James Jacob v. National Railroad Passenger Corporation Appeal From the United States District Court…

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-1931
JAMES JACOB,
Appellant
v.
NATIONAL RAILROAD PASSENGER CORPORATION
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
D.C. Civil No. 99-cv-05457
District Judge: The Honorable William G. Bassler
Submitted Under Third Circuit LAR 34.1(a)
March 4, 2003
Before: ROTH, BARRY, and FUENTES, Circuit Judges
(Opinion Filed: March 26, 2003)
OPINION
BARRY, Circuit Judge
Plaintiff, James Jacob (“Jacob”), sued his employer, the National Railroad
Passenger Corporation (“Amtrak”), alleging that on April 27, 1997 he injured his back and
his shoulder in the course of his employment as a mechanic foreman. Amtrak conceded

-- 1 of 7 --

2
that it was negligent and a jury trial was held on the issues of causation and damages. The
jury found that Amtrak’s negligence was not the proximate cause of Jacob’s injuries. He
has appealed, arguing that the District Court abused its discretion when it (1) denied his
attorney’s application for admission pro hac vice, (2) amended the pre-trial order to permit
Amtrak to show surveillance tapes of him to the jury, and (3) denied his motion for
judgment as a matter of law on the issue of causation. The District Court had subject
matter jurisdiction under 28 U.S.C. § 1331 and we have appellate jurisdiction pursuant to
28 U.S.C. § 1291. We will affirm.
The first issue raised by Jacob is whether the District Court abused its discretion
when it denied his application to admit attorney Marvin I. Barish pro hac vice. The District
of New Jersey’s Local Rules invest the district courts with the discretion to determine
whether or not to admit counsel pro hac vice. See D.N.J. L. Civ. R. 101.1(c)(1). The
District Court based its decision on the fact that Barish “has on numerous occasions
attacked his adversaries verbally as well as physically,” as well as the fact that he has
“evidenced a disregard for the court rules.” A. 4-5. In addition, the Court relied on the
reasons given in Kohlmayer v. Nat’l R.R. Passenger Corp., 124 F. Supp.2d 877, 878 (D.N.J.
2000), in which Barish’s application for pro hac vice admission was denied because “his
past behavior has been uncivilized and unprofessional and has resulted in reprimands,
mistrials and wasted judicial time.”
It is not disputed that Barish’s behavior has interrupted and delayed the orderly
progression of cases before numerous courts in this circuit. His comments and conduct

-- 2 of 7 --

3
have caused mistrials and have forced courts to overturn jury verdicts. See, e.g., Comuso v.
Nat’l R.R. Passenger Corp., No. 97-7891, 2000 WL 502707, at *1-2 (E.D. Pa. Apr. 25,
2000)(finding that case ended in a mistrial as a result of Barish’s behavior which included
threatening to kill opposing counsel during a recess, physical intimidation of opposing
counsel and profane outbursts); Spruill v. Nat’l R.R. Passenger Corp., No. 93-4706, 1995
U.S. Dist. WL 534273, at *1-3 (E.D. Pa. Sept. 5, 1995) (setting aside $3,838,791.00
plaintiff’s verdict and ordering new trial based on Barish’s “comments and conduct,” which
included egregious leading of witnesses, coaching his client during cross-examination and
attempting to address the jury during a sidebar conference); Patchell v. Nat’l R.R.
Passenger Corp., No. 90-4745, 1992 U.S. Dist. WL 799399, at *3-6 (E.D. Pa. July 31,
1992)(setting aside $700,000.00 plaintiff’s verdict and ordering new trial in part because
of Barish’s “inflammatory and prejudicial” remarks). In light of this record, the District
Court acted well within its discretion when it denied Barish the privilege of admission pro
hac vice.
The second issue raised by Jacob is whether the District Court abused its discretion
when it permitted an amendment to the final pretrial order to enable Amtrak to show
surveillance tapes of him. See Greate Bay Hotel & Casino v. Tose, 34 F.3d 1227, 1236 (3d
Cir. 1994)(holding that decision to allow use of witnesses or exhibits not previously
identified is reviewed under an abuse of discretion standard). Final pretrial orders may only
be modified “to prevent manifest injustice.” Fed. R. Civ. P. 16(e). Four criteria guide
courts in deciding whether or not to modify a final pretrial order: “(1) the prejudice or

-- 3 of 7 --

4
surprise in fact to the opposing party, (2) the ability of the party to cure the prejudice, (3)
the extent of disruption of the orderly and efficient trial of the case, and (4) the bad faith or
willfulness of the non-compliance.” Greate Bay Hotel & Casino, 34 F.3d at 1236.
In this case, the surveillance tapes were not listed in the pre-trial order because
Amtrak did not intend to play them. Defense counsel confirmed this in a telephone
conversation with Jacob’s counsel the week before trial. In reliance on defense counsel’s
representation, Jacob’s counsel read into the record an interrogatory and response in which
Amtrak acknowledged that it had taped Jacob. Defense counsel then requested and was
granted permission to play certain of the tapes to enable Amtrak to refute the inference that
they were detrimental to its case.
By reading the interrogatory and response into the record, Jacob’s counsel
concededly invited the jury to infer that the tapes were detrimental to Amtrak. The District
Court, concerned about “gamesmanship” on both sides, determined that the jury should see
the tapes and decide the tapes’ significance for themselves. The Court concluded that in the
“totality of the circumstances it’s more important for the jury to be given all the facts of
[Jacob’s] condition,” because that would enable the jury to get “at the truth of the matter.”
A. at 9.2-9.4.
The District Court acknowledged that Jacob was surprised by Amtrak’s request to
play certain tapes and that playing the tapes would prejudice Jacob to “some” extent. A. 9.2.
On the other hand, the Court noted that Jacob’s counsel had done nothing more than read
the interrogatory and response into the record; he had not yet made any argument regarding

-- 4 of 7 --

5
what inferences the jury should draw from the fact that Amtrak chose not to play the tapes.
The Court took steps to minimize any prejudice to Jacob by giving him time to view all of
the tapes and by permitting him to depose the investigators who made the tapes, at Amtrak’s
expense. The Court also permitted him to play for the jury whatever tapes or portions of
tapes supported his case. Indeed, he played five days of surveillance for the jury which
showed that he was not very mobile while Amtrak played but one, which showed that he was.
And, importantly, although Jacob was only seen and taped on thirteen occasions, he was
able to elicit testimony that Amtrak was billed $101,253.70 for 1,578 man hours of
surveillance.
Turning to the third criterion, granting Amtrak’s request to play the tapes did extend
the trial, but not for long. And, finally, the District Court found that defense counsel did
not act in bad faith in failing to list the tapes or the investigators who made them in the final
pretrial order. In sum, the District Court did not abuse its discretion in permitting the
amendment to the final pretrial order.
The third issue raised by Jacob is whether the District Court erred in not granting his
motion for judgment as a matter of law. At the close of all the evidence, Jacob moved for
judgment as a matter of law, arguing that no evidence had been presented which would
support a finding that his injuries were caused by anything other than Amtrak’s negligence.
The District Court reserved decision. Because Jacob failed to renew his motion within ten
days of the entry of final judgment, as is required by Federal Rule of Civil Procedure 50, he
waived his claim for judgment as a matter of law. See Fed. R. Civ. P. 50(b); Williams v.

-- 5 of 7 --

6
Guzzardi, 875 F.2d 46, 50 n.6 (3d Cir. 1989).
In his reply brief, Jacob argues that even if he waived his claim for judgment as a
matter of law, we should nonetheless review his sufficiency of the evidence argument and,
if we find that there was insufficient evidence to support the jury’s verdict, grant a new trial.
Id. (holding that defendants’ failure to renew their motion for judgment as a matter of law,
which was denied by the District Court when they made it at the close of the evidence,
limited the relief the appellate court could grant to a new trial). But cf. Greenleaf v.
Garlock, Inc., 174 F.3d 352, 364 (3d Cir. 1999)(holding that a party who fails to comply
with Rule 50 by moving for judgment as a matter of law at the close of all the evidence
wholly waives the right to mount any post-trial attack on the sufficiency of the evidence).
Even assuming that Jacob has not waived his claim for a new trial, an assumption we make
with no great confidence, his claim must be rejected. Jacob testified at trial that his
shoulder was injured in the accident at issue. There was no other proof of the cause of the
injury to his shoulder, as there were no known witnesses to his accident. Because the jury
was entitled to disbelieve his testimony, its determination that Amtrak’s negligence was not
the proximate cause of any injury he sustained will be upheld.
The judgment of the District Court will be affirmed.
TO THE CLERK OF COURT:
Kindly file the foregoing opinion.

-- 6 of 7 --

/s/ Maryanne Trump Barry
Circuit Judge

-- 7 of 7 --