Qorrolli v. Metropolitan Dental Associates

23-282
Qorrolli v. Metropolitan Dental Associates


           United States Court of Appeals
                      For the Second Circuit
                                 ________

                           AUGUST TERM, 2023

        (ARGUED: APRIL 9, 2024 DECIDED: DECEMBER 23, 2024)

                            Docket No. 23-282

                           FORTESSA QORROLLI,
                            Plaintiff–Appellant,

                                      v.

                 METROPOLITAN DENTAL ASSOCIATES,
                     D.D.S.- 255 BROADWAY, P.C.,
                 METROPOLITAN DENTAL ASSOCIATES
      D.D.S., P.C., MARK ORANTES, individually, PAUL I. COHEN,
                              individually,
                        Defendants–Appellees.

                                 ________

             Appeal from the United States District Court
               for the Southern District of New York.
                                 ________

Before: WALKER, MENASHI, Circuit Judges, and MERCHANT, District
Judge. *



*Judge Orelia E. Merchant, of the United States District Court for the Eastern
District of New York, sitting by designation.
      Plaintiff-Appellant Fortessa Qorrolli brought claims for sex
discrimination, retaliation, and negligence against her former
employer and supervisors. The United States District Court for the
Southern District of New York (Cote, J.) granted summary judgment
in favor of Defendants-Appellees on Qorrolli’s retaliation claims and
permitted the remainder of Qorrolli’s claims to proceed to trial. A
jury awarded Qorrolli $575,000 in emotional distress damages and $2
million in punitive damages. The district court, however, granted
Defendants-Appellees’ motion for a new trial, finding the jury’s
damages award to be excessive and indicative of unfair prejudice
against Defendants-Appellees. For the second trial, the district court
precluded in limine the introduction of Qorrolli’s psychiatric records,
portions of a coworker’s deposition testimony, and an anonymous fax
sent to her employer. The second jury found Defendants-Appellees
liable but awarded Qorrolli only $1 in nominal damages. Qorrolli
appeals the district court’s summary judgment ruling, its order
granting a new trial, and its evidentiary rulings with respect to the
second trial. We conclude that the district court did not err and affirm
the judgment of the district court.

                                   ________

                   STEPHEN BERGSTEIN, Bergstein & Ullrich, New
                   Paltz, NY (Derek Smith, Zachery Holzberg, Derek
                   Smith Law Group, PLLC, New York, NY, on the
                   brief), for Plaintiff–Appellant Fortessa Qorrolli.

                   DAVID C. WIMS, Law Office of David Wims,
                   Brooklyn,      NY,     for     Defendants–Appellees
                   Metropolitan Dental Associates, D.D.S.- 225
                   Broadway, P.C., Metropolitan Dental Associates,
                   D.D.S., P.C., Mark Orantes, and Paul I. Cohen.
                                  ________
                                      1
ORELIA E. MERCHANT, District Judge:

      In this action, Plaintiff-Appellant Fortessa Qorrolli (“Qorrolli”)
brought claims for sex discrimination, retaliation, and negligence
against Defendants-Appellees Metropolitan Dental Associates, D.D.S.
- 225 Broadway, P.C., Metropolitan Dental Associates, D.D.S., P.C.
(collectively, “MDA”), Mark Orantes (“Orantes”), and Dr. Paul I.
Cohen (“Cohen” and, together with MDA and Orantes, “Defendants-
Appellees”).   The United States District Court for the Southern
District of New York (Cote, J.) granted summary judgment in favor of
Defendants-Appellees on Qorrolli’s retaliation claims and permitted
the remainder of Qorrolli’s claims to proceed to trial.

      Following a trial in October 2022, a jury awarded Qorrolli
$575,000 in emotional distress damages for her claims brought under
Title VII of the Civil Rights Act of 1964 (“Title VII”), the New York
State Human Rights Law (“NYSHRL”), and the New York City
Human Rights Law (“NYCHRL”). The jury also found MDA liable
for $2 million in punitive damages under the NYCHRL.                 On
December 15, 2022, the district court granted Defendants-Appellees’
motion for a new trial, finding the jury’s damages award to be
excessive and indicative of unfair prejudice against Defendants-
Appellees.

      Prior to and during the second trial, the district court precluded
in limine the introduction of Qorrolli’s psychiatric records, portions of
a coworker’s deposition testimony, and an anonymous fax sent to
MDA. At the second trial, in February 2023, a jury found Defendants-
Appellees liable under the NYCHRL but awarded Qorrolli only $1 in
nominal damages.

      Qorrolli appeals the district court’s summary judgment ruling,

                                   2
its order granting a new trial, and its evidentiary rulings prior to and
during the February 2023 trial. We conclude that the district court did
not err in any of these challenged rulings and affirm the judgment of
the district court.

                             BACKGROUND

      Qorrolli, a dental hygienist, began working for MDA in 2009.
During her employment at MDA, Qorrolli’s direct supervisor was
Orantes, the office manager, and Orantes reported to Cohen, the
owner of MDA. Qorrolli alleges that Orantes made repeated sexual
advances and harassed her throughout her tenure at MDA by
touching her, commenting on her appearance, and verbally abusing
her in front of Cohen. Qorrolli testified at her deposition that, among
other similar incidents, Orantes once “touched [her] leg, [her] upper
thigh, and [] said wow, that’s firm. And then he made comments to
[her] like well, if you worked out your brain as much as you worked
out your ass with those squats, you’d be better off in life and you’d
get things done right.” App’x 87.

      Qorrolli also asserted that Orantes gave preferential treatment
to the women who acceded to Orantes’ advances and unfairly
punished those women who rebuffed him, including Qorrolli. At her
deposition, Qorrolli testified that she would “make it pretty obvious
that . . . [she was] not interested” through nonverbal cues. Id. at 89.
For instance, Qorrolli tried to rebuff Orantes by ignoring his
advances, “st[anding] there frozen,” and walking away from him.
Qorrolli also testified to making general objections to Orantes’
behavior, saying she “really need[s] [Orantes] to get off [her] back.
[She] need[s] this to stop. [She is] starting to feel very uncomfortable.”
Id. at 88. Qorrolli additionally testified that sometime in 2016 she told
Orantes to “back off and leave [her] alone because [she couldn’t] take
                                    3
this anymore.” Id. at 94.

       According to Qorrolli, a couple of days after she told him that
she needed “this to stop,” Orantes’ abusive workplace behavior
escalated. He started accusing Qorrolli of poor work performance
and began threatening to fire her in front of Cohen.

       Qorrolli asserts that she complained to Cohen “sometime in
2015” about being sexually harassed prior to her termination in 2016,
and that MDA received an anonymous fax from an unknown
employee in 2015 containing similar allegations of sexual harassment.
Specifically, Qorrolli testified that during her conversation with
Cohen about Orantes’ perceived sexual advances, she said “[l]isten,
this is what’s going on. . . . I’m not gonna be put in a position where I
have to be sexually involved in order to keep my job here. . . . [A] lot
of these women get away with everything, murder here, the things
that go on. . . . [A]ll the blame that I’m getting is theirs. . . . I said I’m
not going to allow myself to become sexually involved with [Orantes]
to get away with the things that other women get away with here.”
Id. at 90.

       Qorrolli asserts that her complaints were not taken seriously by
Cohen and that no action was taken in response. Qorrolli also asserts
that thereafter, sometime in early 2016, she gave Cohen a letter
outlining workplace grievances against MDA. This letter made no
mention of sex discrimination or sexual harassment.

       Qorrolli resigned from her employment at MDA on or about
May 21, 2016, alleging that by failing to address the harassment she
faced, Defendants-Appellees had “constructively discharged” her.

       On June 10, 2021, after the close of discovery, Defendants-
Appellees moved for summary judgment. The district court granted
                                      4
summary judgment in favor of Defendants-Appellees in regard to
Qorrolli’s retaliation claims, concluding that Qorrolli had not
adequately established that she engaged in a protected activity as
required for a retaliation claim: her letter complaining of workplace
grievances did not mention sexual harassment, her demand that
Orantes “back off” was too vague to constitute protected activity
because it may have referred to Orantes’ abrasive but non-sexual
workplace behavior, and her approach to rebuffing Orantes “by using
silence, freezing him out, or turning her face away” was not
sufficiently clear to qualify as a protected activity. Sp. App’x 11-12.

      Subsequently, the case was heard by two different juries. The
first trial took place in October 2022. At that trial, Qorrolli testified
that she was sexually harassed by Orantes almost daily, who, among
other things, allegedly “told [Qorrolli] that [she] had a nice, firm
body,” App’x 714, would “hug” Qorrolli, “kiss” her on the cheek, and
tell her he “loved” her, id. at 711, and “lingered around [Qorrolli’s]
lips for [her] to look up and have him kiss [her],” id. at 784. Qorrolli
testified that Orantes’ conduct made her “start[] feeling anxiety and
[having] panic attacks.” Id. at 711. Qorrolli also testified that she
observed Orantes sexually abusing her female coworkers and giving
preferential treatment to the women who accepted his advances.
Qorrolli asserted that Orantes would blame her for these other
women’s mistakes and would unfairly target Qorrolli for punishment
and chastisement because of her refusal to submit to his advances.

      At the conclusion of the first trial, the jury awarded Qorrolli
$575,000 in compensatory damages for pain and suffering and $2
million in punitive damages.

      On November 18, 2022, Defendants-Appellees moved for a


                                   5
new trial. The district court granted the motion, 1 finding that Qorrolli
had introduced inadmissible and prejudicial hearsay at trial, that the
jury’s damages award “illustrate[d] that [the jury’s] verdict was not
based on the admissible evidence introduced at trial of Orantes’[]
treatment of the plaintiff,” Sp. App’x 41, and that “[t]he jury’s
punitive damages award strongly indicate[d] that [the jury]
disregarded the Court’s multiple limiting instructions,” id. at 43. The
district court ordered a new trial on Qorrolli’s sex discrimination and
negligence claims.

       Prior to the second trial in February 2023, the district court
precluded the introduction of Qorrolli’s psychiatric records, the
anonymous fax purportedly sent to MDA complaining about sexual
harassment, and the deposition transcript of Mercedes Vila (“Vila”),
a former coworker of Qorrolli’s who refused to appear at trial.

       At the second trial, Qorrolli again recounted the story of her
harassment. The jury found in favor of Qorrolli on her NYCHRL
claim but awarded her only nominal damages of $1. Qorrolli then
filed the instant appeal.

                                  DISCUSSION

       We consider first, the district court’s summary judgment order
dismissing Quorrolli’s retaliation claims, second, the district court’s
order requiring a new trial, and third, the district court’s evidentiary
rulings prior to and during the second trial.




1See Qorrolli v. Metro. Dental Assocs., D.D.S. - 225 Broadway, P.C., No. 18-CV-6836
(DLC), 

, at *12 (S.D.N.Y. Dec. 15, 2022).
                                         6
 I.   Trial Court’s Grant of Summary Judgment
          A. Standard of Review

      “We review a district court’s grant of summary judgment de
novo.” Garcia v. Hartford Police Dep’t, 

 (2d Cir. 2013)
(internal quotation marks omitted).        “In reviewing a summary
judgment decision, we apply the same standards applied by the
district court.   Under this standard, summary judgment may be
granted only if there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” 

 (cleaned
up). “In determining whether there is a genuine dispute as to a
material fact, we must resolve all ambiguities and draw all inferences
against the moving party.” 

. “Summary judgment is
inappropriate when the admissible materials in the record make it
arguable that the claim has merit, for the court in considering such a
motion must disregard all evidence favorable to the moving party
that the jury is not required to believe.” Kaytor v. Elec. Boat Corp., 

 (2d Cir. 2010) (internal quotation marks, internal
citations, and emphasis omitted).

      To establish a retaliation claim under Title VII, a plaintiff must
show that “(1) she was engaged in protected activity; (2) the employer
was aware of that activity; (3) the employee suffered a materially
adverse action; and (4) there was a causal connection between the
protected activity and that adverse action.” Lore v. City of Syracuse,

 (2d Cir. 2012). “As to the second element, implicit
in the requirement that the employer have been aware of the
protected activity is the requirement that it understood, or could
reasonably have understood, that the plaintiff’s opposition was
directed at conduct prohibited by Title VII.” Galdieri-Ambrosini v.
Nat’l Realty & Dev. Corp., 

 (2d Cir. 1998).

                                    7
       The NYCHRL employs a similar but slightly broader standard:
a plaintiff claiming retaliation must demonstrate “that she took an
action opposing her employer’s discrimination and that, as a result,
the employer engaged in conduct that was reasonably likely to deter
a person from engaging in such action.” Mihalik v. Credit Agricole
Cheuvreux N. Am., Inc., 

 (2d Cir. 2013) (internal
citation omitted).        The NYSHRL historically utilized the same
standard as Title VII, 2 but it was amended in 2019 to align with the
NYCHRL’s more liberal pleading standard. See 

(requiring that the NYSHRL be construed “liberally for the
accomplishment of the remedial purposes thereof”). We decline to
decide whether the amendment retroactively applied to Qorrolli’s
retaliation claim, which arose prior to the amendment, because we
conclude that, under either standard, Qorrolli has failed to show the
requisite prima facie retaliation elements.

           B. Qorrolli Did Not Engage in Protected Activity

       The     district    court     granted      summary        judgment       after
determining that Qorrolli had not engaged in any form of protected
activity. On appeal, Qorrolli argues that the district court erred and
that she engaged in at least three different instances of protected
activity. We examine each in turn.

       First, Qorrolli asserts that the written letter that she gave to
Cohen constitutes protected activity.               But, as the district court
correctly noted, “[t]he [l]etter contains only Qorrolli’s generalized
complaints about oppressive working conditions such as excessive
hours and the use of abusive language. The [l]etter is not reasonably

2See Kelly v. Howard I. Shapiro & Assocs. Consulting Engineers, P.C., 

(2d Cir. 2013) (“The standards for evaluating . . . retaliation claims are identical
under Title VII and the NYSHRL.”).
                                          8
understood as describing conduct prohibited by Title VII.” Sp. App’x
11 (internal quotation marks omitted). Thus, Qorrolli’s appeal as to
the retaliation claims cannot stand on this ground.

      Second, Qorrolli contends that she engaged in protected
activity by verbally complaining to Cohen. While this issue was not
directly addressed by the district court’s summary judgment opinion,
we conclude that Qorrolli’s alleged verbal complaint to Cohen also
did not constitute protected activity. Although Qorrolli responded
“correct” when asked in her deposition if “at some point” she went to
“Cohen about these perceived sexual advances from [Orantes],”
App’x 90, her own description of that conversation reveals that her
verbal complaint to Cohen focused on her objection to being treated
poorly in comparison to other female employees who were
romantically or sexually involved with Orantes. See 

 (“[A] lot of
these women get away with everything . . . . [A]ll the blame that I’m
getting is theirs. . . . I’m not going to allow myself to become sexually
involved with him to get away with the things that other women get
away with here.”).      But “[o]ur Circuit has long since rejected
‘paramour preference’ claims,” wherein employees are treated
disparately based not on their gender, “but rather on a romantic
relationship between an employer [or supervisor] and a person
preferentially treated.” Kelly, 

 (alteration omitted).
Thus, Qorrolli’s complaint could not have been reasonably
understood as opposing conduct that violated the laws forbidding
employment discrimination.

      This conclusion is supported by Qorrolli’s testimony indicating
that her verbal complaint to Cohen mirrored her letter, in that she did
not mention that she felt sexually harassed by Orantes. Qorrolli
testified that she prepared the letter after Cohen was dismissive of her

                                   9
verbal complaint, thinking “[i]f I give [Cohen] a letter . . . to read and
start from the beginning to now,” that letter would “really [give
Cohen] a feel for what I’ve been going through.” App’x 98. This
description of the letter suggests that it was a more detailed
articulation of Qorrolli’s complaints to Cohen than her verbal
complaints.

      Accordingly, we agree with the district court’s analysis in its
denial of Qorrolli’s motion for reconsideration of the district court’s
summary judgment order, wherein the district court stated that
“[t]here is nothing in Qorrolli’s opposition brief or in the cited
excerpts of her deposition to suggest that the written letter omitted
anything that was stated in her verbal complaints to Dr. Cohen.” Sp.
App’x 17.

      Finally, Qorrolli asserts that her verbal and non-verbal
rejections of Orantes constitute protected activity. We agree with the
district court’s conclusion that they do not.        At her deposition,
Qorrolli testified that she told Orantes “I really need you to get off my
back. I need this to stop. I’m starting to feel very uncomfortable,”
App’x 88, and to “back off and leave me alone because I can’t take this
anymore,” 

. She did not assert that her statements to Orantes
were made directly following an attempt to sexually harass her.
Qorrolli further testified that she rebuffed Orantes’ advances by using
avoidance and silence, in one instance responding to a purported
advance by “st[anding] there frozen” and not looking up when
Orantes allegedly kissed Qorrolli on her cheek. 

. On another
occasion, when Orantes purportedly inappropriately touched
Qorrolli, she “looked at him and . . . just walked away.” 

.

      Although this court has not yet ruled on whether rejecting a
workplace harasser’s sexual advances can qualify as a protected
                                   10
activity under Title VII and the NYSHRL, an issue over which district
courts have disagreed, 3 we have ruled that such a rejection can
constitute      “an      action     opposing        [plaintiff’s]     employer’s
discrimination” under the NYCHRL. See Mihalik, 

,
116 n.12. However, since we find that Qorrolli’s purported rejections
of Orantes’ advances were not sufficiently clear to communicate an
opposition to sexual harassment, and therefore do not constitute
protected activity, we need not address the broader questions of
whether the verbal rejection of a sexual advance could constitute
protected activity under Title VII or the NYSHRL, or whether a purely
non-verbal rejection of a sexual advance could constitute protected
activity under any of the three laws at issue here.

       Qorrolli’s verbal complaints to Orantes were too generalized to
constitute protected activity under the laws prohibiting employment
discrimination. As Qorrolli herself admitted, she “never directly told
[Orantes to] stop sexually harassing [her],” App’x 94, and her broad
requests that Orantes “back off” could not reasonably have been
understood as remonstrations regarding Orantes’ sexual advances as
opposed to his abrasive but non-sexual workplace behavior,


3 Compare Reid v. Ingerman Smith LLP, 

 (E.D.N.Y. 2012)
(“Requiring an employee to do more than simply reject[] a sexual advance to
satisfy the ‘protected activity’ requirement also serves the salutary purpose of
informing the employer of alleged discriminatory conduct in the workplace thus
enabling the employer to take such corrective measures as may be necessary.”),
with Davis v. Navada’s Bar & Lounge, LLC, No. 22 CV 4176 (LDH) (CLP), 

, at *27-28 (E.D.N.Y. Mar. 1, 2024) (“The better view, and the view adopted
by a majority of the courts to have addressed the issue, is that rejecting a
supervisor’s advances does in fact constitute[] protected activity under both the
NYSHRL and NYCHRL. Applying that same rule here, the Court concludes that
by deliberately avoiding contact with [his supervisor] and altering his previously
friendly demeanor in an attempt to mitigate future incidents of misconduct,
plaintiff was engaged in protected activity in opposition to [supervisor’s] unlawful
discrimination towards him.” (internal quotation marks and citation omitted)).
                                        11
particularly given that Qorrolli does not allege that any such
statements were made immediately after Orantes attempted to
sexually harass her.       And the silence, inaction, and avoidance
described by Qorrolli when Orantes made sexual advances did not
rise to a level of outwardly expressing opposition to her supervisor’s
alleged discrimination or sexual harassment. In short, Qorrolli’s
alleged     verbal   and   non-verbal    rejections   of   Orantes   were
insufficiently clear, as a matter of law, to constitute a protected
activity.

       In each asserted instance of protected activity, Qorrolli’s
complaints were overly generic and insufficiently specific and
particularized such that Defendants-Appellees “could not reasonably
have understood that [Qorrolli] was complaining of conduct
prohibited by Title VII,” the NYSHRL, or the NYCHRL. Rojas v.
Roman Catholic Diocese of Rochester, 

 (2d Cir. 2011)
(internal quotation marks omitted).

       Because Qorrolli did not engage in the protected activity
required to sustain a claim for retaliation under any of the statutes at
issue, we affirm the district court’s judgment insofar as it granted
summary judgment to Defendants-Appellees on the issue of
retaliation.

II.    Trial Court’s Grant of New Trial
            A. Standard of Review

       This court “review[s] a district court’s [grant] of a Rule 59
motion for a new trial for abuse of discretion. It is a deferential
standard, which reflects district courts’ significant—although not
limitless—latitude to exercise their inherent discretionary authority.”
Ali v. Kipp, 

 (2d Cir. 2018); see Fed. R. Civ. P. 59. We

                                    12
view the evidence “in the light most favorable to the nonmoving
party, and we will reverse a judgment only if the district court (1)
based its decision on an error of law, (2) made a clearly erroneous
factual finding, or (3) otherwise rendered a decision that cannot be
located within the range of permissible decisions.”          

 (internal
quotation marks omitted).

      “A motion for a new trial ordinarily should not be granted
unless the trial court is convinced that the jury has reached a seriously
erroneous result or that the verdict is a miscarriage of justice.” Amato
v. City of Saratoga Springs, N.Y., 

 (2d Cir. 1999)
(quoting Atkins v. New York City, 

 (2d Cir. 1998)); see
also Raedle v. Credit Agricole Indosuez, 

 (2d Cir.
2012) (“A court may grant a new trial for any reason for which a new
trial has heretofore been granted in an action at law in federal court,
including if the verdict is against the weight of the evidence. A
decision is against the weight of the evidence if and only if the verdict
is (1) seriously erroneous or (2) a miscarriage of justice.” (cleaned up)).

      In particular, a district court weighing a Rule 59 motion on the
basis of an allegedly excessive damages award should consider
“whether the award is so high as to shock the judicial conscience and
constitute a denial of justice.” Dancy v. McGinley, 

 (2d
Cir. 2016) (internal quotation marks omitted); Jennings v. Yurkiw, 

 (2d Cir. 2021) (applying the same standard when
assessing punitive damages). An unusually high damages award
should be corrected through remittitur when “the trial has been free
of prejudicial error,” but “the size of a jury’s verdict may be so
excessive as to be inherently indicative of passion or prejudice and to
require a new trial.” Ramirez v. N.Y.C. Off-Track Betting Corp., 

 (2d Cir. 1997) (internal quotation marks omitted).

                                    13
            B. Motion for New Trial

         Following the first trial, the district court was convinced that
the jury’s verdict met this standard and justified the granting of
Defendants-Appellees’ Rule 59 motion for a new trial. Specifically,
the district court found that Qorrolli had introduced inadmissible and
prejudicial hearsay during trial, that the jury’s damages award
“illustrate[d] that [the jury’s] verdict was not based on the admissible
evidence introduced at trial of Orantes’[] treatment of the plaintiff,”
Sp. App’x 41, and that “[t]he jury’s punitive damages award strongly
indicate[d] that [the jury] disregarded the Court’s multiple limiting
instructions,” 

.

         The district court did not abuse its discretion in finding that the
jury’s awarded damages were sufficiently excessive to merit a new
trial.

         As the district court correctly noted, courts in the Second
Circuit generally categorize emotional distress damages as either
“garden-variety, significant, [or] egregious,” with “garden-variety”
claims generally meriting “$30,000.00 to $125,000.00 awards.” 

 at 40
(quoting United States v. Asare, 

, 37 (S.D.N.Y. 2020));
see also Sooroojballie v. Port Auth. of New York & New Jersey, 

, 545-46 (2d Cir. 2020) (summary order). Claims categorized as
significant, “based on more substantial harm or more offensive
conduct,” Asare, 476 F. Supp. 3d at 37 n.2, generally “‘support
damages awards ranging from $50,000 to $200,000,’ although awards
of up to $500,000 may also be upheld under some circumstances,” Sp.
App’x 40-41 (citing Villalta v. JS Barkats, P.L.L.C., No. 16-CV-02772,

, at *14 (S.D.N.Y. Apr. 16, 2021)).

         After accurately reciting the law, the district court then found

                                      14
that Qorrolli’s “emotional distress straddles the line between ‘garden-
variety’ and ‘significant,’” noting that, although Qorrolli alleged
serious psychological harm, she did not provide corroborating
medical testimony and “presented limited evidence regarding the
severity of the conduct that produced such distress.” Id. at 41. As the
district court correctly noted, the jury’s emotional distress award
following the first trial was significantly larger than other awards that
have been deemed worthy of remittitur in cases presenting more
extreme facts. See Ramirez, 

 (remittitur to $500,000 in
pain and suffering damages in a case where plaintiff was rendered
“non-functional”); Villalta, 

, at **15, 17 (remittitur to
$350,000 in emotional distress damages recommended in a case where
plaintiff was sexually assaulted twice and her distress was deemed
“egregious,” the most severe damages category).

      The district court’s concerns about the $575,000 emotional
distress award were justifiably compounded by the jury’s $2 million
punitive damages award against MDA. The district court found that
the punitive damages award was “dozens of times larger than a
reasonable compensatory damages award,” and that the “conduct
attributable to” MDA did not “rise[] to the level of reprehensibility
needed to justify a large punitive damages award.” Sp. App’x 44-45.
The district court also found it concerning that the jury did not award
punitive damages against Cohen or Orantes but awarded such high
punitive damages against MDA, even though “[t]he only negligent or
reckless conduct attributable to [MDA]—as opposed to Dr. Cohen or
Orantes—consists of [MDA’s] failure to maintain a sexual harassment
policy.” Id. at 45.

      Having found that the combined compensatory and punitive
damages awarded were “so excessive as to be inherently indicative of

                                   15
passion or prejudice,” id. at *48 (internal quotation marks omitted)
(quoting Ramirez, 

), the district court concluded that the
jury’s damages awards “can only be explained by the unfair prejudice
to the defendants from the hearsay offered by the plaintiff,” 

 It
thus determined that a new trial was necessary. This reasoning was
based neither on an error of law nor on a clearly erroneous factual
finding, and the district court’s application of the law to this case was
“within the range of permissible decisions.”       Ali, 

(internal quotation marks omitted).      Thus, we affirm the district
court’s grant of a new trial.

III.   Trial Court’s Evidentiary Rulings
          A. Standard of Review

       This court “review[s] evidentiary rulings for abuse of
discretion,” United States v. Ford, 

 (2d Cir. 2006),
because “the trial judge is in the best position to weigh competing
interests in deciding whether or not to admit certain evidence,” United
States v. Coyne, 

 (2d Cir. 1993) (quoting United States v.
Rivera, 

 (2d Cir. 1992)). Furthermore, we “only will
reverse where the improper . . . exclusion of evidence affects a
substantial right of one of the parties. Making this determination
involves an assessment of the likelihood that the error affected the
outcome of the case.” Malek v. Fed. Ins. Co., 

 (2d Cir.
1993) (internal quotation marks and citations omitted).

       Qorrolli argues that the district court erred in excluding three
pieces of evidence: (1) her psychiatric records, (2) portions of the
deposition testimony of Mercedes Villa, and (3) an anonymous fax
complaining of sexual harassment at MDA.



                                   16
          B. Qorrolli’s Psychiatric Records

      On February 2, 2023, the district court ruled that Qorrolli’s
psychiatric records were inadmissible in an order on Defendants-
Appellees’ motion in limine. The district court did not state a rationale
in its February Order, although it later specified, in its opinion
denying Qorrolli’s request for a new trial on damages, that the records
were excluded at Qorrolli’s second trial pursuant to Rule 403. See Sp.
App’x 139 (“Applying the balancing test under Rule 403, the court
excluded the records.”). The district court described the records as
“general descriptions of the plaintiff’s mental wellbeing—including
that she was having problems in the workplace, having trouble
sleeping, and experiencing symptoms of depression. . . . There are
limited references to Orantes, and none of those references describe
the specific instances of sexual misconduct described by plaintiff at
the second trial. He is described as ‘very manipulative’ and ‘verbally
abusive.’ There is no description of a specific event and no use of the
term sexual harassment.” 

. The district court saw limited
probative value in the psychiatric records because they contained
“few” statements “made for the purpose of a medical diagnosis or
treatment” and because their general description of Qorrolli’s
psychological maladies did not include any attribution to causes or
precipitating incidents. 

.

      Qorrolli argues that the district court’s ruling was reversible
error because the district court should have admitted the psychiatric
records in their entirety under the business records exception to the
rule against hearsay. See Fed. R. Evid. 803(6). Qorrolli is correct that
psychiatric records sometimes fall within that exception. See Lewis v.
Velez, 

, 484 n.5 (S.D.N.Y. 1993). However, Qorrolli’s
psychiatric records were not excluded as inadmissible hearsay.

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Instead, the district court applied relevant factors under the Rule 403
balancing test and found that the probative value of the evidence was
substantially outweighed by the risk of unfair prejudice to the
defendants.    It is well-settled that “[t]he probative value/unfair
prejudice balancing required by Fed. R. Evid. 403, performed by the
district court with regard to . . . medical records . . . , is a matter
confided to the discretion of the district court.” Conway v. Icahn & Co.,

 (2d Cir. 1994). Furthermore, the district court allowed
Qorrolli to testify about the dates of her psychiatry appointments and
the medications she had been prescribed. Nothing in the record
indicates that the district court abused its discretion in excluding
Qorrolli’s psychiatric records. Accordingly, we affirm the district
court’s judgment insofar as it excluded those records.

          C. Mercedes Vila’s Deposition Testimony

      At both the first and the second trial, Qorrolli had hoped to
introduce testimony by Vila, a former coworker of Qorrolli’s. At the
first trial, Vila initially refused to testify, complaining that she had the
flu. Then, on the second day of the first trial, Vila’s doctor submitted
a letter indicating that Vila had anxiety that a trial might exacerbate.
Ultimately, at the first trial, the district court did not rule on the issue
of Vila’s availability and excluded Vila’s testimony on other grounds.

      On the eve of the second trial, Qorrolli provided a second letter
concerning Vila’s medical conditions to the district court. The second
letter stated that Vila had “metastatic breast cancer, moderate,
persistent asthma, anxiety disorder, and spondylolisthesis.” App’x
1532. Qorrolli moved to have portions of Vila’s deposition testimony
admitted at trial pursuant to Federal Rule of Civil Procedure
32(a)(4)(C), which permits a party to “use for any purpose the
deposition of a witness, whether or not a party, if the court finds . . .
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that the witness cannot attend or testify because of age, illness,
infirmity, or imprisonment.”

      The district court determined that Qorrolli had not established
Vila’s unavailability because, although “it would ordinarily find a
doctor’s note to be determinative regarding unavailability, . . . Ms.
Vila was still travelling to and attending work in Manhattan;
[Qorrolli’s] counsel had been uncertain whether Ms. Vila would
testify in person; the physician’s letters were vague and produced
only at the eleventh hour; and, it appeared the doctor had simply
accommodated a witness’s desire not to appear because of the
emotional stress an appearance would entail.” Sp. App’x 143-44
(internal quotation marks omitted).

      The district court did not abuse its discretion in so holding. In
light of Vila’s repeated hesitance to appear for trial and the ever-
changing explanations for her unavailability, the district court acted
well within its discretion in finding that Qorrolli had not adequately
established Vila’s unavailability at trial. Accordingly, we affirm the
district court’s judgment insofar as it excluded Vila’s deposition
testimony.

         D. The Anonymous Fax

      At the second trial, Qorrolli sought to admit the anonymous fax
that MDA received in 2015, which contained allegations that Orantes
was sexually harassing MDA employees. Qorrolli argued that the fax
was evidence that Cohen and MDA had notice of Orantes’ sexual
harassment in 2015 but failed to take corrective action.

      At the pre-trial conference, the district court noted that the
content of the fax was “pure hearsay” that had little probative value
given that the “allegations that are described in the anonymous [fax]
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do not include allegations of misconduct towards the plaintiff and do
not describe the kind of conduct that the plaintiff herself says she
suffered at the hands of Mr. Orantes.” Id. at 62. The district court also
determined that, even putting aside the problem of hearsay, the
anonymous fax should be excluded pursuant to Rule 403. It did,
however, allow Qorrolli’s counsel to attempt to elicit testimony at trial
that there was an anonymous fax received at MDA that contained a
complaint of sexual harassment against Orantes and that Qorrolli
discussed the fax with Orantes and Cohen.

      During the second trial, Qorrolli’s counsel again requested to
use the fax, this time for the specific purpose of impeaching Orantes
after he erroneously testified that the fax had not directly accused him
of sexual harassment. The district court denied the request.

      The district court did not abuse its discretion by excluding the
fax. The district court acted well within its discretion in determining
that the potential probative value of showing the jury the salacious
allegations in the fax would be significantly outweighed by the
prejudice it would introduce. Likewise, the district court acted within
the range of its discretion in concluding that the probative value of
using the fax for impeachment was substantially outweighed by its
potential prejudicial effect. Accordingly, we affirm the district court’s
judgment insofar as it excluded the anonymous fax.

                             CONCLUSION

      For the foregoing reasons, we conclude that the district court
did not err in its summary judgment ruling, its order granting a new
trial, or its evidentiary rulings prior to and during the February 2023
trial. The judgment of the district court is hereby affirmed.


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