United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit
No. 96-1285
CARLOS J. NIEVES-VILLANUEVA, et al.,
Plaintiffs, Appellants,
v.
JOSE R. SOTO-RIVERA, Individually and as
Mayor of the Municipality of Canovanas, et al.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Hector M. Laffitte, U.S. District Judge]
Before
Stahl, Circuit Judge,
Cyr, Senior Circuit Judge,
and Lynch, Circuit Judge.
Carlos A. del Valle Cruz for appellants.
Miguel Pagan, with whom Pagan & Pagan was on brief, for
appellees.
December 22, 1997
LYNCH, Circuit Judge. Plaintiffs are fifty-one
LYNCH, Circuit Judge.
former "transitory" or non-permanent employees of the
municipality of Canovanas, Puerto Rico. A jury found against
their claims that the incoming New Progressive Party (NPP)
administration failed to renew their contracts of employment
in various municipal jobs because they were supporters of the
prior Popular Democratic Party (PDP) administration and so
violated their rights under the First Amendment.1
The important question raised by this case is
whether the district court committed error in admitting the
testimony of an expert witness. The witness testified as to
what the law required and that her examination of plaintiffs'
personnel records led to the conclusion that plaintiffs had
been improperly hired or renewed in the first place.
Defendants did not testify this was their reason at the time
of their decision not to renew plaintiffs' contracts.
Although such expert testimony should not have been
permitted, we consider any alleged error in light of the
1. This court has reviewed numerous claims of political
firings or demotions from Puerto Rico. In November of 1984,
the PDP won the gubernatorial election in Puerto Rico.
Before that, the governor's office was held by a member of
the NPP. A first wave of cases involved outright dismissals;
the second wave involved adverse actions less than outright
dismissals. That history is recited in Agosto-de-Feliciano
v. Aponte-Roque, 889 F.2d 1209 (1st Cir. 1989). In 1992,
control of the governor's office and of some local
governments switched, and the NPP came back to power. Now,
this court is faced with another wave of litigation (we
hesitate to count which wave this is), brought this time by
PDP members.
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evidence as a whole, and particularly in light of the judge's
instructions to the jury. In the circumstances of this case,
we consider the alleged errors harmless and affirm the jury
verdicts.
I.
I
Plaintiffs sued, inter alios,2 Jose Soto-Rivera
("Soto") and the Municipality of Canovanas under 42 U.S.C.
1983, alleging that they had been dismissed due to their
political beliefs and in violation of their due process
rights. The complaint sought reinstatement, injunctive
relief, compensatory and punitive damages, and attorney's
fees.
On defendants' motion for summary judgment, the
district court dismissed plaintiffs' due process claims,
noting that, under First Circuit precedent and Puerto Rico
law, transitory employees generally do not have a property
interest in continued employment beyond their yearly terms of
appointment. See Caro v. Aponte-Roque, 878 F.2d 1, 4-5 (1st
Cir. 1989); see also Mel ndez v. Municipio de Arroyo, 96
J.T.S. Case No. 68, at p. 1077 (P.R. Sup. Ct. May 15, 1996)
(reaffirming that, as a matter of Puerto Rico law, transitory
employees generally have no "legitimate expectation" to a
2. The district court dismissed plaintiffs' claims against
the other municipal defendants prior to trial.
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renewal of their contracts); Departamento de Recursos
Naturales v. Correa, 118 D.P.R. 689, 697 (1987) (same).3
Before trial, defendants retained Blanca Santiago
as an expert in governmental personnel matters to examine the
plaintiffs' personnel records. Santiago's report concluded
that plaintiffs' initial appointments and, in some cases,
renewal appointments were contrary to Puerto Rico municipal
law, and that the previous administration had employed a
"subterfuge" to renew the plaintiffs' appointments and to
evade a prohibition on making personnel decisions within two
months of a general election. The report also opined that
plaintiffs did not have "a legitimate expectation of
retaining employment." Finally, the report concluded that,
under the law of Puerto Rico, "the Municipality of Canovanas
could not continue extending said transitory appointments."
Upon receiving Santiago's report, plaintiffs made a
motion in limine to exclude Santiago's testimony.
Plaintiffs' principal objection was that the expert witness's
opinion concerning the propriety of plaintiffs' appointments
3. Defendants also moved for summary judgment on the claims
for damages on qualified immunity grounds. The district
court denied defendants' motion, holding that before the
events in 1993, the First Circuit had clearly established
that First Amendment protection extended to political non-
renewals of employment. See Caro, 878 F.2d at 2-4; Figueroa
v. Aponte-Roque, 864 F.2d 947, 951 (1st Cir. 1989). The
district court determined that there existed a genuine issue
of material fact concerning defendants' motives in declining
to renew plaintiffs' transitory appointments.
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was not relevant to liability. Defendants did not maintain
that Soto did not renew plaintiffs' appointments due to
irregularities in how they were appointed. The district
court denied plaintiffs' motion.
II.
II
We state the facts as the jury could have found
them, in the context of the evidence as a whole, with
particular emphasis on the evidence allegedly admitted in
error.
Plaintiffs said they were affiliated with the PDP,
one of Puerto Rico's major political parties. In 1992, Soto
was elected Mayor of Canovanas as the candidate of the NPP,
the main rival of the PDP. Soto was the first NPP candidate
elected as Mayor of Canovanas in several decades.
Plaintiffs had been appointed by the prior PDP
mayor, Esteban Melendez-Rivera, to various municipal jobs as
transitory employees. Those jobs included manual labor in
the Public Works Department, janitorial work in municipal
offices, clerical work, and other lower level jobs with
minimal salaries. Under Puerto Rico's Autonomous
Municipalities Act, 21 L.P.R.A. 4554, transitory employees
may be appointed for a limited term, generally not to exceed
one year. Although plaintiffs, unlike other civil servants
in Puerto Rico, had no formal tenure in their jobs following
the expiration of their contracts, many had been reappointed
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for several one-year terms as a matter of course. Other
plaintiffs were in their first annual term of employment.
On January 15, 1993, three days after taking office
as Mayor of Canovanas, Soto informed most of the plaintiffs
that their positions as transitory employees had expired and
that he would not renew their appointments. The remaining
plaintiffs' appointments were temporarily extended, but
eventually their appointments expired as well.
Plaintiffs testified that they campaigned for
Esteban Melendez-Rivera, the PDP candidate, in the 1992
mayoral election. Plaintiffs testified that they had engaged
in various PDP political activities on behalf of Melendez,
including attending political meetings or taking part in the
campaign rallies known as caravanas ("caravans") that are
typical of mayoral campaigning in Puerto Rico. Many of them
testified that Soto solicited their support, and, when they
said they would support the incumbent PDP mayor instead, Soto
threatened to leave them without employment after the
election. Many plaintiffs also testified that they observed,
after their non-renewals, NPP members performing the duties
of the jobs they had performed as transitory employees.
In support of their First Amendment claims,
plaintiffs put in evidence their personnel files, arguing
that there was nothing in them that would indicate poor
performance. Plaintiffs also presented an expert witness in
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personnel administration to bolster their claims of political
discrimination.4
Defendants' position was that Soto had not
considered plaintiffs' political affiliation in his decision
to allow their contracts to expire. They presented three
witnesses: Mayor Soto, Vice-Mayor Miguel Jimenez-Carrion
("Jimenez"), and Blanca Santiago, their expert witness on
government personnel administration. Soto categorically
denied the plaintiffs' allegations that he had threatened
their jobs if they supported the incumbent. He noted that he
had retained or hired PDP members to municipal jobs. He
testified that he had allowed plaintiffs' contracts to expire
because their services were no longer needed. Jimenez gave
essentially the same version of events. Neither testified
that they had not renewed the contracts because plaintiffs'
appointments had been irregular.
Defendants' Expert
Defendants' expert witness, Blanca Santiago,
testified that the plaintiffs' personnel records demonstrated
that, in many cases, their appointments were contrary to
Puerto Rico law. In particular, Santiago testified that many
employees had been on the payroll in excess of one year,
4. The plaintiffs did not order the transcript of that
portion of the trial that included their expert witness's
testimony. That omission complicates our analysis, as we
explain below.
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sometimes without any documented reappointment, and opined
that this violated the Autonomous Municipalities Act, which
provides that the appointment of "[t]ransitory employees
shall not exceed one (1) year . . . ." 21 L.P.R.A.
4554(c). Santiago also testified that many of the plaintiffs
had been illegally appointed within two months of a general
election, in violation of a prophylactic prohibition on
government personnel decisions commonly known as the
"electoral ban." See 21 L.P.R.A. 4564; 3 L.P.R.A. 1337.
Santiago testified further that, in some cases, the personnel
records had been manipulated in order to make it appear that
plaintiffs' appointments were not within the electoral ban
period.
Defense counsel then questioned Santiago to elicit
testimony to the effect that courts have held that transitory
employees do not have a right to the renewal of their
contracts. Defense counsel accomplished this objective by
reading passages from court decisions holding that transitory
employees in Puerto Rico have no reasonable or legitimate
expectation of continued renewal of their contracts that
would entitle them to administrative due process protections
before allowing their contracts to expire, and then asking
Santiago to comment. This was done although the due process
claims had been dismissed.
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Santiago testified that, under court decisions,
"[o]nce [a transitory employee's] appointment ends the
transitory employee . . . doesn't have any . . . other right,
regardless of the fact that his appointment has been extended
for a period of time that we may call 'excessively long.'"
Plaintiffs' counsel objected to this testimony on the ground
that it misstated the law. That objection was overruled.
Soon afterwards, defense counsel continued
questioning Santiago on the legal status of transitory
employees:
Q. I am going to review . . . the case of
Fermin Orta et al. versus Pedro A.
Padilla, Municipality of Trujillio Alto,
et al. . . . . I'm going to read to you
from the translation of that opinion
. . . .
At this point, plaintiffs again objected, noting that the
case concerned the due process rights of transitory
employees, and that the sole claim on trial was the First
Amendment claim. Again, the district court overruled
plaintiffs' objection. Defendants resumed questioning the
witness about the law articulated in that case.5 Plaintiffs
5. Defense Counsel: "[I]t says, the opinion: After a
careful examination of the service and appointment contracts
of these 23 appellees, we find that the only contract
terminated before the expiration date was that of Juana Cruz.
The other 22 employees were notified that the contracts would
be terminated at the expiration date of the same. In light
of the prevailing principles, we must conclude that the
termination of the contract of those 22 transitory employees
was valid at law because the municipality did not have to
provide them with the regulatory guarantees mentioned above.
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objected again, noting, "She's testifying [to] what are
basically jury instructions." The district court initially
sustained plaintiffs' objection, but then permitted defense
counsel to continue questioning the witness in this manner.
Defense counsel proceeded to read excerpts from the Supreme
Court of Puerto Rico's decision in Correa, and from this
court's decision in Cheveras-Pacheco v. Rivera-Gonzalez, 809
F.2d 125, 129 (1st Cir. 1987) (holding that transitory
employees do not have a property interest in continued
employment). Plaintiffs' counsel again protested, and a
conference was held outside the presence of the jury.
Plaintiffs' counsel asked the judge to strike Santiago's
testimony or give a curative instruction, stating explicitly
that it is against the law for a municipal government to let
a transitory employee's contract expire if the primary reason
is the employee's political affiliation. The district court
refused, saying plaintiffs had opened the door with their own
The trial court erred in ruling that the termination was
unlawful."
Santiago: "The interesting thing about that case is that
there were -- there were 22 transitory employees whose
appointments were to end, and there was another group of
employees in which -- in which case the decision was
different, and the matter of discrimination was approved.
But in the case of the transitory ones their appointments had
ended."
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expert witness and that they could cross-examine Santiago on
the illegality of firing employees for political reasons.6
On cross-examination, Santiago stated that the
legal opinions she provided on direct examination concerning
the status of transitory employees and the alleged
illegalities in plaintiffs' original appointments were based
solely on Commonwealth law, not federal law. When questioned
about the case law of this court which has held that a
decision not to renew a transitory employees' contract may
not be primarily based on political affiliation under the
First Amendment, the witness was evasive. Although she
agreed that transitory employees could not be discharged for
political reasons, she insisted that this did not apply when
6. The Court: "Counsel, the problem with you is that you
don't make a distinction between the -- the witness'
credibility and what is admissible. She -- Mr. Pagan
[defense counsel] read to her certain passages of cases
saying that -- concerning transitory employees. I'm certain
you're going to read her a part saying if you take a
transitory employee and discharge him for political reasons
it's illegal, and she has to agree with that. See? That's
the way you neutralize that. I'm not going to teach you how
to practice law." (At oral argument, plaintiff's counsel
argued that this last sentence was particularly prejudicial.
However, as this admonition did not occur in the presence of
the jury, we examine only the impact of the district court's
ruling itself.)
The judge continued, "[T]he Orta case was brought [in]
by your [expert] witness, and that opened the door for
[defense counsel] to bring [in] the Orta case. . . . Once you
open the door then you can't complain. . . . I will instruct
the jury on the law at the proper time, and they have to
follow the law as I tell them, not as what counsel tells them
the law is."
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a contract expired because, she said, such an employee was
not discharged.
Closing Arguments
In closing arguments, plaintiffs' counsel argued
that the witnesses' testimony, principally the plaintiffs',
established that the incoming NPP administration's motive for
refusing to renew plaintiffs' contracts was reprisal for
their support of the previous PDP mayor. Defense counsel
strongly contested the plaintiffs' credibility, and argued
that Soto never considered plaintiffs' political affiliation
in his decision not to renew plaintiffs' contracts.
Defense counsel also made reference to Santiago's
testimony, arguing that the employees were transitory and
that their appointments had been in violation of Puerto Rico
municipal law. Defense counsel also argued that the Mayor
would have been in violation of that law if he had renewed
their appointments. Defense counsel made reference to
Santiago's testimony that transitory employees do not have a
reasonable expectation of retaining their jobs after their
contracts expire, arguing that plaintiffs' expert had
distorted the law in suggesting otherwise. Defense counsel
asked rhetorically, "[A]fter the appointment expired . . .
what are their [sic] rights of those employees? And that
Your Honor is going to tell you, see, in the instructions."
Defense counsel noted that, unlike plaintiffs' expert
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witness, "She never . . . tell [sic] us whether [the
plaintiffs] were dismissed or not for political
discriminatory reasons. That is for you to decide." Defense
counsel did not argue that the reasons for the non-renewals
were that plaintiffs' appointments were irregular.
Instructions
The judge instructed the jury that its duty was "to
follow the law as I shall state it to you" and that it should
not "base [its] verdict upon any view of the law other than
that given in the instructions of the Court." The court did
not otherwise specifically instruct the jury to disregard the
expert witnesses' opinions concerning the applicable law, but
rather said expert testimony should be treated just as
testimony from any other witness.
Significantly, however, the judge instructed the
jury that any irregularities in the appointments of the
plaintiffs could not be used as a pretext for violating their
First Amendment rights:
Now, conduct purportedly engaged in
consonance with the Puerto Rico
personnel's law and regulation [sic] does
not control a claim alleging a violation
of the employees' First Amendment right
of political affiliation.
A new administration cannot use the
doctrine of compliance with state law or
nullity under state law as a cover for
discharges, transfers and discrimination
based solely on political affiliation.
Similarly, a new administration
cannot use the fact that plaintiffs were
hired during the electoral prohibition
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period or "veda" as a pretext for
political discrimination. In the final
analysis, the question of motivation is a
question of fact.
The court also instructed:
If you find that plaintiffs'
political affiliation was the motivating
factor for the non-renewal of their
appointments, then you may find for the
plaintiffs.
The court also gave this instruction:
However, if you find that
plaintiffs' appointments were not renewed
because they had been appointed by the
former administration in violation of the
personnel and electoral laws and not
because of plaintiffs' political
affiliation, then you may find for the
defendants.
The judge further instructed that, although transitory
employees do not have tenure in their jobs, their contracts
may not be allowed to expire for political reasons.7
Finally, in response to a request from plaintiffs' counsel
7. The Court: "Transitory -- the plaintiffs in this action
were transitory employees of the Municipality of Canovanas.
Puerto Rico law permits the employment of transitory
employees appointed for a fixed term. The duration of this
designation shall correspond to the period for which the
position was created.
"The law provides that once a transitory
appointment expires, defendant may terminate the transitory
employee . . . for any reason except if that reason is based
on political affiliation. Defendant . . . asserts that the
reason for not renewing plaintiffs' appointments or contracts
was that plaintiffs' contracts had expired and that they were
not renewed for valid reasons wholly independent of
plaintiffs' political affiliation.
"Plaintiffs claims [sic] that their position as
transitory employees were not renewed because of their
political affiliation. So that is the issue."
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for a curative instruction, the judge instructed that the
jury was to consider only evidence that they believed was
known to the decisionmakers at the time plaintiffs' contracts
were not renewed.8
Verdict
The verdict form asked, as to each of the
plaintiffs, "Do you find by a preponderance of the evidence
that the motivating factor for not renewing the appointment
of [plaintiff] was [his or her] political affiliation?" The
jury answered no in each case.
III.
III
We review the district court's decision to admit or
exclude evidence for abuse of discretion. See General
Electric Co. v. Joiner, 1997 WL 764563, at *3 (U.S. Dec. 15,
1997); Knowlton v. Deseret Med. Inc., 930 F.2d 116, 124 (1st
Cir. 1991).
Legal Principles
Because the parties exhibit some confusion over
long-established legal principles in this area, we repeat
them. In Elrod v. Burns, 427 U.S. 347 (1976), a divided
8. The Court: "In determining whether the defendants
discriminated or not, you are not to consider any testimony
or evidence that you believe was not present at the time of
[sic] the decision not to renew plaintiffs' transitory
appointment was taken, for if the irregularity or misconduct
was not discovered until after the employee's contract was
not renewed, the employer could not have been motivated by
knowledge of it, and he cannot now claim that the employee's
contract was not renewed for that reason."
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Supreme Court granted some First Amendment protection to
employees terminated because of their political affiliation
where political affiliation was not a reasonably appropriate
requirement for the job. See id. at 359 (plurality opinion).
As Justice Stewart, concurring, said, a "nonpolicymaking,
nonconfidential government employee [cannot] be discharged or
threatened with discharge from a job that he is
satisfactorily performing upon the sole ground of his
political beliefs." Id. at 375 (Stewart, J., concurring in
judgment). In Branti v. Finkel, 445 U.S. 507 (1980), the
Supreme Court reaffirmed Elrod, and explained that the First
Amendment prohibits termination of public employees because
of their political affiliation unless "the hiring authority
can demonstrate that party affiliation is an appropriate
requirement for the effective performance of the public
office involved." Branti, 445 U.S. at 518.9
This court has held that the Elrod-Branti doctrine
applies to a local government's decision whether to renew the
contract of a transitory employee. See Cheveras-Pacheco v.
Rivera-Gonzalez, 809 F.2d 125 (1st Cir. 1987). A
municipality may not allow transitory employees' contracts to
expire if the primary motive is to punish them for their
political affiliation. See id. at 127-29. This is true
9. Defendants have never suggested that political party
affiliation was an appropriate requirement for any of the
jobs that were held by the plaintiffs.
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regardless of whether the employees have been renewed on a
regular basis prior to their dismissal or, as is true of some
of plaintiffs here, have served only one term. See Figueroa
v. Aponte-Roque, 864 F.2d 947, 951 (1st Cir. 1989). Thus,
the fact that a transitory employee does not have a
reasonable expectation of renewal in his or her employment
that would require due process protections does not defeat a
First Amendment claim.
In Rutan v. Republican Party of Ill., 497 U.S. 62
(1990), the Supreme Court held that the Elrod-Branti
prohibition against political affiliation discrimination
applied not only to discharges, but also to significant
personnel decisions such as whether to hire or promote a
public employee. See Rutan, 487 U.S. at 79. Hence, even if
the decision not to renew a transitory appointment10 is
considered a hiring decision rather than a discharge, Rutan
reinforces our rule announced in Cheveras-Pacheco.
10. As a practical matter, given the Commonwealth's merit-
based system for hiring and discharging civil service
employees, the risk is greater that transitory employees, who
may be more easily hired and fired, may suffer from the use
of unlawful patronage practices. See 21 L.P.R.A. 4554. It
has been said that "invidious political [party]
discrimination is mainly directed against humble public
employees or [those] with scarce resources." Casiano v.
Departamento de Educacion, 97 J.T.S. Case No. 33, at p. 718
(P.R. Sup. Ct. March 19, 1997) (Fuster-Berlingeri, J.,
dissenting from denial of certiorari).
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And the Elrod-Branti-Rutan principle has been
reinforced recently by the Supreme Court. In Board of County
Comm'rs v. Umbehr, 116 S. Ct. 2342 (1996) and O'Hare Truck
Serv., Inc. v. City of Northlake, 116 S. Ct. 2353 (1996), the
Supreme Court held that the First Amendment provides
protection to independent contractors similar to those
afforded government employees. See Umbehr, 116 S. Ct. at
2345-46 (termination of a contract in reprisal for
contractor's criticism of county government); O'Hare, 116 S.
Ct. at 2355-56 (removal of an independent contractor from a
list of towing services employed by the city in retaliation
for supporting opposing political party).
Expert Testimony on the Law
Aspects of Santiago's testimony are very troubling.
Certain parts of her testimony -- for example, concerning
actual personnel practices, the various categories of public
employees and the like -- are unobjectionable. But Santiago
also testified as to the holdings of various opinions of the
Supreme Court of Puerto Rico and by reference, of this court
(over objection), and to the legal conclusion that these
appointments were in violation of law (without objection).
To exacerbate matters, her testimony may be charitably
described as misleading at best as to the rights of
transitory employees as a matter of federal law.
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It is black-letter law that "[i]t is not for
witnesses to instruct the jury as to applicable principles of
law, but for the judge." United States v. Newman, 49 F.3d 1,
7 (1st Cir. 1995) (quoting Marx & Co. v. Diners' Club, Inc.,
550 F.2d 505, 512 (2d Cir. 1977)). At least seven circuit
courts have held that the Federal Rules of Evidence prohibit
such testimony, and we now join them as to the general rule.
See Burkhart v. Washington Metro. Area Transit Auth., 112
F.3d 1207, 1212-14 (D.C. Cir. 1997) (reversible error to
allow an expert in police practices to opine on whether
police officers' efforts in communicating with a deaf
plaintiff were enough to satisfy federal disability
statutes); Snap-Drape, Inc. v. Commissioner, 98 F.3d 194,
197-98 (5th Cir. 1996) (trial court properly excluded
taxpayer's expert reports as containing nothing more than
legal arguments concerning the tax treatment of certain
dividends); Berry v. City of Detroit, 25 F.3d 1342, 1353-54
(6th Cir. 1994) (finding inadmissible the comments of an
expert in police practices on the meaning of the legal term
"deliberate indifference" in a civil rights case); Aguilar v.
International Longshoreman's Union, Local #10, 966 F.2d 443,
447 (9th Cir. 1992) (testimony of purported expert that
workers reasonably and foreseeably relied on defendants'
promises addressed "matters of law for the court's
determination" that were "inappropriate subjects for expert
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testimony"); Specht v. Jensen, 853 F.2d 805 (10th Cir. 1988)
(en banc) (reversible error to allow an expert witness who
was an attorney to give his opinions on what was required to
make consent to a search effective); Adalman v. Baker, Watts
& Co., 807 F.2d 359, 366 (4th Cir. 1986) (finding
inadmissible proffered expert opinion concerning whether,
under securities laws, disclosure of a particular fact was
required in the course of negotiating a transaction); Marx &
Co. v. Diners' Club, Inc., 550 F.2d 505 (2d Cir. 1977)
(securities lawyer, called as an expert, could not testify to
the legal obligations created under a contract). To state
the general rule is not to decide the far more complicated
and measured question of when there is a transgression of the
rule. We outline some of the considerations and conclude
that the rule has been transgressed here. We leave to future
cases the defining of the contours of application of this
rule.
In our legal system, purely legal questions and
instructions to the jury on the law to be applied to the
resolution of the dispute before them is exclusively the
domain of the judge. Accordingly, expert testimony on such
purely legal issues is rarely admissible. As the Second
Circuit has noted, "The danger is that the jury may think
that the 'expert' in the particular branch of the law knows
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more than the judge -- surely an impermissible inference in
our system of law." Marx & Co., 550 F.2d at 512.
The one well-recognized exception is for questions
of foreign law, where the judge may be aided by the expert's
assistance. See Adalman, 807 F.2d at 366; Marx & Co., 550
F.2d at 510; 1 McCormick on Evidence 12, at 50 (John W.
Strong, ed., 4th ed. 1992); 7 Wigmore on Evidence 1953
(Chadbourne rev. 1978). Even in the case of foreign law,
under modern practice the testimony is generally given to the
judge, outside of the presence of the jury, and is meant to
assist the judge in determining the appropriate instructions.
See Adalman, 807 F.2d at 366; 9 Wigmore on Evidence 2558
(Chadbourne rev. 1978). Here, the testimony was plainly not
offered to assist the judge, who has presided over many such
political discharge cases, and was presented to the jury.
Because the jury does not decide such pure
questions of law, such testimony is not helpful to the jury
and so does not fall within the literal terms of Fed. R.
Evid. 702, which allows expert testimony "[i]f scientific,
technical or other specialized knowledge will assist the
trier of fact to understand the evidence or to determine a
fact in issue . . . ." As the D.C. Circuit noted, "Expert
testimony that consists of legal conclusions cannot properly
assist the trier of fact in either respect . . . ." Burkhart,
112 F.3d at 1212; see also Aguilar, 966 F.2d at 447 (expert
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legal opinion does not assist the factfinder under Rule 702).
This is because the judge's expert knowledge of the law makes
any such assistance at best cumulative, and at worst
prejudicial. See Burkhart, 112 F.3d at 1213 ("Each courtroom
comes equipped with a 'legal expert,' called a judge, and it
is his or her province alone to instruct the jury on the
relevant legal standards."); 7 Wigmore on Evidence 1952
(Chadbourne rev. 1978) ("It is not the common knowledge of
the jury which renders the witness' opinion unnecessary, but
the special legal knowledge of the judge.")
Similarly, Fed. R. Evid. 704(a), which removes the
common-law bar on "otherwise admissible" testimony that
"embraces an ultimate issue to be decided by the trier of
fact," does not vitiate the rule against expert opinion on
questions of law. The common law did not allow an expert
witness to inform the jury of his or her factual conclusion
concerning the "ultimate issue" in the case, because this was
thought to invade the province of the jury. The abolition in
Rule 704(a) of this "ultimate issue" rule allows the expert
witness to offer his or her factual conclusion in order to
aid the jury, which properly can choose to accept or reject
it. However, questions of law are not "to be decided by the
trier of fact"; rather it is for the judge, not the lawyers
or the witnesses, to inform the jury of the law applicable in
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the case and to decide any purely legal issue.11 Recently,
this court has cautioned that the abolition of the "bar on
'ultimate issue' opinions . . . is not a carte blanche for
experts." Dincov. Dylex,Ltd.,111 F.3d964,973 (1stCir.1997).12
While the testimony by Santiago described above
clearly transgressed the general rule, we acknowledge that it
is often difficult to draw the line between what are
questions of law, what are questions of fact, and what are
mixed questions. See, e.g., In re Air Disaster at Lockerbie,
Scotland on December 21, 1998, 37 F.3d 804, 826-27 (2d Cir.
1994) (regarding expert's testimony that defendants engaged
in "fraud" and "deceit" admissible because the terms were
used in layman's sense, while finding expert's conclusion
11. For similar reasons, the question of whether a legal
rule has been clearly established, in the context of a
qualified immunity defense to a 1983 action, is a question
decided by the court, not the jury. See St. Hilaire v. City
of Laconia, 71 F.3d 20, 24 (1st Cir. 1995). Thus, the Eighth
Circuit found reversible error in allowing a witness to
espouse views concerning the reasonableness of an officer's
conduct in light of prevailing "Fourth Amendment standards."
Peterson v. City of Plymouth, 60 F.3d 469, 475 (8th Cir.
1995). The jury's role was only to decide what facts were
known to the officer at the time of the arrest, not whether,
in light of those facts, the officer's conduct was reasonable
under the applicable legal standard and therefore protected
by qualified immunity. See id.
12. Santiago was competent to testify that plaintiffs'
appointments were irregular in the sense that they did not
conform to normal personnel practice, but her legal
conclusion that the appointments were in violation of the law
was improper. Because there was no objection to such
conclusions, our review is for plain error, a burden
plaintiffs cannot sustain in light of our harmlessness
analysis.
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that defendants violated FAA regulations inadmissible);
Specht, 853 F.2d 805, 809 (discussing the distinction).
Indeed, the definition of what is law and what is application
or practice may be difficult to ascertain. This may be
particularly so when the issues involve not only a statute
and formally promulgated regulations, but also guidelines,
handbooks, advisory rulings, interpretive bulletins, general
counsel's letter opinions, informational notices and similar
accoutrements of the modern bureaucratic state. Further,
there may be particular areas of law, such as legal
malpractice, where expert testimony on legal matters is
admissible where it would normally be excluded. We can also
hypothesize instances in rare, highly complex and technical
matters where a trial judge, utilizing limited and controlled
mechanisms, and as a matter of trial management, permits some
testimony seemingly at variance with the general rule.13 But
none of those instances are before us. The issues raised
here are routinely before the federal courts, are not
complex, and the use of such testimony was egregious.
Testimony Re After-Acquired Evidence
13. Such an instance may be patent litigation, in which
technical experts are generally allowed to comment on the
scope of a patent's coverage and give their conclusions on
the issue of infringement. See Snellman v. Rioch Co., 862
F.2d 283, 287 (Fed. Cir. 1988); Stearns Co. v. United States,
324 Fed. Cl. 264, 268-69 (1995).
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There is a second reason the admission of
Santiago's testimony is very troubling. That has to do with
application of the after-acquired evidence doctrine.14 In
McKennon v. Nashville Banner Publ'g Co., 115 S. Ct. 879
(1995), the Supreme Court considered whether an employee's
wrongdoing, discovered after the termination of employment,
which would have been sufficient to justify the decision, but
which was not known to the employer at the time of the
decision and so could not have motivated the decision,
foreclosed a claim of age discrimination. See id. at 882.
The Supreme Court held that such evidence was not relevant to
the employer's liability for age discrimination, but would be
relevant in determining what remedy was appropriate. See id.
at 885. If the evidence would have led to the employee's
discharge at some later date, that would affect the measure
14. A question may be raised whether the evidence of
irregularities that Santiago described meets the definition
of after-acquired evidence under McKennon v. Nashville Banner
Publ'g Co., 116 S. Ct. 879 (1995). McKennon concerned
employee wrongdoing that would normally cause termination of
employment. We do not know if the irregularities alleged in
this case would in fact normally lead to termination or non-
renewal of employment. In addition, McKennon expressly
considered the equitable doctrine of unclean hands in
determining that "the employee's wrongdoing must be taken
into account, lest the employer's legitimate concerns be
ignored." Id. at 360. Here, as the evidence was presented,
it was apparently the former administration, not the
employees, who made the appointments allegedly against normal
procedures. If the employees were blameless, it may be
difficult to import wholesale the McKennon doctrine. Given
the desultory treatment of this aspect of the McKennon issue
by the parties and our disposition of the case, we think it
wiser to address the issue in some future case.
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of damages and the appropriateness of reinstatement as
equitable relief. See id. at 885-86. In Umbehr, the Supreme
Court adopted the McKennon approach in First Amendment claims
brought by public employees or contractors. See Umbehr, 116
S. Ct. at 2352 ("[I]f [plaintiff] prevails, evidence that
[defendants] discovered facts after termination that would
have led to a later termination anyway . . . would be
relevant in assessing what remedy is appropriate.").
Thus, such after-acquired evidence is normally
admissible only as to remedy, and not on liability. Yet
here, it was seemingly offered, over objection, as pertinent
to liability. Those portions of Santiago's testimony
concerning the irregularities in plaintiffs' appointments
which did not consist of legal conclusions were arguably
relevant to damages, but normally, not to liability. On
appeal, plaintiffs only argue the issue of admissibility, and
the evidence was arguably admissible on damages.15
To prevail, plaintiffs must show abuse of
discretion in admission of the evidence. Any abuse of
discretion analysis is complicated by the actions of the
15. The trial court erred in failing to instruct the jury
that Santiago's testimony was not relevant in determining
liability. Although the judge properly instructed the jury
that it should not consider evidence that it did not believe
was before the decision maker at the time of the decision,
the risk of prejudice was such that the judge should have
stated explicitly that Santiago's testimony concerning
irregularities was not to be considered in any way on the
question of liability.
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parties here. While much of Santiago's testimony would
normally be inadmissible, plaintiffs may have invited
defendants to respond in kind. It was apparently plaintiffs
who first introduced the topic of legal conclusions to be
drawn from review of plaintiffs' personnel files and of the
law about rights of public employees. Plaintiffs argued that
the files showed no disciplinary warnings or other actions by
the employers which provided cause for termination of their
employment, and their expert may have engaged in
inappropriate legal commentary. Defendants apparently did not
object, perhaps because they wanted to respond in kind.
The trial judge evidently felt that this opened the
door to the defendants' expert. "Opening the door" is an
evidentiary concept which requires careful weighing of the
unfairness of allowing one party's objectionable evidence to
remain unanswered against the danger of compounding the
problem with further inadmissible and potentially prejudicial
testimony. See 1 McCormack on Evidence 57 (John W. Strong,
ed., 4th ed. 1992). The judge may well have felt that
plaintiffs created the problem about which they now complain.
As plaintiffs did not provide this court with a transcript of
their own expert's testimony, we do not reach the question of
whether the judge abused his discretion in allowing
Santiago's problematic testimony under an "opening the door"
theory.
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To overcome the jury verdict, plaintiffs must show
not only that there were errors under the abuse of discretion
standard, but also that the district court's errors were
harmful. "Only if we answer both questions in the positive
will [plaintiffs'] argument on appeal prevail." Ahern v.
Scholz, 85 F.3d 774, 786 (1st Cir. 1996).
Harmless Error
In a civil case, the party asserting error bears
the burden of demonstrating that the error was harmful, i.e.,
that it affected that party's substantial rights. See Fed.
R. Civ. P. 61; Fed. R. Evid. 103; Federico v. Order of St.
Benedict in R.I., 64 F.3d 1, 3 (1st Cir. 1995) (burden of
showing harmful error in a civil case is on party asserting
error); Hygh v. Jacobs, 961 F.2d 359, 364-65 (2d Cir. 1992)
(holding that objecting party had not met burden of showing
that admission of improper legal opinion testimony had
prejudicial effect). "In determining whether an error
affected a party's substantial right[s], the central question
is whether this court can say with fair assurance . . . that
the judgment was not substantially swayed by the error."
Ahern, 85 F.3d at 786 (citations, internal quotation marks
and original alterations omitted).
Factors considered in determining the likelihood
that the jury's verdict was substantially swayed by the
evidentiary error include both the centrality of the evidence
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and the prejudicial effect of its inclusion or exclusion.
See id. "We weigh these factors in the context of the case
as gleaned from the record as a whole." Id. (citation and
internal quotation marks omitted). Ultimately, if we are in
"grave doubt" concerning the likely effect of the error on
the verdict, we treat the error as if it had affected the
verdict. See id.
Although normally testimony such as Santiago's as
to legal conclusions is clearly wrong and such testimony as
was proper is limited, at best, to damages, we cannot say
that the testimony affected the outcome of the trial, and
therefore, we consider it harmless.16
The district court's instructions here reinforce
the conclusion that Santiago's testimony was not central nor
did it actually prejudice the jury's decision. The judge
properly instructed that "once a transitory appointment
expires, defendant may terminate the transitory employee
. . . for any reason except if that reason is based on
political affiliation." (emphasis added) The judge
instructed, not once but several times, that the central
issue for the jury to decide was whether the motive for
16. That plaintiffs apparently opened the door to such
testimony also bears on the harmless error analysis. The
jury may have had two "experts" each opining on the law and
may have disregarded both experts as not helpful on the key
question of motive. In this case, the question of motive was
a straightforward question of whom the jury believed, the
Mayor or the plaintiffs.
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plaintiffs' non-renewals was their political affiliation.
Finally, the verdict form itself posed the question, "Do you
find by a preponderance of the evidence that the motivating
factor for not renewing the appointment of [plaintiff] was
[his or her] political affiliation?"
The judge did expressly caution the jury that the
municipal defendants could not use compliance with state law
as a pretext for political discrimination. The district
court instructed the jury that they were not to consider any
facts that were not known to the relevant decision makers at
the time plaintiffs' contracts were allowed to expire in
deciding whether Soto's administration let plaintiffs go
because of their political affiliation.17 As the district
court explained, "if the irregularity or misconduct was not
discovered until after the employee's contract was not
renewed, the employer could not have been motivated by
knowledge of it, and he cannot now claim that the employee's
contract was not renewed for that reason."
Thus, we do not find it likely, despite Santiago's
testimony, that the jury was confused about the rights of
17. In finding any error harmless, we need not decide
whether the admission of the evidence was erroneous in the
first instance. Plaintiffs themselves represented to the
court that Soto's knowledge of the illegalities was a viable
factual issue for the jury. Plaintiffs asked for and
received an instruction, which they said "would be curative"
of the McKennon problem, that the jury should disregard the
illegality evidence "if they believed that [the illegalities]
were discovered after the fact."
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transitory employees under the First Amendment. As in Caro,
the issue in this case was "the factual matter of [the
municipality's] reason for dismissing the plaintiffs. Was
[its] motive political?" Caro, 878 F.2d at 2. The jury
answered that question. As we harbor no "grave doubt," the
judgment of the district court is affirmed. Costs to
appellees.
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