17‐4023‐cv (L)
Mirlis v. Greer
                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT


                                  August Term 2018

          (Argued: May 22, 2019                      Decided: March 3, 2020)

           Docket Nos. 17‐4023‐cv (L); 18‐416‐cv (Con); 18‐507‐cv (Con)



                                   ELIYAHU MIRLIS,
                                                       Plaintiff‐Appellee,

                                LAWRENCE DRESSLER,
                                                 Interested Party‐Appellee,

                                       ‐ against ‐

                  DANIEL GREER, RABBI, YESHIVA OF NEW HAVEN, INC.,
                                                   Defendants‐Appellants,

                                    AVIAD HACK,
                                                       Appellant.



                  ON APPEAL FROM THE UNITED STATES DISTRICT COURT
                         FOR THE DISTRICT OF CONNECTICUT

Before:
           CHIN and CARNEY, Circuit Judges, and SANNES, District Judge.*



*      Judge Brenda K. Sannes, of the United States District Court for the Northern
District of New York, sitting by designation.
             Appeal from a final judgment of the United States District Court for

the District of Connecticut (Shea, J.), following a jury trial, awarding plaintiff‐

appellee $21,749,041.10 in compensatory damages, punitive damages, and

interest against his former high school and its chief administrator. Plaintiff‐

appellee alleged that the administrator sexually abused him for several years

when he was a student at the high school. Defendants‐appellees appeal,

asserting error in (1) the district courtʹs jury instructions; (2) its rulings with

respect to the administratorʹs invocation of his Fifth Amendment privilege

against self‐incrimination; (3) its denial of a new trial or remittitur on the basis

that the juryʹs award of $15 million in compensatory damages was excessive; and

(4) its denial of a motion for relief from judgment based on newly discovered

evidence.

             AFFIRMED.


                           ANTONIO PONVERT III, Koskoff Koskoff & Bieder, P.C.,
                               Bridgeport, Connecticut, for Plaintiff‐Appellee.

                           LAWRENCE DRESSLER, pro se, New Haven, Connecticut,
                               for Interested Party‐Appellee.
                           DAVID T. GRUDBERG, Carmody Torrance Sandak &
                                Hennessey LLP, New Haven, Connecticut, for
                                Defendants‐Appellants.

                           Steven J. Errante, Lynch, Traub, Keefe & Errante P.C.,
                                 New Haven, Connecticut, for Appellant.



CHIN, Circuit Judge:

             In this diversity case, plaintiff‐appellee Eliyahu Mirlis sued

defendants‐appellees Daniel Greer and Yeshiva of New Haven, Inc. (ʺYeshivaʺ),

a high school, alleging that Greer, a rabbi and the former chief administrator of

Yeshiva, sexually abused him for several years while he was a student at the high

school. At the conclusion of trial, the jury awarded Mirlis $15 million in

compensatory damages, and thereafter the district court awarded $5 million in

punitive damages and interest of $1,749,041.10, for a total award of

$21,749,041.10.

             Greer and Yeshiva appeal, principally on four grounds: (1) the

district court erred in charging the jury on Greerʹs invocation of his Fifth

Amendment privilege against self‐incrimination; (2) the district court abused its

discretion in its handling of Greerʹs invocation of his Fifth Amendment rights; (3)

the district court erred in refusing to order a new trial or remittitur in light of the


                                          -3-
size of the juryʹs award of compensatory damages; and (4) the district court erred

in denying defendantsʹ motion for relief from judgment based on newly

discovered evidence. We affirm.1

                                    BACKGROUND

I.     The Facts

              On appeal following a jury verdict, ʺwe view the facts of the case in

the light most favorable to the prevailing party.ʺ Jacques v. DiMarzio, Inc., 386

F.3d 192, 195 (2d Cir. 2004) (citing Promisel v. First Am. Artificial Flowers, Inc., 943

F.2d 251, 253 (2d Cir. 1991)).

              Greer is a rabbi and has been, at various times, the dean, director,

treasurer, and president of the board of directors of Yeshiva, an orthodox Jewish

high school in New Haven, Connecticut. Mirlis was a student at Yeshiva from

Fall 2001 until Spring 2005. During that time, when Mirlis was fourteen to

seventeen years old, Greer sexually abused him on a frequent, at certain points

weekly, basis, sometimes for hours at a time. Mirlis recalled, inter alia, that Greer

supplied him with alcohol and that he and Greer engaged in kissing, oral and



1      On January 26, 2018, at the request of interested party‐appellee Lawrence
Dressler, the district court ordered the public release of portions of a video deposition of
appellant Aviad Hack, a witness in the case. Hackʹs appeal of that decision is addressed
in a separate opinion, also filed today.
                                            -4-
anal sex, and mutual masturbation, at several locations in New Haven, including

Yeshiva, motels, and Greerʹs home, as well as in Philadelphia.

             Mirlis suffered physical, emotional, and psychological injuries as a

result of Greerʹs sexual abuse. The lasting effect of that abuse was corroborated

by his wife and his clinical psychologist. For example, Mirlis and his wife

frequently argued over his continuing relationship with Greer during their

marriage, and she believed he was emotionally detached and unable to trust or

form relationships with others. Mirlisʹs psychologist, a specialist in post‐

traumatic stress disorder (ʺPTSDʺ) and childhood trauma related to physical,

emotional, and sexual abuse, conducted a forensic interview of Mirlis. He

concluded that Mirlis was shut off emotionally, had lost his sense of trust, had

difficulty with intimacy and vulnerability, continued to suffer from PTSD, and

would continue to struggle with PTSD throughout his lifetime.

II.   The District Court Proceedings

      A.     Pre‐Trial

             On May 3, 2016, Mirlis commenced this action alleging that Greer

had sexually abused him and that Yeshivaʹs administrators had knowledge of the

abuse but failed to report Greer to law enforcement as required by Connecticut



                                        -5-
law. In his third amended complaint, filed May 8, 2017, Mirlis asserted causes of

action for negligence and negligent infliction of emotional distress against

Yeshiva; recklessness and intentional infliction of emotional distress against

Greer and Yeshiva; and sexual assault and battery against Greer.

             Prior to trial, Greer moved for an order precluding Mirlis from

calling him as a witness because he planned to invoke his Fifth Amendment

privilege, on the grounds that the claims of sexual abuse and misconduct could

give rise to criminal charges against him. At a pretrial conference on May 2,

2017, the district court denied the motion, without prejudice, to Greerʹs right

             to object to specific questions where the invocation of
             the Fifth Amendment before the jury becomes
             cumulative, wastes time, or the probative value of [the
             evidence] is substantially outweighed by the danger of
             unfair prejudice.

Appʹx at 65; see also D. Ct. Dkt. No. 130 (minute order).

             In addition, Greer and Yeshiva requested that the district court

instruct the jury that the privilege ʺmay have been asserted [by Greer] for a

variety of reasons, including reasons unrelated to [his] guilt or innocence of any

matters related to this case,ʺ and that the jury could choose to ʺtotally disregard

the evidence of the assertion of the Fifth Amendment by Mr. Greer.ʺ Appʹx at 54.

His request was denied.

                                        -6-
      B.     Trial

             At trial, at the start of his direct examination and in response to

questions from Mirlisʹs counsel, Greer acknowledged that at his deposition he

had refused to testify about allegations that he sexually abused Mirlis at Yeshiva

or was responsible for ʺcovering up and allowing sexual abuse at the schoolʺ

because he believed the answers could incriminate him. D. Ct. Doc. No. 230 at

40‐41. Greer also indicated that he would invoke the privilege throughout trial.

Soon thereafter, Greer agreed that he had invoked the privilege at his deposition

when he was asked whether he had produced ʺdocuments that pertain to Rabbi

Greerʹs sexual relationship with Eli Mirlis and any underage children.ʺ Id. at 43‐

44. He then invoked the privilege when asked whether he was ʺdenying that

[he] assaulted Eli Mirlis when [Mirlis] was a child.ʺ Id. at 46.

             At that point, the district issued the following jury instruction:

             A witness has a right under the Fifth Amendment to the
             Constitution to decline to answer questions on the
             ground that doing so may tend to incriminate him.
             However, you may, but are not required to, infer from
             such a refusal that the answer would have been adverse
             to the witnessʹ interest and the interest of any parties in
             the case who are closely associated with the witness.
             You should consider any inference you may or may not
             choose to draw from a refusal to testify on Fifth
             Amendment grounds together with all other evidence


                                         -7-
              in the case. The law requires the witness, if heʹs going
              to invoke his rights under the Fifth Amendment, to do
              so with regard to specific questions. And, therefore, it
              may be necessary for [counsel] to ask a series of
              questions, and it may be necessary for the witness, if he
              chooses to do so, to invoke his rights with regard to
              each question.

Id. at 47.

              The direct examination continued, and Greer answered many

questions about a variety of topics. But when he was asked questions about

whether he engaged in sexual misconduct with Mirlis while Mirlis was a minor

student at Yeshiva or related questions, Greer repeatedly invoked the privilege

on the advice of counsel.2 Meanwhile, Greerʹs counsel requested a standing

objection to the line of questioning. The district court, however, ruled that the




2
        Greer invoked the privilege when asked whether he: (1) ʺsexually abused and
assaulted other minor boys, including a man named Aviad Hack,ʺ D. Ct. Doc. No. 230
at 48; (2) taught religious and secular studies at Yeshiva, id. at 51‐52; (3) taught Mirlis, id.
at 57; (4) taught communal service, ethics, theology, and Jewish history, id. at 58; (5)
ʺforce[d] . . . Mirlis to have sex with [him] when he was a childʺ at various New Haven
addresses, id. at 95; (6) ʺmolested [Mirlis] in [Greerʹs] bedroom,ʺ id. at 95; (7) had ʺsex
with [Mirlis] at a motel in Branford,ʺ id. at 96; (8) ʺforce[d] [Mirlis] to have sex with
[him] at a motel in Paoli,ʺ id. at 96; (9) ʺforce[d] [Mirlis] to have sex with [him] when
[Mirlis] was a child at a hotel in Philadelphia,ʺ id. at 96‐97; (10) had ʺsex with [Mirlis]
when he was a child at the land in Hamden,ʺ id. at 97; and (11) ʺgot . . . Mirlis when he
was a child to become involved sexually with [Greer] by showing him pornography,ʺ id.
at 98. Greer did not invoke the privilege and essentially denied the allegation when
asked whether he had sex with Mirlis ʺ[o]n a blanket out in the woods on some land in
Hamden.ʺ Id. at 97.
                                             -8-
objections had to follow each question. The district court thereafter overruled

several additional objections from Greerʹs counsel, but it eventually sustained the

objections as it determined that the questions had become ʺcumulative.ʺ Id. at 98.

Subsequently, Mirlisʹs counsel referred to Greerʹs invocation of the privilege on

cross‐examination and during summation.

            In addition to Greerʹs testimony, Mirlis presented other extensive

evidence of Greerʹs sexual abuse of him and the impact it had on him, including

his own testimony as well as the testimony of his wife, his psychologist, and

Aviad Hack (a former assistant principal at Yeshiva who testified via deposition

that he was aware of but did not report Greerʹs abuse of Mirlis and that he also

had a sexual relationship with Greer that began when he was a student).

            At the close of the evidence, during its charge to the jury, the district

court instructed the jury with respect to the Fifth Amendment as follows:

            A witness has a right under the Fifth Amendment to the
            Constitution to decline to answer questions on the
            ground that doing so may tend to incriminate him.
            However, you may, but are not required to, infer from
            such refusal that the answer would have been adverse
            to the witnessʹs interest and the interest of any parties in
            the case who are closely associated with the witness.
            You should consider any inference you may or may not
            choose to draw from a refusal to testify on Fifth



                                        -9-
              Amendment grounds together with all the other
              evidence in the case.

D. Ct. Dkt. No. 233 at 450‐51.

              The jury reached a verdict in favor of Mirlis on each claim and

awarded Mirlis compensatory damages of $15 million. It also found that

ʺpunitive damages should be assessed againstʺ both Greer and Yeshiva. D. Ct.

Dkt. No. 157.

       C.     Post‐Trial

              On June 6, 2017, the district court entered judgment, awarding, in

addition to the juryʹs award of $15 million in compensatory damages, $5 million

in punitive damages (calculated in accordance with Connecticut common law as

the amount of attorneysʹ fees, representing one‐third of the juryʹs award)3 as well

as $1,749,041.10 in offer‐of‐compromise interest (in accordance with Conn. Gen.

Stat. § 52‐192a), for a total award of $21,749,041.10 in favor of Mirlis against Greer

and Yeshiva.

              Pursuant to Federal Rule of Civil Procedure 59(a), Greer and

Yeshiva filed a motion for new trial, or in the alternative, for remittitur on June


3      See, e.g., Berry v. Loiseau, 614 A.2d 414, 435 (Conn. 1992) (punitive damages
limited to expense of litigation, including attorneysʹ fees, less taxable costs); Waterbury
Petroleum Prods., Inc. v. Canaan Oil & Fuel Co., 477 A.2d 988, 1004 (Conn. 1984) (same).
                                            - 10 -
28, 2017. They argued that the ʺevidence presented at trial simply cannot

support the juryʹs exorbitant verdict in this case, which is dramatically out of step

with non‐economic damage awards by juries in cases involving similar claims of

sexual abuse, both in Connecticut and throughout the country.ʺ D. Ct. Doc. No.

172 at Attachment #1. Later, on October 27, 2017, Greer and Yeshiva filed a

motion for relief from final judgment, pursuant to Rule 60(b)(2), arguing that

new evidence in the form of testimony from a former teacher at Yeshiva would

undermine the credibility of Mirlis and Hack and would likely have led to a

different verdict had it been presented at trial. On December 8, 2017, ruling from

the bench, the district court denied both motions.

             This appeal followed.4

                                   DISCUSSION

             Greer and Yeshiva challenge (1) the district courtʹs instructions to

the jury on the invocation of the privilege; (2) the district courtʹs handling of

Greerʹs invocation of the privilege; (3) the denial of their motion for a new trial or

remittitur based on the purported excessiveness of the juryʹs compensatory



4      In 2019, Greer was convicted on four counts of risk of injury to a minor in
violation of Connecticut law, and he was sentenced to 20 yearsʹ imprisonment, to be
suspended after he serves 12 years. See Docket, State v. Greer, NNH‐CR17‐0177934‐T.
Greer has appealed that decision.
                                         - 11 -
damages award; and (4) the denial of their motion for relief from judgment based

on newly discovered evidence. We discuss each issue in turn.

I.    Jury Instruction on Fifth Amendment Privilege

             Greer and Yeshiva acknowledge that the district courtʹs jury

instruction set forth the ʺcorrect statement of law ‐‐ at least in part.ʺ Defs.‐Apps.

Br. at 15. They argue, however, that more extensive instructions were warranted

given the ʺcontroversial and emotional natureʺ of the allegations of sexual abuse

of a minor in this case. Id. In particular, they contend that the district court

should have included language to the effect that the privilege ʺmay have been

asserted [by Greer] for a variety of reasons, including reasons unrelated to [his]

guilt or innocence of any matters related to this case.ʺ Appʹx at 54; see Defs.‐

Apps. Br. at 15‐17. We are not persuaded.

      A.     Applicable Law

             We review a district courtʹs instructions to the jury de novo. Uzoukwu

v. City of New York, 805 F.3d 409, 414 (2d Cir. 2015). ʺJury instructions are

erroneous if they mislead the jury or do not adequately inform the jury of the

law.ʺ Id. For a verdict to be set aside based on an erroneous jury charge, the

appellant must show that the ʺerror was prejudicial in light of the charge as a



                                        - 12 -
whole.ʺ E.g., Turley v. ISG Lackawanna, Inc., 774 F.3d 140, 153 (2d Cir. 2014)

(internal quotation marks omitted).

             In Brinkʹs Inc. v. City of New York, we upheld the admission of

evidence of witnessesʹ invocations of the privilege where the district court

instructed the jury that a ʺwitness ha[s] a constitutional right to decline to answer

on the ground that it may tend to incriminate him [and] you may, but need not,

infer by such refusal that the answers would have been adverse to the witnessʹ

interest.ʺ 717 F.2d 700, 707 (2d Cir. 1983) (alterations in original) (internal

quotation marks omitted); see also F.D.I.C. v. Fid. & Deposit Co. of Md., 45 F.3d 969,

979 n.5 (5th Cir. 1995) (holding jury instruction was proper where district court

stated ʺ[a] witness has a constitutional right to decline to answer on the grounds

that it might tend to incriminate himʺ and jury ʺmay draw an inference for or

against a partyʺ); Leonard B. Sand et al., 4 Modern Federal Jury Instructions: Civil,

Instruction 75‐5 (2019) (ʺ[I]n civil cases, you are permitted, but not required, to

draw the inference that withheld information would have been unfavorable to

the defendant.ʺ).

             We have addressed whether a party‐witness suffers prejudice from a

courtʹs adverse inference instruction regarding the privilege. In Woods v. START



                                         - 13 -
Treatment & Recovery Centers, Inc., we held that the party suffered ʺacute

prejudiceʺ where the jury instructions included language permitting the jury to

infer that, but for the assertion of the privilege, the party would have answered

ʺyesʺ when asked whether she had been accused of unethical conduct. See 864

F.3d 158, 170‐71 (2d Cir. 2017). In Woods, the district courtʹs instruction

effectively directed the jury to adopt the negative inference. Noting the

questionable probative value of the adverse inferences there, we held that

admission of the invocations and the instruction were improper.5

      B.     Application

             We conclude that the district courtʹs jury instruction here was

neither erroneous nor unfairly prejudicial.

             As to the claim of error, the district court advised the jurors that they

ʺmay, but are not required to, inferʺ from Greerʹs invocation of the privilege that

his ʺanswer would have been adverse to [his] interest.ʺ D. Ct. Doc. 153 at 15.



5      In Woods, the court instructed the jury that ʺyou may infer that the plaintiffʹs
answers at the deposition, if she had not refused to answer, would have been ʹyesʹ to the
questions asked.ʺ 864 F.3d at 170. Moreover, most of the disputed questions asked
whether the plaintiff had been accused of something, and, as we noted, mere
accusations have little, if any, probative value. Id. Other questions asked whether the
plaintiff had ever been convicted of ʺany immoral or unethical conduct,ʺ and these
questions risked the admission of evidence of prior convictions that did not meet the
requirements of Federal Rule of Evidence 609(a)(2). Id. 170‐71.
                                          - 14 -
This instruction was an accurate statement of the law and was not materially

different from the adverse inference instruction we approved in Brinkʹs. And

while Greer desired additional language to advise the jury of its ability to ʺtotally

disregard the evidence of the assertion of the Fifth Amendment by [] Greer,ʺ

Appʹx at 54, there is no requirement that jury instructions be favorable to a party,

see Riverwoods Chappaqua Corp. v. Marine Midland Bank, N.A., 30 F.3d 339, 346 (2d

Cir. 1994) (ʺWhile a more specific instruction might have been helpful, there is no

basis for concluding that the jury was given a misleading or inaccurate

impression of the law.ʺ); see also Coquina Invs. v. TD Bank, N.A., 760 F.3d 1300,

1309 n.8 (11th Cir. 2014) (ʺ[W]hen the instructions, taken together, properly

express the law applicable to the case, there is no error even though an isolated

clause may be inaccurate, ambiguous, incomplete or otherwise subject to

criticism.ʺ (internal quotation marks omitted)); Fid. & Deposit Co. of Md., 45 F.3d

at 979 (holding that district court did not err in ʺnot cautioning the jury that the

Fifth Amendment may be invoked by an innocent partyʺ); cf. United States v.

Green, 599 F.3d 360, 378 (4th Cir. 2010) (holding that even though ʺʹa more

specific instruction might have been desirableʹʺ and the ʺproposed instruction

may have more adequately presented his defense theory,ʺ a district court does



                                        - 15 -
not abuse its discretion where defendantʹs proposed instructions were ʺclearly

coveredʺ by the district courtʹs instruction (citation omitted)). Greer and Yeshiva

do not cite any example of a case where the instruction they requested was

actually given.

             As to the claim of prejudice, the district courtʹs instruction to the jury

was not prejudicial. Unlike in Woods, where the instruction suggested that the

jury should assume the negative inference, the instruction here did not invite

prejudice against Greer by implying that Greerʹs silence should be construed as

an outright admission. Accordingly, the district courtʹs jury instruction was

proper.

II.   Invocation of the Privilege

             Greer does not dispute the relevance of questions concerning

incidents of sexual abuse against Mirlis, but he argues that the series of questions

that elicited his invocation of the privilege were cumulative and unduly

prejudicial, and that the district court ʺerred in its decision not to prohibit, or

reasonably limit, questioning about critical and potentially inflammatory

allegations of sexual abuse.ʺ Defs.‐Apps. Br. at 27‐28. We hold that the district




                                         - 16 -
court did not abuse its discretion in admitting the evidence of Greerʹs invocation

of the privilege in the manner that it did.

      A.     Applicable Law

             ʺWe review for abuse of discretion the district courtʹs admission into

evidence of a witnessʹs invocation of the Fifth Amendment.ʺ Woods, 864 F.3d at

170 (citation omitted). To be admissible, a witnessʹs invocation of the Fifth

Amendment privilege against self‐incrimination must satisfy Federal Rules of

Evidence 401 and 403. See LiButti v. United States, 107 F.3d 110, 124 (2d Cir. 1997);

Brinkʹs, 717 F.2d at 710. Under Rule 401, evidence is relevant if it ʺmakes a

consequential fact more or less probable.ʺ In re 650 Fifth Ave. & Related Props., 934

F.3d 147, 171 (2d Cir. 2019) (citing Fed. R. Evid. 401). We have held that

factfinders may draw ʺadverse inferences against parties to civil actions when

they refuse to testify in response to probative evidence offered against them.ʺ

Woods, 864 F.3d at 170 (quoting Baxter v. Palmigiano, 425 U.S. 308, 318 (1976)); see

650 Fifth Ave., 934 F.3d at 171; Brinkʹs, 717 F.2d at 707 (ʺThe privilege is merely an

option of refusal, not a prohibition of inquiry and it is universally conceded that

the question may be put to the witness on the stand. . . .ʺ (internal quotation marks

omitted)).



                                        - 17 -
             Relevant evidence, however, may be excluded ʺif its probative value

is substantially outweighed by a danger of . . . unfair prejudice . . . or needlessly

presenting cumulative evidence.ʺ Fed. R. Evid. 403. ʺWhile [the analysis under

Rule 403] is case specific, the mere fact that a Fifth Amendment invocation is

ʹdamningʹ to a partyʹs position does not preclude its introduction,ʺ but

ʺinvocations that cross the line to ʹinflammatoryʹ are more likely to fail under

Rule 403.ʺ 650 Fifth Ave., 934 F.3d at 171 (quoting Brink’s, 717 F.3d at 710).

             As a function of its discretion under Rule 403, a district court

controls the form in which evidence of the privilege invocation reaches the jury.

Id. at 171‐72 (distinguishing between content and form with respect to admission

of evidence that the witnesses invoked the privilege); Rad Servs., Inc. v. Aetna Cas.

& Sur. Co., 808 F.2d 271, 277 (3d Cir. 1986). And the dramatization of a partyʹs

presentation of evidence may ʺtip[] the Rule 403 scale from ʹdamningʹ to

ʹinflammatory.ʹʺ 650 Fifth Ave., 934 F.3d at 172 (quoting Brinkʹs, 717 F.2d at 710).

             The dissent in Brinkʹs foreshadowed the issue of factfinders being

induced to draw prejudicial adverse inferences from a witnessʹs privilege

invocation by counselʹs ʺsharpʺ practice of conducting a ʺsystematic interrogation

of witnesses on direct examination . . . know[ing] they will assert the privilege



                                         - 18 -
against self‐incrimination.ʺ 717 F.2d at 715 (Winter, J., dissenting). One principal

concern was that a party would ask fact‐specific, leading questions ʺdesigned to

suggest to the jury that but for the privilege the answer in each case would have

been ʹyesʹʺ and ʺinevitably invite[] jurors to give evidentiary weight to questions

rather than answers.ʺ Id. at 716. The dissent was also concerned that the strategy

would ʺeffectively den[y] the right of cross‐examination since the witness cannot

even be made to explain why the privilege has been invoked, much less to

contradict the intended inference.ʺ Id. On the other hand, it was precisely these

kinds of questions ‐‐ fact‐specific, leading questions ‐‐ that the majority in Brinkʹs

held were permissible. Id. at 715‐16 (dissent quoting questions).

             We revisited the issue surrounding dramatization of a witnessʹs

privilege invocation in 650 Fifth Avenue. There, the district court permitted the

Government to present the jury with videotapes of witnesses, who did not testify

at trial, ʺdeclining to answer question after question during their depositions.ʺ

650 Fifth Ave., 934 F.3d at 172. We held that the ʺparad[ing] of videotapes, which

the Government strategically spread out across multiple days of trial, was

substantially more prejudicial and redundant than probativeʺ because ʺ[t]he

videotapes repeatedly reminded the jury of the witnessesʹ decisions not to



                                        - 19 -
testifyʺ and ʺrepeatedly put the Governmentʹs incriminating questions in the

jurorsʹ minds ‐‐ questions the parties agreed were not evidence and that the court

allowed the Government to submit as an exhibit.ʺ Id.

             In evaluating the risk of unfair prejudice that may result from the

manner in which a party introduces his evidence, we may compare the district

courtʹs course of action against evidentiary alternatives. Id. (reasoning that

district court could have employed ʺ[s]ubstantially less prejudicial and

redundant alternativesʺ such as a stipulation or a more limited showing of

videotape evidence of witnessesʹ invocation of the privilege); accord Fed. R. Evid.

403 advisory committeeʹs note to the 1972 proposed rules (ʺavailability of other

means of proof may also be an appropriate factorʺ in deciding whether to

exclude on grounds of unfair prejudice); Old Chief v. United States, 519 U.S. 172,

184 (1997) (holding that probative value of evidence ʺmay be calculated by

comparing evidentiary alternativesʺ).

      B.     Application

             Because Greer and Yeshiva concede that his invocation of the

privilege was relevant, we focus on whether the elicitation of that evidence at

trial withstands scrutiny under Rule 403. It does. While the evidence of Greerʹs



                                        - 20 -
invocation of the privilege against self‐incrimination was surely ʺdamning,ʺ it

was not unfairly prejudicial, and the district court did not abuse its discretion in

admitting the evidence in the manner that it did.

             First, Greerʹs invocation of the privilege was highly probative. His

refusal to answer such basic questions as whether he forced Mirlis to have sex

with him when Mirlis was a child is telling. ʺSilence is often evidence of the most

persuasive character.ʺ United States ex rel. Bilokumsky v. Tod, 263 U.S. 149, 153‐54

(1923) (quoted with approval in Baxter, 425 U.S. at 319).

             Second, there was substantial independent evidence to corroborate

the inference. See Baxter, 425 U.S. at 318 (ʺ[T]he Fifth Amendment does not

forbid adverse inferences against parties to civil actions when they refuse to

testify in response to probative evidence offered against them.ʺ); Doe ex rel. Rudy‐

Glanzer v. Glanzer, 232 F.3d 1258, 1264 (9th Cir. 2000) (ʺ[A]n adverse inference can

be drawn when independent evidence exists of the fact to which the party refuses to

answer.ʺ). Of course, Mirlis testified in painful detail as to Greerʹs abuse of him;

he was subjected to cross‐examination, and the jury believed him. There was

other evidence of Greerʹs abuse of Mirlis as well, including the assistant

principalʹs testimony. Clearly, the jury did not base its decision ʺsolelyʺ on



                                        - 21 -
Greerʹs refusal to testify. See Cerro Gordo Charity v. Firemanʹs Fund Am. Life Ins.

Co., 819 F.2d 1471, 1482 (8th Cir. 1987).

             Third, the district court gave the jury limiting instructions during

Greerʹs testimony and again at the end of the trial. Indeed, after Greer had

answered a few questions about whether he had invoked the privilege at his

deposition and whether he intended to invoke the privilege at trial, he asserted

the privilege only once before the district court intervened to give a limiting

instruction. After Greer invoked the privilege a few more times, the court

reminded the jury ʺ[s]ame instruction as before.ʺ D. Ct. Doc. No. 230 at 95. And

soon thereafter, the district court sustained the objection on the grounds the

questions had become cumulative. Mirlisʹs counsel ceased asking questions

about the sexual assaults.

             Fourth, Greer asserted the privilege inconsistently. He answered

many questions, including questions inquiring as to whether he had sexually

abused Mirlis when he was a student. For instance, shortly after invoking the

privilege, Greer denied that he had sexually abused Mirlis in the woods in

Hamden. Greer also invoked the privilege in response to questions with no

apparent implication that Greer had engaged in criminal conduct, such as



                                            - 22 -
whether he taught religious and secular studies. As the district court observed,

the jury was likely swayed by ʺGreerʹs selective invocation of his rights rather

than by his assertion of the [privilege].ʺ D. Ct. Doc. No. 300 at 28.

             In 650 Fifth Avenue, where the Government presented a ʺparade of

videotapes,ʺ ʺspread out across multiple days of trial,ʺ of witnesses at their

depositions refusing to answer question after question, we concluded that ʺthe

district courtʹs failure to moderate the Governmentʹs extreme tactic was an abuse

of discretion.ʺ 650 Fifth Avenue, 934 F.3d at 172. Here, Mirlisʹs use of Greerʹs

invocation of the privilege was not extreme, and the district court in fact

moderated the presentation of the evidence. Accordingly, we conclude that the

district court did not abuse its discretion in permitting the evidence of Greerʹs

invocation of the privilege in the circumstances here.

III.   Motion for New Trial or Remittitur

             Greer maintains that the district court erred in denying his motion

pursuant to Rule 59 for a new trial or remittitur because there was insufficient

proof of Mirlisʹs noneconomic damages and that the $15 million jury verdict was

ʺshocking.ʺ Defs.‐Apps. Br. at 32‐48. We are not persuaded, in light of similar

awards by juries and courts in Connecticut.



                                        - 23 -
      A.     Applicable Law

             We review for abuse of discretion a motion under Federal Rule of

Civil Procedure 59 for remittitur or new trial. Munn v. Hotchkiss Sch., 795 F.3d

324, 335 (2d Cir. 2015); In re Methyl Tertiary Butyl Ether (MTBE) Prods. Liab. Litig.,

725 F.3d 65, 112 n.34 (2d Cir. 2013). ʺ[I]n deciding remittitur motions in diversity

cases, federal courts apply federal procedural standards and state substantive

law.ʺ Imbrogno v. Chamberlin, 89 F.3d 87, 90 (2d Cir. 1996); accord Munn, 795 F.3d

at 335.

             ʺUnder Connecticut law, a court may grant remittitur only when the

jury verdict is excessive as a ʹmatter of law.ʹʺ Imbrogno, 89 F.3d at 90 (quoting

Peck v. Jacquemin, 491 A.2d 1043, 1052 (Conn. 1985)). The size and scope of the

juryʹs verdict must be supported by the record. Munn, 795 F.3d at 335‐36.

             If the district court concludes, after examining and
             comparing similar jury awards in Connecticut, that the
             verdict in the instant case is excessive as a matter of
             Connecticut law, it should order a new trial on the issue
             of damages, unless the plaintiffs agree to remit that
             portion of the jury verdict deemed excessive.

Imbrogno, 89 F.3d at 90.

             In considering a damages award, ʺa trial court must evaluate

ʹwhether the juryʹs award falls somewhere within the necessarily uncertain limits

                                         - 24 -
of just damages or whether the size of the verdict so shocks the sense of justice as

to compel the conclusion that the jury [was] influenced by partiality, prejudice,

mistake or corruption.ʹʺ Munn, 795 F.3d at 335 (quoting Birgel v. Heintz, 301 A.2d

249, 252 (Conn. 1972) (alteration in original)). A jury award may not be set aside

merely because it exceeds what the court would have awarded. Saleh v. Ribeiro

Trucking, LLC, 32 A.3d 318, 323 (Conn. 2011) (citing Campbell v. Gould, 478 A.2d

596, 600 (Conn. 1984)).

             There are only a few decisions in Connecticut addressing the size of

a jury award in cases concerning sexual abuse of a minor, but they are

instructive. For example, in Iino v. Spalter, the court denied a motion to set aside

a $15 million jury verdict against a defendant based on claims that he sexually

abused the plaintiff from the time she was six years old until she was seventeen.

192 Conn. App. Ct. 421, 477 (2019). In Doe v. Boy Scouts of Am. Corp., 147 A.3d 104

(Conn. 2016), the Connecticut Supreme Court upheld an award of $7 million for

three incidents of sexual assault against a minor victim. And in Blair v. LaFrance,

the court awarded $75,200 for economic damages; $500,000 for noneconomic

damages; and $167,800 in punitive damages based on claims that the defendant

sexually molested the plaintiff several times before the plaintiffʹs sixteenth



                                        - 25 -
birthday. No. CV 980149622S, 2000 WL 1508232, at *5 (Conn. Super. Ct. Sept. 27,

2000).

         B.   Application

              The district court did not abuse its discretion in denying Greerʹs

motion for a new trial or remittitur because the verdict is not excessive as a

matter of Connecticut law. While Greer argues that Mirlis lacked evidence to

support the award of noneconomic damages, there was ample evidence in the

record of Mirlisʹs physical, emotional, and psychological injuries. In addition to

Mirlisʹs own testimony, his wife and psychologist both testified that Mirlis had

issues with intimacy, forming emotional attachments, and vulnerability with

others. Mirlisʹs wife explained that Greerʹs abuse had a significant, negative

impact on their married life and that Greerʹs continued presence in Mirlisʹs life

was a source of discord between her and Mirlis. Mirlisʹs psychologist, an expert

in PTSD and childhood trauma, indicated that even with treatment, the sexual

abuse Mirlis suffered as a minor would have lifelong consequences for him. The

jury clearly credited the witnessesʹ testimony in finding Greer and Yeshiva liable

and awarding compensatory damages of $15 million.




                                        - 26 -
             The amount of compensatory damages is undoubtedly high, but we

are not persuaded that a new trial or remittitur is warranted under Connecticut

law. The award here is not excessive when compared to the awards in the cases

cited above. Here, the record indicates that Mirlis suffered repeated abuse for

approximately three years, from the time he was fourteen until he was seventeen

years old. At certain points, Mirlis was abused for hours at a time, on a weekly

basis. The first time Greer abused Mirlis, he plied Mirlis with alcohol, pretended

to care about Mirlis and his family, acknowledged Mirlisʹs parentsʹ financial

struggles, and then kissed him. Eventually the abuse included oral sex, anal sex,

mutual masturbation, and watching pornography together ‐‐ while Mirlis was a

sophomore, junior, and senior in high school and Greer was a 60‐something year

old man.

             On a per incident basis, the $15 million verdict falls within the range

of noneconomic damages that have been upheld by Connecticut courts in cases

of sexual abuse. See Boy Scouts, 147 A.3d at 111, 128 (permitting a $7 million

award for three incidents of sexual assault on a ten‐ or eleven‐year old); Doe v.

Thames Valley Council for Cmty. Action, Inc., 797 A.2d 1146, 1151 n.1 (Conn. 2002)

(upholding a total award of noneconomic damages of $220,000 to minors who



                                       - 27 -
were sexually assaulted by their school bus driver); Sciola v. Shernow, 577 A.2d

1081, 1084 (Conn. 1990) (holding that trial court erred in ordering remittitur of

$323,833.34 of a $400,000 jury verdict to plaintiff on claims that her dentist

sexually assaulted her while she was sedated). Mirlis testified that Greer

sexually abused him weekly during his sophomore year (when he was fourteen

years old) and somewhat less often during his junior and senior years (but still at

least every three or four weeks), and therefore he was sexually assaulted dozens

of times.6 Based on the evidence presented at trial, we are not persuaded that the

juryʹs award ʺshocks the sense of justice.ʺ Consequently, we conclude that the

district court did not abuse its discretion in denying the motion for a new trial or

remittitur. Greerʹs challenge to the amount of the verdict fails.

IV.    Motion for Relief from Final Judgment

              Finally, Greer contends that newly discovered evidence, a former

Yeshiva teacherʹs recounting of Mirlisʹs interactions with Hack while the two




6       In his appellate brief, Mirlis estimates that he was sexually assaulted ninety times
over the course of three academic years. In denying the motion for a new trial, the
district court noted that the $15 million award would amount to ʺroughly $300,000 per
episodeʺ using fifty as the number of incidents, which it concluded was ʺnot out of lineʺ
with other cases. D. Ct. Doc. No. 300 at 32.
                                           - 28 -
were at Yeshiva, would have changed the outcome of the trial by discrediting the

testimony of Mirlis and Hack. This argument is without merit.

      A.     Applicable Law

             This Court reviews a district courtʹs ruling on a Rule 60(b) motion

for abuse of discretion. Devlin v. Transp. Commcʹns Intʹl Union, 175 F.3d 121, 132

(2d Cir. 1999). ʺRule 60(b) allows relief from a judgment or order when evidence

has been newly discovered or for any other reason ʹjustifying relief from the

operation of the judgment.ʹʺ Id. at 131‐32 (quoting Fed. R. Civ. P. 60(b)(2), (6)).

As we have explained,

             [T]he movant must demonstrate that (1) the newly
             discovered evidence was of facts that existed at the time
             of trial or other dispositive proceeding, (2) the movant
             must have been justifiably ignorant of them despite due
             diligence, (3) the evidence must be admissible and of
             such importance that it probably would have changed
             the outcome, and (4) the evidence must not be merely
             cumulative or impeaching.

United States v. Intʹl Bhd. of Teamsters, 247 F.3d 370, 392 (2d Cir. 2001) (internal

quotation marks omitted); accord State St. Bank & Tr. Co. v. Inversiones Errazuriz

Limitada, 374 F.3d 158, 178 (2d Cir. 2004); Westerly Elecs. Corp. v. Walter Kidde &

Co., 367 F.2d 269, 270 (2d Cir. 1966) (per curiam) (citing Kolan v. Csengeri, 268 F.2d

239, 240 (2d Cir. 1959) (per curiam)).

                                         - 29 -
      B.    Application

            The motion for relief from final judgment relied on a witness who

purportedly came forward only after learning of the verdict in the case, but the

motion papers did not identify the witness by name and was supported only by

affidavits from two attorneys and Greer. One of the lawyers reported that the

individual claimed that Mirlis was his student when he taught at Yeshiva from

2002‐2004 and that Mirlis engaged in ʺunusual behaviorʺ and was a ʺfrequent

liar.ʺ Appʹx at 432. The lawyer also reported that the witness observed that

Mirlis and Hack had a ʺvery unusualʺ relationship that was ʺnot a normal

student/teacher relationship.ʺ Id.

            The district court did not abuse its discretion in denying the motion.

It concluded that even assuming Mirlis engaged in ʺbad behavior,ʺ ʺthe jury

could reasonably have viewed such behavior as evidence of the mental toll of

Greerʹs abuse upon Mirlis.ʺ D. Ct. Doc. No. 300 at 53. We agree with this

assessment. Moreover, as to the evidence that Mirlis was a frequent liar and that

he and Hack had an unusual relationship, to the extent the evidence was

admissible at all, it was merely impeachment evidence. Greer and Yeshiva cross‐

examined Mirlis at length at trial, and they had an opportunity to attack Hackʹs



                                       - 30 -
credibility as well at his deposition. The district court did not err, much less

abuse its discretion, in concluding that the proposed additional evidence from

the unnamed teacher would not have changed the outcome of the case and did

not warrant relief from judgment.

                                  CONCLUSION

              For the reasons set forth above, we AFFIRM the judgment of the

district court.




                                        - 31 -
