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Slee v.

Erhard
Docket No. 93-7180

ISSUED AS MANDATE.
9-30-93

UNITED STATES COURT OF APPEALS
SECOND CIRCUIT
FILED
SEP 8 1993
ELAINE B. GOLDSMITH CLERK

MANDATE

224

JON

CTDC
84-CV-497
CABRANES

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

At a stated term of the United States Court of Appeals for the Second Circuit,
held at the United States Courthouse in the City of New York, on the 8th day of
September, one thousand nine hundred and ninety-three.

PRESENT: HONORABLE JON O. Newman,
Chief Judge.
HONORABLE ROGER J. MINER,
HONORABLE JOSEPH M. McLAUGHLIN,
Circuit Judges.

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ALFRIEDA SLEE, ADMINISTRATRIX OF
THE ESTATE OF JACK ANDREW SLEE,
Plaintiff-Appellant,

v.

WERNER ERHARD, WERNER ERHARD &
ASSOCIATES, and DAVID NORRIS,
Defendants-Appellees.
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93-7180

ORDER

Appeal from the Untied States District Court for the District of Connecticut (Jose
A. Cabranes, Chief Judge).

This cause came on to be heard on the transcript of record from the United States
District Court for the District of Connecticut and was argued by counsel.

ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the
judgment of the District Court be and it hereby is AFFIRMED.

Alfrieda Slee (�Slee�), administratrix of the estate of her son Jack Slee, appeals
from an October 9th, 1992, judgment, after a jury trial, in favor of Werner
Erhard, Werner Erhard & Associates, and David Norris (�Erhard�) as well as from a
January 25, 1993, order denying Slee�s motion for judgment n.o.v. or a new trial.
On appeal, Slee argues that Judge Cabranes made a range of errors while conducting
the jury trial, including the admission of certain evidence, the charge to the
jury, and responses to jury questions during deliberations.

Over the weekend of August 13 & 14, 1983, Jack Slee, an apparently healthy 26-
year-old, attended a seminar known as the est standard training conducted by
Erhard in New Haven, Connecticut. Sometime after 11:00 PM on August 14, Jack
collapsed while engaged in an est training exercise and died from a cardiac injury
a few hours later. Slee initiated a wrongful death action against Erhard; counts
of negligence and intentional infliction of emotional distress were ultimately
submitted to a jury. The jury found Erhard to have been negligent and to have
intentionally inflicted emotional distress but did not find Erhard�s actions to
have been the proximate cause of Jack�s death and therefore found for Erhard on
all counts.

1. Slee first complains that Judge Cabranes erred by denying her pretrial motion
to exclude the testimony of certain expert witnesses as prejudicial and confusing
because they were going to (and in fact did) refer to the �predictability� of
Jack�s death. Evidentiary rulings will not be reversed absent an abuse of
discretion, and even errors will not justify overturning a verdict unless
affirmance would be inconsistent with substantial justice. See, e.g., Healey v.
Chelsea Resources, Ltd., 947 F. 2d 611, 619-20 (2d Cir. 1991) (citing Fed. R. Civ.
P. 61). Though Erhard�s medical experts may have created an element of confusion
by not employing precise legal terminology, the admission of their testimony does
not amount to an abuse of the trial court�s broad discretion.

2. Slee next asserts error in the charge to the jury, suggesting the District
Court misstated the law in two ways: (a) by suggesting that plaintiff had to prove
that Jack�s death must have been the �likely result� of the est training and that
his death (rather than a more generalized harm) must have been foreseeable for
Slee to recover, and (b) by referring the jury to a negligence standard of
proximate cause when asked about the proper proximate cause standard for a claim
of intentional infliction of emotional distress. However, the trial court has
discretion in the style and wording of jury instructions and a charge is
considered sufficient if �taken as a whole and viewed in light of the evidence
[it] show[s] no tendency to confuse or mislead the jury as to the principles of
law which are applicable.� Norfleet v. Isthmian Lines, Inc., 355 F.2d 359, 362-63
(2d Cir. 1966). See also, e.g., Care Travel Co. v. Pan American World Airways,
944 F. 2d 983, 996 (2d Cir. 1991). Though perhaps the charge could have been
written better, most of the language came directly from Connecticut decisions on
state tort law, and viewed in its entirety it sufficiently presented the issues to
the jury for fair consideration.

3. Slee also argues that since the jury specifically found Erhard intentionally
inflicted emotional distress, she is entitled to a damage award on this claim even
though the jury also found that this claim seems to be waived, since Slee
requested the additional jury instruction regarding proximate cause and thus
apparently did not present at trial the claim that damages were due simply for
whatever emotional distress Jack may have experienced before he died. Further,
the trial record seems to lack any substantive evidence that Jack did in fact
suffer emotional distress before his sudden death.
4. Finally, Slee contends cumulative error � the errors asserted above as well as
the fact that the jury did not have the proper verdict form until the third day of
deliberations and because, she claims, the jury�s final verdict is itself
inconsistent � justify reversal. As partially detailed above, it is unclear
whether there were any significant errors in the first instance, and whatever
minor errors may have occurred with the jury form or elsewhere were not
sufficiently consequential to justify overturning the jury�s verdict.

[signature, Jon O. Newman]
Chief Judge.

[signature, Roger J. Miner]

[signature, Joseph M. McLaughlin]
Circuit Judges.

A TRUE COPY
ELAINE B. GOLDSMITH, Clerk
By
Chief Deputy Clerk

N.B. THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER AND SHOULD
NOT BE CITED OR OTHERWISE RELIED UPON IN UNRELATED CASES BEFORE THIS OR ANY OTHER
COURT.