MAINE SUPREME JUDICIAL COURT                                       Reporter of Decisions
Decision: 2014 ME 101
Docket:   Han-13-485
Argued:   June 10, 2014
Decided:  August 7, 2014

Panel:       SAUFLEY, C.J., and ALEXANDER, SILVER, MEAD, GORMAN, and JABAR, JJ.


                                SANTINA CARUSO

                                          v.

                          THE JACKSON LABORATORY

JABAR, J.

         [¶1] Santina Caruso appeals from a judgment entered in the Superior Court

(Hancock County, Cuddy, J.) after a jury found for The Jackson Laboratory on her

claims that the Laboratory had terminated her employment in violation of the

Whistleblowers’ Protection Act (WPA). See 26 M.R.S. §§ 831, 833(1)(A) (2013).

Caruso argues that the court erred by instructing the jury that it could find that

Caruso had met her burden of proving causation only if it determined that “the

employee’s whistleblowing activities . . . made a substantial difference in

determining whether she was to be retained or terminated.” (Emphasis added.)

Additionally, Caruso argues that the court erred in failing to issue a corrective

instruction or grant a new trial following a series of purportedly prejudicial

statements made by the attorney for the Laboratory during closing arguments. We

affirm the judgment.
2

                               I. BACKGROUND

      [¶2]   Viewing the evidence in the light most favorable to The Jackson

Laboratory as the prevailing party, a jury could have rationally found the following

facts. See Garland v. Roy, 2009 ME 86, ¶ 2, 976 A.2d 940.

      [¶3]   The Jackson Laboratory hired Santina Caruso as a veterinary

technician to care for animals (primarily mice) used in medical research. Because

the Laboratory and the researchers who work there receive funding from the

National Institutes of Health, the Laboratory and researchers are required to

comply with regulations and guidelines governing the humane treatment of

animals used in medical research. Caruso began working at the Laboratory on

February 25, 2008, with an initial ninety-day probationary period.              Her

employment was terminated on June 13, 2008.

      [¶4] During the first months of her employment, Caruso observed what she

believed to be numerous violations of the regulations and guidelines governing the

ethical treatment of animals, including the Laboratory’s clipping of the toes of

adult mice, taking blood from mice’s eyes without using anesthesia, and failing to

euthanize mice that were in terminal condition. She reported the violations to her

supervisors and, eventually, to the Laboratory’s in-house veterinarian. In June of

2008, because she believed that her supervisors at the Laboratory were not

addressing the issues adequately, Caruso reported her concerns to the Office of
                                                                                                      3

Laboratory Animal Welfare (OLAW), an oversight authority in the U.S.

Department of Health and Human Services National Institutes of Health.1

         [¶5] During the same time period, Caruso had several confrontations with

other Laboratory employees relating to her concerns about the treatment of

animals. During these confrontations, Caruso was sarcastic and inappropriate. In

addition, she was dismissive of, and demonstrated a total lack of respect for, her

direct supervisor, her coworkers, and at least one of the research scientists and his

staff.

         [¶6] On June 4, 2008, Caruso’s supervisors—Claudia Basso, Bonnie Lyons,

and Peggy Danneman—met to discuss extending her initial ninety-day

probationary period because of Caruso’s confrontational manner of communicating

with other staff members. Basso gave Caruso a letter on June 9, informing her that

due to her “disrespectful [and] uncooperative interactions” with coworkers and

“overstepping the boundaries” of her position, she would remain on probationary

status. Basso asked Caruso to meet with her, but Caruso repeatedly evaded her

attempts to set up a meeting. Caruso ultimately met with Basso, Lyons, and a


   1
      In July of 2008, after Caruso’s employment had already been terminated, OLAW began conducting
an investigation into Caruso’s allegations, and, in response, the Animal Care and Use Committee at the
Laboratory implemented two new internal policies governing euthanasia and animal treatment. Within
about six months, OLAW concluded its investigation and determined that with the Laboratory’s new
policies it “f[ound] no cause for further action.” OLAW sent Caruso a letter to inform her that although
the investigation “was merited,” it concluded that the Laboratory had complied with the relevant
regulations and guidelines.
4

representative from the Laboratory’s human resources department on June 13.

Caruso attempted to record the meeting, and she refused to discuss either the

confrontations with her coworkers or the action plan to continue her probationary

period. The following Monday, Caruso’s supervisors informed her that they were

terminating her employment.

      [¶7] Following her termination, Caruso filed a complaint in the Superior

Court alleging that the Laboratory had taken retaliatory action against her in

violation of the WPA. See 26 M.R.S. § 833(1)(A). Five years after the events in

question, the court held a jury trial over the course of four days in May and

June 2013. At the end of the trial, the court met with counsel for both parties to

discuss its instructions to the jury. Caruso objected to the court’s instruction that

the jury must find that her whistleblowing activities “in fact . . . made a substantial

difference in determining whether she was to be retained or terminated,” arguing

that the standard was whether the whistleblowing activities made any difference.

The court overruled Caruso’s objection.

      [¶8] Additionally, during closing arguments, the attorney for the Laboratory

stated,

      I presented my, I call them my four gals. I’ve known them now for
      three years since this litigation has started so we’ve grown quite close.
      So I presented my witnesses. They’ve come before you. They’ve
      testified. You assess what their intent was. I told you when I opened
      we want you to find the truth. We’re not afraid of the truth. Find the
                                                                                   5

      truth. They told you what they did . . . We’ve shown you who they
      are. Not in snippets of little testimony from depositions. They came
      in person and they told you.

Caruso objected only to the characterization of her evidence as “snippets,” arguing

that counsel for the Laboratory implied that the deposition testimony that Caruso

presented at trial was of lesser weight than live testimony. The court overruled

Caruso’s objection.

      [¶9] Later in his closing argument, counsel for the Laboratory also stated, “I

only know one thing.       There are four women over there [referring to the

Laboratory’s witnesses]. There’s no evil in them. There’s no malice in them.

There’s no mischief in them.” Caruso did not object to this statement.

      [¶10] At the conclusion of the trial, the jury rendered a verdict in favor of

the Laboratory. Caruso filed a motion for a new trial, arguing that the court erred

in instructing the jury on the issue of causation and that counsel for the Laboratory

made unduly prejudicial comments during its closing argument. The court denied

her motion, and Caruso timely appealed. See M.R. App. P. 2(b)(3).

                                 II. DISCUSSION

      [¶11] The WPA prohibits the discharge of employees “because . . . [t]he

employee, acting in good faith . . . reports . . . to . . . a public body what the

employee has reasonable cause to believe is a violation of a law or rule adopted

under the laws of this State . . . or the United States.” 26 M.R.S. § 833(1)(A).
6

“There are three elements to a claim of unlawful retaliation: (1) the employee

engaged in activity protected by the statute; (2) the employee was the subject of an

adverse employment action; and (3) there was a causal link between the protected

activity and the adverse employment action.” Costain v. Sunbury Primary Care,

P.A., 2008 ME 142, ¶ 6, 954 A.2d 1051.

A.    Jury Instructions

      [¶12] Caruso argues that the court erred in instructing the jury on the third

element—the causal link between the protected activity of reporting violations to a

public body and her termination. “We review jury instructions in their entirety and

will disturb a judgment on the grounds that the jury instructions are in error only if

the instructions fail to inform the jury correctly and fairly in all necessary respects

of the governing law.”       Niedojadlo v. Cent. Me. Moving & Storage Co.,

1998 ME 199, ¶ 8, 715 A.2d 934. Interpretation of a statute is a question of law

that we review de novo. See Costain, 2008 ME 142, ¶ 5, 954 A.2d 1051. When a

party challenging the court’s instruction has preserved his or her objection at trial,

we will vacate the court’s judgment only if the erroneous instruction resulted in

prejudice. WahlcoMetroflex, Inc. v. Baldwin, 2010 ME 26, ¶ 14, 991 A.2d 44;

Niedojadlo, 1998 ME 199, ¶ 8, 715 A.2d 934; see also M.R. Civ. P. 51(b).

      [¶13]    To demonstrate a causal link, the plaintiff must show that the

protected activity (whistleblowing) “was a substantial, even though perhaps not the
                                                                                     7

only, factor motivating the employee’s dismissal.” Walsh v. Town of Millinocket,

2011 ME 99, ¶ 25, 28 A.3d 610 (quoting Wells v. Franklin Broad. Corp.,

403 A.2d 771, 773 (Me. 1979)).        We have explained that “the jury must be

instructed that even if more than one factor affects the decision to dismiss an

employee, the employee may recover if one factor is [unlawful discrimination] and

in fact it made a difference in determining whether he was to be retained or

discharged.” Wells, 403 A.2d at 773 (emphasis added).

      [¶14] Here, the court instructed the jury:

      The proper inquiry for you is whether the plaintiff’s whistleblower
      activities were a substantial, even though perhaps not the only, factor
      motivating her termination. The standard is substantial factor
      motivating the termination. Plaintiff may recover if one factor was a
      whistleblowing activit[y], and in fact that made a substantial
      difference in determining whether she was to be retained or
      terminated.

(Emphasis added.) In restating Caruso’s burden of proof with respect to causation,

the court added the term “substantial,” requiring Caruso to demonstrate not only

that her whistleblowing activity “made a difference,” id., but that it “made a

substantial difference.”    Cf. Walsh, 2011 ME 99, ¶¶ 16-18, 28 A.3d 610;

Wells, 403 A.2d at 772-75. Thus, we conclude that the court erred in instructing

the jury on the element of causation. See Wells, 403 A.2d at 772-75 (concluding

that the court erred when it instructed the jury that it must find that termination was

“‘on the basis of age, and nothing but age’” because “the proper inquiry is whether
8

age was a substantial, even though perhaps not the only, factor motivating the

employee’s dismissal”).

      [¶15] However, “an error in the instructions is reversible error only if it

results in prejudice.” Niedojadlo, 1998 ME 199, ¶ 8, 715 A.2d 934; see also M.R.

Civ. P. 61. Prejudice occurs when an erroneous instruction on a particular point of

law affects the jury’s verdict, see Kezer v. Cent. Me. Med. Ctr., 2012 ME 54, ¶ 25,

40 A.3d 955, or alternatively, when “the instruction was so plainly wrong and the

point involved so vital that the verdict must have been based upon a misconception

of the law,” Neal v. Bowes, 159 Me. 162, 168, 189 A.2d 566 (1963) (quotation

marks and alterations omitted). We conclude that Caruso has not satisfied her

burden of demonstrating that she was prejudiced by the erroneous instruction on

either ground.

      [¶16] Although the court altered the description of the plaintiff’s burden of

proof on the element of causation in a WPA case, we review the court’s

instructions as a whole, Niedojadlo, 1998 ME 199, ¶ 8, 715 A.2d 934, and, viewed

in that context, the instruction was not “so plainly wrong . . . that the verdict must

have been based upon a misconception of the law,” Neal, 159 Me. at 168,

189 A.2d 566 (quotation marks omitted).            “Loose expressions, or simple

inaccuracies, in separation from context, will be disregarded when, as a whole,

instructions not only contain an entire, fair, and correct statement of the law, but
                                                                                     9

are free from any misleading influence.”          Reed v. Cent. Me. Power Co.,

132 Me. 476, 480, 172 A. 823 (1934).

      [¶17]     Here, the court appropriately instructed the jury that the

whistleblowing activities need not be the sole or primary factor motivating the

termination. See Walsh, 2011 ME 99, ¶ 25, 28 A.3d 610; Wells, 403 A.2d at 773.

The court also properly instructed the jury that the existence of other reasonable

grounds for her termination does not relieve the laboratory from liability. See

Walsh, 2011 ME 99, ¶ 25, 28 A.3d 610; Wells, 403 A.2d at 773. Additionally, the

court stated that, for the jury to find for the plaintiff, her protected whistleblowing

activity must be a but-for cause of the employer’s decision to terminate the

employment. See Walsh, 2011 ME 99, ¶ 16, 28 A.3d 610. Another way of

restating the “but-for causation” test is whether the protected whistleblowing

activity is a “substantial . . . factor motivating the employee’s dismissal.” See

Wells, 403 A.2d at 773-74. Because the court’s remaining instructions provided

the jury with an accurate summary of the law, we conclude that the insertion of the

term “substantial” in the wrong place in the instructions did not lead the jury to

base its verdict on a “misconception of the law.”           Neal, 159 Me. at 168,

189 A.2d 566 (quotation marks omitted).

      [¶18]    Additionally, Caruso has failed to demonstrate that the court’s

instruction actually affected the jury’s verdict. See M.R. Civ. P. 61. In Kezer v.
10

Central Maine Medical Center, we noted that, despite the trial court’s erroneous

instruction on the statute of limitations, the party assigning error to the court’s

judgment failed to demonstrate that he was prejudiced by the court’s instructions.

2012 ME 54, ¶ 25, 40 A.3d 955. Because he “did not request or propose a jury

verdict form that separated the statute of limitations issue from the merits of his

claims,” we concluded that it was possible that the jury’s verdict was based on the

merits of his claims. Id.; see also M.R. Civ. P. 49(a). Similarly here, Caruso

objected to the court’s instruction but failed to request a special verdict form that

would have separated the issue of causation into multiple subparts, specifically

asking whether the jury found that the protected activity made a substantial

difference in the Laboratory’s decision to terminate. See Kezer, 2012 ME 54, ¶ 25,

40 A.3d 955. Rather, the verdict form presented to the jury in this case contained a

question that combined all three elements of a WPA action:

      Did the Plaintiff, Santina Caruso, prove by a preponderance of the
      evidence that the Defendant, Jackson Laboratory, violated her rights
      under the Whistleblower Protection Act as described in the
      instructions the Justice read to you?

Because the jury may have denied Caruso’s claims based on a determination that

Caruso did not engage in protected activity pursuant to the WPA or on the portion

of the court’s causation instructions that were proper, we conclude that Caruso has

failed to demonstrate that the court’s error actually affected the verdict.      See
                                                                                   11

Costain, 2008 ME 142, ¶ 6, 954 A.2d 1051; see also McLain v. Training & Dev.

Corp., 572 A.2d 494, 497-98 (Me. 1990).

B.    Closing Argument

      [¶19] Caruso argues that two statements made by counsel for the Laboratory

during closing arguments prejudiced her case: (1) references to his “four gals” who

testified on behalf of the Laboratory, which Caruso claims constituted improper

vouching for the credibility of his witnesses, and (2) a characterization of the video

deposition testimony that Caruso presented as less reliable than live in-court

testimony.

      1.     Vouching for Witnesses

      [¶20] “At trial, an attorney is prohibited from commenting on his or her

personal opinion as to the credibility of a witness.” State v. Williams, 2012 ME 63,

¶ 46, 52 A.3d 911.      When an attorney injects a personal opinion as to the

credibility of his or her own witnesses or the untruthfulness of the opposing party’s

witnesses, he or she breaches the Rules of Professional Conduct.           See M.R.

Prof. Conduct 3.4(e). As the Court of Appeals of New York summarized in a case

involving a similar comment made by a prosecuting attorney on the credibility of a

witness,

      Though it would . . . have been perfectly permissible for the [attorney]
      . . . to have concentrated, in argument, on proved facts and
      circumstances and the inferences to be drawn therefrom in order to
12

      support or undermine the credibility of any witness, it was utterly
      impermissible for him to present himself, as he here in effect did, as
      an unsworn witness to [the] truthfulness [of the witness].

New York v. Bailey, 447 N.E.2d 1273, 1275 (N.Y. 1983). Although a prosecutor’s

breach of this rule is particularly egregious because “[t]he prosecutor is cloaked

with the authority of the State [and] stands before the jury as the community’s

representative,” State v. Casella, 632 A.2d 121, 122 (Me. 1993) (quotation marks

and alterations omitted), this proscription equally applies to attorneys in civil cases,

see Rich v. Fuller, 666 A.2d 71, 77 (Me. 1995); see also M.R. Prof. Cond. 3.4(e).

      [¶21] Caruso failed to preserve her objections to the comments regarding

the credibility of witnesses by failing to timely object to them at trial. See Gilmore

v. Cent. Me. Power Co., 665 A.2d 666, 669 (Me. 1995). Thus, we review her

claims “for obvious error affecting substantial rights.”          Id.; see also M.R.

Evid. 103(e); Field & Murray, Maine Evidence § 103.3 at 11-12 (6th ed. 2007)

(describing the need for timely objections at trial).

      [¶22] Contrary to the Laboratory’s argument that counsel was simply asking

the jury to draw a conclusion from the evidence, counsel expressed a personal

opinion that the jury should find these witnesses credible based on his purported

personal friendship with them. This “vouching” for witnesses by an attorney is

neither permitted nor appropriate. However, because the court instructed the jurors

that “statements the attorneys make during the course of the trial . . . are not
                                                                                13

evidence” and because Caruso’s own testimony, other witnesses’ testimony, and

other evidence including emails and other documents corroborated most of the

testimony given by the Laboratory’s four witnesses at issue, the prejudicial effect

of the attorney’s improper vouching was minimized. Taken together, we conclude

that the court’s failure to take any action to remedy the attorney’s improper

statement about the witnesses’ credibility does not rise to the level of obvious

error. See Gilmore, 665 A.2d at 669.

      2.    Characterizing the Evidence

      [¶23] Finally, Caruso argues that the court erred in overruling her objection

to a statement by the Laboratory’s attorney characterizing the video deposition

testimony that she presented as “snippets of little testimony from depositions,”

which she argues gave the jury the impression that they should give the deposition

testimony less weight than the testimony presented in court. Because Caruso has

preserved this claim by timely objecting at trial, we review the court’s overruling

of her objection for an abuse of discretion. See Lambert v. Tripp, 560 A.2d 1097,

1099 (Me. 1989).

      [¶24] We agree that it is improper to characterize deposition testimony as

inherently less reliable than live, in-court testimony, see generally Alexander,

Maine Jury Instruction Manual §§ 4-16 at 4-39–41 (2014 ed.).           “[Improper]

remarks, however, do not always require reversal.” Gilmore, 665 A.2d at 668.
14

“The trial court has discretion to determine both the prejudicial effect of any

claimed improper conduct by counsel and what corrective measures should be

taken.” Miller v. Szelenyi, 546 A.2d 1013, 1018 (Me. 1988); see also Gilmore,

665 A.2d at 669 (“The trial court who heard the remarks in the context of the entire

trial is in the best position to gauge the reaction of the jury to them.”).

      [¶25]     Here, although Caruso objected to the Laboratory’s counsel’s

characterization of the video deposition as “snippets,” the court overruled her

objection, determining that the statement did not relate to the validity or weight of

the deposition testimony but was an “appropriate argument.” Because the jury

need not have inferred, as Caruso does, that the term “snippets” implied that the

evidence was inherently less reliable and should be given less weight, we conclude

that the court did not abuse its discretion in overruling her objection. See Lambert

v. Tripp, 560 A.2d at 1097, 1099 (Me. 1989)

      [¶26] Further, before the video deposition testimony was played, the court

appropriately instructed the jury:

      The witnesses that you’ll hear by video deposition are just as if they
      were here live. You can consider them as if they were witnesses
      sitting in this chair. You consider the information and the facts they
      provide as evidence for you to consider even though they are not
      physically here.

See Alexander, Maine Jury Instruction Manual § 4-16 at 4-39. Thus, even if the

characterization of the depositions as “snippets” were regarded as pertinent to the
                                                                                15

weight or validity of the evidence, the error is harmless. See Gilmore, 665 A.2d at

669-70 (concluding that improper comments by counsel did not require reversal

when the court’s instructions mitigated the effect of the comments).

       The entry is:

                       Judgment affirmed.




On the briefs:

       David G. Webbert, Esq., and Max R. Katler, Esq., Johnson &
       Webbert, LLP, Augusta, for appellant Santina Caruso

       Thad B. Zmistowski, Esq., and Ryan P. Dumais, Esq., Eaton
       Peabody, Bangor, for appellee The Jackson Laboratory


At oral argument:

       David G. Webbert, Esq., for appellant Santina Caruso

       Thad B. Zmistowski, Esq., for the appellee The Jackson
       Laboratory



Hancock County Superior Court docket number CV-2010-26
FOR CLERK REFERENCE ONLY
