Appeal from the judgment of the United States District Court for the District of Connecticut (Burns, J.) entered notwithstanding a jury verdict in favor of plaintiff-appellant, and from an order granting a conditional new trial.
Cardamone and Pierce, Circuit Judges, and Stanton, District Judge.*fn*
Appellant Charles Smith was employed by the National Railroad Passenger Corp. ("Amtrak") as Superintendent of its Rail Weld and Cropping Plant in New Haven, Connecticut, until he was shot and seriously wounded by a disgruntled fellow employee on March 20, 1981. On the morning of that day, Smith reprimanded the employee, Joseph Leonetti, for having been in a restaurant eating breakfast when he was supposed to be at work. A few hours later, Leonetti entered Smith's office and fired two shotgun blasts at him, striking him once in the leg, shattering the kneecap and adjacent bone. In February 1983, following repeated periods of hospitalization, Smith sued Amtrak in the United States District Court for the District of Connecticut under the Federal Employers' Liability Act ("FELA"), 45 U.S.C. §§ 51-60 (1982), and in February 1987, after a 13-day jury trial, was awarded damages in the amount of $3.5 million.
The district court, Ellen Bree Burns, Judge, thereafter granted Amtrak's motion for entry of judgment notwithstanding the verdict and for a new trial. In granting judgment n.o.v., the court ruled that there was insufficient evidence for the jury to find that Smith's injuries were causally related to Amtrak's negligence in not reporting or disciplining plaintiff's assailant when he previously demonstrated his propensity for violent behavior. Because Smith was the individual responsible for imposing disciplinary sanctions against Amtrak employees at the New Haven plant, the court reasoned, "any disciplinary action relative to the earlier incidents would have also precipitated an attack upon plaintiff. In this sense, since the record demonstrates that the reporting of a violation of the rules actually led to plaintiff being shot, it cannot be said that the failure to report prior incidents played any role in the causing of injury to plaintiff."
In addition to directing the entry of judgment n.o.v., the court also granted Amtrak's motion for a conditional new trial. Judge Burns ruled that Amtrak was prejudiced by allusions in plaintiff's counsel's summation to plaintiff's fears of never having a family, becoming a public charge, and experiencing pain and suffering in the future if his infection recurred. This appeal ensued and we now reverse.
In a case arising under the FELA, a court may set aside a jury verdict and enter judgment n.o.v. "only when there is a complete absence of probative facts to support the conclusion reached" by the jury. Lavender v. Kurn, 327 U.S. 645, 653, 90 L. Ed. 916, 66 S. Ct. 740 (1946). The district court determined that there was ample evidence to support the verdict that Amtrak was negligent in not following its own rules requiring that employee misconduct be reported to supervisory personnel. However, it concluded that the jury must have engaged in impermissible speculation regarding the causative link between that negligence and plaintiff's injury, since the evidence adduced at trial showed that Leonetti's propensity for violence would likely have caused him to attack Smith whenever it was reported that Leonetti had committed an infraction of an Amtrak rule sufficiently serious to require that Smith impose a disciplinary sanction. Consequently, it reasoned, Amtrak's negligence did not cause plaintiff's injury since Smith would have been injured even if the earlier incidents had been reported.
The standard of causation in an FELA action is a "low and liberal" one that "works in favor of submission of issues to the jury . . . rather than toward foreclosure through a directed verdict or judgment n.o.v." Diebold v. Moore McCormack Bulk Transp. Lines, Inc., 805 F.2d 55, 58 (2d Cir. 1986). The jury was properly instructed that it should find the defendant liable if Amtrak's "negligence played any part, even the slightest," in contributing to Smith's injury, Rogers v. Missouri Pac. R.R., 352 U.S. 500, 506, 1 L. Ed. 2d 493, 77 S. Ct. 443, reh'g denied, 353 U.S. 943, 1 L. Ed. 2d 764, 77 S. Ct. 808 (1957), and after seeking clarification of the court's instructions on causation, it awarded plaintiff $3.5 million in compensatory damages. While the causal connection between Amtrak's negligent conduct and Smith's injury was undoubtedly weak, "Congress vested the power of decision in these actions exclusively in the jury in all but the infrequent cases where fair-minded jurors cannot honestly differ whether fault of the employer played any part in the employee's injury." Id. at 510 (footnote omitted) (emphasis added).
Although the district court thought the jury engaged in impermissible speculation by determining that Smith might have been able to avoid injury if forewarned of Leonetti's violent tendencies, it was just as speculative for the court to infer that Leonetti would have attacked Smith whenever and however a reprimand were given. In cases involving a negligent failure to act, "courts have been generous in permitting the evidence to go to the jury . . . even 'though it is often a pretty speculative matter whether the precaution would in fact have saved the victim.'" Coffran v. Hitchcock Clinic, Inc., 683 F.2d 5, 11 (1st Cir.) (quoting 2 F. Harper & F. James, The Law of Torts § 20.2, at 1113 (1956)), cert. denied, 459 U.S. 1087, 74 L. Ed. 2d 933, 103 S. Ct. 571 (1982). Where two equally permissible inferences may be drawn from a single set of facts, we cannot conclude that no fair-minded juror could reasonably infer that Amtrak's negligence played some part in causing plaintiff's injury.
The negligence of the defendant cannot be excluded as one of the actual causes of the accident, unless it can be said with certainty that, even if the defendant had not been negligent, the accident would nevertheless have happened. It is not enough to speculate "that the same harm might possibly have been sustained had the actor not been negligent." Restatement of Torts, § 432, Comment "c".
Billiar v. Minnesota Mining & Mfg. Co., 623 F.2d 240, 247 (2d Cir. 1980) (quoting Rugg v. State, 284 A.D. 179, 182, 131 N.Y.S.2d 2, 6 (N.Y. App. Div. 1954); emphasis in Billiar). Given the low burden of proof on the element of causation in a FELA action, we conclude that the jury verdict was supported by the evidence adduced at trial and should not have been set aside by the district court. See generally 4 F. Harper, F. James & O. Gray, The Law of Torts § 20.2, at 97-98 (2d ed. 1986).
Based upon what it perceived as the improper remarks of plaintiff's counsel during his summation to the jury, the district court also granted Amtrak's motion for a conditional new trial. Although an order granting a new trial is generally not appealable, Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 34, 101 S. Ct. 188, 66 L. Ed. 2d 193 (1980) (per curiam), an appellate court may review such an order when, as here, it is issued in conjunction with the grant or denial of judgment n.o.v. and the new trial is conditional upon appellate reversal of that judgment. Fed. R. Civ. P. 50(c); Akermanis v. Sea-Land Service, Inc., 688 F.2d 898, 904 (2d Cir. 1982), cert. denied, 461 U.S. 927, 77 L. Ed. 2d 298, 103 S. Ct. 2087 (1983); 9 J. Moore, B. Ward & J. Lucas, Moore's Federal Practice P. 110.08, at 122 (2d ed. 1987).
Although trial courts possess broad discretion to determine when the conduct of counsel is so improper as to warrant a new trial, see Draper v. Airco, Inc., 580 F.2d 91, 94 (3d Cir. 1978), attorneys also require latitude in formulating their arguments, see Schwartz v. Northwest Airlines, Inc., 275 F.2d 846 (2d Cir. 1960) (per curiam). Not every improper or poorly supported remark made in summation irreparably taints the proceedings; only if "counsel's conduct created undue prejudice or passion which played upon the sympathy of the jury," Strobl v. New York Mercantile Exchange, 582 F. Supp. 770, 780 (S.D.N.Y. 1984), ...