Buck v. FairPoint Communications, Inc.

Filing 100

OPINION AND ORDER denying 97 Motion for New Trial. Signed by Judge William K. Sessions III on 4/17/2017. (law)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF VERMONT
SCHATZILEIN BUCK,
Plaintiff,
v.
NORTHERN NEW ENGLAND
TELEPHONE OPERATIONS, LLC,
Defendant.

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Case No. 2:14-cv-157
(Lead Case)

and
YOLANDA BLAIR,
Plaintiff,
v.
NORTHERN NEW ENGLAND
TELEPHONE OPERATIONS, LLC,
Defendant.

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Case No. 2:14-cv-158

OPINION AND ORDER
Plaintiffs Schatzilein Buck and Yolanda Blair bring this
action claiming injuries resulting from a 2011 automobile
accident.

The accident occurred when the sedan driven by Ms.

Buck collided with a telephone company utility truck.

Plaintiffs

claim that the driver of the truck was at fault, and that
Defendant is liable for the driver’s negligence.
The Court held a three-day jury trial in November 2016.

The

jury found in favor of the Defendant, concluding that Ms. Buck
and Ms. Blair had failed to prove negligence.
move the Court for a new trial.

Plaintiffs now

For the reasons set forth below,

their motion is denied.
I.

Legal Standard
The decision to grant a motion for new trial under Federal

Rule of Civil Procedure 59(a) rests within the sound discretion
of the district court.
143 (2d Cir. 1998).1

Sequa Corp. v. GBJ Corp., 156 F.3d 136,

“Unlike judgment as a matter of law, a new

trial may be granted even if there is substantial evidence
supporting the jury’s verdict.”

DLC Mgmt. Corp. v. Town of Hyde

Park, 163 F.3d 124, 134 (2d Cir. 1998).

While a court may weigh

the relevant evidence and order a new trial even if the jury’s
verdict is supported by substantial evidence, “it is well settled
that a trial judge’s disagreement with the jury’s verdict is not
sufficient reason to grant a new trial.”

Mallis v. Bankers Trust

Co., 717 F.2d 683, 691 (2d Cir. 1983) (citations omitted).

A

motion for new trial should not be granted unless the Court “is
convinced that the jury has reached a seriously erroneous result
or that the verdict is a miscarriage of justice.”
1

Kosmynka v.

It is not clear in diversity cases whether a federal court
must apply a state or federal standard to motions filed under Rule
59(a). See Taylor v. Stratton Corp., 2012 WL 928407, at *1 (D. Vt.
Mar. 19, 2012), aff’d, 514 F. App’x 68 (2d Cir. 2013). “On Rule 59(a)
motions, Vermont state courts are limited to viewing the evidence ‘in
the light most favorable to the jury’s verdict’ and may overturn the
verdict only if it is unsupported by the evidence.” Id. (quoting Shaw
v. Barnes, 693 A.2d 710, 711 (Vt. 1997)). “[C]ourts applying the
federal standard have the broader power to re-weigh the evidence and
may overturn verdicts that are supported by substantial evidence.
Manley v. Ambase Corp., 337 F.3d 237, 244-45 (2d Cir. 2003).” Id.
In this case, the Court need not determine which to apply as it would
find a new trial unwarranted under either standard. Its analysis will
therefore follow the broader, federal standard.

2

Polaris Indus., Inc., 462 F.3d 74, 82 (2d Cir. 2006) (citations
omitted); see also DLC Mgmt. Corp., 163 F.3d at 134 (the court
should only grant such a motion when the jury’s verdict is
“egregious”) (citing Dunlap-McCuller v. Riese Org., 980 F.2d 153,
158 (2d Cir. 1992)).
II.

The Jury’s Conclusion as to Negligence
Plaintiffs first contend that the jury reached the wrong

result on the question of negligence.
centers on an automobile accident.

As noted above, this case

On August 2, 2011, Ms. Buck

was driving a 2000 Mitsubishi sedan on Route 5 in Irasburg,
Vermont.

The relevant portion of Route 5 runs north-south.

Ms.

Buck and Ms. Blair, the car’s passenger, were traveling south.
James Baker, driving a 2008 Ford bucket utility truck, testified
that he drove across the northbound lane of Route 5 safely, and
did not see Ms. Buck’s vehicle until shortly before she collided
with his truck.

The collision occurred as Mr. Baker was driving

the truck across the southbound lane.
Plaintiffs submit that Mr. Baker had a clear view of the
roadway before he entered the intersection, should have seen Ms.
Buck’s car approaching from a distance, and that his failure to
yield was the proximate cause of the accident.

In support of

their claim, they cite photographs of the accident scene, a video
simulation, and testimony from Defendant’s expert.

They also

refer to the Court’s jury instruction which, consistent with

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Vermont law, stated that a driver is deemed to be aware of
objects in plain view and must use reasonable diligence.
Defendants cite Mr. Baker’s trial testimony, in which he
explained that at the time he entered the intersection he did not
see any cars on Route 5.

Specifically, he testified that after

coming to a stop before entering the intersection, he looked
left, right, and left again, then proceeded into the intersection
a bit further in order to get a better view.

He again looked

left, right, and left, before crossing the northbound portion of
Route 5.
Mr. Baker testified that as he was crossing the northbound
lanes, he looked right again to see if any cars were approaching
from the south.

He testified that he did so “about the time” his

truck reached the median that divided the north and southbound
lanes.

ECF No. 98-1 at 6. He did not stop at the median, but was

“continually moving.”

Id.

He testified as follows on direct

examination:
Q.
Okay. And when you looked to the right -- well,
first of all, when you looked before you started moving
into the northbound lanes was there anything at all in
that section of Route 5 headed south that was visible
to you? Was there any car there whatsoever?
A.

No.

Q.

You’re positive of that?

A.

Yes, sir.

Q.
So when you looked again to the right after you
crossed the northbound lanes and just before you headed to
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the southbound lanes when you looked to your right again
what did you see?
A.
When I got to the intersection I did see a vehicle
coming towards me.
Q.
Okay. And where was the vehicle located when
you first saw it?
A.
I can’t say exactly. I believe it was -- I
don’t know footage wise where exactly it was.
Q.
Well tell me with regard to the median.
north of the median or in the median?

Was it

A.

I would say it was probably north of the median.

Q.

Okay.

Do you know for sure?

A.
I can’t say a hundred percent sure, but I would
say it was in that vicinity right at the median strip.
Q.
And could you get a sense of how fast it was
going?
A.
It looked like it was traveling a good rate of
speed. I couldn’t tell you how fast.
Id. at 6-7.

Mr. Baker testified that if he had applied his

brakes at that moment, his truck would have stopped in the middle
of the road.

He therefore applied the gas in an effort to make

it through the intersection without being struck by the oncoming
car.
Defendant’s expert, Kenna Johnson, testified that Ms. Buck
had to have been driving in excess of 60 miles per hour when she
reached the beginning of the median – above the posted speed
limit, and approximately 280 feet from the intersection and Mr.
Baker’s truck.

Based upon these numbers, Plaintiffs conclude

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that Ms. Buck’s vehicle was visible to Mr. Baker “for three
seconds and before he entered their lane of travel.”
at 2.

ECF No. 99

They also contend that Mr. Baker should have been able to

see Ms. Buck approaching from 800 feet, or over eight seconds,
away, and was therefore negligent.

Defendant counters that, as

Mr. Baker testified, Ms. Buck’s vehicle was not yet in sight when
the bucket truck began crossing Route 5.
The Court instructed the jury that a driver “has a duty to
maintain a proper lookout for persons on the highway and use
reasonable diligence to avoid injuries to himself and others.

In

this regard, a driver is deemed to be aware of objects that are
in plain view.”

ECF No. 93 at 9.

Plaintiffs argue that because

Mr. Baker must have had a clear view of their vehicle before he
entered the intersection, he breached his duty of care by
“violating their right of way.”

ECF No. 97 at 4.

They rely, in

part, upon Rich v. Hall, 107 Vt. 455, 461 (1935), in which the
Vermont Supreme Court held that where a driver approaching from
the “disfavored direction” fails to yield the right of way, and
such failure is a proximate cause of the accident, “he is guilty
of actionable negligence.”
Rich also held that a driver may enter an intersection if
there are no vehicles “approaching the intersection within such
distance as reasonably to indicate danger of interference or
collision.”

107 Vt. at 460.

Indeed, Vermont law imposes a

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statutory duty to yield to any vehicle “approaching so closely on
said highway as to constitute an immediate hazard during the time
when such driver is moving across or within the intersection.”
23 V.S.A. § 1048(b).

Mr. Baker testified that Ms. Buck’s vehicle

was not visible when he chose to cross the northbound lane.

He

also testified that Ms. Buck was traveling at “a good rate of
speed.”

Defendant’s expert concurred that Plaintiffs had to have

been traveling in excess of 60 miles per hour just prior to the
accident.

If the jury accepted Mr. Baker’s statements as true,

and Plaintiffs’ other evidence did not persuade the jury
otherwise, it was reasonable for the jury to conclude that he was
not negligent as he proceeded through the intersection.
The current question before the Court is whether the jury’s
verdict was “seriously erroneous” or resulted in a “miscarriage
of justice.”

Kosmynka, 462 F.3d at 82.

The verdict was based,

in part, upon the jury’s view of Mr. Baker’s credibility; an
assessment that this Court will not second-guess.

See DLM Mgmt.

Corp., 163 F.3d at 133 (“a court should rarely disturb a jury’s
evaluation of a witness’s credibility”); Metromedia Co. v.
Fugazy, 983 F.2d 350, 363 (2d Cir. 1992) (“Where 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.”).

Given Mr. Baker’s

testimony about his actions as he approached and proceeded

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through the intersection, the expert testimony as to Ms. Buck’s
likely speed, and Plaintiffs’ own account of their position as
Mr. Baker crossed the northbound lanes, the Court finds
insufficient grounds to overturn the jury’s conclusion and grant
a new trial.

Plaintiffs’ motion on the basis of the jury’s

finding is therefore denied.
III. The Court’s Conduct
Plaintiffs’ second argument asserts that the Court
prejudiced counsel’s cross-examination of Mr. Baker.

They

contend that in the course of that cross-examination, counsel was
prevented from establishing two points.

First, counsel wanted to

highlight portions of Mr. Baker’s prior testimony in which he
stated that he did not see Ms. Buck’s car.

ECF No. 97 at 6.

Second, counsel sought to establish that Mr. Baker’s testimony
about what he saw prior to the collision had changed over time.
In establishing both points, counsel sought to introduce portions
of Mr. Baker’s prior testimony during a Vermont Traffic Court
hearing.
At trial, Plaintiffs’ counsel asked Mr. Baker if he saw Ms.
Buck’s car as it was coming toward him.
he “did see the car.”

Mr. Baker responded that

ECF No. 98-1 at 27.

Plaintiffs’ counsel

next established that at the Traffic Court hearing, Mr. Baker
testified: “‘I did not see the other vehicle.’”

Id. at 34.

At

trial, counsel next asked Mr. Baker if something was blocking his
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view, such as a mailbox or sign.

Id.

Mr. Baker answered, “No,”

at which point counsel again asked him to turn to the Traffic
Court testimony.

Id. at 34.

Defendant’s counsel objected, and

the parties approached the bench.

The following discussion

ensued among Attorney Durrell (Plaintiffs’ counsel), Attorney
Ryan (for Defendant), and the Court:
MR. DURRELL:

He says I didn’t see the other vehicle.

THE COURT: That’s fine. He’s already said that. I thought
you asked him a question about whether there may have been
an obstruction in his view and he said no.
MR. DURRELL: In this proceeding he says repeatedly I didn’t
see the other vehicle.
THE COURT: That’s fine, but you have already got that
established. You don’t have to keep going over that. I
thought you laid the foundation for the question that he was
going to say he saw -- he didn’t see the car because there
was an obstruction, but that’s not what he’s testifying to.
It’s just he’s going to say again he didn’t see the vehicle.
How many times does he say that?
MR. DURRELL:
THE COURT:
MR. RYAN:

Two more times.

Okay.

Response.

Can I see it?

He’s taking things out of context . . . .

THE COURT: Well all right. This is the more thorough
description of what he was testifying to and it reads as
follows:
“I certainly did not see the other vehicle. I did
come to a stop. I proceeded through the first
section then on to the second section. Looking
again at the last moment I did see the other
vehicle approaching me. Hit my gas as quickly as
I could. Unfortunately I don’t believe she saw me
until the last second,”
and then it goes into what he expected that she did, but at
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least what he’s saying that he did not see the other
vehicle. There’s reference here clearly to the context. He
didn’t see the other vehicle until he came to the second
look and then he saw the vehicle and that’s consistent with
his testimony all along. The problem I think now that I
read this in context is that you’re taking this I didn’t see
the vehicle and you’re trying to make an argument that he
never saw the vehicle at all, which is not what he’s saying
here at all. He’s saying he saw the vehicle after the
second stop which is exactly what he testified to earlier.
So I let you put in I didn’t see the vehicle, but that’s not
an accurate representation of what he actually said in this
hearing. So with that I’m going to exclude any more
reference to I didn’t see the vehicle because in the context
he is saying he did see the vehicle after the second look
and that’s what he says today.
. . .
MR. DURRELL: Judge, I’m just trying to say that car
crashes, motorcycles crashes, happen all the time because
they don’t see the other vehicle. So this is a substantive
point he did not see the other vehicle.
THE COURT:

How do you get that from this paragraph?

MR. DURRELL:

I certainly did not see the other vehicle.

THE COURT: “Yeah I came to a stop. I proceeded through the
first intersection looking again and at the last moment I
did see the other vehicle approaching.”
MR. DURRELL:
see it.

But the other vehicle was there.

He didn't

THE COURT: No. The other vehicle -- this is crazy. This
is just crazy. I mean in the context of what he’s saying
here he didn’t see the vehicle at the very beginning. At
the last time when he did the second look both to the right
and left he saw the vehicle approaches him which is what he
says here. So I don’t think that you can pick apart his
statement out of context. You have got the first statement
there. Let’s leave it at that. Mr. Ryan can respond to
that, but I think it’s inappropriate to take this paragraph,
take out a sentence when in fact that totally misrepresents
the context of what he said.

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Id. at 36-39.2
Plaintiffs’ counsel now submits that he should have been
able to introduce several additional portions of prior testimony
in which Mr. Baker stated that he did not see the oncoming
vehicle.

Counsel also contends that he should have been “allowed

to show the jury that [Mr. Baker was] lying, going blind, or
crazy.”

ECF No. 97 at 9.

Aside from informing the Court that

Mr. Baker had stated multiple times in testimony that he did not
see Ms. Buck’s approaching car, no such proffers or arguments
were made at trial.
Counsel also objects to the Court’s limitation of his time
to cross-examine Mr. Baker.

When the Court asked counsel how

much cross-examination remained, counsel responded, “Not much.”
The Court then followed up: “Not much, is it five minutes?”
Counsel responded: “If he stops objecting.”

ECF No. 98-1 at 31.

Based upon this representation, the Court decided to proceed with
the cross-examination rather than move to another witness whose
availability was limited, and allowed counsel five minutes.
Counsel proceeded with his questioning, concluded by stating
“Nothing further.”

Id. at 42.

Defendants argue that counsel’s failure to make timely

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Defendant’s counsel asked the Court to instruct the jury
to disregard Mr. Baker’s prior testimony about not seeing the
approaching vehicle. The Court did not provide such an
instruction, reasoning that counsel would clarify the issue on
re-direct. Id. at 37-38.
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objections renders Plaintiffs’ arguments waived.

See, e.g., Life

Plus Int’l v. Brown, 317 F.3d 799, 807 (8th Cir. 2003) (“To
preserve this issue for our review, a party must lodge a timely
objection to the time limits and must make a proffer of evidence
that was excluded for lack of sufficient time.”); Evans v. Port
Auth. of N.Y. & New Jersey, 246 F. Supp. 2d 343, 351 (S.D.N.Y.
2003) (“in order to prevail on a claim that a time limit was too
short, a party must have come forward with an offer of proof
showing how its presentation would be curtailed by it and must
demonstrate prejudice”); Bank of China v. NBM L.L.C., 2002 WL
31027551, at *3 (S.D.N.Y. Sept. 11, 2002) (“[A]t no point did
defendants identify any admissible, relevant, evidence that they
were unable to offer because of the time limits set by the
Court.”).

Even assuming timely objections, however, the Court

sees no basis for granting a new trial.
First, a trial court has broad discretion over the length
and scope of cross-examination.

See, e.g., Delaware v. Van

Arsdall, 475 U.S. 673, 679 (1986) (holding that a district court
has “wide latitude . . . to impose reasonable limits on . . .
cross-examination”); United States v. Wilkerson, 361 F.3d 717,
734 (2d Cir. 2004); United States v. Kahn, 472 F.2d 272, 281 (2d
Cir. 1973).

Moreover, “in order to prevail on a claim that a

time limit was too short, a party must have come forward with an
offer of proof showing how its presentation would be curtailed by

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[the time limitation] and must demonstrate prejudice.”

Evans v.

Port Auth. of N.Y. & N.J., 246 F. Supp. 2d 343, 351 & n.49
(S.D.N.Y. 2003).
Here, the Court inquired as to how much time counsel would
need to conclude his cross-examination, and counsel informed the
Court that he was nearly finished.

When the Court asked if five

minutes would be sufficient, counsel agreed that it would be so
long as defense counsel did not pose objections.
therefore allowed counsel five minutes.

The Court

Although defense counsel

did continue to object, it is not clear from the record how much
time was actually allowed.

It is plain, however, that counsel

concluded his examination without any warning or prompting from
the Court.
With respect to counsel’s contention that he was barred from
introducing important evidence, the Court finds that such
evidence would have been largely redundant.

While counsel sought

to introduce Mr. Baker’s prior testimony that he did not see Ms.
Buck’s vehicle, the Court had already allowed such prior
testimony into evidence.

Although the Court subsequently

discovered that the statement had been taken out of context, it
allowed the statement to remain in evidence.

Additional

statements to the same effect were, at best, unnecessary, and
counsel’s alleged inability to enter them into evidence was not
prejudicial.

See Gasperini v. Ctr. for Humanities, 149 F.3d 137,

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143 (2d Cir. 1998) (holding that the district court “acted within
proper bounds in deciding to limit further exploration of [an]
issue in order to avoid wasting time”).

The motion for a new

trial based upon the Court’s conduct during trial is therefore
denied.
IV.

Conclusion
For the reasons set forth above, Plaintiffs’ motion for a

new trial is denied.
DATED at Burlington, in the District of Vermont, this 17th
day of April, 2017.

/s/ William K. Sessions III
William K. Sessions III
District Court Judge

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