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Sexual Harassment Plaintiff Seeks New Trial on Punitives, Alleging PNC Bank Hid Evidence

Concealment of evidence by PNC Bank during a sexual harassment trial that ended in a $2.4 million verdict should warrant a new trial on punitive damages, according to a motion filed Wednesday by lawyers for a former bank employee.

Only after an Essex County jury’s Feb. 10 verdict in favor of former bank employee Damara Scott did it come to light that the bank intentionally withheld a video taken from an on-site security camera at its Glen Ridge branch, according to the motion filed by Scott’s attorneys, Nancy Erika Smith and Neil Mullin of Smith Mullin in Montclair, New Jersey, and Randy Davenport of Elizabeth, New Jersey. When police investigated the assault of Scott by bank customer Patrick Pignatello, PNC claimed it had no such video.

But on the day after trial ended, after examining photos of the bank that PNC produced but did not submit into evidence, Smith saw cameras and demanded their video. A week later, PNC produced the video, which it previously said did not exist, but the segment showing the assault is missing, Smith said.

Scott claimed that PNC failed to take steps to protect her from assault by Pignatello, a regular customer at the bank. He allegedly rubbed his genitals against her buttocks in a bank vestibule in October 2013, according to the complaint. Scott’s suit claimed bank managers knew Pignatello had a history of improper behavior toward other female bank employees but they did little to stop his behavior because he was an investor who could refer other business to the bank.

Smith maintains the video concealed by PNC would refute the bank’s position at trial that no assault occurred and that, at most, Pignatello merely brushed against Scott. The only video of the incident was a grainy segment taken from a nearby Panera restaurant.

Smith’s bid for punitive damages during the three-week trial was denied. But the renewed motion for punitives claims that the failure to produce the video was part of a larger pattern of fraudulent concealment and discovery abuse. The brief cites emails, investigative notes and copies of Scott’s personnel records that PNC failed to produce.

During the trial, a company investigator said he took notes concerning the incident between Scott and Pignatello, but the bank’s attorney, David Osterman, said there were no such notes in the files. Later, on the day when closing arguments started, Osterman said PNC found the notes and that they had been misfiled.

The brief also cites PNC’s claims that it could not produce Scott’s performance reviews, which she sought in order to show post-traumatic stress disorder from the assault by Pignatello was affecting her performance. But Scott later discovered her own personal copies of her reviews. Those documents show that Osterman elicited perjured testimony from a PNC witness who said Scott’s job performance was not affected by her PTSD, the brief said.

Pignatello was charged criminally in the incident at the bank, but then died, so there was no adjudication of the criminal charges. He was named in the suit, and his estate settled confidentially with Scott.

“I have never seen such an egregious pattern of fraudulent concealment of material evidence from police and prosecutors, Ms. Scott, the Court and the jury,” Smith said in a statement. “The bank’s appalling conduct was compounded by perjury. Ms. Scott deserves a new trial on punitive damages.”

Osterman, of Goldberg Segalla in Princeton, New Jersey, did not return a call about the motion. A PNC Bank spokeswoman, Marcey Zwiebel, said in a statement, “Plaintiff’s motion for a new trial is legally and factually incorrect. PNC did not deliberately hide the video from plaintiff.  Indeed, the video actually supports PNC’s defense at trial. It is also not true that the video was altered to omit an assault. The video reflects all activity involving plaintiff and the customer.  PNC intends to vigorously oppose plaintiff’s motion.”

Charles Toutant

Charles Toutant

Charles Toutant is a litigation writer for the New Jersey Law Journal.