Zsa Zsa Jewels, Inc. v. BMW of North America, LLC et al
Filing
232
ORDER. For the reasons set forth in the attached Memorandum and Order, Defendant's motion under Federal Rule of Civil Procedure 50(b) is DENIED; Defendant's motion under Federal Rule of Civil Procedure 59 is DENIED, and Defendant's motion under Federal Rule of Civil Procedure 60(b)(5) is DENIED. Ordered by Judge Kiyo A. Matsumoto on 5/15/2023. (AA)
Case 1:15-cv-06519-KAM-TAM Document 232 Filed 05/15/23 Page 1 of 65 PageID #: 9326
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-----------------------------ZSA ZSA JEWELS, INC.,
Plaintiff,
MEMORANDUM & ORDER
15-cv-6519-KAM-RLM
v.
BMW OF NORTH AMERICA, LLC,
Defendant.
------------------------------KIYO A. MATSUMOTO, United States District Court Judge:
In December 2022, the Court presided over a jury trial
in an action brought by Zsa Zsa Jewels, Inc. (“Plaintiff”) against
BMW of North America, LLC (“Defendant”).
(ECF No. 219-1-4, Trial
Transcript Days 1-4 (“Tr.”).)1 The trial involved claims of strict
products
liability
and
negligence
under
New
York
common
law
regarding a BMW X3 automobile (the “Subject Vehicle”), leased by
Plaintiff’s owner, Meena Catalano, that unexpectedly caught fire
on November 6, 2013, while being driven by Plaintiff’s employee,
Tiffany Sobers (“Ms. Sobers”),
jewelry inventory therein.
thereby destroying
Plaintiff’s
The jury returned a verdict in favor
of Plaintiff, awarding $450,000 dollars including pre-judgment
interest and post-judgment interest at the rate provided by 28
Trial took place from December 6, 2022 to December 9, 2022. Though the trial
transcript is uploaded onto the electronic filing system as four different
exhibits, the page numbers on the right top corner are continuous and the Court
refers to the trial transcript as one document.
1
1
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U.S.C. § 1961.2
On January 11, 2023, the Court entered judgment.
(ECF NO. 223, Judgment.)
Presently before the Court is Defendant’s renewed motion
for Judgment as a Matter of Law pursuant to Fed. R. Civ. P. 50(b)
(“Rule 50(b)”) and, in the alternative, motion for a New Trial and
Amendment of Judgment pursuant to Fed. R. Civ. P. 59(a)(1)(A)
(“Rule 59”).
(ECF Nos. 218, Defendant’s Motion for Judgment as a
Matter of Law (“Def. JMOL Mot.”); 220, Memorandum of Law in Support
of Defendant’s Motion for Judgment as a Matter of Law (“Def. JMOL
Mem.”); 221, Defendant’s Motion for a New Trial (“Def. Rule 59
Mem.”); 230, Defendant’s Memorandum of Law in Reply for its JMOL
(“Def. JMOL Reply”); 231, Defendant’s Memorandum of Law in Reply
for its Rule 59 Motion (“Def. Rule 59 Reply”).
Defendant’s motions.
Plaintiff opposes
(ECF Nos. 225, Plaintiff’s Memorandum of Law
in Opposition to Defendant’s JMOL Motion (“Pl. JMOL Opp’n Mem.”);
226, Plaintiff’s Memorandum of Law in Opposition to Defendant’s
Rule 59 Motion (“Pl. Rule 59 Opp’n Mem.”).)
Defendant also moved
After the verdict, the parties requested the Court delay entering judgment as
they disputed how to calculate the final judgment amount and provided the Court
with supplemental briefing. (ECF Nos. 210-13.) On January 10, 2023, the Court
denied the parties’ request for a hearing and directed Plaintiff’s counsel to
submit updated final figures reflecting the parties’ calculation of pre-judgment
interest as of January 10, 2023.
The parties conferred and agreed to prejudgment interest in the amount of $372,045.21, but they did not agree on the
proper collateral source reduction. (See ECF Nos. 211, 213, 215, 216.) After
considering the parties’ submissions, the Court entered judgment in the amount
of $666,645.89 (jury’s verdict of $450,000 plus prejudgment interest running
from November 6, 2013 through January 10, 2023 of $372,045.21, for a total of
$822,045.21, reduced by the collateral source amount of $155,399.32), using the
formula set forth in Bauman v. Keene, 18 F.3d 126 (2d Cir. 1994). (ECF No.
222, Pl. Letter on Pre-judgment Interest.)
2
2
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pursuant to Fed. R. Civ. P. 60(b)(5) for relief from the judgment
and subsequently incorporated its arguments into its Rule 59
motion.
Plaintiff also opposed Defendant’s Rule 60(b)(5) motion.
(ECF Nos. 210, 211, 212, 214.)
For the reasons set forth below,
Defendant’s Rule 50(b), 59, and 60(b)(5) motions are DENIED.
BACKGROUND
I.
Defendant’s Pre-Trial Motions
Before proceeding to trial, the case was assigned to the
Honorable Judge I. Leo Glasser.
In 2018, Defendant moved pursuant
to Fed. R. Evid. 702 to preclude the testimony of Plaintiff’s
proposed causation and defectiveness expert witness, Peter J.
Leiss (“Mr. Leiss”), and pursuant to Fed. R. Civ. P. 56 for summary
judgment.
(ECF No. 86, Def. Motion for Summ. J.)
On October 11, 2019, Judge Glasser granted Defendant’s
motion to preclude Mr. Leiss’s testimony and granted in part and
denied in part Defendant’s motion for summary judgment.
97, Oct. 11, 2019 Order at 42.)
(ECF No.
Judge Glasser found that based on
Mr. Leiss’s professional experience, he was “competent to testify
about tire pressure monitoring systems [TPMS] generally, but . .
. not qualified to testify about TPMS systems with manual reset
features in particular.” (Id. at 25.) Additionally, Judge Glasser
found that Mr. Leiss was “not qualified to opine on questions
concerning tire safety—including the air pressure at which it is
likely that a tire could come apart or spark a fire.”
3
(Id.)
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Accordingly, Judge Glasser granted Defendant’s motion to exclude
Mr. Leiss’s testimony.
With
allowed
Mr.
Plaintiff
Leiss’s
to
“design/manufacturing
testimony
proceed
defect
circumstantial evidence.”
to
excluded,
trial
claim
on
asserted
(Id. at 42.)
Judge
a
on
Glasser
theory
the
of
basis
a
of
In making his ruling,
Judge Glasser relied on Section 3 of the Restatement (Third) of
Torts: Products Liability (1998), also endorsed by New York Court
of Appeals case law, which provides that:
It may be inferred that the harm sustained by
the plaintiff was caused by a product defect
existing at the time of sale or distribution,
without proof of a specific defect, when the
incident that harmed the plaintiff:
(a) was of a kind that ordinarily occurs as a
result of product defect; and
(b) was not, in the particular case, solely
the result of causes other than the product
defect existing at the time of sale or
distribution.
Restatement
(Third)
of
Torts:
Products
Liability
(1998)(hereinafter “Restatement”) § 3.
On February 11, 2022, the case was reassigned to Judge
Kiyo A. Matsumoto for trial.
(Scheduling Order Feb. 11, 2022.)
The jury was selected on December 5, 2022, and was tried between
December 6 through 9, 2022.
This Court applied Judge Glasser’s
meticulous, scholarly rulings to the trial, allowing Plaintiff to
proceed
to
present
a
circumstantial
4
case
for
design
and
Case 1:15-cv-06519-KAM-TAM Document 232 Filed 05/15/23 Page 5 of 65 PageID #: 9330
manufacturing defect under strict liability and negligence.
(Tr.
at 844-45.)
On December 8, 2022, at the close of Plaintiff’s case in
chief, Defendant moved pursuant to Fed. R. Civ. P. 50(a) for
judgment as a matter of law, on the following bases: (1) that
Plaintiff
failed
to
present
adequate
evidence
to
support
a
circumstantial case of manufacturing or design defect; (2) that
Plaintiff
failed
to
present
adequate
evidence
to
support
a
circumstantial case of negligence; and (3) that Plaintiff failed
to present sufficient evidence to support an award of punitive
damages.
rested,
(ECF No. 203 at 2–7.)
Defendant
renewed
its
Later that day, after Defendant
motion
for
a
directed
verdict
pursuant to Fed. R. Civ. P. 50(b), on the same three grounds.
No. 204 at 2-7.)
(ECF
The Court denied Defendant’s motions on the first
two grounds and granted Defendant’s Rule 50 motion on punitive
damages.
II.
(Tr. at 803-05.)
Joint Statement of the Case and Stipulations
In the parties’ joint statement of the case, Defendant
and Plaintiff stipulated to the jury:
Ms. Sobers departed from New York, New York
and was headed to a jewelry trade show in
Marlborough, Massachusetts. Ms. Sobers, after
experiencing some trouble with the vehicle,
pulled over to the shoulder of the road while
en route in the vicinity of Southbury,
Connecticut. Soon thereafter, Ms. Sobers was
alerted by a third party that the vehicle was
on fire. Ms. Sobers exited the vehicle and
5
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left behind the Plaintiff’s merchandise. The
vehicle and its contents were heavily damaged
in the fire. Plaintiff alleges that its
merchandise was either lost or destroyed in
the fire and is seeking the replacement cost
of its merchandise.
It was determined that the fire began in the
area of the rear right wheel, and the cause
and origin of the fire was a loss of pressure
in the right rear tire which allowed the tire
to
ignite.
A
remaining
issue
for
determination at trial is whether the TPMS did
or did not illuminate and act to warn the
driver, Ms. Sobers, that the right rear tire
was low.
In addition, it remains at issue
what the nature and value of the Plaintiff’s
merchandise was at the time of the incident.
(ECF No. 186-2, Joint Statement of the Case at 2 (emphasis added).)
The parties also stipulated that the Subject Vehicle’s
Owner’s Manual (which was admitted in evidence as Plaintiff’s Ex.
4 and Defendants’ Ex. B at trial and read into the record by the
Court to the jury (Tr. at 67-69)) provides in relevant part at
page 91:
As an added safety feature, your vehicle has
been equipped with a tire pressure monitoring
system (TPMS) that illuminates a low tire
pressure telltale when one or more of your
tires
is
significantly
under-inflated.
Accordingly, when the low tire pressure
telltale illuminates, you should stop and
check your tires as soon as possible, and
inflate them to the proper pressure. Driving
on a significantly under-inflated tire causes
the tire to overheat and can lead to tire
failure.
Under-inflation also reduces fuel
efficiency and tire tread life, and may affect
the vehicle’s handling and stopping ability.
Please note that the TPMS is not a substitute
for proper tire maintenance, and it is the
6
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driver’s responsibility to maintain correct
tire pressure, even if under—inflation has not
reached the level to trigger illumination of
the TPMS low tire pressure telltale.
(ECF No. 202, Joint Stipulations of Fact at 5.)
The parties
stipulated that this document was “[t]he BMW X3’s Owner’s Manual
received by Meena Catalano” in connection with the Subject Vehicle.
(Id. at 4.)
Accordingly, the Court notes that after Judge Glasser’s
ruling on Defendant’s motion for summary judgment, all parties
understood that at trial, Plaintiff would not present an expert
witness on causation/defect.
The parties stipulated that the jury
would decide “whether the TPMS did or did not illuminate and act
to warn the driver, Ms. Sobers, that the right rear tire was low”
and the value of Plaintiff’s inventory in the Subject Vehicle at
the time of the incident for calculating damages.
(ECF No. 186-
2, Joint Statement of the Case at 2.)
III. Evidence at Trial
Plaintiff’s case in chief consisted of four witnesses:
Meena Catalano and her husband, Frank Catalano, co-founders of Zsa
Zsa (Tr. at 73-74, 211, 215-16); Tiffany Sobers, Plaintiff’s
employee and the driver of the Subject Vehicle on the night of the
fire (id. at 250, 255); and Anthony Mauriello, an accountant, who
assisted Plaintiff with bookkeeping and tax preparation.
7
(Id. at
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501-504).
The Court will recount the evidence presented at trial
relevant to the motions.
A. Meena Catalano Testimony, Owner of Zsa Zsa Jewelry, Inc.
After providing a background on the business of Zsa Zsa,
Meena
Catalano
(“Ms.
Catalano”)
testified
that
prior
to
the
November 6, 2013 accident, she leased the Subject Vehicle and used
the Subject Vehicle, inter alia, to transport Plaintiff’s jewelry
to trade shows.
(Tr. at 86–87.)
Ms. Catalano further testified
that as a result of the permanent damage from the accident/fire
“[t]here was nothing recovered in the car,” which had contained
approximately 90-95 percent of Plaintiff’s jewelry inventory, as
well as invoices, a computer, and calculators.
(See id. at 88–
89, 103, 115.)
Regarding
the
subject
Vehicle’s
TPMS
system,
Ms.
Catalano testified that on or around October 2012, the “tire
pressure monitor light” came on, at which point Ms. Catalano took
the Subject Vehicle in to Open Road BMW for servicing.
96.)
(Id. at
According to Ms. Catalano an Open Road employee “took it
briefly for maybe half hour, he took it inside and service and he
say you should be good to go, not a problem.”
(Id.)
Ms. Catalano
testified that she told the mechanic, “this light is on so I'm
concerned.”
(Id. at 97.)
Ms. Catalano further testified that the
Open Road employee told her the tire pressure monitor light “comes
up all the time so no big deal” and was finished checking the car
8
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within approximately 30 minutes.
(Id. at 97, 102.)
After her
visit to Open Road, Ms. Catalano did not see the tire pressure
monitor light come on again.
(Id. at 100-01.)
Ms. Catalano
further clarified that when she took the Subject Vehicle to Open
Road, there was no flat tire.
(Id. at 102.)
Ms. Catalano testified on cross-examination that she
“didn’t read the owner’s manual” of the Subject Vehicle.
143.)
(Id. at
Ms. Catalano also testified that she had a “personal
relationship” with Ms. Sobers and trusted both her and the Subject
Vehicle.
(Id. at 143-45.)
On cross examination, Ms. Catalano
also testified about how she had “outstanding bills from the
manufacturers which are not being paid,” as “some” of the jewelry
lost in the fire was “given on consignment.”
(See id. at 188.)
When asked about whether she had paid for all of the merchandise
that was in the Subject Vehicle fire, Ms. Catalano responded that
she had not, and that “[p]retty much 80 to 90 percent was not paid”
and that there was “minimal” insurance.
(Id. at 189.)
Defense
counsel cross-examined Ms. Catalano about her insurance policies
(id. at 189-93), and various items on the inventory of lost or
damaged jewelry, but did not cross-examine her about the specific
amounts or items of jewelry lost in the fire.
(Id. at 200-202).
B. Frank Catalano Testimony, Investor and Employee of Zsa
Zsa Jewelry
9
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Frank
Catalano
testified
to
having
an
immediate
involvement in Plaintiff’s business when Meena Catalano opened Zsa
Zsa “some years” after their marriage.
(Id. at 215.)
Mr. Catalano
testified about Plaintiff’s profit and loss report from 2012, which
was prepared by their tax accountant, Mr. Mauriello. (Id. at 217.)
Mr. Catalano also testified to loading the Subject Vehicle the
night of the accident with “several cases of jewelry” each weighing
approximately forty to sixty pounds of stones and diamonds.
(Id.
at 220–21.)
C. Tiffany Sobers, Driver of the Subject
Employee of Zsa Zsa Jewelry, Inc.
Ms.
accident,
she
Sobers
had
testified
driven
that
the
before
Subject
the
Vehicle
November
Vehicle
on
and
2013
“multiple
occasions” for local road trips and trade shows, “anywhere within
a four-hour distance.”
(Id. at 263.)
Ms. Sobers also testified
to familiarity driving to Malborough, Massachusetts for multiple
trade shows in the past, including driving at night.
75.)
(Id. at 273-
Ms. Sobers further testified to her love of driving, and
that the year of the accident, Ms. Sobers often rented vehicles on
her own and drove on long trips.
(Id. at 276.)
Ms. Sobers
testified that she prefers driving either at the speed limit or up
to five miles over the speed limit.
(Id. at 292.)
Ms. Sobers testified that, aside from the night of the
accident,
she
never
found
the
10
Subject
Vehicle
“difficult
to
Case 1:15-cv-06519-KAM-TAM Document 232 Filed 05/15/23 Page 11 of 65 PageID #: 9336
operate” or “confusing in any way.”
(Id. at 263-64.)
Ms. Sobers
further testified that she was aware of the Subject Vehicle’s TPMS
system.
(Id. at 264-65.)
She recalled one occasion during which
Ms. Catalano showed her the TPMS system that had a warning light
on it, stating words to the effect of “tire calibration or tires
need to be calibrated.”
(Id. at 266.)
When Ms. Sobers left for Malborough, Massachusetts on
the night of the accident, she testified that she did not see “any
warning indicators of any kind displayed in the car.”
284.)
(Id. at
During the drive, she pulled off to get gas “somewhere in
upstate New York” and testified that did not “notice anything
unusual about the tire at the time” and did not “notice any warning
lights on the dashboard of the vehicle.”
(Id. at. 285-88.)
Some
period of time after refueling the Subject Vehicle, Ms. Sobers
testified that the steering wheel suddenly “pretty much seized for
a moment, then got really loose and turned all the way to kind of
the right—the right—started turning left and right, more veered
right.
So I ended up from the far left lane all the way to the
far right lane of the highway.”
(Id. at 291.)
She testified to
being “startled” and “recollect[ing]” herself before calling the
Subject Vehicle’s SOS button.
(Id.)
After Ms. Sobers pulled off to the side of the road, and
looked at the dashboard, she noticed that there was a light that
read, “coolant level low.”
(Id at 293-94.)
11
She testified that
Case 1:15-cv-06519-KAM-TAM Document 232 Filed 05/15/23 Page 12 of 65 PageID #: 9337
she did not see any warning lights “when the wheel itself seized
and got loose,” and only remembers seeing the words “coolant level
low” when she pulled over.
(Id. at 294.)
After speaking with the
SOS operator, she got out of the car and proceeded to conduct a
“visual inspection” of the car, including “look[ing] at every
single tire.”
(Id. at 296.)
She testified that during the call
with SOS, she was asked and reported what she noticed about the
Subject Vehicle and “reported that the only thing I had visibly
seen on the dashboard [was] that the coolant level [was] low.”
(Id. at 297.)
Ms. Sobers did not testify as to whether any of the
tires were deflated.
Ms. Sobers then testified that, after she was back inside
the Subject Vehicle, an 18-wheeler semi-truck suddenly pulled to
the side of the road in front of her, which she found “really
strange and really odd.”
(Id.)
The driver then exited the truck,
came over to Ms. Sobers in the Subject Vehicle, pulled the door
open and “essentially saved [Ms. Sobers’] life that night” because
when Ms. Sobers looked to the right-hand side of the Subject
Vehicle, she noticed it was on fire.
(Id.)
Ms. Sobers then
testified to being in “complete shock” and that “seconds later the
car exploded.”
(Id. at 297-98.)
She was visibly emotional on the
stand and testified to the jury that the experience was “really
traumatic to think about.”
(Id. at 297.)
12
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Ms. Sobers also testified that when questioned by the
police about the accident, an officer asked her “to place a dollar
value on the jewelry that had been destroyed in the fire,” to which
Ms. Sobers responded, $450,000, based on her personal involvement
in packing the inventory.
(Id. at 344.)
On cross examination,
Ms. Sobers testified that Ms. Catalano informed Ms. Sobers to be
on the lookout for a light indicating any potential problems with
the TPMS.
(Id. at 432-33.)
Ms. Sobers further testified that she
understood that if there was a problem with the TPMS, a light on
the dashboard of the Subject Vehicle would come on, indicating
such a problem.
(Id. at 434-35.)
Ms. Sobers also testified that anywhere from “90 to 95
percent” of Plaintiff’s inventory was in the Subject Vehicle on
the night of the accident. The company’s laptop, inventory sheets,
and invoices, and Ms. Sobers’s luggage were also in the Subject
Vehicle and lost in the fire. (Id. at 281.) She provided extensive
testimony regarding the process by which she and the Catalanos
determined what was in the car and what was left of the office
inventory in the days after the fire.
(Id. at 357-59.)
She
testified that it took hours to reconstruct the inventory without
the company laptop and that she and the Catalanos “used various
emails, paper receipts that were left behind, purchase orders and
invoices for previous clients” to prepare Plaintiff’s Exhibit 7,
Plaintiff’s 13-page inventory of lost products with costs.
13
(Id.
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at 357, 361.)
She was asked by Plaintiff’s counsel to explain the
“cost and total cost columns” on the inventory.
Ms. Sobers
explained that the “costs” columns reflected the costs to purchase
the item from the vendor, exclusive of shipping, overhead, and
other expenses, and the “total costs” included the cost multiplied
by the quantity of the item.3 (Id. at 358-60.)
Ms. Sobers further
described her understanding and close involvement with Plaintiff’s
business.
(Id. 357-73.)
D. Anthony Mauriello, Zsa Zsa Jewelry Inc. Tax Accountant
Plaintiff’s final witness was Anthony Mauriello, a tax
accountant with over twenty years of experience.
Mr.
Mauriello
provided
Plaintiff
with
(Tr. at 501.)
bookkeeping
and
tax
preparation services and was called by Plaintiff to establish the
costs of Plaintiff’s inventory for purposes of damages.
504–05.)
(Id. at
In Exhibit 14, Mr. Mauriello explained that “purchases
dash resale items” in the amount of $591,370.31 reflected the
amount of items that Plaintiff purchased and intended to resell in
2012.
(Id. at 513-14.)
Plaintiff’s profit and loss statements
for the calendar years 2010 to 2016 and its tax returns from 2010
to 2016 were also submitted into evidence for the jury to consider.
“So the cost column is . . . the basic cost of purchasing it from the vendor.
So that’s the just raw cost of the item. That doesn't include any additional
costs like shipping or overhead, [selling, general and administration], fringe,
none of that. That's just the cost of that specific item . . . Total cost is
the multiplied cost column by the quantity column of that item.” (Tr. at 35960.)
3
14
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(Plaintiff’s
Exhibits
12-18,
31A-31G.)
explained Plaintiff’s 2012 tax return.
Mr.
Mauriello
also
(Id. at 520-26; see also
Plaintiff’s Exhibit 31.)
On
cross-examination,
Mr.
Mauriello
testified
that
Plaintiff’s tax returns did not include any items on consignment
in the amount of items purchased for resale.
(Tr. at 527-28.)
He
did not “recall” whether it “was ever brought to [his] attention
that [Plaintiff] had $450,000 worth of inventory,” and that if
Plaintiff had $450,000 in inventory, it would have been subtracted
from the cost of goods sold, and would have altered Plaintiff’s
tax returns for 2012.
The cost of goods sold for 2012 on the
profit and loss statements and tax returns was $1,063,591.15. (Id.
at 519, 530–32; Plaintiff’s Exhibits 14, 31C.)
E. Defendant Witnesses
On December 8, 2022, after Plaintiff rested, Defendant
moved for a directed verdict, arguing that there was insufficient
evidence for the jury to find that the Subject Vehicle had a
defective TPMS, based on Ms. Sobers’s testimony that the TPMS
warning
light
did
not
illuminate
before
the
vehicle
fire.
Defendant argued that there was insufficient evidence for the jury
to find for Plaintiff as to both the defective manufacturing and
design strict liability claim and negligence claim.
593.)
(Tr. at 587-
Defendant also argued that “the only role that BMW North
America had was distributing the vehicle.”
15
(Id. at 591.)
Defense
Case 1:15-cv-06519-KAM-TAM Document 232 Filed 05/15/23 Page 16 of 65 PageID #: 9341
counsel argued that “there’s absolutely not one scintilla of
evidence that would suggest that they could meet their burden.”
(Id. at 593.)
The Court then heard argument from Plaintiff’s
counsel, who discussed the negligence and design and manufacturing
defect evidence
in the context of a circumstantial case, as
permitted by Judge Glasser’s ruling, including punitive damages.
(Id. at 593-607.)
The Court reserved ruling on Defendant’s Rule
50(a) motion and Defendant presented its case.
(Id. at 606-07.)
Defendant’s witnesses consisted of Deborah Villepigue, an
Independent Certified Gemologist Appraiser, who was certified by
the
Court
as
an
expert
witness
in
“forensic
appraisals
and
gemology,” (id. at 615), and Anthony Ciccodicola, a certified
public accountant, who was certified by the Court as an expert
witness in “forensic accounting.”
(Id. at 751.)
Defendant hired
Ms. Villepigue to conduct an inspection of Plaintiff’s jewelry,
(id. at 618–23), and present expert testimony to the jury that
Plaintiff’s damaged or lost jewels were not worth much as Plaintiff
was claiming.
(Id. at 618-60.)
Mr. Ciccodicola was retained by
Defendant to inspect the accounting practices of Plaintiff and
provided testimony about those practices and the value of lost
inventory.
(Id. at 752-92.)
Additionally, Defendant read a portion of the deposition
transcript of Mark Boehler into the record.
Mr. Boehler was an
employee and Master Technician of BMW Open Road of Edison.
16
(Id.
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at 707-08.) Mr. Boehler’s deposition testimony provided the jurors
with information about how the TPMS was supposed to work, and how
the recalibration of underinflated tires would proceed.
17.)
(Id. 707-
On cross examination, he also testified that “If the tire
pressure warning system is not operating properly, it could lead
to the customer not knowing that their tires were underinflated.”
(Id. at 728-29.)
Mr. Boehler also testified that if a customer
does not know that a tire is underinflated, and the customer
continues to drive the vehicle, friction develops and a fire is
possible.
(Id.)
After the testimony of Defendant’s witnesses concluded,
Defendant renewed its Motion for Judgment of a Matter of Law
pursuant to Fed. R. Civ. P. 50(b).
(Id.)4
The Court denied the
motions, on the first two grounds and granted Defendant’s Rule 50
motion on punitive damages.
(Id. at 804-07.)
The Court excused
the jury and conducted a charging conference during which the
parties were provided with proposed charges and a verdict sheet,
and an opportunity to correct, object, or modify.
(Id. at 807-
70; ECF Nos. 205, 205-1 (also marked as Court Ex. 1 and Ex. 1-A).)
Based on the conference, the Court revised the jury instructions
As discussed supra, Defendant renewed its Rule 50(b) motion on the same three
grounds as its 50(a) motion: the evidence was insufficient (1) to support a
verdict for strict liability for manufacturing or design defect; (2) to support
a verdict for negligence; and (3) to establish that Plaintiff was entitled to
seek punitive damages. (ECF No. 204 at 2-8.) The Court granted Defendant’s
Rule 50(b) motion on punitive damages.
4
17
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and provided copies to the parties and advised the parties to
review the charges to ensure that nothing was omitted.
871; ECF No. 206, 206-1 (Court Ex. 2, 2-A).)5
(Id. at
After closing
arguments, the Court charged the jury, and the jury commenced
deliberations.
$450,000
for
(Id. at 933-68.)
Plaintiff,
and
The jury returned a verdict for
the
Court
entered
judgment
for
Plaintiff and against Defendant on January 11, 2023, in the amount
of $666,645.89.
(Id. at 970-73; ECF No. 223, Judgment.)
On January 6, 2023, Defendant renewed its motion for
Judgment as a Matter of Law pursuant to Fed. R. of Civ. P. 50(b)
(Docket.
No.
218,
“Motion
for
Judgment
as
a
Matter
of
Law
(Renewed)) and simultaneously moved pursuant to Rule 59(a)(1)(A)
for a New Trial and Amendment of Judgment (Docket No. 221, “Motion
for New Trial and Amendment of Judgment”.)
Defendant’s Rule 59
motion also incorporated its separate motion to amend the judgment,
pursuant to Rule 60(b)(5), for a hearing regarding the set-off of
the purported “tax benefits improperly received by the Plaintiff.”
(ECF No. 221-1 at 14 n.1 (citing ECF Nos. 211, 213, 215, 216).)
IV.
Defendant’s Rule 50(b) Motion
a. Rule 50(b) Legal Standard
Rule 50(a) of the Federal Rules of Civil Procedure
permits a party to move for judgment as a matter of law after a
“The COURT: Take a look anyway. Counsel, take a quick look when we post these
tonight, make sure we have not missed anything.” (Tr. at 871.)
5
18
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party has been fully heard and before a case is submitted to the
jury.
Fed. R. Civ. P. 50(a).
A motion made pursuant to Rule 50(a)
“must specify the judgment sought and the law and facts that
entitle the movant to the judgment.”
Id.
If the court denies a
party’s Rule 50(a) motion, the movant may file a renewed motion
for judgment as a matter of law no later than 28 days after entry
of judgment.6
Fed. R. Civ. P. 50(b).
“In ruling on the renewed
motion, the court may: (1) allow judgment on the verdict, if the
jury returned a verdict; (2) order a new trial; or (3) direct the
entry of judgment as a matter of law.”
Id.
“In considering a motion for judgment as a matter of
law, the district court ‘must draw all reasonable inferences in
favor of the nonmoving party.’”
Zellner v. Summerlin, 494 F.3d
344, 370 (2d Cir. 2007) (quoting Reeves v. Sanderson Plumbing, 530
U.S.
133,
150
credibility
(2000)).
determinations
The
court
or
weigh
must
the
not,
however,
evidence
make
because
“‘[c]redibility determinations, the weighing of the evidence, and
the drawing of legitimate inferences from the facts are jury
functions, not those of a judge.’”
at 150).
Id. (quoting Reeves, 530 U.S.
Consequently, “‘although the court should review the
record as a whole, it must disregard all evidence favorable to the
moving party that the jury is not required to believe.’”
Id.; see
The parties do not dispute that Defendant’s Rule 50(a), 50(b), and 59 motions
are timely.
6
19
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also Katara v. D.E. Jones Commodities, Inc., 835 F.2d 966, 970 (2d
Cir. 1987) (a court “cannot assess the weight of conflicting
evidence, pass on the credibility of the witnesses, or substitute
its judgment for that of the jury”) (internal quotation marks
omitted).
The movant thus bears a heavy burden, because “a court
may grant a motion for judgment as a matter of law ‘only if it can
conclude
that,
with
credibility
assessments
made
against
the
moving party and all inferences drawn against the moving party, a
reasonable juror would have been compelled to accept the view of
the moving party.’”
Zellner, 494 F.3d at 370-71 (quoting Piesco
v. Koch, 12 F.3d 332, 343 (2d Cir. 1993)) (emphasis in original).
In other words, the court may grant a Rule 50(b) motion for
judgment as a matter of law only if the record contains “‘such a
complete absence of evidence supporting the verdict that the jury’s
findings could only have been the result of sheer surmise and
conjecture, or . . . such an overwhelming amount of evidence in
favor of the movant that reasonable and fair-minded [jurors] could
not arrive at a verdict against [it].’”
Concerned Area Residents
for Env’t v. Southview Farm, 34 F.3d 114, 117 (2d Cir. 1994)
(quoting Song v. Ives Lab., Inc., 957 F.2d 1041, 1046 (2d Cir.
1992)).
“Because a motion pursuant to Rule 50(b) is in reality
a renewal of a motion pursuant to Rule 50(a), the grounds on which
20
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a party may rely in a Rule 50(b) motion are limited to those
grounds that were specifically raised in the prior [Rule 50(a)
motion].”
Am. Tech. Ceramics Corp. v. Presidio Components, Inc.,
490 F. Supp. 3d 593, 615–16 (E.D.N.Y. 2020) (citing Lambert v.
Genesee Hosp., 10 F.3d 46, 53–54 (2d Cir. 1994) and Galdieri–
Ambrosini v. Nat’l Realty & Dev. Corp., 136 F.3d 276, 289 (2d Cir.
1998)) (internal citations and quotation marks omitted).
Thus, it
is well established that “the movant is not permitted to add new
grounds after trial.”
Galdieri–Ambrosini, 136 F.3d at 286 (citing
McCardle v. Haddad, 131 F.3d 43, 51 (2d Cir. 1997)).
The Court reviews Defendant’s Rule 50(b) motion in
light of these considerations.
b. Application
In the renewed 50(b) motion, Defendant advances six
separate arguments (although only two of the arguments, identified
below as (3) and (4), regarding sufficiency of the evidence were
raised
in
Defendant’s
Rule
50(a)
motion
before
the
jury
deliberated): (1) that the Court erred in letting the case proceed
to trial based on circumstantial evidence (ECF No. 220 at 4–6);
(2) that the law of the case doctrine does not bar this Court from
directing
verdict
for
Defendant
now
(id.
at
6–7);
(3)
that
Plaintiff presented insufficient circumstantial evidence of a
manufacturing or design defect to support the jury’s verdict (id.
at 7–14); (4) that Plaintiff presented insufficient evidence of
21
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negligence to support the jury’s verdict (id. at 15); (5) that
Plaintiff presented insufficient evidence of causation to support
the jury’s verdict (id. at 15–17); and (6) that Plaintiff presented
insufficient
evidence
that
Defendant
was
responsible
for
distributing the Subject Vehicle to hold Defendant strictly liable
(id. at 17–18).
a) Precluded Arguments
The Court finds that Defendant did not previously raise
the following arguments in its Rule 50(a) and Rule 50(b) motions
and is thus precluded from arguing that: (1) in reference to Judge
Glasser’s prior Memorandum and Order, that the law of the case
doctrine does not bar the Court from directing a verdict for
Defendant; (2) that there was insufficient evidence to establish
that
Defendant
was
responsible
for
distributing
the
Subject
Vehicle; and (3) that there was insufficient evidence of causation.
Although Defendant raises these three bases in its current Rule
50(b) motion, it failed to raise them at trial in its Rule 50(a)
and 50(b) motions before the jury commenced deliberations.
Lore
v. City of Syracuse, 670 F.3d 127, 153 (2d Cir. 2012) (A Rule 50(b)
motion “is only a renewal of the pre verdict motion,” and “can be
granted only on grounds advanced in the pre verdict motion.”)
(emphasis in original); see also Barkley v. United Homes, LLC, No.
04-CV-875 (KAM) (RLM), 2012 WL 2357295, at *4 (E.D.N.Y. June 20,
2012) (“A renewed motion for judgment as a matter of law pursuant
22
Case 1:15-cv-06519-KAM-TAM Document 232 Filed 05/15/23 Page 23 of 65 PageID #: 9348
to
Rule
50(b)
must
follow
an
earlier
motion
on
the
same
subject[.]”), aff'd sub nom. Barkley v. Olympia Mortg. Co., 557 F.
App’x 22 (2d Cir. 2014), as amended (Jan. 30, 2014) (summary
order).
Because “the movant is not permitted to add new grounds
after trial,” see Galdieri–Ambrosini, 136 F.3d at 286, these three
new
arguments
will
not
be
considered
for
the
first
time
in
Defendant’s renewed Rule 50(b) motion because a forfeited issue
may only be reached if “to ignore it would result in manifest
injustice” or if it is a “purely legal error.”
AIG Glob. Secs.
Lending Corp. v. Banc of Am. Secs., LLC, 386 F. App’x 5, 6 (2d
Cir. 2010) (summary order) (citing and quoting Fabri v. United
Techs. Int’l, Inc., 387 F.3d 109, 119 (2d Cir. 2004)). Defendant’s
motion does not show that “manifest injustice” or “purely legal
error” warrants judgment as a matter of law.
Defendant also fails
to raise the three arguments noted above in its Rule 59(a)(1)(A)
motion.
Moreover, the Court also finds that Defendant’s Rule
50(b) argument, that the “[t]he Court should not have permitted
plaintiff to proceed to trial on the basis of circumstantial
evidence under the Third Restatement, or under New York law
applying it,” (ECF No. 220 at 5)7, is distinct from the argument
advanced in Defendant’s 50(a) motion and renewed in its Rule 50(b)
Defendant also raises this argument in its Rule 59(a)(1)(A) motion.
221-1 at 4-8.)
7
23
(ECF No.
Case 1:15-cv-06519-KAM-TAM Document 232 Filed 05/15/23 Page 24 of 65 PageID #: 9349
motion: that Plaintiff had presented “insufficient circumstantial
evidence upon which the jury could find that [the Subject Vehicle]
had
a
manufacturing
[Defendant’s] hands.”
or
design
defect
at
(ECF No. 203 at 2.)
the
time
it
left
Here, Defendant has
advanced two separate arguments, one of which was preserved at
trial and addresses the sufficiency of the circumstantial evidence
at trial, and the other of which requests that the Court grant a
new trial based on the decision to allow Plaintiff to prove its
case with circumstantial evidence.
Accordingly, the Court will
consider Defendant’s argument that the Court “should not have
permitted Plaintiff to proceed [to trial] based on circumstantial
evidence” in the context of Defendant’s Rule 59(a)(1)(A) below.
(ECF. No. 221-1 at 4.)
The foregoing leaves only two of Defendant’s arguments
to be addressed under the standards applicable to Rule 50 motions:
(1) that Plaintiff presented insufficient circumstantial evidence
of a manufacturing or design defect under strict liability to
support the jury’s verdict on Count III, (ECF No. 220 at 7–14),
and (2) that Plaintiff presented insufficient evidence of a defect
under negligence standards to support the jury’s verdict on Count
IV (id. at 15).
New
York
law
Because “there is no practical distinction under
between
product
liability
24
actions
premised
on
Case 1:15-cv-06519-KAM-TAM Document 232 Filed 05/15/23 Page 25 of 65 PageID #: 9350
negligence and those premised on strict liability,”8 the Court will
concurrently consider whether the circumstantial evidence at trial
was sufficient for both Count III and IV on strict liability and
negligent theories.
(ECF No. 97 at 13 n.10.)
For the reasons
below, the Court concludes that the evidence was sufficient to
sustain the jury’s verdict on Counts III and IV.
b) Sufficiency of Circumstantial Evidence at Trial
The Court finds that Plaintiff’s evidence, including Ms.
Sobers’s testimony, was apparently credited by the jurors, and was
sufficient for the jurors to find that the Subject Vehicle’s TPMS
failed to emit a low tire pressure warning at any point prior to
the fire, which, as all parties stipulated, was caused by an
underinflated run flat tire.
Ms. Sobers was the only witness with
personal knowledge who testified that the TPMS failed to perform.
Thus, a reasonable trier of fact could determine that the TPMS
warning system “did not perform as intended” and infer that such
a performance failure would not ordinarily occur in the absence of
a defect.
See Jarvis v. Ford Motor Co., 283 F.3d 33, 44 (2d Cir.
2002); see also Restatement § 3 (1998).
Defendant argues that
When a plaintiff’s theory of negligence is the same as a theory for strict
products liability, the two claims are “functionally synonymous.” See Denny v.
Ford Motor Co., 87 N.Y.2d 248, 258 (N.Y. 1995). The Court should view them as
“duplicate[s]” of each other. Adams v. Genie Indus., Inc., 14 N.Y.3d 535, 545
(N.Y. 2010); see also Oden v. Boston Sci. Corp., 330 F. Supp. 3d 877, 887
(E.D.N.Y. 2018) (collecting cases) (“Under New York law, a Plaintiff’s claim
based upon an alleged design defect or manufacturing defect sounding in either
negligence or strict liability are functionally equivalent and will be analyzed
concurrently.”).
8
25
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because Plaintiff presented no “expert evidence regarding the
components in the TPMS and their functioning” and “no expert
evidence that the TPMS was even capable of malfunctioning, under
what circumstances it might malfunction, or why either would be
so,” the jury’s verdict “could only have been the result of
conjecture and speculation,” and Defendant is thus entitled to
judgment as a matter of law.
(ECF No. 220 at 8.)
First, it is a settled principle of New York law that a
plaintiff in a products liability action is not required to prove
a specific defect when a defect may be inferred from proof that
the product did not perform as intended by the manufacturer.
Jarvis, 283 F.3d at 44.
The Second Circuit has expressly applied
New York Court of Appeals law that a “plaintiff's failure to prove
why
a
product
malfunctioned
does
not
necessarily
prevent
a
plaintiff from showing that the product was ‘defective,’” and that
“[p]roof of necessary facts may be circumstantial.”
Id. (citing
and quoting Codling v. Paglia, 298 N.E.2d 622 (N.Y. 1973).)
Second,
Defendant
not
only
successfully
moved
to
preclude expert testimony, but also appears to concede that there
is no strict requirement for expert testimony when proceeding under
a circumstantial theory of manufacturing or design defect.
No. 220 at 8.)
(ECF
Comments to the Restatement also (1) confirm that
there is no strict requirement for expert testimony when proceeding
under a circumstantial theory, and (2) provide examples of cases
26
Case 1:15-cv-06519-KAM-TAM Document 232 Filed 05/15/23 Page 27 of 65 PageID #: 9352
without
expert
testimony.
Restatement
§
3.
There
is
no
requirement that a plaintiff even prove what aspect of the product
was defective, further demonstrating that expert analysis of how
a
product
malfunctioned
circumstantial
defect.
evidence
is
not
necessary
supporting
an
in
connection
inference
of
a
with
product
See id.; see also Jarvis, 283 F.3d at 45 (“The precise
defect need not be named and proved; it is sufficient if the
cumulation of circumstances and inferences . . . supports the
conclusion that there was a defect which caused the accident.”
(quoting Hunter v. Ford Motor Co., 325 N.Y.S.2d 469, 471 (3d Dep’t
1971)).
Defendant has not cited any controlling case law that
requires expert testimony even in circumstantial cases.
Accordingly, the Court concludes that, despite the lack
of an expert witness, the direct and circumstantial evidence at
trial was sufficient for a jury to find by a preponderance of the
evidence that “the harm sustained by the plaintiff was caused by
a product defect existing at the time of sale or distribution,
without proof of a specific defect, when the incident that harmed
the plaintiff: (a) was of a kind that ordinarily occurs as a result
of product defect; and (b) was not, in the particular case, solely
the result of causes other than product defect existing at the
time of sale or distribution.”
Restatement § 3.
It is reasonable that the jury considered and credited
Ms. Sobers’s account of her familiarity with the Subject Vehicle
27
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and her route, the failure of the TPMS light to illuminate, and
the ensuing sudden steering instability and combustion of the
Subject Vehicle.
Based on the evidence, the jury could find
Plaintiff proved by a preponderance of the evidence “that the
product did not perform as intended and exclude[d] all other causes
for the product’s failure that are not attributable to [the]
defendants.”
Riegel v. Medtronic, Inc., 451 F.3d 104, 125 (2d
Cir. 2006). With regard to causation, the jury considered evidence
that
both
parties
agreed
that
the
underinflated tire, as discussed above.
fire
was
caused
by
an
The jury was to decide
whether the TPMS light malfunctioned and considered testimony by
Ms. Sobers that she never saw a TPMS warning light before the fire
in the Subject Vehicle.
The jury reasonably credited Ms. Sobers’s
testimony that the TPMS light never illuminated to warn her of the
underinflation of the Subject Vehicle’s tire.
The jury also
considered the parties’ stipulated fact that “[t]he cause of the
fire was the result of operating the [Subject Vehicle] with runflat tires while the right rear tire was in a deflated condition.
Driving on the deflated tire eventually caused the tire to shred
apart and ignite as a result of friction.”
(ECF Nos. 202, Joint
Stipulations of Fact at 4; see also Tr. at 66-67.)
As discussed, supra, Ms. Sobers recalled on the night of
the accident stopping to purchase gas, and that she did not “notice
anything unusual about the tire at the time” or “notice any warning
28
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lights on the dashboard of the vehicle.”
(Tr. at 287-88.)
Ms.
Sobers testified that later when the steering locked and pulled
back and forth, and she pulled over, there were no warning lights
“during
[the]
span
of
time
from
when
misbehaving to when [she] pulled over.”
the
vehicle
started
(Id. at 293-94.)
She
reported on an SOS call that, at the moment, “the only thing that
[she] had visibly seen on the dashboard [was] that the coolant
level [was] low.”
(Id. at 297.)
A few minutes later, a truck
driver pulled over and told her to exit the car, and Ms. Sobers
testified to seeing smoke as she jumped out, and “seconds later
the car exploded.”
(Id. at 298.)
considered
the
all
of
evidence
It is plausible that a jury
-
including
(1)
Defendant’s
documents about how the TPMS in the Subject Vehicle should have
functioned; (2) evidence that underinflated run flat tires could
“overheat and can lead to fire failure,” (id. at 68), and that
underinflation may not be visible on visual inspection; and (3)
testimony from Ms. Sobers that there was no “illumination of the
TPMS low tire pressure telltale,” (id.) - before the jury concluded
that
based
on
a
preponderance
of
circumstantial
evidence,
Plaintiff proved its claims for manufacturing and design defect
and negligence.
Accordingly, the Court finds that the evidence at trial,
including direct and circumstantial evidence, was sufficient for
the jury to return a verdict in favor of Plaintiff and against
29
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Defendant, on both Count III and IV, and denies Defendant’s motion
for judgment as a matter of law.
V.
Defendant’s Rule 59 Motion For a New Trial
a. Rule 59(a)(1)(A) Legal Standard
Defendant moves for a new trial and to amend the judgment
pursuant to Fed. R. Civ. P. 59(a)(1)(A) and (e).
Rule 59(a)(1)(A)
of the Federal Rules of Civil Procedure provides that a “[t]he
court may, on motion, grant a new trial on all or some of the
issues – and to any party . . . after a jury trial, for any reason
for which a new trial has heretofore been granted in an action at
law in federal court.”
Fed. R. Civ. P. 59(a)(1)(A).
Rule
59(a)(1)(A) permits a party to grant a new trial [if] the verdict
is against the weight of the evidence.
See Raedle v. Credit
Agricole Indosuez, 670 F.3d 411, 417 (2d Cir. 2012). “[A] decision
is against the weight of the evidence . . . if and only if the
verdict is [(1)] seriously erroneous or [(2)] a miscarriage of
justice.” Id. at 417-18 (citing Farrior v. Waterford Bd. of Educ.,
277 F.3d 633, 635 (2d Cir. 2002)).
ordinarily
should
not
be
granted
“A motion for a new trial
unless
the
trial
court
is
convinced that the jury has reached a seriously erroneous result
or that the verdict is a miscarriage of justice.”
Medforms, Inc.
v. Healthcare Mgmt. Sols., Inc., 290 F.3d 98, 106 (2d Cir. 2002)
(internal quotation marks omitted).
30
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The standard applied in reviewing a party’s motion for
a
new
trial
“depends
on
whether
that
contemporaneously to the purported errors.”
party
objected
Marcic v. Reinauer
Transp. Cos., 397 F.3d 120, 124 (2d Cir. 2005).
Where objections
have been preserved through contemporaneous objection, a new trial
is warranted if “the district court committed errors that were a
‘clear abuse of discretion’ that were ‘clearly prejudicial to the
outcome of the trial.’”
Id. (quoting Pescatore v. Pan Am. World
Airways, Inc., 97 F.3d 1, 17 (2d Cir. 1996)); see also Vogelfang
v. Riverhead Cnty. Jail, No. 04–CV–1727 (SJF), 2012 WL 1450560, at
*6 (E.D.N.Y. Apr. 19, 2012) (same).
Where claimed errors were not preserved by objections
contemporaneously at trial, “a new trial will be granted only for
error that was ‘so serious and flagrant that it goes to the very
integrity of the trial’,” because “failure to object deprives the
trial court of the opportunity to correct the error during trial.”
Marcic, 397 F.3d at 124 (quoting Greenway v. Buffalo Hilton Hotel,
143 F.3d 47, 51 (2d Cir. 1998)); see also Lore v. City of Syracuse,
670 F.3d 127, 160 (2d Cir. 2012) (internal citations omitted)
(party’s failure to object at trial to substance of verdict form
“waives its right to a new trial on that ground and [party] has no
right to object to such matters on appeal . . . unless the error
is fundamental”).
31
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Federal Rule of Civil Procedure 59(e) “allows a litigant
to file a ‘motion to alter or amend a judgment.’”
Banister v.
Davis, 140 S. Ct. 1698, 1703 (2020) (quoting Fed. R. Civ. P. 59
(e)).
”A party may move for [Rule 59] reconsideration and obtain
relief only when the party identifies an intervening change of
controlling law, the availability of new evidence, or the need to
correct a clear error or prevent manifest injustice.”
Cho v.
Blackberry Ltd., 991 F.3d 155, 170 (2d Cir. 2021) (brackets
omitted).
Courts must bear in mind that a Rule 59 motion may be
granted only “when the jury’s verdict is egregious.”
DLC Mgmt.
Corp. v. Town of Hyde Park, 163 F.3d 124, 134 (2d Cir. 1998)
(internal quotation marks and citation omitted).
“Accordingly, a
court should rarely disturb a jury’s evaluation of a witness’s
credibility.”
Id.
“[W]here the resolution of the issues depended
on assessment of the credibility of the witnesses, it is proper
for the court to refrain from setting aside the verdict and
granting a new trial.” Raedle, 670 F.3d at 418 (quoting Metromedia
Co. v. Fugazy, 983 F.2d 350, 363 (2d Cir. 1992)).
Importantly, a party may not use Rule 59 to cure a
failure to comply with Rules 50 and 51.
NG Glob. v. United Parcel
Serv. Oasis Supply Corp., 757 F.3d 92, 96-97 (2d Cir. 2014) (“[W]e
do not believe that the Rule permits a party to obtain judgment as
a matter of law under Rule 59(e) after failing to comply with the
32
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carefully crafted structure and standards of Rules 50 and 51
. . . . Permitting a party out of compliance with Rules 50 and 51
to prevail under Rule 59(e) would render those Rules, which are
basic to the conduct of federal trials, essentially superfluous.”)
A Rule 50 motion is intended to notify the opposing party of a
challenge to the sufficiency of the evidence.
Id.
Rule 51
requires the parties to make objections prior to the reading of
jury charges during a trial so that the trial court has an
opportunity to cure any defects in the instruction before the jury
is charged and begins deliberating.
Id. at 97.
Rule 59(e) motions are not vehicles for parties to
relitigate cases or advance new theories that they failed to raise
in their underlying motion practice. Banister, 140 S. Ct. at 1703;
see also Sequa Corp. v. GBJ Corp., 156 F.3d 136, 144 (2d Cir. 1998)
(“It is well-settled that Rule 59 is not a vehicle for . . . taking
a ‘second bite at the apple[.]’”).
Reducing or amending the
judgment pursuant to Rule 59(e) is “an extraordinary remedy to be
employed sparingly in the interests of finality and conservation
of scarce judicial resources.”
In re Health Mgmt. Sys., Inc. Sec.
Litig., 113 F. Supp. 2d 613, 614 (S.D.N.Y. 2000) (quotation
omitted).
Based on the foregoing Second Circuit guidance, where
the Court has found that Defendant waived a basis or argument for
its Rule 50 motion, the Court will not now consider the same basis
33
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in
reviewing
Defendant’s
Rule
59
motion.
The
Court
reviews
Defendant’s Rule 59(a)(1)(A) and Rule 59(e) motion under the Second
Circuit’s standards, as follows.
b. Application
In its Rule 59(a)(1)(A) motion, Defendant argues that
the Court should grant a new trial because “substantial errors and
irregularities in the proceedings and jury instructions prevented
a fair trial, and the jury’s verdict was against the clear weight
of the evidence and contrary to established law.”
(ECF No. 221-1
at 3.) Specifically, Defendant argues that the Court issued faulty
jury instructions regarding Plaintiff’s claims of manufacturing
and design defect and negligence; erroneously allowed the jury to
consider circumstantial evidence; and did not charge the jury with
five instructions proposed by Defendant. (Id. at 4–7.)
Defendant
also asserts that the Court issued faulty jury instructions on
circumstantial evidence that improperly shifted the burden of
proof to Defendant.
(Id. at 7–8.)
Defendant further contends (1)
that the Court made erroneous evidentiary rulings by allowing Ms.
Sobers to testify to her familiarity and experience with run flat
tires and tire pressure monitoring systems, including TPMS lights,
(id. at 8–9); (2) that Plaintiff’s counsel made improper arguments
on the issue of comparative fault during closing summations, (id.
at 10–12); and (3) that a new trial should be ordered because
Plaintiff failed to establish that it owned much of the subject
34
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inventory that was destroyed in the Subject Vehicle fire.
12–14.)
(Id. at
Plaintiff opposed the motion on February 3, 2023, and
Defendant filed a reply on February 17, 2023.
(ECF Nos. 226, 230,
231.)
Although challenges to jury instructions in civil cases
are generally reviewed for “an error that is not harmless,” if
“the challenging party failed to object to the charge at trial,”
including the failure to provide a proposed instruction, the
instructions are reviewed for “plain error, that is, if the error
‘affects substantial rights.’”
Rasanen v. Doe, 723 F.3d 325, 331-
32 (2d Cir. 2013) (quoting Fed. R. Civ. P. 51(d)(2)).
“[A] jury
instruction will be deemed adequate if the charge, taken as a
whole, is correct and sufficiently covers the case so that a jury
can intelligently determine the questions presented to it.”
Id.
(quoting Hathaway, v. Coughlin, 99 F.3d 550, 554 (2d Cir. 1996)).
Conversely, “a jury charge is erroneous if it misleads the jury as
to the correct legal standard, or if it does not adequately inform
the jury of the law.”
Cir.
2015)
(quoting
Keeling v. Hars, 809 F.3d 43, 51–52 (2d
Hathaway,
99
F.3d
at
552
unpreserved objection in a copyright context)).
(considering
“To constitute
plain error, ‘a court’s action must contravene an established rule
of law,’ and ‘go to the very essence of the case.’”
Rasanen, 723
F.3d at 333 (alteration omitted) (quoting Lavin–McEleney v. Marist
Coll., 239 F.3d 476, 483 (2d Cir. 2001) and Anderson v. Branen, 17
35
Case 1:15-cv-06519-KAM-TAM Document 232 Filed 05/15/23 Page 36 of 65 PageID #: 9361
F.3d 552, 556 (2d Cir. 1994)).
The plain error exception to Rule
51’s objection requirement “should only be invoked with extreme
caution in the civil context.” Keeling, 809 F.3d at 52 (quoting
Rasanen, 723 F.3d at 333).
In this case, the parties had ample opportunity to
comment on the instructions before they were read to the jury.
The parties submitted proposed jury instructions as part of their
joint pre-trial orders.
(ECF No. 181).
The parties were provided
with the Court’s proposed jury instructions in advance of the
charging conference to review and discuss with the Court any
modifications, corrections, and objections they might have.
(ECF
No. 205, Proposed Jury Instructions and Verdict Form.) On December
8, 2022, after the Court provided its proposed jury charges to the
parties, the Court held a charging conference with the parties, in
which the Court conducted a page-by-page review of the proposed
charges and directed the parties to advise the Court if they had
any
objections,
corrections,
or
proposed
modifications.
The
parties were welcome and expected to identify and request that the
Court include any of the proposed instructions of both parties.
(Tr. at 807-09.)
Defendant did not object to or argue that the
proposed charges
omitted Defendant’s proposed instructions or
erroneously stated the law, as it now asserts in its Rule 59
motion.
(Id. at 807-70.)
At the end of the charging conference,
the Court asked again if the parties had any more objections, and
36
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Defendant stated that it had raised all issues with respect to the
jury instructions, and both parties confirmed that they had nothing
else to raise with the Court.
(Id. at 852, 870-71.)
The Court
advised the parties that a revised set of jury charges and the
verdict sheet – which incorporated the discussions at the charging
conference – would be posted to the docket, and encouraged the
parties to review the revisions and advise the Court if anything
had been omitted.
(Id. at 871.)
Defendant’s memorandum in support of its Rule 59 motion
first challenges the use of circumstantial evidence to prove
manufacturing
or
design
defect
and
negligence
at
trial;
specifically lists five instructions that Defendant previously
submitted but did not ask the Court to add at the charging
conference; and contends that the Court’s circumstantial evidence
instruction improperly shifted the burden of proof to Defendant.
(ECF No. 221-1 at 4-7.)
In its opposition memorandum, Plaintiff
has helpfully numbered each of Defendant’s arguments and addressed
each of Defendant’s instruction-related complaints.
(ECF No. 226
at 7-12.) For the sake of clarity, the Court will utilize the same
numerical designations.
Federal Rule of Civil Procedure 51(c)(1) states that
“[a] party who objects to an instruction or the failure to give an
instruction must do so on the record, stating distinctly the matter
objected to and the grounds for the objection.”
37
Because Defendant
Case 1:15-cv-06519-KAM-TAM Document 232 Filed 05/15/23 Page 38 of 65 PageID #: 9363
did not object at the charging conference to the Court’s omission
of Defendant’s proposed instructions – identified herein as Issues
2 through 7 - the Court will review Defendant’s contentions for
plain error.
See Fed. R. Civ. P. 51(d)(2)(“A court may consider
a plain error in the instructions that has not been preserved . .
. if the error affects substantial rights.”
In other words, the
Court will consider whether Defendant’s unpreserved objections to
the omission of the six jury instructions constitutes an error
that is “so serious and flagrant that it goes to the very integrity
of the trial.”
Marcic, 397 F.3d at 124 (internal quotation marks
and citation omitted.)
The Court will first review Defendant’s challenges to
circumstantial evidence and burden of proof, designated as Issues
1 and 8 respectively. (ECF No. 226 at 7-8, 11-12.) For Defendant’s
contentions regarding Issues 1 and 8, specifically its arguments
that the Court erred in allowing the case to proceed on a theory
of
circumstantial
evidence
and
the
Court’s
alleged
erroneous
shifting of the burden of proof, the Court will consider if the
instruction presented a “clear abuse of discretion” that was
“clearly prejudicial to the outcome of the trial.”
Marcic, 397
F.3d at 124.
a) Circumstantial Evidence of Manufacturing/Design
Defect and Negligence (Issue 1)
38
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Defendant repeatedly asserts that, “[t]he Court should
not have instructed the jury at all on circumstantial proof of
defect . . . . That error was compounded and the prejudice cemented
when
the
Court
further
erred
by
defendant’s proposed instructions.”
not
giving
certain
(ECF No. 221-1 at 5.)
of
the
Yet in
Defendant’s renewed Rule 50(b) motion for judgment notwithstanding
the verdict, and again in Defendant’s Rule 59 motion, Defendant
provides no case law for its argument that the case could not
proceed
to
trial
circumstantial
negligence.9
on,
theory
and
of
a
jury
could
not
manufacturing/design
consider,
defect
a
and
As an initial matter, the Court notes that Defendant,
throughout trial, acknowledged and appeared to try the case based
on a theory of circumstantial evidence.10
See United States v.
Kosinski, 976 F.3d 135, 153 (2d Cir. 2020) (“[I]f a party invited
the charge . . . [he] has waived any right to appellate review of
the charge.” (quoting United States v. Giovanelli, 464 F.3d 346,
351 (2d Cir. 2006))).
That is no surprise, as Judge Glasser’s
“THE COURT: You would agree that if the jury found the witness credible that
the light did not come on . . . a jury could find that the defendant was liable,
correct? / MR. DURNEY: I do not agree with that, your Honor, I understand the
ruling. / THE COURT: What case law do you have? /MR. DURNEY: I understand the
ruling in this case on this motion for summary judgment, but I don’t necessarily
agree that we would not, at some point, have an opportunity . . . were there to
be an adverse verdict to challenge the denial of the motion for summary
judgment.” (Tr. at 588.)
9
“MR. DURNEY: Just for your Honor’s edification. Mr. Yeldham . . . was
identified as an expert. And the Court will recall that there was a time when
there was a significant back and forth between the plaintiff and the defendants
with respect to the design issues and that’s no longer part of the case which
is why the case is proceeding under circumstantial evidence.” (Tr. at 25.)
10
39
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finely reasoned decision notified the parties that the trial could
proceed on circumstantial evidence to establish liability on the
theories of manufacturing and design defect and negligence, (ECF
No. 97 at 37-39), and the parties tried the case accordingly.
In any case, as thoroughly discussed in Judge Glasser’s
decision precluding Plaintiff’s defect and causation expert and
denying Defendant summary judgment, New York law allows the parties
to present circumstantial evidence at trial, and there is no
requirement under New York law to have an expert testify regarding
a manufacturing or design defect claim, and negligence claim.
(Id.)
Moreover, to the extent that an expert would have been
beneficial at trial, the parties stipulated to the fact the fire
was caused by continuing to drive the Subject Vehicle with an
underinflated tire, and that the defect alleged in this case is
that the TPMS light did not illuminate and thus did not perform as
intended.
(ECF No. 192, Pre-trial Order Stipulations at 11-15.)
The Court also notes that Defendant could not have been prejudiced
from the lack of an expert on Plaintiff’s side, as Defendant had
successfully precluded Plaintiff’s defect/causation expert, and as
Defendant had every opportunity to present its own expert, point
out to the jury the weakness of Plaintiff’s case, and challenge
the credibility of Plaintiff’s witnesses.
The
Court’s
circumstantial
consistent with New York law.
evidence
instruction
is
With respect to circumstantial
40
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evidence,
the
Court
instructed
in
its
preliminary
and
final
instructions:
There are two kinds of evidence that are
appropriately
considered,
direct
and
circumstantial evidence. Direct evidence is
direct proof of a fact, such as testimony of
an eyewitness. Circumstantial evidence is
proof of facts from which you may infer and
conclude other facts. I will give you further
instructions on these as well as other matters
at the end of the case, but keep in mind that
you may consider both kinds of evidence. It
will up to you, the jurors, to decide which
witnesses to believe, which witnesses not to
believe, and how much of any witness’s
testimony to accept or reject.
I will give
you some guidelines for determining the
credibility of witnesses at the end of the
case.
(Tr. at 34.)
As discussed above, Judge Glasser granted Defendant’s
motion to preclude Plaintiff’s expert, and provided a detailed
legal analysis as to why Plaintiff was entitled to proceed to trial
on the basis of circumstantial evidence on its manufacturing or
design defect and negligence claims.
(ECF No. 97); see also Zsa
Zsa Jewels, Inc. v. BMW of N. Am., LLC, 419 F. Supp. 3d 490, 517
(E.D.N.Y. 2019).
Judge Glasser correctly reasoned:
To prevail on the bases of circumstantial
evidence, Plaintiff must first establish that
the incident that caused its harm ‘was of a
kind that ordinarily occurs as a result of
product defect.’ It has done so here. Ms.
Sobers’s testimony, if credited, establishing
that the Subject Vehicle’s TPMS failed to emit
a low tire pressure warning at any point prior
41
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to the fire, which, all parties agree was
caused by a lack of adequate air pressure.
Id. at 37.
Judge Glasser held that a reasonable trier of fact could
determine that the TPMS, “did not perform as intended,” and could
“infer that such a malfunction would not ordinarily occur in the
absence of a defect.”
Id. at 37-38 (citation omitted).
Defendant
did not have the burden of proof, but had every opportunity to
“offer[] some evidence in admissible form establishing that the
plaintiff’s injuries were not caused by a . . . defect in the
product” and did not do so.
(Id. at 21.)
Defendant focused on
attacking the credibility of Ms. Sobers’s driving experience and
her account of the accident and inventory.
The jury presumably
weighed the evidence, assessed the trial witnesses’ credibility,
and drew inferences.
That Defendant failed to undermine the
credibility of Ms. Sobers’s testimony does not mean that the Court
abused
its
discretion
by
allowing
the
case
to
proceed
circumstantial theory consistent with New York Law.
on
a
Moreover,
Defendant did not present any controlling case law to support its
argument that the case could not proceed with circumstantial
evidence to establish liability.
b) Burden of Proof (Issue 8)
Defendant
asserts
that
the
Court’s
circumstantial
evidence instruction improperly shifted the burden of proof to
42
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Defendant.
(ECF No. 221-1 at 7-8.)
Though the Court notes
Defendant did not raise this issue at any point during the charging
conference, (Tr. at 807-870), Defendant states in its Rule 59 reply
papers that it objected at trial when it objected to the Court’s
circumstantial
evidence
Notwithstanding
that
unpreserved
burden
circumstantial
instruction.
Defendant
shifting
evidence
being
(ECF
attempts
argument
admitted
No.
to
at
4.)
bootstrap
its
to
its
to
prove
231
objection
or
to
disprove
Plaintiff’s case, the Court finds that the jury instructions did
not improperly shift the burden of proof to Defendant.
To the
contrary, at trial, without objection from Defendant, the Court’s
jury charges explicitly, properly, and repeatedly instructed the
jury on the burden of proof, no less than four times:
This is a civil case and, as such, the
plaintiff has the burden of proving the
material allegations of its complaint by a
preponderance of the evidence. To establish
a fact by a preponderance of the evidence
means to prove that the fact is more likely
true than not.
A preponderance of the
evidence means the greater weight of the
evidence.
It refers to the quality and
persuasiveness of the evidence, not to the
number of witnesses or
the
number of
documents. In determining whether a claim has
been proved by a preponderance of the
evidence, you may consider the relevant
testimony of all witnesses, regardless of who
may have called that witness, and all the
exhibits received in evidence regardless of
who may have offered them [in evidence.]
If you find that the credible evidence on a
given issue is evenly divided between the
43
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plaintiff’s view and the defendant’s — that it
is equally probable that one side is right as
it is that the other side is right — then you
must decide that issue against the plaintiff
because remember: the plaintiff must prove a
case by a preponderance of the evidence.
Plaintiff bears the burden of proof to prove
more than simple equality of the evidence.
The plaintiff must prove each element by a
preponderance of the evidence. On the other
hand, the plaintiff need prove no more than a
preponderance. So long as you find that the
scales tip, however slightly, in favor of
plaintiff, then that element will have been
proved by a preponderance of evidence.
(Tr. at 940-41.)
A product may be defective as a result of a
manufacturing flaw or a defective design.
Plaintiff bears the burden of proving that the
product was defectively manufactured or
designed and that the defect was a substantial
factor in causing plaintiff’s claimed damages.
. . .
The burden of proving that the product was
defective
and
that
the
defect
was
a
substantial factor in causing plaintiff's
damages is on the plaintiff.
(Id. at 950-51.)
In order to prevail, the plaintiff must
sustain its burden of proof by a preponderance
of the evidence as I have explained to you
with respect to each element of the strict
liability and negligence claims.
(Id. at 961.)
Insofar as Defendant now claims that the instruction
erroneously shifted the burden of proof, it is clear that Defendant
has confused the burden of producing evidence with the burden of
44
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proof.
The Court’s instruction
specifically
object
at
the
(to which Defendant did not
charging
conference)
applied
the
correct legal standard for Defendant’s burden to offer evidence,
as follows:
To prevail on its manufacturing and design
defect
claim,
based
on
circumstantial
evidence, the plaintiff must first establish
that the incident that caused its damages was
of a kind that ordinarily occurs as a result
of a product defect.
If you find that
plaintiff has established that the incident
was of a kind that ordinarily occurs as a
result of a design or manufacturing defect,
defendant bears the burden of offering some
evidence in admissible form establishing that
the plaintiff’s damages were not caused by a
manufacturing or design defect in the product.
(ECF No. 206 at 26.)
Here, the jury appears to have credited Ms. Sobers’s
testimony that the Subject Vehicle’s TPMS failed to emit a low
tire
pressure
warning
prior
to
the
fire,
which
stipulated was caused by an underinflated tire.
the
parties
Thus, the jury
also appears to have found that Plaintiff established that the
vehicle fire was the kind of incident that normally occurs as a
result of a product defect. Cf. Sanchez v. Stanley-Bostitch, Inc.,
No. 98-cv-494 (LMM), 2000 WL 968776, at *3 (S.D.N.Y. July 13, 2000)
(citing Graham v. Walter S. Pratt & Sons, 271 A.D. 2d 854, 854
(3d. Dep’t 2000); (see also ECF No. 97 at 39 (“But with all due
respect to Defendant, it is they who misunderstand the burden of
proof.
As previously stated, and as numerous courts have held,
45
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once a plaintiff establishes that the incident occurred under
circumstances ordinarily caused by a defective product, the burden
falls on the defendant to proffer an alternative explanation.”
(collecting cases)).)
As the Supreme Court observed, “a single instruction to
a jury may not be judged in artificial isolation, but must be
viewed in the context of the overall charge.”
Cupp v. Naughten,
414 U.S. 141, 146–47 (1973); see, e.g., Victor v. Nebraska, 511
U.S.
1,
5
(1994)
(“Taken
as
a
whole,
the
instructions
must
correctly convey the [burden of proof] to the jury.”) (citation
omitted) (cleaned up).
The Court finds that, based on the totality of its
instructions, the jury understood that Plaintiff had the burden to
prove by a preponderance of the evidence that the TPMS “did not
perform as intended and exclude all other causes for the product’s
failure that are not attributable to [the] defendants.”
Riegel,
451 F.3d at 125; see United States v. Kopstein, 759 F.3d 168, 172
(2d Cir. 2014) (“We review a jury instruction challenge de novo,
but we will reverse only where the charge, viewed as a whole,
demonstrates prejudicial error.”); see also Liriano v. Hobart
Corp., 170 F.3d 264, 271 (2d Cir. 1999) (“When a defendant’s
negligent act is deemed wrongful precisely because it has a strong
propensity to cause the type of injury that ensued, that very
causal tendency is evidence enough to establish a prima facie case
46
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of cause-in-fact.
The burden then shifts to the defendant to come
forward with evidence that its negligence was not such a but-for
cause.”
(emphasis
in
original)).
Furthermore,
the
jurors
expressed no confusion, and sent no notes seeking clarification of
the Court’s instructions on the burden of proof.
See Nat’l R.R.
Passenger Corp. v. One 25,900 Square Foot More or Less Parcel of
Land, 766 F.2d 685, 688 (2d Cir. 1985) (“A charge that appears
likely to have left the jury ‘highly confused’ may, on that ground
alone, be reversed.”)
object
to
the
specific
Notwithstanding that Defendant did not
“burden
of
production
of
evidence”
instruction that it now challenges, or to any other instruction
regarding the burden of proof at trial, the Court’s clear and
repeated instructions about Plaintiff’s burden of proof correctly
conveyed to the jury that Plaintiff had the burden to prove its
claims.
The Court concludes that there was neither “plain error”
affecting the “substantial rights” of Defendant, nor were the
instructions “clearly prejudicial to the outcome of the trial.”
The Court finds that there is no reason to alter, amend, or vacate
the judgment or order a new trial on this issue.
c) Other Jury Instructions (Issues 2-7)
The remaining challenges by Defendant to the Court’s
jury instructions do not require the granting of a new trial.
Again, the Court notes that because Defendant did not specifically
object to the Court’s jury instructions or ask the Court at the
47
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charging conference to include any of the instructions it now
claims were erroneously included, the Court will apply a plain
error analysis.
(Tr. at 807-870);see United States v. Miller, 954
F.3d 551, 557 (2d Cir. 2020); Caruso v. Forslund, 47 F.3d 27, 3031 (2d Cir. 1995) (“Federal Rule of Civil Procedure 51 provides
that ‘[n]o party may assign as error the giving or the failure to
give an instruction unless that party objects thereto before the
jury retires to consider its verdict, stating distinctly the matter
objected
to
and
the
grounds
of
the
objection.’”);
see
also
Pescatore, 97 F.3d at 18 (2d Cir. 1996) (“Only where an unpreserved
‘error [is] so serious and flagrant that it goes to the very
integrity of the trial’ will a new civil trial be warranted.”)
Defendant argues that the Court “refused to give instructions
[designated as Issues 2-7] which are appropriate and routine in
product liability cases.”
(ECF No. 221-1 at 5.)
Because the Court
provided draft instructions for the parties to review before the
charging conference, and also provided revised instructions after
the charging conference before the jury was charged, Defendant
knew
that
the
Court
had
declined
to
include
those
proposed
instructions, which Defendant provided to the Court in its pretrial papers.
instructions
Defendant did not object to the omission of the
during
the
charging
conference,
thus
failing
to
contemporaneously object at trial and preserve its objections.
See Marcic, 397 F.3d 120 at 124. Despite claiming the instructions
48
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are ”routine in product liability cases,” Defendant failed to
provide
any
other
examples
instructions were included.
from
other
trials
in
which
the
Nor does Defendant provided citations
to the New York Pattern Jury Instructions, or to controlling
authority, to supports its contention that failure to charge the
jury with the following instructions constitutes error that is so
“serious and flagrant that it goes to the very integrity of the
trial.”
(ECF No. 221-1 at 5.)
The Court notes that the Second Circuit has recognized
that the trial court “enjoys broad discretion in crafting its
instructions[,] which is only circumscribed by the requirement
that the charge be fair to both sides.”
703 F.3d 46, 87 (2d Cir. 2012)
omitted).
United States v. Coplan,
(citation omitted)
(citation
Defendant does not, nor could it, claim that the
instructions were unfair.
A defendant challenging a district
court’s refusal to give a requested jury instruction carries the
“heavy burden.... [of showing] that his proposed charge accurately
represented the law in every respect, and that the charge actually
given, viewed as a whole, prejudiced him.”
United States v.
Feliciano, 223 F.3d 102, 116 (2d Cir. 2000) (internal quotation
marks and citation omitted).
1. Manufacturing
(Issue 2)
49
/
Design
Defect
Instructions
Case 1:15-cv-06519-KAM-TAM Document 232 Filed 05/15/23 Page 50 of 65 PageID #: 9375
Defendant argues that the Court’s instructions failed to
properly define a manufacturing and design defect, as requested by
Defendant, thereby leading the jury to speculate on the core legal
and factual issues in the case.
(ECF No. 221-1 at 5.)
Contrary
to Defendant’s baseless contention, the Court gave the following
instructions, modeled after the New York Pattern Jury Instructions
2:65 and 2:120:
A product may be defective as a result of a
manufacturing flaw. The burden of proving that
the product was defective and that the defect
was a substantial factor in causing the
plaintiff’s damages is on the plaintiff.
. . .
It is not necessary to find that the defendant
knew or should have known of the product’s
potential for causing damages in order for you
to determine that it was not reasonably safe.
It is sufficient that a reasonable person who
did, in fact, know of the product’s potential
for causing damages would have concluded that
the product should not have been marketed in
that condition.
. . .
A product is defectively designed if a
reasonable person who knew or should have
known of the product’s potential for causing
damages would have concluded that the product
should not have been marketed in that
condition. It is not necessary to find that
the defendant knew of the product’s potential
for causing damages in order for you to decide
that it was defectively designed. It is
sufficient that a reasonable person who did,
in fact, know of the product’s potential for
causing damages would have concluded that the
50
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product should not have been marketed in that
condition.
. . .
You may conclude that BMW is responsible for
a manufacturing or design defect based upon
your application of the principles discussed,
which I will explain further below. You may
infer that the harm sustained by the plaintiff
was caused by a manufacturing or design defect
existing at the time of sale or distribution
without proof of a specific defect when the
incident that harmed the plaintiff was of a
kind that ordinarily occurs as a result of the
product defect and was not in the particular
case solely the result of causes other than
the product defect existing at the time of
sale or distribution.
(Tr. at 951-54.)
Notwithstanding Defendant’s lack of objections to these
instructions,
the
Court
notes
that
there
is
also
sufficient
instruction on design or manufacturing defect under a theory of
circumstantial evidence.
(Id. at 810-14, 953-54.)
2. Instructions
about
Manufacturers
and
Distributors/Safety Standards (Issues 3-5)
Defendant
also
contends
that
the
Court
should
charged the jury with the following instructions:
A manufacturer or distributor is not required
to produce a product that is invincible,
accident free, foolproof, or failsafe. (Issue
3)
Nor is a manufacturer of a product an insurer
or guarantor of the safety of a product’s
user. (Issue 4)
51
have
Case 1:15-cv-06519-KAM-TAM Document 232 Filed 05/15/23 Page 52 of 65 PageID #: 9377
You may consider the compliance of the BMW X3
and its Tire Pressure Monitoring System with
Federal Motor Vehicle Safety Standards in
determining whether the product was reasonably
safe as designed. (Issue 5)
(ECF No. 221-1 at 5-6.)
Defendant has not provided legal authority to establish
that the Court was required by controlling law to include the
foregoing jury charges at trial.
Coplan, 703 F.3d at 87 (holding
that the only “requirement [is] that the charge be fair to both
sides”).
Again, Defendant neither objected to, (Tr. at 807-70),
nor provided controlling authority stating that the Court was
required to give the instructions designated as Issues 3-5.
Jury
instructions are erroneous if they “mislead the jury as to the
correct legal standard or do not adequately inform the jury of the
law.”
United States v. Mitchell, 811 F. App’x 50, 52 (2d Cir.
2020) (summary order) (citation omitted).
Omissions of certain
jury instructions do not automatically mislead or inadequately
inform the jury of the law.
Though Defendant’s motions correctly
state that it cited legal authority for its proposed instructions,
Defendant does not contend that the cited legal authority is
controlling or required that Defendant’s proposed instructions
must be given to the jury.
sample
pattern
instructions,
jury
nor
Defendant did not submit a single
instruction
supporting
that
case
instructions be given.
52
included
law
its
requiring
proposed
that
the
Case 1:15-cv-06519-KAM-TAM Document 232 Filed 05/15/23 Page 53 of 65 PageID #: 9378
omission
Moreover,
Defendant
fails
(to
Defendant
did
which
to
not
show
how
object)
of
the
Court’s
Defendant’s
specific proposed instructions constitutes manifest injustice,
given the entirety of the Court’s instructions about the elements
of — and Plaintiff’s burden of proof on — Plaintiff’s products
liability and negligence claims.
See, e.g., Hudson v. New York
City, 271 F.3d 62, 67–68 (2d Cir. 2001) (noting that, in deciding
whether jury instructions are prejudicially erroneous or highly
confusing, “[objectionable instructions are considered in the
context of the entire jury charge”).
Defendant fails to explain
how the lack of these specific instructions substantially impaired
its
ability
to
defend
against
Plaintiff’s
claims,
or
how
Defendant’s proposed instructions “accurately represented the law
in every respect, and that the charge actually given, viewed as a
whole, prejudiced [Defendant].”
Feliciano, 223 F.3d at 116.
In
fact, with regard to Issue 5, Defendant did not even submit
evidence at trial that its TPMS complied with the Federal Motor
Vehicle Safety Standards to support this proposed instruction.
Accordingly, the Court finds that the omission of Defendant’s
proposed instructions designated as Issues 3-5 does not constitute
fundamental error that goes to the integrity of the trial.
3. Comparative Fault Instructions/Duty of Care
Instructions (Issue 6)
53
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Notwithstanding the absence of Defendant’s objection at
any time before the jury was charged, Defendant contends that the
Court should have instructed the jury that, “[w]hen the plaintiff’s
claim
of
causation
is
speculative,
conjectural
or
the
probabilities of causation are at best evenly balanced, you must
find that the plaintiff did not meet its burden of proof.”
(ECF
No. 221-1 at 6.) Again, Defendant’s proposed instructions provided
no controlling authority and Defendant’s Rule 59 motion fails to
acknowledge
that
it
instruction at trial.
did
not
object
to
the
omission
of
this
In any event, the Court instructed the jury
that if the evidence was evenly balanced on any issue, the jury
must find against Plaintiff on its claims, stating:
If you find that the credible evidence on a
given issue is evenly divided between the
plaintiff’s view and the defendant’s, that it
is equally probable that one side is right as
it is that the other side is right, then you
must decide that issue against the plaintiff
because remember; the plaintiff must prove a
case by a preponderance of the evidence.
(Tr. at 941.)
Furthermore, the Court instructed the jury on
comparative fault as follows:
If you find that the alleged defect in the BMW
X3 was a substantial factor in causing
plaintiff’s damages, then you will proceed to
consider whether there was negligence on the
part of [Plaintiff] or its employees that
contributed to its injuries . . . . The burden
of
proving
that
plaintiff’s
negligence
contributed to its injuries is on defendant.
54
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In this regard, you will consider whether at
the time of the occurrence the BMW X3 was being
misused, whether plaintiff in the use of
reasonable care could have realized and
avoided its danger, and whether plaintiff, by
the use of reasonable care, could have
otherwise avoided its own damages.
. . . .
Weighing all the facts and circumstances you
must consider the total responsibility — that
is, the responsibility of both the plaintiff
and defendant — that contributed to causing
the damages and decide what percentage is
chargeable to each. In your verdict, you will
state the percentages that you find. The total
of these percentages must equal one hundred
percent. I will furnish you with a verdict
sheet
on
which
you
will
write
these
percentages . . . .
For example, if you should find that the
defendant and the plaintiff were equally at
fault, you would report that each was fifty
percent responsible. If you should find that
one party was more at fault, you will assign
a higher percentage to that party and a lower
percentage to the other with a total of the
percentages equaling one hundred percent.
(Tr. at 956-58.)
Therefore, the Court instructed the jury, that if the
parties are “evenly divided,” it must find against Plaintiff,
because it did not meet its burden of proof by a preponderance of
the
evidence.
Moreover,
the
Court
instructed
the
jury
on
comparative fault, even if it did not adopt verbatim the language
that Defendant requested.
4. Owner’s or Operator’s Duty of Care (Issue 7)
55
Case 1:15-cv-06519-KAM-TAM Document 232 Filed 05/15/23 Page 56 of 65 PageID #: 9381
Defendant
should
have
also
included:
argues
“An
that
owner
or
the
Court’s
operator’s
jury
duty
charge
of
care
encompasses the duty to reasonably inspect the motor vehicle for
defects and ensure the vehicle is in a proper, maintained condition
and that a vehicle not be operated with worn out or damaged
components.”
(ECF No. 221-1 at 7.)
Instead, the Court instructed
the jury:
“In this regard, you will consider whether at the
time of the occurrence the BMW X3 was being misused,
whether plaintiff in the use of reasonable care
could have realized and avoided its danger and
whether plaintiff, by the use of reasonable care,
could have otherwise avoided its own damages. . .
. If you find the BMW X3 was misused, that plaintiff
in light of reasonable care could have realized and
avoided the danger and that plaintiff or its
employees in the use of reasonable care could
otherwise have avoided its damages, then you must
apportion the responsibility of plaintiff and
defendant for causing plaintiff’s damages.”
(Tr. at 956-57.)
Again, Defendant did not object to the Court’s
instructions, which encompassed the owner’s/operator’s duty of
care.
The Court finds that there was no “plain error” in not
adopting verbatim Defendant’s proposed instruction above, that the
integrity of the trial was not compromised, and that the Court’s
instructions repeatedly emphasized the relevant burden of proof
and comparative fault standards.
d) Evidentiary Rulings and Closing Arguments
Defendant also argues that the Court erred when it
allowed Plaintiff to elicit testimony from Ms. Sobers about her
56
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prior
experiences
with
tire
pressure
monitoring
systems.
Defendant argues that the “erroneous admission of this evidence
cannot
be
deemed
harmless
because
it
was
the
only
evidence
presented by plaintiff to meet its burden of proving causation.”
(ECF No. 221-1 at 9.)
The Court finds Defendant’s argument to be
frivolous, as it was Defendant who stated its intention to present
evidence and arguments highlighting Ms. Sobers’s young age and
lack
of
driving
comparative
experience
fault.
(Tr.
in
at
order
to
57-60
suggest
Plaintiff’s
(Defendant’s
opening
statements); ECF No. 153-1, Def. Mem. of Law in Support of Motion
in Limine to Preclude Any Evidence Regarding the “Authorized Users”
of the [Subject] Vehicle.)
Defendant cannot expect that the Court
should allow only one party to attack the credibility of a witness
without allowing brief questions to elicit testimony to counter
the evidence.
“Credibility determinations, the weighing of the
evidence, and the drawing of legitimate inferences from the facts
are jury functions, not those of a judge.”
Lobby, Inc., 477 U.S. 242, 248 (1986).
Anderson v. Liberty
Though it is true that,
when ruling on a motion for a new trial, a judge is obliged to
weigh credibility and conflicting evidence, and must consider the
probative force of all the evidence, the Court nonetheless, finds
that it did not err in allowing both parties to present evidence
about Ms. Sobers’s credibility and driving experience at trial.
See DePascale v. Sylvania Elec. Prods., Inc., 510 F. App’x 77, 79
57
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(2d Cir. 2013) (summary order) (“Where resolution of the issues at
trial depends on an assessment of the credibility of witnesses,
district courts should be particularly cognizant of the danger of
usurping the jury’s function.”) (citation omitted and emphasis
added).
Moreover,
the Court respectfully
further
rejects as
frivolous Defendant’s argument that because evidence regarding Ms.
Sobers’s driving experience and familiarity with TPMS is relevant
to causation, the Court should not have permitted the evidence.
Ms. Sobers
testified that she had rented Ford and Chevrolet
vehicles and had observed TPMS warning lights or notices come on
while she had been driving “multiple times.”
98.)
(Tr. at 276, 397-
After Defendant objected, the Court permitted Ms. Sobers to
testify
to
two
instances
and
permitted
Defendant,
on
cross-
examination, to elicit her testimony about whether any of the
vehicles involved a BMW model similar to the one at issue.
at 407-08.)
(Tr.
Ms. Sobers was the only direct witness with knowledge
at trial who could testify about whether the TPMS in the Subject
Vehicle emitted a warning, and testified that she could recognize
if the TPMS light was illuminated at any time on the night of the
fire. The Court finds that Mr. Sobers’s experience and familiarity
with TPMS system lights, and the Subject Vehicle, was relevant to
the jury’s assessment of her credibility.
58
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The Court further finds Defendant’s request for a new
trial based on Plaintiff’s counsel’s summation, (ECF No. 221-2 at
10-11), are also frivolous.
Defendant argues that counsel’s
arguments on comparative fault confused the jury and prejudiced
Defendant by “misle[ading] the jurors into thinking that they were
not to consider any of that evidence which was critical to the
defendant’s comparative fault case.”
the
jury
multiple
times
that
(Id.)
The Court instructed
counsel’s
arguments
about
credibility, the evidence, or comparative fault11 during summations
were not evidence that the jury could consider in deciding the
case.
(Tr. at 925, 929-31, 935-36.)
Moreover,
there
was
evidence
in
Defendant distributed the Subject Vehicle.
the
record
that
The Court granted
Defendant’s request to admit the lease agreement with Plaintiff
and the Catalanos regarding the Subject Vehicle, and evidence of
the Catalanos’ reliance on Ms. Sobers to drive the Subject Vehicle.
(ECF No. 171.)
Defendant had, and used, opportunities to cross-
examine the witnesses about the terms of the lease agreement and
the Catalanos’ willingness to let Ms. Sobers drive the Subject
Vehicle.
(Tr. at 140-41.)
Defendant also argued in its opening
Defendant takes issue that Plaintiff’s counsel argued during summation:
“Here’s also what this case is not about. It’s not about whether the company
that Meena Catalano leased the [Subject Vehicle] from, which is not a party to
this case, would think she breached the lease agreement by letting her employee
drive the car. If the car was defective, the car was defective. It doesn’t
matter who was driving it especially when it comes to [Defendant’s] liability
for putting that vehicle into commerce.” (ECF No. 221-1 at 11.)
11
59
Case 1:15-cv-06519-KAM-TAM Document 232 Filed 05/15/23 Page 60 of 65 PageID #: 9385
statement
and
summations
about
Meena
Catalano
entrusting
Ms.
Sobers to drive, alone at night in the Subject Vehicle loaded with
Plaintiff’s jewelry, and argued that Ms. Sobers was a young and
inexperienced driver.
(Id. at 59, 902-04.)
In any event, the
Court repeatedly instructed the jury during counsel’s summations
and
in
charging
evidence.
the
jury
that
arguments
(Id. at 925, 929-31, 935-36.)
by
counsel
are
not
Accordingly, the Court
disagrees that it should have prevented Plaintiff’s counsel from
making these arguments in Plaintiff’s summation.
e) Damages
Finally,
based
on
the
trial
evidence,
the
Court
disagrees with Defendant’s arguments that Plaintiff essentially
received a windfall by recovering damages for any consigned goods
included in Plaintiff’s lost inventory.
(See ECF No. 221-1 at
12.) In fact, evidence of Plaintiff’s financials and inventory
were discussed at length during trial, and the jury returned a
damages verdict after having an opportunity to weigh that evidence.
Defendant called its own two witnesses to challenge Plaintiff’s
evidence regarding the value of Plaintiff’s lost inventory and
cast doubt on Plaintiff’s accounting. Ms. Sobers and the Catalanos
also provided testimony as to the consigned goods and how they
calculated the value of the lost inventory.
202, 260-73.)
(Tr. at 84-85, 188-
The jury had sufficient evidence to consider in
60
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deciding what amount of damages Plaintiff should or should not
receive.
The Court also denies Defendant’s separate Rule 60(b)(5)
request prior to entry of judgment, and as incorporated into
Defendant’s Rule 59 motion, to reduce, set off, or vacate the
judgment
amount
of
damages.
(ECF
No.
221-1
at
14
n.1,
incorporating by reference Defendant’s previous requests for a
Rule 60(b)(5) evidentiary hearing).
Defendant’s Rule 59 motion
incorporated by reference Defendant’s anticipated Rule 60(b)(5)
motion to reduce or vacate damages based on Meena Catalano’s
testimony that “some” of the lost inventory was on consignment and
based on evidence related to Plaintiff’s tax returns.
Whether to
grant a hearing on such a motion, is within the discretion of the
court.
See Corsair Special Situations Fund, L.P. v. Nat’l Res.,
595 Fed. App’x 40, 45 (2d Cir. 2014) (summary order) (noting the
abuse of discretion standard for denial of request for evidentiary
hearing); see also Saada v. Golan, No. 21-876-CV, 2021 WL 4824129,
at *3 (2d Cir. Oct. 18, 2021) (“In the Rule 60(b) context, a party
is not automatically entitled to an evidentiary hearing.").
Under
Rule 60(b)(5), a court may relieve a party from a final judgment
“[o]n motion and just terms” if “the judgment has been satisfied,
released, or discharged; it is based on an earlier judgment that
has been reversed or vacated; or applying it prospectively is no
longer equitable.”
Fed. R. Civ. P. 60(b)(5).
61
Moreover, Defendant
Case 1:15-cv-06519-KAM-TAM Document 232 Filed 05/15/23 Page 62 of 65 PageID #: 9387
is not automatically entitled to an evidentiary hearing on its
60(b)(5) motion, especially here, where Defendant had a full
opportunity to raise the issues at trial.
See Saada, 2021 WL
4824129, at *1, *3 (Rule 60(b) evidentiary hearings should be held
to decide disputes concerning “material issues of fact.” See Flaks
v. Koegel, 504 F.2d 702, 712 (2d Cir. 1974).
The Court is not
persuaded there are any remaining material issues of fact that the
parties did not have a full opportunity to discover and present
for the jury’s decision at trial.
The Court reminds Defendant that “Rule 60(b) may not be
used to ‘relitigate matters settled by the original judgment.’”
Frankel v. ICD Holdings S.A., 939 F. Supp. 1124, 1127 (S.D.N.Y.
1996) (quoting Donovan v. Sovereign Sec., Ltd., 726 F.2d 55, 60
(2d Cir. 1984)).
is
properly
Rule 60(b) relief “is generally not favored and
granted
circumstances.”
only
upon
a
showing
of
exceptional
United States v. Int’l Bhd. of Teamsters, 247
F.3d 370, 391 (2d Cir. 2001).
The burden to show exceptional
circumstances rests on the party seeking Rule 60(b)(5) relief.
Id.
Defendant has not demonstrated such exceptional circumstances
here. Though Defendant has not been clear whether its motion rests
on
the existence of “newly discovered evidence,” in such a
scenario, a movant must demonstrate that: (1) the newly discovered
evidence was of facts that existed at the time of trial or other
dispositive proceeding, (2) the movant must have been justifiably
62
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ignorant of them despite due diligence, (3) the evidence must be
admissible and of such importance that it probably would have
changed the outcome, and (4) the evidence must not be merely
cumulative or impeaching.
Id. at 392.
Defendant has not met any
of the foregoing requirements.
Ms. Catalano did not testify that Plaintiff did not own
the jewelry destroyed by the fire in the Subject Vehicle. Instead,
she testified that Plaintiff had not paid for 80-90 percent of
Plaintiff’s lost inventory in the Subject Vehicle and that “some”
of the jewelry was “given on consignment.”
(Tr. at 188-89.)
Indeed, Defendant’s Rule 59 memorandum acknowledges that Plaintiff
“steadfastly
maintained
ownership
over
the
total
within the [Subject Vehicle] at the time of loss.”
1 at 13.)
merchandise
(ECF No. 221-
Defendant misreads Ms. Catalano’s testimony in arguing
that the damages verdict should be vacated, or a new trial should
be ordered, or alternatively the judgment should be reduced or
amended, based on Defendant’s erroneous view that most of the host
jewelry was on consignment.
(ECF No. 221-1 at 12-14.)
Moreover,
Defendant cites the deposition of Ms. Sobers, who testified that
Plaintiff did not engage in any consignment at all.
this
testimony
undercuts
Defendant’s
position.
(Id.)
But
Further,
Defendant did not cross-examine Meena Catalano or Ms. Sobers about
the unpaid inventory that Plaintiff owed its suppliers, or about
the amount and value of “some” of the jewelry that was consigned.
63
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Defendant’s
Plaintiff’s
tax
Rule
59
motion
returns,
and
asserts
a
windfall
“incorporates
by
based
reference
on
its
arguments raised in previous filings under Rule 60(b) related to
Defendant’s request for a hearing on the issue of a judgment “set
off” for tax benefits “improperly received by the plaintiff.”
Defendant’s Rule 60(b) motion had reserved the right “to raise the
tax benefit issue as a basis for a new trial or amendment of the
judgment following the Court’s decision on [Defendant’s] pending
request for a hearing,” and the Court addresses Defendant’s motions
pursuant to Rule 59 and 60.
respectfully
denies
(ECF No. 221-1 at n. 1.)
Defendant’s
Rule
59
and
Rule
The Court
60
motions
regarding inventory and tax benefit issues because the jury heard
testimony
from
Plaintiff’s
accountant,
Defendant’s
accounting
witness, the Catalanos, and Ms. Sobers, and had Plaintiff’s tax
returns from 2010 to 2016, in deciding their verdict and awarding
damages to Plaintiff.
Defendant had every opportunity to cross-
examine and argue to the jury about inventory for which Plaintiff
owed payment, the amount of consigned inventory, and Plaintiff’s
purported tax issues, and how that evidence should have factored
into the final damages amount.
But Defendant’s decision not to do
so at trial should not now be revisited in the guise of an
additional post-trial hearing or new trial.
Moreover, Defendant
did not move under Rule 50(a) on the consignment and tax issues
and cannot circumvent this failure by invoking Rule 50(b), Rule
64
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59, or Rule 60.
The Court finds that arguments by Defendant in
its various motions before the Court under Rules 50, 59, and 60,
fail
to
meet
any
of
the
legal
standards
to
grant
relief.
Accordingly, the Court denies Defendant’s request to grant a new
trial or to alter the judgment with respect to these issues
Defendant belatedly raises.
CONCLUSION
For the foregoing reasons, the Court denies Defendant’s
motions pursuant to Rule 50(b),59, and 60.
SO ORDERED.
Dated:
May 15, 2023
Brooklyn, New York
KIYO A. MATSUMOTO
United States District Court
Eastern District of New York
65
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