The district court ultimately instructed the jury to "onsider each witness' intelligence, motive, state of mind, demeanor and manner while on the stand." Minshall's argument pertained to the "manner" in which Klinzing testified and was, therefore, permissible under the pertinent jury instruction to which there was no objection. At closing, Minshall's counsel argued that the jury should consider Klinzing's failure to testify in person at trial when evaluating her testimony.
Although this court "will correct error in rare instances where it appears that a verdict was the result of passion aroused through extreme argument which clearly stirred the resentment and aroused the prejudice of the jury even though no objection was made or exception taken at the time," this is not such a case. While McGraw-Hill raised the issue of what constituted permissible commentary regarding Klinzing's deposition in pre-trial discussions with the district court, McGraw-Hill failed to object to comments in closing argument, failed to move for a mistrial or new trial prior to the return of the verdict, and failed to offer a proposed corrective instruction. Finally, Minshall introduced evidence that Klinzing said, in reference to her father, "old people should die."įinally, McGraw-Hill argues that the arguments made in closing, suggesting that Klinzing's deposition testimony be disregarded, and the district court's failure to curb Minshall's counsel constitute reversible error. Scott Sobel, a former reporter and anchor at KMGH, testified that Klinzing said Allen was "too fucking old" for the news format. Minshall and Lynn both testified that Klinzing asked them about their ages. Minshall testified that Klinzing constantly talked to him about "a younger presentation, a more youthful presentation," and that she wanted "sexier stories" that would appeal to a younger audience. Allen testified that Klinzing told him not to "wear a tie" and to "try to go with a younger look." Allen also testified that Klinzing said she didn't care if older people were watching television and that she was disgusted when she saw "an old fart" on television without a shirt. Klinzing testified that she created the news format, "Real Life, Real News," with the intention of reaching a younger demographic and that she considered the physical appearance of the on-air anchors and reporters in making overall changes to the news programs. As News Director, Klinzing developed the news format and was responsible for renewing Minshall's contract. In addition to introducing evidence to rebut the truthfulness of McGraw-Hill's asserted reasons for not renewing his contract, 2 Minshall introduced evidence that Klinzing was motivated by age-based animus and was principally responsible for the non-renewal of his contract.
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