Ebrahem v. Coach Leasing Inc. et al
MEMORANDUM OPINION AND ORDER: re: 93 MOTION to Set Aside Verdict filed by Osam E. Ebrahem. For the foregoing reasons, plaintiff's motion to set aside the verdict is granted. The Clerk of the Court is directed to close this motion (Docket Entry # 93). The re-trial on both liability and damages will begin on November 4, 2013, before the Honorable Edgardo Ramos. SO ORDERED.(Signed by Judge Shira A. Scheindlin on 10/17/2013) (ama)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
OSAM E. EBRAHEM,
OPINION AND ORDER
12 Civ. 8253 (SAS)
- againstCOACH LEASING INC. and DEREK
SHIRA A. SCHEINDLIN, U.S.D.J.:
Plaintiff sued defendants claiming they were liable for injuries he
sustained when his motor vehicle was hit by a bus owned and operated by Coach
Leasing Inc. and driven by Derek Lester Morton on January 11,2012. Plaintiff
claimed that as a result of the accident, a pre-existing back injury was exacerbated
and he was forced to undergo knee surgery to repair a torn meniscus.
After a five-day trial, the jury found that defendants were liable and
that their negligence was a substantial factor in causing or exacerbating plaintiffs
injuries: The jury also found that plaintiff sustained a significant limitation as a
See Verdict Sheet ~~ 4-5.
result of the accident. 2 The jury was properly charged that a "significant
limitation" fell under the umbrella of "serious injury" under New York's No-Fault
Law. 3 Thus, the jury found that plaintiff sustained a "serious injury." The jury
awarded plaintiff $6,700 for past medical expenses and $5,000 for future medical
expenses.4 The jury awarded plaintiff no damages for past or future pain and
Arguing that the jury's verdict is both inconsistent and inadequate,
plaintiff now moves to set aside the verdict. For the following reasons, plaintiffs
motion is granted.
Judgment as a Matter of Law
A motion for judgment as a matter of law pursuant to Federal Rule of
Civil Procedure 50(b) may be granted only if "a reasonable jury would not have a
legally sufficient evidentiary basis to find for the [non-movant] on that issue.,,6
See Jury Charge at 22-23.
See Verdict Sheet 'l9(c)-(d).
Cameron v. City o/New York, 598 F.3d 50,59 (2d Cir. 2010)
(alteration in original) (quoting Fed. R. Civ. P. 50(a)(1)).
"[A] district court can grant the motion only if after viewing the evidence in the
light most favorable to the non-moving party and drawing all reasonable inferences
in favor of the non-moving party, it finds that there is insufficient evidence to
support the verdict.,,7 Thus, judgment as a matter of law is appropriate where
"there exists 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
the evidence in favor of the movant is so overwhelming that reasonable and fair
minded [persons] could not arrive at a verdict against [it]."8
Under Federal Rule of Civil Procedure 59(a), "court may, on motion,
grant a new trial on all or some of the issues ... after a jury trial, for any reason for
which a new trial has heretofore been granted in an action at law in federal court.,,9
A motion for a new trial may be made in lieu of or as an alternative to a motion for
judgment as a matter of law, and the test is less stringent than for granting
Fabri v. United Techs. Int'!, Inc., 387 F.3d 109,119 (2d Cir. 2004)
(citing Tolbert v. Queens Coli., 242 F.3d 58, 70 (2d Cir. 2001)).
Tepperwien v. Entergy Nuclear Operations, Inc., 663 F.3d 556, 567
(2d Cir. 2011 ) (quotations marks and citations omitted, alterations in original).
Such motion must be made within twenty-eight days from the entry of
judgment. See Fed. R. Civ. P. 59(b).
judgment as a matter oflaw.lO In addition, when a court grants judgment as a
matter of law following a jury verdict, the losing party may move for a new trial
pursuant to Rule 59 within twenty-eight days of entry of judgment as a matter of
law. I1 "A motion for a new trial should be granted when, in the opinion of the
district court, the jury has reached a seriously erroneous result or the verdict is a
miscarriage of justice.,,12
This Court has the discretion to set aside a verdict for being patently
inconsistent or inadequate.
Where a party alleges that the answers to special
interrogatories are inconsistent, the "district court has a
duty to reconcile the jury's answers on a special verdict
form with any reasonable theory consistent with the
evidence, and to attempt to harmonize the answers if
possible under a fair reading of those answers. " McGuire
v. Russell Miller, Inc., 1 F.3d 1306, 1311 (2d Cir. 1993)
(citation omitted); accord Turley v. Police Dep 't ofthe City
ofN.Y., 167 F.3d 757,760 (2d Cir. 1999) ("Before a court
See Caruolo v. John Crane, Inc., 226 F.3d 46,54 (2d Cir. 2000)
("Unlike a motion for judgment as a matter of law, a motion for a new trial may be
granted even if there is substantial evidence to support the jury's verdict.")
(quotation marks and citation omitted).
See Fed. R. Civ. P. 50(d).
Chin v. Port Auth. ofNew York & New Jersey, 685 F.3d 135, 146 (2d
Cir. 2012), cert. denied, 133 S. Ct. 1724 (2013) (quotations and alterations
may set aside a special verdict as inconsistent and remand
the case for a new trial, it must make every attempt 'to
reconcile the jury's findings, by exegesis if necessary. '"
(quoting Gallick v. Bait. & Ohio R.R., 372 U.S. 108, 119
(1963»). As was noted in McGuire, "ifthere is any way to
view a case that makes the jury's answers to the special
verdict form consistent with one another, the court must
resolve the answers that way even if the interpretation is
strained." ld. (citing Atl. & Gulf Stevedores, Inc. v.
Ellerman Lines, Ltd., 369 U.S. 355, 364 (1962». However,
if "the jury's answers cannot be harmonized rationally, the
judgment must be vacated and a new trial ordered."
Brooks v. Brattleboro Mem 'I Hosp., 958 F.2d 525, 530-31
(2d Cir. 1992) (citation and internal quotation marks
omitted); accord Stephenson v. Doe, 332 F.3d 68, 79 (2d
Cir. 2003) ("If we are unable to harmonize the jury's
findings, we must vacate the judgment and order a new
trial.") (citation and internal quotation marks omitted). \3
Here, the jury's failure to award any damages for pain and suffering is inconsistent
with the jury's finding that defendants' negligence caused plaintiff to suffer a
serious injury. Furthermore, the jury's failure to award any damages for pain and
suffering is inconsistent with its award for past and future medical expenses.
Finally, the jury's award deviates materially from what would be reasonable
compensation for a serious injury. For these reasons, the jury's verdict must be set
aside as it is patently inconsistent.
Springer v. Cedro, 894 F. Supp. 2d 474, 485 (S.D.N.Y. 2012) (parallel
Defendants' arguments to the contrary, although valiant, are not
persuasive. In attempting to harmonize the jury's verdict, defendants state that
[a] specific review of plaintiff's submitted medical bills
reveals that the $6,700 in past medical expenses matches
nearly exactly the amount of money paid for plaintiff's
initial emergency room visit and physical therapy until May
12,2012, five months of conservative treatment. Plaintiff's
own evidence shows that the emergency room visit (that
resulted in quick discharge and the advice to take over-the
counter pain medication) totaled $1,956.00. Additionally,
payments made for physical therapy treatments through
May 12,2012 totaled $4,746.68, for a combined total of
Rather than harmonize the jury's verdict, the passage above confirms that plaintiff
must have suffered some past pain and suffering, however nominal it may have
Furthermore, defendants' reliance on Book v. R.P. Dettenrieder 15 as
"binding second circuit precedent" is misplaced for several reasons. 16
First, the court's statement that "N ew York law does not require a jury to make an
Memorandum of Law in Opposition to Plaintiff's Motion for a New
Trial at 2 ("Opp. Mem.") (emphasis added, footnote omitted).
14 Fed. App'x 40 (2d Cir. 2001).
Opp. Mem. at 18.
award for pain and suffering whenever it awards medical expenses," is dicta.
Second, the decision was not published and therefore should not have been cited as
it was issued before January 1,2007. 18 Third, in the case on which Book relied
Ordway v. Columbia County Agricultural Soc 'y - the appellate court agreed with
the lower court "that the jury's failure to award any damages for plaintiffs past
pain and suffering arising from her severe ankle injury materially deviated from
what would be reasonable compensation.,,]9 Furthermore, defendants' string
citation of cases involving future pain and suffering20 are inapposite because here
the jury also failed to award any damages for past pain and suffering. On this
ground alone, the jury's verdict is internally inconsistent and must be set aside.
Hence, the jury's verdict would cause a miscarriage of justice were it
allowed to stand. To avoid such injustice, the only remedy is to grant a new tria1. 21
14 Fed. App'x at 42 ("In any event, ifwe had jurisdiction to hear
Book's appeal, we would conclude that it is without merit.") (emphasis added).
See Fed. R. App. P. 32.1.
273 A.D.2d 635, 636 (3d Dep't 2000).
See Opp. Mem at 9-10.
Additur is not an option as it is barred by the Seventh Amendment in
federal court. See Dimick v. Schiedt, 293 U.S. 474,486-87 (1935) (recognizing that
remittitur withstands Seventh Amendment attack but rejecting additur as
unconstitutional). See also Gasperini v. Center for Humanities, Inc., 518 U.S. 415,
433 n.16 (1996) (stating that '''a federal trial court may deny a motion for a new
trial where the plaintiff consents to decrease the judgment to a proper amount,'"
Under Rule 50(b), a new trial may only be granted if the
moving party would be entitled to judgment as a matter of
law. See Goldsmith v. Diamond Shamrock Corp., 767 F.2d
411, 414 (8th Cir. 1985) ("[Rule 50(b) ] by its very terms
gives a court discretion to order a new trial absent a motion
therefor only where the moving party otherwise would have
been entitled to judgment notwithstanding the verdict.");
Jackson v. Town of Hempstead, No. 98-CV-5635, 2002
WL 199834, at *2 (E.D.N.Y. Feb. 4, 2002) ("The Court
may only grant a new trial under Rule 5 O(b) if the movant
satisfies the stricter standard for judgment as a matter of
law...."); Newtown v. Shell Oil Co., No. 3:97 CV 0167,
2000 WL 49357, at *2 (D. Conn. Jan. 18, 2000) (noting
that new trial under Rule 50(b) is "restricted to those cases
in which the standard for granting ... judgment as a matter
of law has been met"); 9A Charles Alan Wright & Arthur
R. Miller, Federal Practice & Procedure § 2538 (2d ed.
For the foregoing reasons, plaintiff's motion to set aside the verdict is
granted. The Clerk of the Court is directed to close this motion (Docket Entry #
but may not condition denial of the motion on 'the defendant's consent to a
comparable increase in the recovery''') (quoting Dimick, 293 U.S. at 495); Peebles
v. Circuit City Stores, Inc., No. 01 Civ. 10195,2003 WL 21976402, at *12-13
(S.D.N.Y. Aug. 19,2003) (stating that the remedy of additur alternative remedy
"lies beyond the Court's power"); Fox v. City University ofNew York, No. 94 Civ.
4398,1999 WL 33875, at *l1(S.D.N.Y. Jan. 26,1999) ("[E]ven in a diversity case
presenting only state law claims, a federal trial judge cannot make an order of
additur, even though his state court colleague could.").
Adams v. Yale-New Haven Hasp., No. 3:06CV1166, 2011 WL
219831, at *7 (D. Conn. Jan. 20, 2011) (stating that "[a]lthough Rule 59 is the
traditional procedural vehicle used to grant a new trial, the Court also has
discretion to grant a new trial, sua sponte, under Rule 50(b )").
93). The re-tria1 on both liability and damages will begin on November 4, 2013,
before the Honorable Edgardo Ramos.
New York, New York
October 17, 2013
Glenn P. Dolan, Esq.
Morgan Levine Dolan, P .C.
11 Broadway, Suite 615
New York, NY 10004
Matthew J. Vitucci, Esq.
Gallo, Vitucci, Pinter & Cogan
90 Broad Street, 3rd Floor
New York, NY 10004
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