Summary
In Keenan v. Waldorf Carting Co., 02 Civ. 2379 (HBP), 2004 WL 1961592 (S.D.N.Y. Sept. 2, 2004), which was also tried before me, a plaintiff who was substantially younger than Nipon, was run over by a garbage truck and suffered a broken femur and fibula.
Summary of this case from Nipon v. Yale Club of N.Y.C.Opinion
No. 02 Civ. 2379 (HBP).
September 1, 2004
OPINION AND ORDER
I. Introduction
Plaintiff John Michael Keenan ("Keenan") brought this diversity action seeking damages for personal injuries suffered on May 9, 2001 when he was allegedly run over by a garbage truck owned by defendant Waldorf Carting Company ("Waldorf"). The matter was tried to a jury from March 29, 2004 though April 2, 2004. On April 2, 2004, the jury rendered a verdict awarding Keenan $50,000 for pain and suffering through the date of the verdict, $50,000 for lost wages through the date of the verdict and $100,000 for future lost wages. The jury awarded no damages for future pain and suffering. The jury also found that 45% of the responsibility for the accident lay with Keenan. Plaintiff and defendant have both moved for a new trial and/or to amend the judgment pursuant to Rule 59, Fed.R.Civ.P.
For the reasons set forth below, plaintiff's motion is granted in part and denied in part. Defendant's motion is denied in all respects.
II. Facts
On May 9, 2001, plaintiff, after teaching a yoga class on Manhattan's upper west side, was rollerblading southbound on Broadway. Plaintiff testified at trial that while he was rollerblading, a garbage truck in front of him was driving erratically and switching lanes without signaling. Plaintiff testified that as he was proceeding south in the vicinity of 31st Street and Broadway, the garbage truck suddenly turned right and plaintiff had to jump onto the sidewalk to avoid the truck. As he jumped onto the sidewalk, plaintiff testified that he hit a garbage can, flipped over and landed on his back on the sidewalk. Plaintiff testified that the garbage truck then drove onto the sidewalk and ran over his right leg and left ankle — fracturing his femur and fibula.
The femur is "the bone that extends from the pelvis to the knee, being the longest and largest bone in the body" (Dorland's Illustrated Medical Dictionary at 658 (29th ed. 2000) ("Dorland's"). The fibula is "the outer and smaller of the two bones of the leg" (Dorland's at 674), and connects to the ankle (Deposition of Dr. Eric Hume, April 29, 2003 ("Hume Depo."), at 32 34).
New York City Police Officer Lundt, who responded to the accident scene, provided a slightly different account of the accident. He testified that when he arrived, plaintiff informed him that he had collided with the garbage truck while in the street and subsequently hit the garbage can. Plaintiff testified on rebuttal that he never told Officer Lundt where the accident occurred, but simply told him that he was struck by a garbage truck.
As a result of the accident, plaintiff spent one week in New York's Bellevue Hospital where he underwent surgery to repair the damage to his leg. Specifically, plaintiff had a metal rod, the length of his femur, inserted into his leg and screwed into place. Plaintiff also had metal plates screwed into his ankle bone in order to help stabilize that fracture. After the surgery, plaintiff was prescribed morphine and codeine for pain. Plaintiff was subsequently transferred to Thomas Jefferson Hospital, closer to his home in Pennsylvania, where he spent another four to five days. Dr. Eric Hume, who treated plaintiff at Thomas Jefferson Hospital, testified that plaintiff suffered a "high energy injury" to his femur, as indicated by the crumbling of the bone around the fracture.
Following his release from Thomas Jefferson Hospital, plaintiff spent one month in a wheel chair. He attended rehabilitation sessions several times a month and eventually began using leg braces. Plaintiff was unable to work for seven to twelve months following the accident. The rod, plates and other appliances were removed from his leg and ankle in a second surgery performed approximately eighteen months after the accident.
At the time of trial, plaintiff had returned to work and was able to perform all activities of daily living. Dr. Hume testified that plaintiff had made a "very good recovery" and that plaintiff's fractures had healed so well that they were no longer apparent in x-rays (Hume Depo. at 32 34). Dr. Hume also testified that he believed that plaintiff would always suffer some "soreness and stiffness when he does his yoga" (Hume Depo at 35).
Dr. Hume's testimony concerning plaintiff's recovery was corroborated by plaintiff's demonstration of the accident in court. During his testimony, plaintiff left the witness stand and lay down on the floor to demonstrate how the accident happened and the position of his legs during the accident. During this demonstration, plaintiff exhibited what appeared to be normal or better than normal flexibility and did not exhibit any signs of pain.
Plaintiff testified that other instructors began teaching his classes while he was out of work and that these instructors continued to teach plaintiff's classes even after he returned to work. Plaintiff was paid on the basis of the number of classes taught. As a result, he earned less money after he returned to work than he did prior to the accident.
Plaintiff also testified that as a result of his injuries, he will never be able to perform advanced yoga positions and, thus, never be able to become an advanced yoga instructor. Advanced yoga instructors earn more money than plaintiff does in his current position.
III. Analysis
A. Plaintiff's Motion
Plaintiff moves for a new trial on the issue of damages on the grounds that (1) it was inconsistent for the jury to award damages for future lost wages but not for future pain and suffering and (2) the amount of damages awarded for past pain and suffering deviates materially from what can be considered reasonable compensation.
1. Inconsistent Verdict
A verdict can be set aside if it is inconsistent with the evidence adduced at trial. As explained by the Court of Appeals for the Second Circuit in Crockett v. Long Island R.R., 65 F.3d 274, 278 (2d Cir. 1995):
When a jury returns a verdict by means of answers to special interrogatories, the findings must be consistent with one another, as they form the basis for the ultimate resolution of the action. See Auwood v. Harry Brandt Booking Office, Inc., 850 F.2d 884, 890 (2d Cir. 1988). "[O]ur responsibility as a reviewing court is to adopt a view of the case, if there is one, that resolves any seeming inconsistency" between the jury's answers. Id. at 891 (quotation omitted). If, however, "the jury's answers cannot be harmonized rationally, the judgment must be vacated and a new trial ordered." Brooks v. Brattleboro Memorial Hosp., 958 F.2d 525, 529 (2d Cir. 1992).See also Turley v. Police Dep't of City of New York, 167 F.3d 757, 760 (2d Cir. 1999) ("When confronted with a potentially inconsistent jury verdict, the court must adopt a view of the case, if there is one, that resolves any seeming inconsistency. Before a court may set aside a special verdict as inconsistent and remand the case for a new trial, it must make every attempt to reconcile the jury's findings, by exegesis if necessary." (internal quotation marks and citations omitted)); Holt v. Home Depot, U.S.A., Inc., 00 CV 1578, 2004 WL 178604 at *2 (D. Conn. Jan. 22, 2004) ("A new trial may be ordered when a verdict is fatally flawed by inconsistency, but a verdict may not be set aside if an asserted inconsistency can be logically explained.").
Plaintiff argues that the verdict is inconsistent because "[l]ogic dictates that for Mr. Keenan to have an impairment of his future earnings, he must have continued health problems and functional limitations. Thus, it was inconsistent for the jury to award future wage loss but no future pain and suffering" (Letter of Michael T. Droogan, Esq., dated April 16, 2004 "Droogan Ltr."), ¶ 4). This argument fails on multiple grounds.
First, it is not true that "for Mr. Keenan to have an impairment of his future earnings, he must have continued health problems." Plaintiff testified that he missed between seven months and one year of work following the accident. When he returned to work, he had lost some of his classes to other instructors and at the time of trial, still had not regained all of his classes. Plaintiff's pay was dependent on the number of classes he taught. Thus, it is possible that the jury found that, despite plaintiff's full recovery, he still had lost future income because his load is still not what it would have been had he not suffered the prolonged absence from teaching that resulted from the accident.
Second, future lost wages do not necessarily imply pain and suffering. The principal theory on which plaintiff sought future lost wages was that the accident left plaintiff unable to practice and demonstrate certain advanced yoga positions and that this deficit hindered his ability to advance as a yoga instructor. The fact that an individual develops physical limitations does not necessarily mean, however, that the limitations are accompanied by pain or suffering or the loss of the enjoyment of life. Human experience and common sense teach that most people in their fifties cannot engage in most forms of exercise, such as jogging, swimming or calisthenics, with the same speed or for the same duration that they could sustain when they were in their twenties. That does not mean, however, that the activity is any more painful at the former, more advanced age. I do not doubt that pain can occur with the limitation, but the jury could certainly have relied on its common sense to find that plaintiff's limitations were not accompanied by pain.
The likelihood that this was the jury's reasoning is supported by events at trial. As noted above, during the trial, plaintiff stepped down from the witness stand and lay on the floor in order to demonstrate how he was run over. He did not appear to be in pain as he moved about on the floor and demonstrated various positions. Notwithstanding plaintiff's complaint of ongoing pain, the jury could have reasonably concluded that although the plaintiff will never be as flexible as he once was and, thus, will earn less money as a yoga instructor, he will not endure pain and suffering in the future. See Kerman v. City of New York, No. 03-7243, 2004 WL 1435305 at *29 (2d Cir. June 28, 2004) (jury not required to credit testimony of plaintiff and his brother concerning plaintiff's mental suffering); Allstate Ins. Co. v. Manasse, 707 So.2d 1110, 1111 (1998) (jury's finding that injury was permanent and awarding plaintiff $10,000 for future medical expenses over forty year period was not inconsistent with no award for future pain and suffering).
In sum, there are alternative theories under which the verdict is consistent and logical. Thus, plaintiff's motion for a new trial on the ground that the verdict is inconsistent is denied.
2. Adequacy of the Damages Award
Plaintiff next argues that a new trial on the issue of past pain and suffering should be granted because the damages awarded by the jury were inadequate. The standard for reviewing the adequacy of damages awards was succinctly stated by the Honorable William C. Conner, United States District Judge, inTisdel v. Barber, 968 F. Supp. 957, 961 (S.D.N.Y. 1997):
Plaintiff states in the heading of a section in his Memorandum of Law that he also requests a new trial with respect to past and future economic damages (see Plaintiff's Memorandum of Law, dated April 16, 2004 ("Pl. Mem."), at 5). Plaintiff, however, provides no textual arguments and cites no legal authorities in support of this argument (see Pl. Mem. at 5-7). Since plaintiff does not make an argument in support of this contention, this aspect of plaintiff's motion is denied. In any event, I find that the jury's verdict with respect to past and future economic damages was entirely adequate and consistent with the evidence presented at trial.
The Supreme Court has determined that a federal district court sitting in diversity should apply state law standards in deciding a motion challenging the size of a verdict and requesting a new trial on damages. Gasperini v. Center for Humanities, Inc., 518 U.S. 415, ___ n. 22, 116 S.Ct. 2211, 2224 n. 22, 135 L.Ed.2d 659 (1996) (case involving New York law). In New York, this standard is set by N.Y.C.P.L.R. § 5501(c), which provides that the state's appellate division "shall determine that an award is excessive or inadequate if it deviates materially from what would be reasonable compensation.". . . . This is also the standard to be applied by New York trial courts. Gasperini, 518 U.S. at ___, 116 S.Ct. at 2218, (citing, inter alia, Inya v. Ide Hyundai, Inc., 209 A.D.2d 1015, 619 N.Y.S.2d 440 (4th Dep't 1994); Lightfoot v. Union Carbide Corp., 901 F. Supp. 166, 169 (S.D.N.Y. 1995) (N.Y.C.P.L.R. § 5501(c)'s "materially deviates" standard "is pretty well established as applicable to [state] trial and appellate courts.")). Thus, federal district courts applying New York law should apply the "deviates materially" standard, rather than the federal courts' more rigorous "shock the conscience" standard to questions of the adequacy of the verdict. Gasperini, 518 U.S. at ___, n. 22, 116 S.Ct. at 2218, n. 22. This standard was intended to give New York appellate courts greater power to curb excessive and inadequate verdicts, thus providing greater stability in the tort system and greater fairness for similarly situated parties throughout the state. Id. at ___, 116 S.Ct. at 2218 (citations omitted).
To determine whether an award "deviates materially from what would be reasonable compensation," New York State courts look to awards approved in similar cases. Id. at ___, 116 S.Ct. at 2218 (citing, e. g., Leon v. J. M. Peppe Realty Corp., 190 A.D.2d 400, 596 N.Y.S.2d 380, 389 (1st Dep't 1993)). The standard for federal appellate review of a district court's application of the "deviates materially" standard is abuse of discretion. Id. at ___, 116 S.Ct. at 2225; see also Martell v. Boardwalk Enterprises, Inc., 748 F.2d 740, 750 (2d Cir. 1984) (trial court's refusal to set aside or reduce a jury award will be overturned only for abuse of discretion).See also Marcoux v. Farm Serv. Supplies, Inc., 290 F. Supp. 2d 457, 474 (S.D.N.Y. 2003) ("federal district courts applying New York law should apply the "deviates materially" standard. . . . To determine whether an award deviates materially from what would be reasonable compensation, New York State courts look to awards approved in similar cases." (internal quotations and citation marks omitted)); Hill v. Airborne Freight Corp., 212 F. Supp.2d 59, 72 (E.D.N.Y. 2002) ("the award will be set aside if it materially deviates from what would be reasonable compensation").
Plaintiff relies on several cases involving similar facts in support of his argument that the damages awarded were inadequate, including Zavurov v. City of New York, 241 A.D.2d 491, 659 N.Y.S.2d 897 (2d Dep't 1997), Ellis v. City of New York, 281 A.D.2d 177, 721 N.Y.S.2d 525 (1st Dep't 2001) and Carl v. Daniels, 268 A.D.2d 395, 702 N.Y.S.2d 279 (1st Dep't 2000).
In Zavurov, the Appellate Division reduced an award for past pain and suffering for a fractured ankle from $400,000 to $250,000. The plaintiff in Zavurov "gave up his profession as a barber because he was unable to stand for long periods of time, and ha[d] otherwise limited his physical activities." Zavurov v. City of New York, supra, 241 A.D.2d 491, 492, 659 N.Y.S.2d 897, 899. Here, the consequences of plaintiff's injuries are somewhat analogous. Although plaintiff was able to return to yoga, he was out of work for seven months to one year and his ability to practice yoga was more limited upon his return. Although the long-term impact of the injuries were more severe in Zavurov than here, Zavurov still suggests that $50,000 for past pain and suffering for a fractured ankle, in combination with a fractured femur, is inadequate.
Ellis v. City of New York, supra, 281 A.D.2d 177, 721 N.Y.S.2d 525, and Carl v. Daniels, supra, 268 A.D.2d 395, 702 N.Y.S.2d 279, involved fractured femurs. In Ellis, the Appellate Division affirmed an award of $500,000 for past pain and suffering for a fractured femur. The opinion did not set forth the details of the injury. 281 A.D.2d at 177, 721 N.Y.S.2d at 525. In Carl, the Appellate Division set the award for past pain and suffering for a fractured femur at $2,300,000. 268 A.D.2d at 395, 702 N.Y.S.2d at 280. In Carl, the plaintiff's fractured femur resulted in substantial limitations in her range of motion, chronic pain and permanent shortening of her leg, causing her to walk with a limp. 268 A.D.2d at 395, 702 N.Y.S.2d at 280. The injuries sustained by the plaintiff in Carl were more severe than those here, but the case still suggests that an award of $50,000 for past pain and suffering for a fractured femur and ankle are inadequate.
Defendant argues that these three cases are easily distinguished on the ground that they involved a permanent injury and there was no evidence of a permanent injury here (Affirmation Patrick J. Cooney, dated May 6, 2004, ¶ 14). This argument fails.
The permanency of an injury is relevant to future pain and suffering — not past pain and suffering. Here, the jury awarded an amount of damages for past pain and suffering based on evidence of the pain plaintiff had endured up until the date of trial — whether the injury is permanent, and plaintiff will suffer in the future, is simply irrelevant to the issue of past pain and suffering.
In addition to the cases cited by plaintiff, my own research of the law has led me to conclude that an award of $50,000 dollars for past pain and suffering for a fractured femur and ankle materially deviates from what the overwhelming weight of authority in New York has found to be reasonable compensation for similar injuries. See Edwards v. Stamford Healthcare Soc'y Inc., 267 A.D.2d 824, 826, 699 N.Y.S.2d 835, 836 (3d Dep't 1999) (new trial on issue of damages ordered because $38,000 for past pain and suffering was inadequate for fractured pelvis, femur and wrist, abrasions on face and dislocated fingers); Faulise v. Trout, 254 A.D.2d 755, 755, 678 N.Y.S.2d 211, 212 (4th Dep't 1998) ($10,000 for past pain and suffering for broken femur is inadequate); see also Villella v. New York City Hous. Auth., 20 New York Jury Verdict Review and Analysis 12:9, also available at 2003 WL 23355282 (Unknown State Court, April 2003) (jury award of $10,000 for past pain and suffering for fractured tibia and fibula found to be inadequate; Trial Court increased the award to $450,000); Seda v. City of New York, Jury Verdict Review No. 60035, also available at 1990 WL 462078 (Sup. Ct. Kings Co., 1990) (jury award of $2,500 for past pain and suffering for fractured ankle found to be inadequate; Trial Court increased the award to $175,000).
Tibia is defined as "the shin bone: the inner and larger bone of the leg below the knee" (Dorland's at 1840).
In addition to cases in which courts have found jury awards for similar injuries to be inadequate, I have also reviewed jury awards in cases involving similar injuries that were not modified by a court on review. These cases also indicate that the award for past pain and suffering is inadequate. See Petrie v. City of New York, 19 New York Jury Verdict Review and Analysis 11:5,also available at 2002 WL 31906658 (Unknown State Court, 2002) (jury award of $200,000 for past pain and suffering for fractured ankle); Turner v. City of New York, 18 New York Jury Verdict Review and Analysis 6:C3, also available at 2001 WL 1821437 (Unknown State Court, 2001) (jury award of $90,000 for fractured ankle); McFadden v. City of New York, 19 New York Jury Verdict Review and Analysis 2:4, also available at 2001 WL 1850579 (Unknown State Court, 2001) (jury award of $80,000 for broken ankle); Ingraham v. Linden Plaza Assoc., 18 New York Jury Verdict Review and Analysis 6:16, also available at 2001 WL 1821549 (Unknown State Court, Undated) (jury award of $150,000 for past pain and suffering for fractured femur); Starr v. Cambridge Green Homeowner's Ass'n, Inc., 18 New York Jury Verdict Review and Analysis 6:C1, also available at 2001 WL 1821435 (Unknown State Court, 2001) (jury award of $528,000 for past pain and suffering for fractured femur, hip, wrist and heel), aff'd, 300 A.D.2d 779, 751 N.Y.S.2d 640 (3d Dept. 2002) ("a comparison of this case to factually similar ones reveals that the jury's award is within the bounds of what has been determined to be reasonable compensation (see e. g. Mirand v. City of New York, 190 A.D.2d 282, 291, 598 N.Y.S.2d 464,affd. 84 N.Y.2d 44, 614 N.Y.S.2d 372, 637 N.E.2d 263 [$750,000 jury award for pain and suffering held not to be excessive even though the injury was to a student's nondominant hand and her pain was not constant])"); Sassoonian v. City of New York, 14 New York Jury Verdict Review and Analysis 10:C3, also available at 1997 WL 33346483 (Unknown State Court, 1997) (jury award of $1,000,000 for past pain and suffering for femur fracture), modified on other grounds, 261 A.D.2d 319, 319, 692 N.Y.S.2d 12, 13 (1st Dep't 1999) (reducing award for future pain and suffering from $750,000 to $500,000);L'Hommedieu v. Timber Ridge, 1995 WL New York Jury Verdict Review and Analysis 6:C6, also available at 1995 WL 1934590 (Unknown State Court, 1995) (jury award of $100,000 for past pain and suffering for fractured ankle); Caraballo v. HRS Equities Millbrook Prop., 11 New York Jury Verdict Review and Analysis 4:C6, also available at 1993 WL 1615618 (Unknown State Ct., 1993) (jury award of $220,000 for past pain and suffering for fractured femur, heel and pelvis); Ibach v. Boy Scouts of Am., Jury Verdict Report No. 68151, also available at 1991 WL 446410 (Sup.Ct. Erie Co., 1991) (jury award of $300,000 for past pain and suffering for fractured femur and wrist), aff'd, 184 A.D.2d 1091, 584 N.Y.S.2d 966 (4th Dep't 1992); Scheinerman v. Pavilion Garage, Inc., Jury Verdict Report No. 77.088, also available at 1991 WL 451346 (Sup.Ct. New York Co., 1991) (jury award of $900,000 for past pain and suffering for fractured femur, ankle, shinbone and torn ACL); Psillis v. Lang, Jury Verdict Report No. 58,985, also available at 1990 WL 459506 (Sup.Ct. New York Co., 1990) (jury award of $250,000 for past pain and suffering for fractured femur); Lesser v. Manhattan Bronx Transit Operating Auth., New York Jury Verdict Review and Analysis 6:C8, also available at 1989 WL 1100934 (Unknown State Court, 1989) (jury award of $158,860 for past pain and suffering for femur fracture), rev'd on other grounds, 157 A.D.2d 352, 556 N.Y.S.2d 274 (1st Dep't 1990).
Defendant cites Inya v. Ide Hyundai, Inc., 209 A.D.2d 1015, 619 N.Y.S.2d 440 (4th Dep't 1994), in support of its contention that the damages award for past pain and suffering is adequate. In Inya, the plaintiff suffered a fractured tibia and femur and underwent two surgeries. The Appellate Division concluded that $20,000 for past pain and suffering was inadequate and ordered a new trial on the issue of damages unless the parties stipulated to $80,000 in damages. The cases surveyed above demonstrate that Inya falls on the lower end of the spectrum of damages awarded for injuries similar to those suffered by plaintiff. Inya, however, seems to support plaintiff's position more than it does defendant's position; $80,000 is significantly higher than an award of $50,000. Furthermore, Inya was decided almost ten years ago and the value of $80,000 in 1994 is certainly worth more today.
In light of the foregoing case law, I conclude that the jury's award of $50,000 for past pain and suffering on the facts of this case materially deviates from the range of reasonable compensation; plaintiff was run over by a garbage truck, suffered a fractured femur and fibula, spent approximately two weeks in the hospital where he was administered morphine and codeine, underwent surgery on his femur and ankle in order to install appliances — which were subsequently removed in another operation, was in a wheelchair for a month following his release from the hospital and out of work for almost one year following the accident. Accordingly, plaintiff's motion for a new trial with respect to past pain and suffering is granted.
Plaintiff's request that I directly increase the verdict through additur must be denied. Dimick v. Schiedt, 293 U.S. 474, 486 (1935); Liriano v. Hobart Corp., 170 F.3d 264, 272 (2d Cir. 1999).
B. Defendant's Motion
Defendant argues that a new trial on the issue of liability should be granted because (1) the jury's verdict is the result of a compromise and (2) a videotape showing various garbage trucks operating throughout the city, including one owned by Waldorf, was improperly admitted into evidence (Defendant's Memorandum of Law, dated May 6, 2004 ("Def. Mem."), at 11-13).
1. Compromise Verdict
Defendant first argues that the verdict should be set aside because the jury compromised in reaching its verdict. Defendant cites Shepherd v. Metro-North Commuter R.R. Co., 791 F. Supp. 1008, 1011 (S.D.N.Y. 1992), in support of its argument. InShepherd, the Honorable Louis L. Stanton, United States District Judge, explained:
A verdict can be set aside if the jurors compromise on the question of liability, but not if they compromise on the amount of damages. Maher v. Isthmian Steamship Co., 253 F.2d 414, 416 (2d Cir. 1958). "[T]he verdict must be inconsistent with the facts adduced at the trial if the reviewing court is to reverse it on the ground of an improper compromise by the jury." Id. at 416-17. "[T]he record itself viewed in its entirety must clearly demonstrate the compromise character of the verdict, otherwise it is not error for the trial judge to refuse to set the verdict aside on this ground." Id. at 419. See also, Ajax Hardware Mfg. v. Industrial Plants Corp., 569 F. 2d 181, 184 (2d Cir. 1977) (decision to grant new trial because of possible compromise verdict not sustainable where "there is an equally reasonable and perhaps even better explanation which involves no jury misconduct."); Jon S. Posner Realty, Inc. v. HMS Property Management Group, Inc., 1992 WL 77574, 1992 U.S. Dist. LEXIS 3537 (S.D.N.Y. 1992); U.S. Football League v. National Football League, 644 F. Supp. 1040, 1049-50 (S.D.N.Y. 1986), aff'd, 842 F. 2d 1335 (1988).
Defendant makes two arguments in support of its position that the verdict was inconsistent: (1) a finding of comparative negligence is inconsistent with the facts adduced at trial and (2) statements made by several jurors after the trial indicate that verdict was the result of a compromise.
First, defendant argues that the jury's finding that both parties were negligent and responsible for the accident is inconsistent with the evidence. Defendant correctly states that if plaintiff was run over on the sidewalk — as plaintiff alleges occurred — then plaintiff could not have been comparatively negligent. Defendant reasons that if, on the other hand, plaintiff was run over in the street, Waldorf could not be negligent because there was no evidence adduced at trial that the "alleged erratic driving by the Waldorf vehicle caused the accident" (Def. Mem. at 12). This latter statement by defendant is incorrect.
Police Officer Lundt, who was present at the scene of the accident, testified that plaintiff told him that he had collided with the garbage truck while it was driving in the street. This testimony, if credited by the jury, explains how the jury could find that both parties acted negligently, namely, that defendant was negligent in driving erratically, turning without a signal, or cutting off plaintiff, and plaintiff was negligent in rollerblading too fast, tailgating defendant or trying to pass defendant's truck on the right. I need not explore all the possible grounds on which the jury could have reached its verdict. As long as there is at least one view of the evidence on which the verdict can harmonized, the verdict cannot be set aside as inconsistent with the evidence. See Turley v. Police Dept. of City of New York, supra, 167 F.3d at 760 ("When confronted with a potentially inconsistent jury verdict, the court must adopt a view of the case, if there is one, that resolves any seeming inconsistency. Before a court may set aside a special verdict as inconsistent and remand the case for a new trial, it must make every attempt to reconcile the jury's findings, by exegesis if necessary." (internal quotation marks and citations omitted)).
Defendant next argues that a compromise verdict was reached based on his conversation with three of the jurors following the trial. Specifically, defendant argues:
It is clear that the jury reached a compromised verdict. In speaking with Messrs. Durkin Ainsworth, Koutasottaf and Krendall, following their dismissal they felt that the plaintiff had not established that the Waldorf vehicle was operated in a negligent manner on the evening of the accident. Moreover, neither of the aforementioned jurors believed the rear wheels of the truck came up on the sidewalk or that the rear wheels ran over Mr. Keenan's leg. They indicated that the injuries would have been more significant, and not surprisingly, noted that the rollerblade that Mr. Keenan was wearing would have been crushed. These jurors were inclined to dismiss the plaintiff's case in its entirety.
Generally, statements made by jurors may not be used to impeach a jury verdict. Rule 606(b) of the Federal Rules of Evidence provides:
Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection there-with, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror. Nor may a juror's affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes.
The origin of Rule 606(b) was explained by the Supreme Court inTanner v. United States, 483 U.S. 107, 117 (1987):
By the beginning of this century, if not earlier, the near-universal and firmly established common-law rule in the United States flatly prohibited the admission of juror testimony to impeach a jury verdict. See 8 J. Wigmore, Evidence § 2352, pp. 696-697 (J. McNaughton rev. ed. 1961) (common-law rule, originating from 1785 opinion of Lord Mansfield, "came to receive in the United States an adherence almost unquestioned"). Exceptions to the common-law rule were recognized only in situations in which an "extraneous influence," Mattox v. United States, 146 U.S. 140, 149, 13 S.Ct. 50, 53, 36 L.Ed. 917 (1892), was alleged to have affected the jury. In Mattox, this Court held admissible the testimony of jurors describing how they heard and read prejudicial information not admitted into evidence. The Court allowed juror testimony on influence by outsiders in Parker v. Gladden, 385 U.S. 363, 365, 87 S.Ct. 468, 470, 17 L.Ed.2d 420 (1966) (bailiff's comments on defendant), and Remmer v. United States, 347 U.S. 227, 228-230, 74 S.Ct. 450, 450-452, 98 L.Ed. 654 (1954) (bribe offered to juror). See also Smith v. Phillips, 455 U.S. 209, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982) (juror in criminal trial had submitted an application for employment at the District Attorney's office). In situations that did not fall into this exception for external influence, however, the Court adhered to the common-law rule against admitting juror testimony to impeach a verdict. McDonald v. Pless, 238 U.S. 264, 35 S.Ct. 783, 59 L.Ed. 1300 (1915); Hyde v. United States, 225 U.S. 347, 384, 32 S.Ct. 793, 808, 56 L.Ed. 1114 (1912).
None of the exceptions to the rule prohibiting jurors from impeaching their own verdict are applicable here. Indeed, the Honorable Peter K. Leisure, United States District Judge, rejected an argument almost identical to that made here inUnited States Football League v. National Football League, 644 F. Supp. 1040, 1049-1050 (S.D.N.Y. 1986). There, plaintiff moved for a new trial claiming that the verdict was the result of a compromise. In support of its argument, plaintiff presented newspaper articles, based on post-trial statements made by jurors, that the jurors were deadlocked, tired and compromised on the verdict so that they could avoid a hung jury and all go home. Judge Leisure rejected plaintiff's claim, stating:
For reasons already discussed, the "proof" upon which plaintiffs rely is not competent for purposes of impeaching the verdict on any grounds, including compromise. Indeed, the Second Circuit has observed that "[s]ince neither the affidavits nor the testimony of jurors are generally admissible to impeach their verdict, the verdict must be inconsistent with the facts adduced at trial if the reviewing court is to reverse it on the ground of an improper compromise by the jury." Maher v. Isthmian Steamship Co., 253 F.2d 414, 416-17 (2d Cir. 1958) (citations to New York and federal case law omitted).See also Thomas v. Medco, 95 Civ. 8401 (JES) (MHD), 1998 WL 542321 at *17 (S.D.N.Y. Aug. 26, 1998) ("In an effort to demonstrate that there existed additional signs of compromise, defendants state that during deliberations the jurors could be heard from the courtroom engaging in heated arguments that included shouts by at least one juror that plaintiff was a liar. . . . . It is well established that a jury verdict may not be impeached by evidence from the jury or a juror.").
Thus, the alleged post-trial statements made by the jurors cannot be used as evidence that the verdict was the result of a compromise. Additionally, as discussed above, the verdict reached by the jury is rational and supported by the testimony of Police Officer Lundt. Accordingly, defendant's motion to set aside the verdict on the grounds that it was reached as the result of a compromise is denied.
2. Admissibility of Videotape
Defendant next argues that the videotape of the scene of the accident shot by plaintiff's father on May 16, 2001 was improperly admitted into evidence. I previously denied a motionin limine by defendant to exclude this videotape. Defendant's post-trial argument that the tape was inadmissible is essentially a motion for reconsideration. This motion for reconsideration fails on the grounds that (1) it is untimely and, alternatively, (2) defendant has not presented any new evidence warranting reconsideration of my previous ruling.
Southern District of New York Local Civil Rule 6.3 provides:
A notice of motion for reconsideration or reargument shall be served within ten (10) days after the docketing of the court's determination of the original motion. There shall be served with the notice of motion a memorandum setting forth concisely the matters or controlling decisions which counsel believes the court has overlooked.See also Ferguson v. Lion Holding, Inc., 02 Civ. 4258 (PKL), 02 Civ. 4261 (PKL), 2004 WL 1276846 at *1 (S.D.N.Y. June 8, 2004) ("A motion for reconsideration may not be used . . . as a vehicle for relitigating issues already decided by the Court. [A] motion for reconsideration is not a substitute for appeal and may be granted only where the Court has overlooked matters or controlling decisions which might have materially influenced the earlier decision." (internal quotations and citations omitted));D.H. Blair Co., Inc. v. Gottdiener, 03 Civ. 2908 (RO), 03 Civ. 3931 (RO), 2004 WL 1057626 at *1 (S.D.N.Y. May 10, 2004) ("[A] movant [under Local Civil Rule 6.3] must show that the Court has overlooked controlling decisions or factual matters that, had they been considered, might reasonably have altered the result. A motion for reconsideration is not a motion to reargue those issues already considered when a party does not like the way the original motion was resolved" (quotations marks and citations omitted)).
First, defendant's motion is time-barred. The issue was decided prior to trial, on March 29, 2004, and defendant filed its motion for reconsideration on May 6, 2004 — well outside the ten-day limit set by Local Civil Rule 6.3. Moreover, defendant has done precisely what Local Civil Rule 6.3 forbids; it seeks to relitigate an issue that has already been decided. Defendant presents no new evidence or controlling decisions that were overlooked when the issue was initially resolved. Thus, defendant's motion for reconsideration is denied.
IV. Conclusion
Accordingly, for all the foregoing reasons, plaintiff's motion for a new trial on the issue of past pain and suffering is granted. All other motions made by either party is denied.
SO ORDERED.