of Kroon 118 at the pre-trial conference. Amtrak objected to its admission
on relevance grounds, among others, because Kroon was offered the position in 2022, three years
after the effective date of the listed pay bands. Pretrial Conf. Tr., Oct. 7, 2025, at 9:23–25,
10:13–15. Were the document to be admitted, Amtrak sought to call its Director of
Compensation, Amanda Bastien, to testify that the 2019 pay bands were no longer in effect in
2022. Id. at 12:11–15, 34:13–18. Kroon objected to any testimony by Ms. Bastien because
1 The Court calls the exhibit “Kroon 118” because that was how it was labeled in the
summary judgment record and referred to in pre-trial proceedings. It was later admitted at trial
as Plaintiff’s Exhibit 8.
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Amtrak had not identified her in its initial disclosures during discovery. Id. at 34:22–35:5.
Amtrak retorted that Kroon only made the assertion about the 2019 guidelines after discovery
closed and that Bastien was being called only as a rebuttal witness to counter the impact of
Kroon 118. Id. at 35:6–17. The Court reserved judgment on the objection pending a submission
from Kroon on why Amtrak was obligated to have disclosed Bastien. Id. at 37:23–38:2.
Kroon made the submission, and the Court took up the issue immediately prior to the
beginning of trial. Curious about the absence of any documentation (at summary judgment or in
the parties’ proposed trial exhibits) concerning pay ranges for Kroon’s position in the relevant
2022 period, the Court asked Amtrak’s counsel, “[I]s it your position that there was no
equivalent document to Kroon 118 that was in effect as of 2022?” Trial Rough Tr., Oct. 14,
2025, at 6:2–4. Counsel responded, “Not in that exact format, Your Honor.” Id. at 6:5–6. Given
the ambiguity of that response, and nudged by Kroon’s counsel, the Court ordered Amtrak to
promptly produce to opposing counsel and the Court any “document showing salary range
guidelines for Ms. Kroon’s position that was in effect as of the relevant date in 2022.” Id. at
7:13–17. The Court added that if such a document exists, “the plaintiff should have gotten [it] in
discovery.” Id. at 7:19–22.
In response to the Court’s order, Amtrak produced what was later marked as Defense
Exhibit 27, a spreadsheet printout showing salary information for the position Kroon was
offered. The spreadsheet indicates a “market reference point” salary of $59,600. It then includes
two ranges for applicants deemed to be “developing” or “proficient” based on listed criteria. The
“developing” salary range is $51,602 to $56,761; the “proficient” range is $56,762 to $64,368.
The spreadsheet also contains a column listing criteria for “expert” applicants, but the cells that
line up with the corresponding salary ranges are marked “inactive.”
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The Court ultimately overruled all of Amtrak’s objections to the introduction of Kroon
118, and the document was offered and admitted during Ms. Kroon’s case in chief. Trial Tr.,
Oct. 14, 2025, at 50:22–23. In its case, Amtrak called Donielle Jackson, a former internal
“recruiter” who testified that she set the $64,000 salary for Kroon’s position. Id., Oct. 16, 2025,
at 326:11–16. When asked how the process worked, Ms. Jackson explained that “once a week
Compensation sen[t] all of the recruiters a spreadsheet, and it [told] us the Developing range, the
Proficient range for all of the roles that are open across the organization.” Id. at 307:18–21. She
continued that the compensation department provided her that very information for the position
Kroon had been offered. Id. at 307:18–24. When Amtrak’s counsel then asked her what the
salary range was, Kroon’s counsel objected and requested a bench conference. Id. at 308:2–3.
In the ensuing discussion, Amtrak’s counsel proffered that the salary range Jackson was referring
to was reflected in Defense Exhibit 27, the belatedly produced spreadsheet, which Jackson
received via email from the compensation department. The Court overruled the objection and
permitted Jackson to explain that she set the salary for the position at $64,000 based on the range
for the position she received from the compensation department.2 Id. at 311:8–9, 316:4–14.
However, the Court prohibited Amtrak from introducing Defense Exhibit 27 itself because it had
not been produced during discovery in response to document requests by Kroon that called for it.
Id. at 316:19–317:6. (Amtrak’s trial counsel took pains to emphasize that the company was
represented by different counsel during discovery.)
2 Amtrak also introduced additional exhibits indicating that Jackson set $64,000 as the
salary for two white applicants for the position who were eventually offered the position based
on the same market ranges she received from the compensation department. See Pls.’ Ex. 4, Ex.
5; Trial Tr., Oct. 16, 2025, at 317:14–19.
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On cross-examination, after Jackson indicated that she was not familiar with Kroon 118,
Kroon’s counsel asked her “is there a document that showed in 2022 what the pay bands were?”
Jackson responded, “I don’t recall.” Then came the following exchange:
Kroon Counsel: Is there any reason that there wouldn't have been that? You guys were
still using pay bands, right?
Jackson: Yes.
Kroon Counsel: But you don't know what those pay bands were?
Jackson: No.
Kroon Counsel: Let me ask you this: In a case where someone's alleging that they were
lowballed because of their race, if the pay bands showed that they'd gotten, you know, a
top-of-the range offer, if it were you, wouldn't you produce those pay bands?
Amtrak Counsel: Objection; argumentative
Id. at 343: 20–344:8. The Court sustained the objection, not so much because the question was
argumentative, but because it suggested that a “top of the range” salary band did not exist, when
in fact it did—in the form of Defense Exhibit 27. Id. at 344:9. Despite the Court’s ruling,
counsel went back to the well a few minutes later, during the following exchange concerning the
“market pricing” information Jackson had testified she received from the compensation
department:
Kroon Counsel: As I understand your testimony, you received a communication
regarding market pricing, right?
Jackson: Yes.
Kroon Counsel: And that was from Compensation?
Jackson: Yes.
Kroon Counsel: Where is it?
Jackson: I don't know where it is. I know I saw it.
Amtrak Counsel: Your Honor –
The Court: Is there an objection?
Amtrak Counsel: There's no objection. We're happy to show it, Your Honor, since he's
opened the door.
Id. at 353:20–354:5.
The Court conducted another bench conference at the beginning of Amtrak’s redirect
examination of Ms. Jackson. After Amtrak’s counsel indicated that he would like to offer
Defense Exhibit 27 because Kroon’s counsel had “opened the door” on cross, Kroon’s counsel
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stated: “I don’t care – if they’re going to introduce that, I would like recross on it, but I don’t
otherwise object.” Id. at 355:8–10. Hearing no objection, the Court permitted Amtrak to
introduce the document. Id. at 355:12–14. But when Amtrak’s counsel offered the document for
admission a few minutes later, Kroon’s counsel switched gears and lodged an objection.3 The
Court overruled the objection, explaining: “You opened the door to the introduction of that
document by saying, Why didn't Amtrak produce it? You suggested to this jury that they're
hiding a document, and now, since you've done that, Mr. Wilson's entitled to show the jury the
document.” Id. at 357:7–11.
Ms. Jackson proceeded to testify, credibly in the Court’s view, that the 2019 pay bands
reflected in Kroon 118 were not being used in 2022; that she had never seen Kroon 118 before;
that the “market pricing information” she received from compensation was what she used to set
the $64,000 salary for the position Kroon was offered; that the hiring manager, Mr. Teti, did not
determine what the salary offer was; and that the same offer was extended to all three successful
applicants for the position. Id. at 360:2–362:4.
The Court then permitted Kroon’s counsel to conduct a re-cross of Ms. Jackson, as he
had requested when Amtrak initially sought to admit Defense Exhibit 27. Id. at 355:8–10.
Counsel proceeded to inquire about the spreadsheet, including the presence of “inactive” cells
corresponding to "Expert” applicants. Id. at 363:7–364:7.
3 Counsel attempted to explain the about-face by suggesting that he was now objecting to
the document because it was somehow different from the one he indicated he did not object to
just minutes before. See Trial Tr., Oct. 16, 2025, at 356:8–9 (“This is not the document that we
were talking about.”). But the record seems clear that Amtrak’s counsel was offering the same
Defense Exhibit 27 that had been discussed previously. Id. at 354:24–355:10 (first the Court
then Kroon’s Counsel confirming that it was the spreadsheet). In any case, the Court accepts that
Kroon’s counsel eventually got around to making an objection.
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Following Ms. Jackson’s testimony, the Court prohibited Amtrak from calling the
Compensation Director, Amanda Bastien, because her testimony would likely have been
duplicative of Ms. Jackson’s and because “a fair argument can be made that she should have
disclosed” by Amtrak in discovery. Id. at 365:22–366:7. The Court then reiterated the basis for
its admission of Defense Exhibit 27:
[J]ust for the record, okay, the Court was prepared to sustain your objection to the
introduction of [Defense Exhibit 27] . . . But on cross Mr. Thompson asked, ‘As I
understand your testimony, you received a communication regarding market pricing,
correct?’… ‘And that was from Compensation?’ . . . ‘Where is it?’ The Court's ruling is
that by asking that question, plaintiff's counsel suggested that Amtrak is withholding the
document from the jury, when, in fact, the only reason that Amtrak was not presenting
the document as an exhibit is because the Court would not allow it because of the
disclosure issue. And by suggesting that, I thought that it opened the door to introduction
of the spreadsheet[.]
Id. at 366:14–367:11.
Kroon’s counsel then requested a jury instruction that the document was not produced
until trial, to which Amtrak’s counsel did not object. Id. at 368:23–369:24. Following brief
rebuttal testimony from Ms. Kroon, the Court instructed the jury as follows:
[T]he plaintiff proposed or requested that I advise you that this document was not
produced until recently. Okay? And it was the recent production of the document that led
to the discussion that we had about its admissibility. You are not to speculate about why
the document was produced belatedly or to draw any conclusions one way or the other
from the fact that it was produced late, but I will instruct you simply that it was produced
only recently in the case.
Id. at 397:7–16. After closing arguments, the jury proceeded to deliberate for approximately
three hours before returning a defense verdict on Kroon’s single claim.
Kroon filed her new trial motion on November 18, 2025. The sole basis for the motion is
the contention that Court erred in admitting Defense Exhibit 27.
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II. 	Legal Standards
Kroon moves for a new trial under Federal Rule of Civil Procedure 59(a). As relevant
here, the rule provides that “the court may, on motion, grant a new trial on some or all of the
issues . . . after a jury trial, for any reason for which a new trial has heretofore been granted in an
action at law in federal court[.]” Fed. R. Civ. P. 59(a)(1)(A).
The decision to grant or deny a motion for new trial “lies within the sound discretion of
the court.” Lane v. District of Columbia, 104 F. Supp. 3d 7, 9 (D.D.C. 2015) (Cooper, J.)
(citation omitted); see also McNeal v. Hi–Lo Powered Scaffolding, Inc., 836 F.2d 637, 646 (D.C.
Cir. 1988). The court may grant a motion for a new trial “where the verdict is against the weight
of the evidence . . . [or] substantial errors occurred in the admission or rejection of evidence or
the giving or refusal of instructions.” Lane, 104 F. Supp. 3d at 9. (citation omitted). “Generally,
a new trial may only be granted when a manifest error of law or fact is presented.” Id. (citation
omitted). “The burden of showing that a new trial is warranted in accordance with the rigorous
standard rests with the moving party.” Uzoukwu v. Metro. Wash. Council of Gov’ts, No. 11-cv-
00391 (CRC), 2017 WL 4712077, at *1 (D.D.C. July 11, 2017) (citation omitted).
Where, as here, a motion for a new trial is based upon the court’s evidentiary rulings,
“[t]he standard for granting a new trial is not whether minor evidentiary errors were made but
rather whether there was a clear miscarriage of justice.” Rice v. District of Columbia, 818 F.
Supp. 2d 47, 60 (D.D.C. 2011). An evidentiary error is considered harmless when it “does not
‘affect the substantial rights’ of the parties [] which ‘means that the error must have been
prejudicial: It must have affected the outcome of the district court proceeding.’” Muldrow ex rel.
Muldrow v. Re-Direct, Inc., 493 F.3d 160, 168 (D.C. Cir. 2007) (first quoting Fed R. Civ. P. 61
then quoting United States v. Olano, 507 U.S. 725, 734 (1993)). That standard applies to errors
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concerning evidence or testimony that a party failed to produce under Federal Rule of Civil
Procedure 26 and therefore may have been barred under Rule 37. Id. at 167-68. Whether an
error was harmless depends, among other things, on whether there was other evidence in the
record that supported the conclusion for which the challenged evidence was offered. Id. at 168.
If such evidence exists, courts “cannot assume that [the challenged evidence] was a crucial
element in the jury’s decision-making process.” Id. (citation omitted).
Federal Rule of Civil Procedure 37 governs sanctions for failure to make disclosures in
discovery. Relevant here is Rule 37(c)(1), which states in full:
If a party fails to provide information or identify a witness as required by Rule 26(a) or
(e), the party is not allowed to use that information or witness to supply evidence on a
motion, at a hearing, or at a trial, unless the failure was substantially justified or is
harmless. In addition to or instead of this sanction, the court, on motion and after giving
an opportunity to be heard: may order payment of the reasonable expenses, including
attorney's fees, caused by the failure; may inform the jury of the party's failure; and may
impose other appropriate sanctions, including any of the orders listed in Rule
37(b)(2)(A)(i)—(vi).
Fed. R. Civ. P. 37(c)(1) (cleaned up).
III. 	Analysis
A. There Was No Error under Rule 37(c)(1)
The Court initially precluded admission of Defense Exhibit 27 because it found that
Amtrak should have produced it in discovery in response to at least one of Ms. Kroon’s
document requests. Trial Tr., Oct. 16, 2025, at 316:19–317:6. That was consistent with Rule
37(c)(1). The Court later permitted Amtrak to introduce the document, however, because
Kroon’s counsel “opened the door” by erroneously suggesting to the jury, not once but twice,
that no salary band for Kroon’s position existed in 2022—and, by logical extension, that the
2019 pay bands reflected in Kroon 118 were still operative when the salary for Kroon’s position
was set. Kroon claims that was error requiring a new trial. The Court disagrees.
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The main thrust of Kroon’s argument is that Rule 37(c)(1) requires the exclusion of
evidence not produced in discovery, except in situations not present here where the discovery
violations were harmless or substantially justified. Pl.’s Mot. for New Trial at 3-4. Embedded in
this contention are two sub-arguments: (1) that exclusion is automatic in the first instance and (2)
that a party cannot “open the door” to the admission of evidence previously excluded under the
rule.
On the first point, Kroon emphasizes the mandatory phrasing of the rule: “If a party fails
to provide information [required in discovery], the party is not allowed to use that information . .
. in a trial, unless the failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1)
(emphasis added). But she neglects to recite the remainder of the rule, which continues: “In
addition to or instead of this sanction, the Court, on a motion and after giving an opportunity to
be heard, may order payment of the reasonable expenses . . . caused by the failure, may inform
the jury of the party’s failure, and may impose other appropriate sanctions, including the orders
listed in Rule 37(b)(2)(A)(i)-(vi).”4 Id. (emphasis added) (cleaned up). Read as a whole, the rule
would seem to require courts to impose at least some sanction on a party that fails to comply
with discovery rules and leave open the option of selecting an alternative sanction short of
outright exclusion of the evidence.
Despite this seemingly straightforward reading of the rule’s text, the circuits have taken
somewhat different approaches in describing the extent to which preclusion of evidence is a
4 These additional sanctions are: “(i) directing that the matters embraced in the order or
other designated facts be taken as established for purposes of the action, as the prevailing party
claims; (ii) prohibiting the disobedient party from supporting or opposing designated claims or
defenses, or from introducing designated matters in evidence; (iii) striking pleadings in whole or
in part; (iv) staying further proceedings until the order is obeyed; (v) dismissing the action or
proceeding in whole or in part; or (vi) rendering a default judgment against the disobedient
party[.]” Fed. R. Civ. P. 37(b)(2)(A).
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required remedy for failures to disclose that are not substantially justified or harmless. See 8B
Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2289.1 (3d ed. 2026
Update) (outlining the different approaches taken). On one end of the spectrum, the Second
Circuit has explicitly adopted the above textual reading, stating that “[the] premise of the
argument, that the preclusion sanction under Rule 37 is nearly automatic, is incorrect.” Lorme v.
Delta Air Lines, Inc., 251 F. App’x 691, 692 (2d Cir. 2007). “Thus, even absent a finding of
either substantial justification or harmlessness, the court does have discretion to impose other,
less drastic, sanctions.” Id. (quoting Design Strategy, Inc. v. Davis, 469 F.3d 284, 298 (2d Cir.
2006)); see also Roberts ex rel. Johnson v. Galen of Virginia, Inc., 325 F.3d 776, 783–84 (6th
Cir. 2003) (“Rule 37(c)(1), however, provides several remedies to a district judge who is faced
with violations of the mandatory-disclosure provisions of Rule 26 . . . . [It] does not compel the
district judge to exclude testimony in its entirety.”); Musser v. Gentiva Health Servs., 356 F.3d
751, 760 (7th Cir. 2004) (“We urge district courts to carefully consider Rule 37(c), including the
alternate sanctions available, when imposing exclusionary sanctions that are outcome
determinative.”).
By contrast, the First Circuit has read the rule to require mandatory exclusion, at least in
the “ordinary case.” Klonoski v. Mahlab, 156 F.3d 255, 269 (1st Cir. 1998) (“[T]he new rule
clearly contemplates stricter adherence to discovery requirements, and harsher sanctions for
breaches of this rule, and the required sanction in the ordinary case is mandatory preclusion.”);
see also Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106–07 (9th Cir. 2001)
(noting that the rule is mandatory but that the “express exceptions” for harmlessness and
substantial justification “ameliorate the harshness” of the rule).
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Other circuits have tacked a middle course. The Fourth Circuit has acknowledged that
judges are free to apply lesser sanctions, but suggested those sanctions should be reserved for
situations in which “a party fails to disclose evidence helpful to an opposing party.” S. States
Rack And Fixture, Inc. v. Sherwin-Williams Co., 318 F.3d 592, 595 n.2 (4th Cir. 2003) (cleaned
up). This reading draws on commentary from the Advisory Notes to the 1993 revision of the
rule indicating that exclusion in that situation could advantage the offending party. See Fed. R.
Civ. P. 37(c)(1) advisory committee’s note to 1993 amendment. The Eighth Circuit, meanwhile,
has suggested that lesser sanctions may be appropriate in cases where “exclusion of evidence is
tantamount to dismissal.” Vanderberg v. Petco Animal Supplies Stores, Inc., 906 F.3d 698, 704–
05 (8th Cir. 2018).
The D.C. Circuit does not appear to have squarely addressed the question. In one
unpublished ruling, however, the Circuit suggested that district courts have a degree of flexibility
in crafting appropriate sanctions, describing the trial court’s decision to exclude testimony that
was not disclosed in a party’s initial disclosures under Rule 26(a) as “‘fall[ing] into the heartland
of case management decisions—the area where a trial judge has the remorseless responsibility,
evenhandedly and efficiently, to govern, monitor, and police the progress of an endless line of
cases through the court.’” Grant v. Ent. Cruises & Spirit Cruises, LLC, 767 F. App’x 15, 16
(D.C. Cir. 2019) (quoting Gagnon v. Teledyne Princeton, Inc., 437 F.3d 188, 191 (1st Cir.
2006)).
As for fellow courts in this district, they have tended to view exclusion as mandatory.
Judge Friedman set the tone in Elion v. Jackson, No. 05-cv-992 (PLF), 2006 WL 2583694
(D.D.C. Sept. 8, 2006). While acknowledging that all cases are “not entirely in accord,” Elion
described the then-existing “overwhelming weight of authority” favoring the view that
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“preclusion is required and mandatory absent some unusual or extenuating circumstance—that
is, a ‘substantial justification.’” Id. at *1 (emphasis omitted) (quoting Klonoski, 156 F.3d at 269,
271). Former Judge Collyer picked up that thread a year after that in Norden v. Samper, 544 F.
Supp. 2d 43 (D.D.C. 2008).5 Quoting Elion—but neglecting to cite the Second Circuit’s
intervening ruling in Lorme, which as discussed above, rejected the mandatory reading of Rule
37(c)(1)—Norden concluded that “Rule 37(c)(1) is a self-executing sanction” requiring
preclusion absent substantial justification or lack of harm. Id. at 49–50 (quoting Elion, 2006 WL
2583694, at *1); see also Jones v. NVR Incorporation, No. 20-cv-453 (CKK), 2022 WL 951338,
at *8–12 (D.D.C. Mar. 29, 2022) (applying the mandatory bar to expert testimony and evidence
related to it on motion in limine), aff’d, No. 22-7064, 2023 WL 4678759 (D.C. Cir. July 21,
2023) (affirming without mention of the issues related to Rule 37(c)(1)).
The upshot is that there is no clear consensus in the caselaw—and no controlling
authority from the D.C. Circuit—on the extent to which exclusion under Rule 37(c)(1) is
mandatory absent substantial justification or lack of harm. Unbound, the Court agrees with the
Second Circuit and several other courts that while Rule 37(c)(1) establishes exclusion as the
presumptive remedy for a party’s failure to disclose evidence in discovery, its plain text permits
trial courts to impose appropriate sanctions short of outright exclusion as circumstances warrant.
Here, the Court initially imposed the presumptive sanction of exclusion—which leads us
to the second component of Kroon’s argument that the Court erred in admitting Defense Exhibit
5 Norden is the only case that Kroon cites in support of her position here. And while
Amtrak emphasizes Rule 37(c)(1)’s provision for lesser sanctions, it cites no caselaw at all
showing how courts have interpreted the rule. The lack of authority offered by both sides has
required the Court essentially to start from scratch.
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27: whether a party can open the door to admission of evidence previously excluded under Rule
37(c)(1).
The answer, in the Court’s view, is yes. To start, Kroon’s counsel clearly sought to
highlight the absence of any document, apart from Kroon 118, reflecting the pay band for the
position Kroon was offered in 2022. Counsel acknowledged as much. See Trial Tr., Oct. 16,
2025, at 368:4–10. And in most circumstances, it is surely fair game to point out an opponent’s
failure to introduce evidence on a key point and thereby invite the jury to infer that no such
evidence exists. But it is another kettle of fish for counsel to suggest that evidence does not exist
despite knowing that it does and that his opponent cannot introduce it only because the judge
barred him from doing so. In that situation, especially when he has been put on notice, counsel
risks opening the door to the opponent’s admission of the evidence. As a number of courts have
held, nothing in Rule 37(c)(1)—however interpreted—prohibits this result. Once again, neither
party offered caselaw dealing with this precise issue. Based on the Court’s independent research,
however, several district courts have admitted evidence that was previously excluded under Rule
37(c)(1) on the ground that a party opened the door to its admission. See e.g., In re Davol,
Inc./C.R. Bard, Inc., Polypropylene Hernia Mesh Prods. Liab. Litig., No. 2:18-cv-01509, 2021
WL 3210208, at *1 (S.D. Ohio July 29, 2021) (expert testimony “opened the door” to opinion
otherwise prohibited under Rule 37(c)(1)); In re Sulfuric Acid Antitrust Litig., 235 F.R.D. 646,
660 (N.D. Ill. 2006) (“If you decide to take an expert deposition, you must be careful what you
ask. You may open the door to testimony that would otherwise be precluded under Rule
37(c)(1).” (citation omitted)). And at least one circuit which has otherwise held that Rule
37(c)(1) creates a mandatory bar has affirmed that a party can open the door to evidence that was
previously excluded under the rule. See Dillon v. W. Pub. Corp., 409 F. App’x 152, 155 (9th
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Cir. 2011) (testimony “opened the door” to evidence that was initially not permitted under Rule
37(c)(1)). So, even if exclusion under 37(c)(1) is mandatory in the first instance, ample authority
supports the Court’s conclusion that it did not err in admitting Defense Exhibit 27 following
counsel’s cross-examination of Ms. Jackson.
B. Any Error Was Harmless
Even if the admission of Defense Exhibit 27 was erroneous, Kroon is not entitled to a
new trial. Again, “[t]he standard for granting a new trial is not whether minor evidentiary errors
were made but rather whether there was a clear miscarriage of justice.” Rice, 818 F. Supp. 2d at
60. No miscarriage of justice occurred here because exclusion of the document would not have
affected the result of the trial.
For starters, the spreadsheet excerpt was not the only evidence that the salary Amtrak
offered Ms. Kroon was at the high end of the salary band that applied to the position in 2022. It
was simply corroborative of Ms. Jackson’s unimpeached testimony that she used the “market
pricing” analysis she received from the Compensation department to set the salary at $64,000.
Moreover, Jackson credibly testified that Mr. Teti did not determine Ms. Kroon’s compensation
offer, Trial Tr., Oct. 16, 2025, at 360:19–362:4, and that the same offer was made to two other
successful applicants for the position, both of whom are white, see id., Oct. 15, 2025, at 144:15–
21 (Ms. Kroon acknowledging race of relevant individuals); id., Oct. 16, 2025, at 326:11–24
(Ms. Jackson’s recounting the salary offers). In light of this independent evidence, Defense
Exhibit 27 could not possibly have been determinative of the jury’s verdict in Amtrak’s favor.
The introduction of Defense Exhibit 27 also did not affect the outcome of the trial for
another reason. Recall that Ms. Kroon’s theory of the case rested on two factual propositions.
The first, discussed above, was that Amtrak, through Mr. Teti, could have offered her more than
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$64,000. The second was that Teti lowballed her because he did not want to work with African
Americans. The only evidence that Kroon offered at trial for Teti’s supposed bias against
African Americans was the testimony of Alixandria Turner, a former Amtrak contractor.
Specifically, Ms. Turner testified that in June 2022 she overheard a conversation between Teti
and another employee, Amber Vitullo, in which after hearing that Teti planned to hire Ms.
Kroon, Ms. Vitullo purportedly stated that “she didn't want to work with any n*****s.” Teti’s
response, according to Turner, was: “Don't worry about it. I'm going to lowball her.” Trial Tr.,
Oct. 15, 2025, at 163:22–164:4. Ms. Kroon testified that Turner apprised her of the conversation
about three months later, in August 2022. Id. at 156:9–11.
On cross-examination, however, Turner acknowledged that she failed to mention
Vitullo’s purported use of the n-word in a handwritten statement discussing the incident that she
prepared a few weeks later in connection with her own discrimination suit against Amtrak. Id. at
167:13–168:11. And in its case, Amtrak called Joseph Papapietro, who conducted an internal
investigation of Kroon’s complaints about her salary offer. Mr. Papapietro testified that Ms.
Kroon failed to mention the purported Teti-Vitullo conversation in his interview of her soon after
she purportedly learned of the conversation. Id. at 203:6–12. Nor did Kroon bring up the use of
the n-word in six emails she sent to Papapietro about the investigation between August 2022 and
January 2023. Id. at 156:11–161:3 (Kroon cross-examination); 205:11–206:16 (Papapietro
testimony). Had one of the most noxious words in the English language, depending on the
context, been used in the office as Turner testified, it defies credulity that neither she nor Kroon
would have thought to bring the incident to Amtrak’s attention during its investigation of their
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respective discrimination complaints.6 Accordingly, the jury could easily have rejected Turner’s
testimony on this point as not credible. And because that testimony was the only support offered
for Kroon’s contention that the $64,000 salary offer was racially motivated, a reasonable jury
could have returned a verdict in Amtrak’s favor based on Turner’s lack of credibility alone.
IV. 	Conclusion
For the foregoing reasons, it is hereby
ORDERED that [63] Plaintiff’s Motion for New Trial is hereby DENIED.
SO ORDERED.
CHRISTOPHER R. COOPER
United States District Judge
Date: May 29, 2026
6 Indeed, the first evidence of the purported utterance in the record of this case came in a
June 20, 2024, declaration that Turner submitted on Kroon’s behalf in opposition to Amtrak’s
summary judgment motion. See Pl.’s Opp’n to Mot. for Sum. J., Decl. of Alixandria Turner.
The timing is convenient to say the least.
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