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September 25, 1979


The opinion of the court was delivered by: COOPER

Defendant moves for a new trial, pursuant to Rule 59, Federal Rules of Civil Procedure, and asks for judgment notwithstanding the verdict, in accordance with the provisions of Rule 50, F.R.Civ.P. Defendant objects to the jury verdict entered June 13, 1979, awarding $ 360,000 in damages to plaintiff in this action under the Jones Act and the general maritime law. Defendant claims the verdict went against the weight of the evidence; that there were errors of law made at the trial; that the verdict was excessive and that certain actions of the court and counsel caused prejudicial error. Plaintiff has responded with a thorough and cogent defense of the verdict.

In our view, defendant has failed to meet the standard which would compel this court to set aside the verdict under Rule 50. That standard is the same as the requirement for directing a verdict at the close of the evidence, which relief we denied upon defendant's request for it at that time. (Transcript, p. 1285). Simblest v. Maynard, 427 F.2d 1 (2d Cir. 1970). Nothing has occurred to alter our decision.

Turning to the motion for a new trial, it is clear that the requirements for granting such a motion are not nearly so strict as those applicable to Rule 50. A verdict may be set aside under Rule 59, even if there was substantial evidence to support that verdict, if the court finds the verdict was against the weight of the evidence, or so excessive as to shock the conscience of the Judge. "Courts do not grant new trials unless it is reasonably clear that prejudicial error has crept into the record or that substantial justice has not been done." 11 Wright & Miller, Federal Practice and Procedure: Civil § 2803.

 The granting or denial of the motion lies almost exclusively within the discretion of the trial judge; his evaluation of the claim must compel the conclusion that justice has not been accomplished by the trial verdict. In a jury case, the exercise of that discretion is somewhat circumscribed: "(A) decent respect for the collective wisdom of the jury, and for the function entrusted to it in our system, certainly suggests that in most cases the judge should accept the findings of the jury, regardless of his own doubts in the matter." Id., § 2806.

 If the trial court determines that the verdict in a case is excessive, it can order a new trial In toto or on the issue of damages alone. Additionally, "(T)here is a practice by which the court may condition a denial of the motion for a new trial upon the filing by the plaintiff of a remittitur in a stated amount. In this way, the plaintiff is given the option of either submitting to a new trial or of accepting the amount of damages that the court considers justified." Id., § 2807; Dullard v. Berkeley Associates Co. et al., 606 F.2d 890, at p. 896 (C.A.2d 1978).

 Alleged misconduct will not support a motion for a new trial, in most cases, either because the conduct complained of was not misconduct, or was not prejudicial, or was not objected to at the time, or because any prejudice was cured by the instructions of the court. Wright & Miller, Supra, § 2809; F.R.Civ.P. 61.

 Upon examination of the record at trial and a review of the law applicable to seaman's personal injury cases, we find that the weight of the evidence readily supported this jury's verdict, and that, although generous, the amount awarded was not excessive for this plaintiff.

 Defendant alleges that plaintiff failed to adduce sufficient evidence establishing defendant's liability for plaintiff's injury, and that the court "filled in the gap" by erroneously charging to the jury a theory of proximate cause which compelled the jury to find defendant liable.

 We find defendant's position to be without merit, both on the record and as a matter of law. Three theories of liability were presented to the jury by the court: Negligence (Jones Act), Warranty of Seaworthiness, and Res Ipsa Loquitur.

 The testimony at trial, by plaintiff himself and by supporting and opposing medical witnesses, presented substantial and convincing evidence that plaintiff had indeed suffered the accident he claims on May 5, 1975, *fn1" that the accident was caused by defendant's negligence and/or breach of the warranty of seaworthiness, and that plaintiff's resulting disability to his right hand ultimately prevented him from continuing as a marine engineer.

 Further, we maintain that the court's charge to the jury concerning the applicable standard of liability for the aggravation or acceleration of a pre-existing physical condition was correct, for it included the legal proposition that defendant would be liable for all injuries caused in part by its negligence or breach of the warranty of seaworthiness; that defendant would be liable for all damages resulting from its aggravation or acceleration of the plaintiff's pre-existing physical condition provided it was caused, in whole or in part, by defendant's breach of duty to plaintiff.


 Given the testimony of the plaintiff, the evidence that one of his doctors requested thumb x-rays on June 6, 1975, and the testimony of Drs. Golub and Bouton, plaintiff's medical witnesses, that Milos' condition would be hard to explain in the absence of trauma, there was more than sufficient evidence for the jury to conclude, as it did, that Milos injured his thumb on May 5, 1975. Both doctors testified in great detail that even though plaintiff had pre-existing arthritis, if he had not incurred trauma he would not have been exposed to surgery and he would not have been unable to work.

 If the onset of intense pain and extreme difficulty in the use of his right hand and thumb started in May, 1975 shortly following the shipboard accident, a case of causal relationship and shipowner liability was made out. The credibility of the pain and difficulty of use, following the injury in May, 1975 to plaintiff's right hand, turned on the jury's evaluation of the credibility of Mr. Milos, and its evaluation of the appropriate inferences to be drawn from other testimony and medical records.

 The following comment by the Supreme Court in Sentilles v. Inter-Caribbean Shipping Corp., 361 U.S. 107, 109-110, 80 S. Ct. 173, 4 L. Ed. 2d 142 (1959) is enlightening (in Sentilles, the court was faced with a plaintiff-seaman who alleged that an accident on board defendant's vessel aggravated a latent condition of tuberculosis causing him to become seriously ill):

The jury's power to draw the inference that the aggravation of petitioner's tubercular condition . . . was in fact caused by that accident, was not impaired by the failure of any medical witness to testify that it was In fact the cause. Neither can it be impaired . . . by the fact that other potential causes of the aggravation existed . . . . The members of the jury . . . were sworn to make a legal determination of the question of causation. . . . The focal point of judicial review is the reasonableness of the particular inference or conclusion drawn by the jury. . . .
Courts are not free to reweigh the evidence and set aside the jury verdict merely because the jury could have drawn different inferences or conclusions or because judges feel that other results are more reasonable. (emphasis added)

 We believe the court's charge on the applicable standard of liability was correct. "A tortfeasor is liable for all resulting damages, though aggravated by the diseased condition of the injured party." The Jefferson Myers, 45 F.2d 162 (2d Cir. 1930).

 The law is clear that when a defendant's wrongful act or omission aggravates or accelerates a plaintiff's pre-existing condition and disables a plaintiff, thus rendering him unable to continue his work, or said aggravation awakens a dormant condition that causes a plaintiff to experience pain although he had suffered no pain from the condition prior to the aggravation, such defendant is liable in full for the disability and/or pain it caused. Here, the same standard is employed as in every other seaman's injury case: a defendant is liable if, and only if, its breach of duty "played any part, even the slightest" in producing the injury for which damages are sought.

 Defendant appears to believe that because plaintiff would not have been disabled by defendant's acts absent his pre-existing condition, defendant is not fully liable for plaintiff's disability; or that in order to recover, plaintiff must show that defendant's acts were the sole cause of the acceleration of plaintiff's disability. These theories of liability are clearly at odds with the applicable law. Farnarjian v. American Export Isbrandtsen Lines, Inc., 474 F.2d 361 (2d Cir. 1973); Davis v. Hill Engineering, Inc., 549 F.2d 314 (5th Cir. 1977); Buchalski v. Universal Marine Corp., 393 F. Supp. 246 (W.D.Wash.1975); Spinks v. Chevron Oil Co., 507 F.2d 216 (5th Cir. 1975).

 In fact, there was ample testimony in the record to show that Milos began to suffer debilitating pain in his right hand and thumb, resulting finally in the surgery and rendering him unable to grasp or grip with that hand, Only after the fall in which he injured himself on board defendant's vessel in May, 1975.

 In sum, under the law, defendant is liable for all damages resulting from the aggravation or acceleration of plaintiff's pre-existing condition because the negligence or breach of duty played some part, even the slightest, in producing the injury which caused the plaintiff to become disabled. The jury in this case clearly believed that Milos' fall, caused in part by defendant's negligence, produced plaintiff's pain and accelerated his arthritic condition sufficiently to produce his present disability.

 Proximate cause

 Plaintiff at trial presented substantial proof establishing that, absent defendant's breach of duty, plaintiff would not have become disabled prior to the age of mandatory retirement. This should satisfy the issue of "medical causation" which defendant claims the court ignored.

 Additionally, we disagree entirely that there is more than one standard of causation in seamen's personal injury actions, whether based on negligence or unseaworthiness. The standard is whether defendant's negligence or breach of duty caused plaintiff's injury "in whole or in part." That standard has been described as "featherweight" in both Jones Act ...

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