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Appeal over 'tethering' references and sanctions in Ameritech/Emeritech trial raises questions about remand for damages
Summary
In Ameritech (Emeritech) College Holdings v. Aiken, appellants contend repeated references to excluded evidence 'tethering' a capital contribution to damages (38 alleged instances) prejudiced the jury and warrant a new trial or sanctions; respondents point to the verdict form's no‑causation finding and urge that remand for damages would be improper.
The Court of Appeals heard argument in Emeritech (Ameritech) College Holdings v. Aiken over whether repeated references to excluded evidence during trial—what appellants describe as "tethering" a capital contribution or letter of credit to the absence of damages—warrant a new trial or dispositive sanctions.
Appellants' counsel told the panel that an October motion in limine required the defense to avoid "tethering" the capital contribution to damages; they said the defense repeatedly violated that order in openings, witness examinations and closing, tallying roughly 38 references and relying principally on Wilson v. IHC as the controlling analogy for reversal.
Defense counsel acknowledged the court clarified its rulings at times and noted the district court’s final post‑trial order (16 pages) found that the jury’s verdict could be explained without reference to the purportedly improper references. Counsel emphasized the verdict form shows the jury answered "no" to causation, so it never reached damages; on that basis the defense argued a remand solely for damages would be improper and that any alleged prejudice was not outcome‑determinative.
The panel extensively questioned the parties about record citations for alternative financing evidence (witnesses Will Jones and Michael Lipster were cited by counsel), whether the district court’s October 20 order should be treated as dispositive for later objections, and whether the appellate court can or should make first‑instance factual findings about intent or willfulness for sanctions or must remand the contempt/sanctions determination to the trial judge.
Appellants urged the court to treat the repeated references as a methodical strategy that infected closing argument and could not be cured by jury instructions; defense counsel said the alleged statements also came in as permissible background and that even if some references occurred, the jury’s finding of no causation reflects other compelling evidence that would make a new trial pointless.
The panel took the matter under advisement and said it would issue a decision after reviewing the record and the parties' briefs.
