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May 24, 1994


The opinion of the court was delivered by: JOHN R. BARTELS


 The defendant the Long Island Railroad Company (the "Railroad") moves this Court under Rule 59(a) of the Federal Rules of Civil Procedure for an order granting defendant a new trial on the grounds that the damages awarded by the jury for plaintiff's past pain and suffering were excessive. For the reasons set forth below, the motion for a new trial on the issue of damages is granted unless plaintiff elects to file remittitur of damages in excess of $ 200,000, the maximum damage award the Court finds supported by the record.


 On the morning of January 21, 1992, plaintiff Frederick Schramm sustained head and neck injuries when he was struck in the back of the head by a large tree limb. At the time of the accident, plaintiff was employed by defendant Railroad and was working on an embankment adjacent to a right-of-way on the Bay Ridge Branch in Brooklyn. Mr. Schramm and his crew had been attempting to cut and then clear the tree from the embankment when a branch suddenly fell, striking him on the back of the head.

 Plaintiff suffered a concussion and missed five months of work as a result of the incident, returning to his job with defendant on or about July 1, 1992. Plaintiff never was hospitalized and underwent no surgical procedure as a result of the accident. However, he has received and continues to receive medical treatment for various symptoms, including headaches, neck spasms, and a facial tic, all of which he alleges constitute post-concussion syndrome and stem from the injury sustained on the day of the accident.

 The case was tried before this Court and heard by a jury on January 10, 11, and 12 of this year. The Court bifurcated the trial, first submitting to the jury the issue of liability. After finding the Railroad negligent, the jury then returned a verdict in favor of plaintiff in the amount of $ 250,000. The jury awarded plaintiff $ 17,500 for lost earnings, with the balance of $ 232,500 in damages to compensate plaintiff for past pain and suffering. The jury specifically awarded no damages for future loss of earnings or future pain and suffering. Immediately after the jury rendered its verdict, defendant Railroad moved for judgment notwithstanding the verdict on the ground that the damages awarded for past pain and suffering were excessive. This Court denied that motion. By way of the present motion, defendant again challenges the reasonableness of the jury's award.


 Rule 59(a) of the Federal Rules of Civil Procedure vests with the district courts considerable discretion in ordering a new trial. Haber v. County of Nassau, 557 F.2d 322, 325 (2d Cir. 1977). The court should grant such a motion where "the jury has reached a seriously erroneous result or . . . the verdict is a miscarriage of justice." Smith v. Lightning Bolt Prod., Inc., 861 F.2d 363, 370 (2d Cir. 1988). Generally, the courts of this Circuit consider a jury verdict excessive "if it is so high as to 'shock the judicial conscience.'" Schneider v. National R.R. Passenger Corp., 987 F.2d 132, 137 (2d Cir. 1993) (quoting Nairn v. National R.R. Passenger Corp., 837 F.2d 565, 567 [2d Cir. 1988]).

 Unlike judgment notwithstanding the verdict, the court may order a new trial under Rule 59(a) even where substantial evidence supports the jury's verdict. Song v. Ives Laboratories, Inc., 957 F.2d 1041, 1047 (2d Cir. 1992). The court is not constrained to view the evidence on the record in the light most favorable to the non-movant, Paper Corp. of the U.S. v. Schoeller Technical Papers Inc., 807 F. Supp. 337, 347 (S.D.N.Y. 1992), but rather conducts its own "detailed appraisal of the evidence bearing on damages." Grunenthal v. Long Island R.R., 393 U.S. 156, 159, 89 S. Ct. 331, 333, 21 L. Ed. 2d 309 (1968). Because the calculation of damages traditionally is within the province of the jury, Ismail v. Cohen, 899 F.2d 183, 186 (2d Cir. 1990), the court must accord substantial deference to the jury's findings of fact. Smith v. National R.R. Passenger Corp., 856 F.2d 467 (2d Cir. 1988).

 Although the law accords a jury broad discretion in ascertaining damages, the law does not permit a jury to "abandon analysis for sympathy for a suffering plaintiff and treat an injury as though it were a winning lottery ticket." Gumbs v. Pueblo Int'l, Inc., 823 F.2d 768, 773 (3d Cir. 1987). Rather, the award must be fair and reasonable, and the injury sustained and the amount awarded rationally related. This remains true even where intangible damages, such as those compensating a plaintiff for pain and suffering, cannot be determined with exactitude. See Williams v. Aer Lingus Irish Airlines, 655 F. Supp. 425, 427 (S.D.N.Y. 1987).

 If after weighing the evidence the court finds that a jury verdict is excessive, the court has the option of ordering a complete new trial or a trial limited to damages. Phelan v. Local 305 of the United Ass'n of Journeymen, 973 F.2d 1050, 1064 (2d Cir. 1992), cert. denied, U.S. , 113 S. Ct. 1415 (1993). Alternatively, the process of remittitur allows the court to grant a Rule 59(a) motion, while presenting the plaintiff with the choice of either submitting to a new trial or agreeing to the reduced damage award which the court considers justified. Id.

 In weighing the excessiveness of the $ 232,500 verdict for past pain and suffering, this Court properly may look to the amount of damages awarded to other plaintiffs in cases involving similar injuries. Schneider, 987 F.2d at 137. However, the Court should not view these awards in a vacuum, but should take into consideration plaintiff's particular injuries and the unique circumstances of this case. Id. Both parties have cited and discussed a plethora of cases which they each allege closely parallel the circumstances here. After conducting a thorough review of these cases and of jury verdicts rendered in analogous cases, the Court concludes that $ 232,500 for past pain and suffering exceeds the amount of damages reasonably supported by the record, and that remittitur provides the most fair and efficient means by which to dispose of the present motion.

 At trial, plaintiff submitted evidence of various medical conditions for which he has been receiving treatment since the time of the accident in January 1992 through the time of trial in January 1994. Plaintiff testified that he has suffered and continues to suffer from severe headaches, insomnia, vertigo, facial tics, nausea, and neck pain. He asserts that his condition prevents him from fully enjoying his life, and that the time he spends with his wife and children has been impaired. Although the jury ...

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