Case 3:09-cv-00010-RP-TJS Document 133 Filed 11/20/12 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF IOWA
DAVENPORT DIVISION

TERESA R. WAGNER,
Plaintiff,
vs.
CAROLYN JONES, Former Dean of
Iowa College of Law
(in her official and individual capacities),
GAIL B. AGRAWAL, Dean of the
Iowa College of Law, in her official
capacity,
Defendants.

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) Law No. 3:09-cv-10
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) MOTION FOR NEW TRIAL
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Plaintiff Teresa R. Wagner, by and through her attorneys, Katz, Huntoon & Fieweger,
P.C., pursuant to Federal Rule of Civil Procedure 59(a), states as follows for her Motion for New
Trial:
1. Plaintiff Teresa Wagner respectfully moves this Court for a new trial as to Count I.
2. As the first grounds for a new trial, plaintiff reiterates her argument previously made
that the Magistrate Judge did not have authority to accept any verdict as to Count I after
declaring a mistrial and discharging this jury. See Memorandum of Law.
3. The second ground for new trial is the Courts prohibition of plaintiff from
questioning jurors during voir dire regarding their personal position or beliefs regarding abortion
and/or same sex marriage. While the Courts recollection was that it did not prohibit plaintiffs
counsel from inquiring, plaintiff had proposed voir dire questions regarding the issues of
abortion and same sex marriage, and, respectfully, plaintiffs counsels recollection is the
opposite of this Courts plaintiff believes this Court explicitly disallowed plaintiff from
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inquiring as to those matters during voir dire. Thus plaintiff did not so inquire of the potential
jurors on these issues.
4. The third ground for a new trial is the trial courts overruling of plaintiffs objections
to the cross-examination of one of plaintiffs witnesses, Professor Mark Osiel. Specifically, this
Court abused its discretion in allowing defense counsel to question Professor Osiel regarding an
unsubstantiated allegation and/or reference to an investigation of noises emanating from behind
the closed door of Professor Osiels office, with the implication by defense counsel that this
noise came from acts of a sexual nature. As supported in the accompanying Memorandum of
Law, before the District Court may admit 404(b) evidence, it must: (1) determine whether this
is sufficient evidence that the prior acts occurred; (2) determine whether the other act is
admissible for one of the proper purposes outlined in the rules; and (3) apply Rule 403 balancing
to determine whether the probative value of the evidence is substantially outweighed by the
danger of unfair prejudice. (Helfrich v. Lakeside Park Police Dept., 2012 F.App. 0956 N. (6
Cir. 2012), citing United States v. Hardy, 643 F.3d 143, 150 (6th Cir. 2011).) There was no
evidence the prior acts occurred, no proper purpose for admission, and clearly any remote
probative value of this unsubstantiated evidence was substantially outweighed by the danger of
unfair prejudice to plaintiff as well as this witness called by the plaintiff.
5. As fourth grounds for a new trial, this Court erred in refusing to re-read the testimony
of Randall Bezanson after the jury made this request on Tuesday, October 23, 2012, to view that
deposition transcript. Bezanson was the chief witness on the political discrimination claim and
his deposition testimony had been read to the jury one week prior to the request. This Courts
refusal to allow the jury to view that deposition was thus highly prejudicial to plaintiff as to
Count I.

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6. As fifth grounds for new trial, the Court erred in sustaining defendants hearsay
objections during the direct examination of plaintiff to statements made to plaintiff by Associate
Dean Carlson and Associate Dean Andersen. While this Court recognized its error and allowed
plaintiff to testify at the conclusion of her case, plaintiff still asserts that it was error by this
Court not to allow plaintiff during her presentation of her evidence originally to introduce
statements of Dean Jones agents that, as to Carlson, he had mentioned to plaintiff not to mention
her prior job offer from Ava Maria Law School; and, as to Andersen, he had made the comment
that he did not know whether the faculty would hold plaintiffs politics against her. These
were primary pieces of evidence in plaintiffs case, and it was error for this Court not to allow
plaintiff to present them during her direct examination.
7. The sixth ground for a new trial occurred when the trial court erred in failing to give
the jury instructions tendered by plaintiff.
8. Seventh, the court erred in giving the business judgment instruction tendered by the
defendant due to the fact that defendant was not the actual employer and the jury had already
been instructed on this issue under the same decision portion of the political discrimination
instruction.
9. Finally, the court erred in failing to provide the jury additional instruction on the legal
meaning of acting under the color of state law when it was clear that the jury was seeking
definition of the phrase that had not been adequately defined in the jury instruction.
WHEREFORE, plaintiff respectfully moves this Court under Rule 59 to grant her a new
trial as to Count I, or for such further relief as this Court deems appropriate.
Respectfully submitted,
KATZ, HUNTOON & FIEWEGER, P.C.

Case 3:09-cv-00010-RP-TJS Document 133 Filed 11/20/12 Page 4 of 4

By: /s/Stephen T. Fieweger

Stephen T. Fieweger (AT0002490)
1000 - 36th Avenue
Moline, IL 61265-7126
Telephone: 309-797-3000
Fax: 309-797-2167
E-mail: sfieweger@katzlawfirm.com
Attorneys for Plaintiff
Teresa R. Wagner
CERTIFICATE OF SERVICE
I hereby certify on November 20, 2012, I electronically filed Plaintiffs Motion for New
Trial with the Clerk of the Court using the CM/ECF System which will send notification of this
filing to the following:
george.carroll@iowa.gov
George A. Carroll
By: /s/Stephen T. Fieweger

s:\wp\worddoc\14512001.70Mot for New Trial

Case 3:09-cv-00010-RP-TJS Document 133-1 Filed 11/20/12 Page 1 of 13

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF IOWA
DAVENPORT DIVISION

TERESA R. WAGNER,
Plaintiff,
vs.
CAROLYN JONES, Former Dean of
Iowa College of Law
(in her official and individual capacities),
GAIL B. AGRAWAL, Dean of the
Iowa College of Law, in her official
capacity,
Defendants.

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Law No. 3:09-cv-10

MEMORANDUM OF LAW
IN SUPPORT OF MOTION
FOR NEW TRIAL

Plaintiff Teresa R. Wagner, by and through her attorneys, Katz, Huntoon & Fieweger,
P.C., states as follows for her Memorandum of Law in Support of her Motion for New Trial
pursuant to F.R.C.P. 59:
INTRODUCTION
In the event this Court allows the jury verdict as to Count I to stand, plaintiff
respectfully moves for a new trial as to Count I. As initial grounds, plaintiff must reiterate her
position that the Magistrate Judge simply did not have the authority under Federal Rule of
Evidence 606(b) as well as the great weight of the case authority previously presented to this
Court to reconvene this jury after declaring a mistrial and discharging this jury, and then question
them as to whether they had reached a verdict on either count.
I.

A NEW TRIAL MUST BE GRANTED AS TO COUNT I BECAUSE THERE IS

NO VERDICT AS TO THAT COUNT.

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Plaintiffs first argument is that a new trial must be granted as to Count I because there is
no verdict as to that count. Briefly to refresh the Courts recollection, according to the Clerks
Court minutes filed at approximately 4:42 p.m. on October 24, 2012:
At 4:31 p.m. in open court, without counsel, court addressed the jury. Court
reads jury note. Jury declares a mistrial. Court thanks the jury at 4:35 p.m. At 4:37 p.m.,
without counsel, in open court, court again addressed the jury. Jury finds for defendant
on Count I but cannot reach a verdict on Count II. Court declares a mistrial on Count II.
Court thanks jury and jury excused 4:42 p.m. (Exhibit 1)
The pertinent portion of the transcript of what transpired at approximately 4:30 p.m. is as
follows:
I have received a message signed by Ms. Tracy and I believe Mr. Braun. This
note says, We are still unable to come to a unanimous verdict. I do not see us ever
agreeing. One juror has a conflict and needs to leave at 4:30 today and another juror with
a sick child may not be able to attend on Thursday. Please advise where we go from
here.
Ladies and Gentlemen, is this the consensus of all of you as to the contents of this
note?
[Whereupon the 12 jurors were polled and all answered yes.]

Judge Shields: I am going to declare a mistrial and I want to say a few things.
I dont want to keep you, I know this has been a long period for you. Judge Pratt wants
you to know he really appreciates everything that you have done in working as hard as
you have. He wanted me to assure you that this is not a failure. These things happen.
There is no guarantees in a lawsuit what will happen, what will not happen. Sometimes
there are just the inabilities for people to agree as to verdicts and we recognize that. That
is why there is a mistrial.
I am happy to answer any questions that I can if any of you want to ask me
questions. If you dont, I appreciate that too and you can leave. Thank you all. Safe
trips back to your home and as I said, if there is anything that we can do or anything you
need from us, do not hesitate to call. You are excused. (Emphasis added.)
See Exhibit 2, pp. 2-5.)
As argued previously, once Magistrate Judge Shields declared a mistrial and
excused/discharged this jury, he had no discretion to reconvene the jury to accept some alleged
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(and unsigned) verdict in favor of defendant on Count I. Judge Shields had no authority to
communicate ex parte with this jury and invite them back to complete a verdict which in
absolutely no way had been communicated to the court or parties prior to a mistrial being
declared. See Gander v. FMC Corp., 892 F.2d 1373, 1379-1380 (8th Cir. 1990):
"It is well settled that a jury's misunderstanding of testimony, misapprehension of
law, errors in computation or improper methods of computation, unsound reasoning or
other improper motives cannot be used to impeach a verdict." Chicago, Rock Island &
Pacific R.R. v. Speth, 404 F.2d 291, 295 (8th Cir. 1968).
But given correct instruction on the law and no clear disregard for that instruction
on the face of the verdict, a jury verdict must remain immune from questioning by
the district court
any inquiry by the district court would have been improper.
See also Karl v. Burlington N. R. Co., 880 F.2d 68, 73 (8th Cir. 1989):
We conclude, however, that the method by which the court ascertained the jury's
"true verdict" -- receiving testimony from the jurors after they had returned a verdict and
after the jury had been discharged -- is prohibited by Fed. R. Evid. 606(b).
It appears that is exactly what occurred in this case. Without dispute, there was no
indication whatsoever from this jury that they had any verdict as to Count I prior to a mistrial
being declared and the jury being discharged. In fact, Judge Shields polling of the jury
established that they unanimously agreed that they had not reached a verdict on either Count I or
II.
While it is not clear precisely what occurred between 4:35 p.m. when the jury was
excused and left the courtroom, and 4:37 p.m. on October 24, 2012 when Judge Shields brought
the jury back into the courtroom, there can be no dispute that whatever occurred must have
involved Judge Shields receiving testimony from the jurors after the mistrial had been declared
and after the jury had been discharged. As noted in Karl, supra, this is expressly prohibited
under Rule 606(b). Further compounding the error, Judge Shields directed the jury foreperson to

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sign the verdict form on Count I (See Exhibit 2, p. 6), which again invaded the jury deliberation
process.
Accordingly, there was no verdict, and a new trial must be granted as to Count I.

II.

THE COURT ERRED IN RESTRICTING PLAINTIFFS VOIR DIRE.

Although this Court had broad discretion in determining what questions will be asked
during voir dire (see Ratliff v. Schiber Truck Co., 150 F.3d 949, 956 (8th Cir. 1998)), this Court
abused that discretion in not allowing plaintiffs counsel to inquire of the jurors regarding their
positions on abortion and same sex marriage, which were clearly highly relevant areas of inquiry
in this particular case. Respectfully, plaintiff believes this Court acknowledged these should
have been relevant areas of inquiry by claiming it did not, in fact, disallow plaintiff from
inquiring during voir dire regarding these subjects. Plaintiffs counsel respectfully disagrees
with this Courts characterization of what occurred outside of the presence of the jury and court
reporter; plaintiffs counsels recollection is that this Court expressly forbade plaintiffs counsel
from inquiring as to those two areas. In support, see Harold v. Corwin, 846 F.2d 1148, 1150 (8th
Cir. 1988):
This discretion, however, is not without limits. The court, in the realization that
the purpose of the voir dire is to afford the parties a trial by a qualified, unbiased, and
impartial jury, should at all times be on guard in its questioning in order to assist counsel
in the exercise of his or her preemptory challenges and challenges for cause to eliminate
those persons with an interest or bias. See Labbee v. Roadway Express, Inc., 469 F.2d
169 (8th Cir. 1972) (Voir dire examination is subject to right of parties to have an
impartial jury and the questioning must in general attempt to preserve that right).
See also Fietzer v. Ford Motor Co., 622 F.2d 281, 284-285 (7th Cir. 1980):
The substance of voir dire, however, is subject to the right of the parties to have
an impartial jury. Courts have consistently held that the trial court, when endeavoring to
preserve that right, should permit a reasonably extensive examination of prospective
jurors so that the parties have a basis for an intelligent exercise of the right to challenge.
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the trial court may abuse its discretion when limitations placed on the
parameters of voir dire threaten to undermine the purpose for conducting an examination
of prospective jurors. Specifically, we stated that the trial court "must exercise its
discretion so as not to block the reasonable exploration of germane factors that might
expose a basis for challenge, whether for cause or peremptory." Id. at 1138. And, in
United States v. Dellinger, 472 F.2d 340 (7th Cir. 1972), cert. denied, 410 U.S. 970, 93 S.
Ct. 1443, 35 L. Ed. 2d 706 (1973), we held that the trial court has the affirmative duty to
pose questions that go beyond what may bring out information that would disqualify the
juror for cause. "Thus it is essential to explore the backgrounds and attitudes of the jurors
to some extent in order to discover actual bias, or cause." Id. at 367, citing Kiernan v.
Van Schaik, supra, 347 F.2d at 779. In its entirety, the examination must reveal inquiry
adequate "to call to the attention of the veniremen those important matters that might lead
them to recognize or to display their disqualifying attributes." United States v. Lewin,
supra, 467 F.2d at 1138.
It was imperative that plaintiffs counsel be allowed to inquire regarding the abortion and
same sex marriage issues to ensure plaintiffs right to have an impartial jury in this case.
III.
UNWARRANTED ATTACK ON MARK OSIEL.
The third issue in plaintiffs Motion for New Trial is that the Court erred in allowing
defense counsel to cross-examine Mark Osiel on some alleged other act under Rule 404(b). As
this Court should recall, almost the entirety of defendants cross-examination of Mr. Osiel
consisted of this improper attack concerning some allegation that some anonymous source had
heard noises coming from behind the closed door of Mr. Osiels office which were interpreted to
be of a sexual nature, and that there was an investigation regarding this allegation. As the Court
will recall, Mr. Osiel explained that he was performing doctor-prescribed exercises for his
arthritic hip, which he does for ten minutes in his office twice a day. Clearly, defendant was
attempting to convey to the jury that Mr. Osiel was testifying adversely to defendant out of some
nebulous vindictiveness because of this investigation.

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There are two enormous problems with this. Leaving aside for the moment the legal
problems under Rule 404(b), the entire argument was nonsensical. First, the inference was that
this allegation/investigation occurred within the last few months. All of Mr. Osiels testimony
concerned items on which he has been of record for many years. As the Court should recall, Mr.
Osiel testified that he had written a letter of reference at least two years ago for Ms. Wagner; he
had written letters to the State Legislature regarding the discriminatory hiring practices at the
University of Iowa nine years ago. Obviously, this predates any allegation or investigation into
Mr. Osiels conduct in the last few months.
The second enormous problem is that this Court completely failed to perform its required
duties as gatekeeper under Rule 404(b) prior to allowing this evidence that was of clearly such a
prejudicial nature. In support, see Helfrich v. Lakeside Park Police Dep't, 2012 U.S. App.
LEXIS 18471, 11-22 (6th Cir. 2012):
Rule 404(b)(1) prevents other-acts evidence from being offered "to prove a
person's character in order to show that on a particular occasion the person acted in
accordance with the character." But that evidence "may be admissible for another
purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident." Fed. R. Evid. Rule 404(b)(2). Before the
district court
may admit 404(b) evidence, it must: (1) determine whether this is sufficient
evidence that the prior acts occurred; (2) determine whether the other act is admissible for
one of the proper purposes outlined in the rule; and (3) apply Rule 403 balancing to
determine whether the probative value of the evidence is substantially outweighed by the
danger of unfair prejudice.
United States v. Hardy, 643 F.3d 143, 150 (6th Cir. 2011). We review the district
court's decision under the three-prong test using the following standards of review: clear
error on the first prong, de novo on the second, and abuse of discretion on the third.
United States v. Johnson, 27 F.3d 1186, 1190 (6th Cir. 1994).
The court held that the evidence was inadmissible under Rule 403 because its
probative value would be substantially outweighed by the danger of unfair prejudice,
confusing the jury, and undue delay. "Under Rule 403, a district court is granted very
broad discretion in determining whether the danger of undue prejudice outweighs the
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probative value of the evidence." United States v. Fisher, 648 F.3d 442, 449 (6th Cir.
2011) (internal quotation marks omitted).
In sum, the evidence's probative value was slight, but it created a substantial
danger of undue delay, unfair prejudice, and confusing the jury.
See also Crawford v. Sandy City Corp., 2012 U.S. Dist. LEXIS 127789, 4-5 (D. Utah Sept. 7,
2012):
The admissibility of Rule 404(b) evidence is determined by considering whether
the following four requirements are satisfied:
(1) the evidence is offered for a proper purpose under Fed. R. Evid. 404(b); (2)
the evidence is relevant under Fed. R. Evid. 401; (3) the probative value of the evidence
is not substantially outweighed by its potential unfair prejudice under Fed. R. Evid. 403;
and (4) the district court, upon request, instructs the jury to consider the evidence only for
the purpose for which it was admitted. U.S. v. Tan, 254 F.3d 1204, 1207-08 (10th Cir.
2001).
None of these required steps or requirements was satisfied in this case. There is
absolutely no evidence that any alleged prior act actually occurred; no determination whether
any such act was admissible for one of the proper purposes outlined in Rule 404, and no
balancing done under Rule 403 to determine whether the probative value of the evidence was
substantially outweighed by the danger of unfair prejudice. Frankly, there was no probative
value to this unwarranted attack on Mr. Osiel, and to the extent any probative value could be
argued, it would undoubtedly be substantially outweighed by the danger of unfair prejudice.
Defendant was allowed to imply to this jury that Mr. Osiel was testifying adversely to defendant
in this case not because it was perfectly consistent with what he has been arguing and writing for
years, but because of some nebulous retribution for some unfounded claim that he was having
sex in his office.
This smear campaign by defendant and her counsel should have been prevented by the
court, since there was no proof that the bad act that Mr. Osiel had allegedly committed had in

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fact occurred. In essence, Mr. Carroll was permitted by this court to introduce before the jury
improper innuendo akin to the when did you stop beating your wife type of questioning that
has long been inadmissible.
This Court erred in allowing Mr. Osiel to be attacked on this spurious basis without first
determining whether there was any sufficient evidence of such prior act and without first
determining whether any scant probative value was substantially outweighed by the obvious
danger of unfair prejudice.
IV.
VIEWING OF DEPOSITION TRANSCRIPT.
Fourth, this Court abused its discretion in denying the jurys request to review the
deposition transcript of Randall Bezanson during its deliberations in the late morning of
Tuesday, October 23, 2012. While plaintiff must concede that the decision whether to accede to
a jurys request to review testimony or exhibits in the jury room, during deliberations is generally
left to the sound discretion of the trial court, Johnson v. Richardson, 701 F.2d 753, 757 (8th Cir.
1983), it was an abuse of discretion in this case to refuse to allow the jury to view Bezansons
deposition transcript. As several of defendants own witnesses admitted, Bezanson was the
primary opponent to plaintiff and thus the chief witness on the political discrimination claim.
His deposition testimony had been read to the jury a full week prior to the jurys request to view
that deposition. Counsel for both parties had characterized Mr. Bezansons deposition testimony
during their closing statements. Accordingly, this Court erred in refusing the jurys request
under these circumstances and this error was highly prejudicial to plaintiff in the event any
alleged verdict is argued to exist as to Count I.

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V.

THE COURT ERRED IN SUSTAINING DEFENDANTS HEARSAY

OBJECTIONS TO ADMISSIONS BY DEFENDANTS AGENTS.

Fifth, plaintiff respectfully asserts the Court erred in sustaining defense counsels
objections on the basis of hearsay during plaintiffs direct examination as to admissions made by
Jon Carlson and Eric Andersen. Specifically, this Court did not allow plaintiff to testify that
Carlson had stated to her that she should conceal from the faculty during her interview that she
had been offered a job at Ava Maria. As to Eric Andersen, this Court did not allow plaintiff to
testify that he had made admissions to her that he did not know whether her politics would be
held against her.
Under Rule of Evidence 801(d)(2)(D), clearly these statements were made by the partys
agent or employee on a matter within the scope of that relationship and while it existed.
Frankly, plaintiff believes it was undisputed that these statements should have been admitted, as
agent admissions. See Copeland v. ABB, Inc., 521 F.3d 1010, 1013 (8th Cir. 2008):
The statements made by Gallagher in the letters are not hearsay because they are
agent admissions. See F.R.Evid. 801(d)(2)(D).
The Court erred in not allowing plaintiff to testify to these admissions during her direct
examination. It improperly interrupted the direct examination of the plaintiff and could have
resulted in the jury subsequently rejecting her testimony when later offered into evidence.
VI. JURY INSTRUCTIONS
As explained, generally, in Swipies v. Kofka, 419 F.3d 709, 716 (8th Cir. 2005):
If a district court improperly instructs a jury, a new trial may be appropriate. See
McKay v. WilTel Communication Sys., Inc., 87 F.3d 970, 976 (8th Cir. 1996); see Fed.
R. Civ. P. 59. We review jury instructions for an abuse of discretion. Sanders v. May
Dep't Stores Co., 315 F.3d 940, 946 (8th Cir. 2003), cert. denied, 539 U.S. 942, 156 L.
Ed. 2d 627, 123 S. Ct. 2608 (2003). The touchstone of our review is whether the
instructions, "taken as a whole, fairly and adequately represent the evidence and
applicable law in light of the issues presented to the jury in a particular case." Brown v.
Sandals Resorts Int'l, 284 F.3d 949, 953 (8th Cir. 2002) (internal quotations omitted).
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Reversal for a new trial is appropriate only if there was an error that affected a substantial
right of the moving party. Sanders, 315 F.3d at 946.
Plaintiff respectfully asserts the court erred in failing to give the jury instructions tendered by
plaintiff, and specifically erred in giving the business judgment instruction tendered by the
defendant due to the fact that defendant was not the actual employer and the jury had already
been instructed on this issue under the same decision portion of the political discrimination
instruction.
Pursuant to the courts instructions in its October 19, 2012 e-mail, plaintiff objected to
these instructions through counsels October 20, 2012 e-mail (Exhibit 3). The pertinent
objections were the following:
POLITICAL DISCRIMINATION
I believe we need to include in the instruction the following language from the
Eighth Circuit opinion:
Plaintiff may discredit defendants claimed nondiscriminatory reason,
either circumstantially or directly, by presenting evidence that discrimination was
more likely than not a motivating factor.
The precise language and context of that language was the following:
"In a political discrimination case, the plaintiff may discredit the proffered
nondiscriminatory reason, either circumstantially or directly, by adducing
evidence that discrimination was more likely than not a motivating factor."
Padilla-Garcia, 212 F.3d at 77 (citations omitted). "In this way, the burdenshifting mechanism is significantly different from the device used in other
employment discrimination contexts, such as Title VII cases, where a plaintiff is
required to come forward with affirmative evidence that the defendant's
nondiscriminatory reason is pretextual." Id. (citations omitted).
Wagner v. Jones, 664 F.3d 259, 272 (8th Cir. Iowa 2011)
SAME DECISION
I believe under the mandate of the Eighth Circuit, we must include
some language in the instruction that makes clear to the jury that plaintiff may
discredit Dean Jones alleged grounds for why she would have made the same
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decision regardless of plaintiffs political beliefs. I propose in the attached

Plaintiffs Proposed Final Instructions the following:

Plaintiff may discredit defendants claimed nondiscriminatory

reason, either circumstantially or directly, by presenting evidence that
discrimination was more likely than not a motivating factor. You may find
that Plaintiffs political beliefs and affiliations were a motivating factor in
Defendants actions if Plaintiff has proved by a greater weight of the
evidence that Defendants stated nondiscriminatory reasons for her actions
are not the true reasons, but are instead pretext to hide political
discrimination.
Finally, I believe we need to add at the end of the last sentence the
following: on this claim of political discrimination.
It was error to reject these requested instructions since the given instructions failed to inform the
jury of the burden of proof under the Mt. Healthy holding. The given instructions failed to
follow the burden of proof test found to be applicable in Wagner v. Jones, 664 F.3d 259, 272 (8th
Cir. 2011.)
Likewise, plaintiffs counsel objected to the business judgment instruction as follows:
BUSINESS JUDGMENT
I object to the submission of any business judgment instruction. This
unfairly instructs in favor of the Defendant; an argument rather than a rule of
law. Also, an individual State actor is not a business, and not entitled to this
instruction. Plaintiff further objects because this instruction is redundant since
this court will be giving the same decision instruction.
Alternatively, if a business judgment instruction is given, Plaintiff
would request that a third sentence be added which reads: On the other hand, if
you find that the Defendants decision did violate the law, then you may return a
verdict for Plaintiff.
The business judgment instruction was cumulative, inapplicable to this non-employer, and
confusing to the jury.

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VII. FAILING TO PROVIDE THE JURY ADDITIONAL INSTRUCTION ON THE

LEGAL MEANING OF ACTING UNDER THE COLOR OF STATE LAW
Finally, the court erred in failing to provide the jury additional instruction on the legal
meaning of acting under the color of state law when it was clear that the jury was seeking
definition of the phrase that had not been adequately defined in the jury instruction. See United
States v. Birges, 723 F.2d 666, 670-671 (9th Cir. 1984):
Questions or disputes as to the meaning of terms which arise during jury
deliberations should be settled by the court after consultation with counsel, in
supplemental instructions. Such guidance will avoid the danger that jurors will use the
dictionary to construct their own definitions of legal terms which do not accurately or
fairly reflect applicable law.
Alternatively, the court erred in failing to instruct the jury that there was no issue in this case that
Dean Jones was, in fact, acting under the color of state law. Such supplemental instructions to
the jury would have given the jury the opportunity to deliberate with a clearer understanding of
the law.
CONCLUSION
For the foregoing reasons, plaintiff respectfully requests that this Court grant her Motion
for a New Trial.
Respectfully submitted,
KATZ, HUNTOON & FIEWEGER, P.C.
By: /s/Stephen T. Fieweger
Stephen T. Fieweger (AT0002490)
1000 - 36th Avenue
Moline, IL 61265-7126
Telephone: 309-797-3000
Fax: 309-797-2167
E-mail: sfieweger@katzlawfirm.com
Attorneys for Plaintiff
Teresa R. Wagner

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CERTIFICATE OF SERVICE
I hereby certify on November 20, 2012, I electronically filed Plaintiffs Memorandum of
Law in Support of Motion for New Trial with the Clerk of the Court using the CM/ECF System
which will send notification of this filing to the following:
george.carroll@iowa.gov
George A. Carroll
By: /s/Stephen T. Fieweger

s:\wp\worddoc\14512001.69MemoSupMotNewTrial

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