the juror during a telephone interview. Counsel for Amtrak admits that the juror stated that she had not discussed any of the evidence adduced at trial nor any other specifics of the case with her mother. Nevertheless, defendant argues that an improper influence played a role in the jury's decision. In order to succeed in its quest for a new trial, however, defendant must do more than raise speculative allegations of jury taint. Here, Amtrak has failed entirely to specify what, if any, information the spectator impermissibly relayed to the jury, and likewise has presented no facts upon which the Court could measure the likelihood of prejudice.
Nor has defendant shown that the jury's impartiality was sacrificed by publicity surrounding a derailment involving one of defendant's trains. On the morning of August 3, 1994, before the jury was seated, defense counsel voiced concern over media coverage of a derailment which had occurred on August 2, 1994, the first day of trial. The Court heard argument outside the presence of the jury regarding the possible adverse effect coverage of the derailment could have on the jury. The Court then questioned the jury in banc, asking each of the eight jurors whether he or she had heard or seen anything about Amtrak that might effect his or her ability to render a fair and impartial verdict in the case. Each juror responded unequivocally in the negative. The voir dire held on the morning of August 3 was sufficient to alleviate any concerns the defense may have had regarding jury taint. If, as defendant now apparently claims, no real media impact would have occurred until later in the day on August 3 (when news media would have had sufficient time to cover the story), defendant had ample opportunity to request a second voir dire before the jury began deliberating on the morning of August 4. In any event, the voir dire conducted on August 3 thoroughly convinced the Court that each member of the jury was able and willing to render a true, fair, and impartial verdict free from outside influence.
C. Defendant is Entitled to a New Trial on the Issue of Damages Under Rule 59(a)
When proceeding under Rule 59(a), the court may order a new trial even where substantial evidence supports the jury's verdict. Song v. Ives Laboratories, Inc., 957 F.2d 1041, 1047 (2d Cir. 1992). Unlike judgment as a matter of law, 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." Grunenthal v. Long Island R.R. Co., 393 U.S. 156, 159, 89 S. Ct. 331, 333, 21 L. Ed. 2d 309 (1968). Generally, a new trial is proper where "the jury has reached a seriously erroneous result or . . . the verdict is a miscarriage of justice." Smith v. Lightning Bolt Prods., Inc., 861 F.2d 363, 370 (2d Cir. 1988).
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]). 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, 472 (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 that the court considers justified. Id.
In weighing the propriety of the nearly $ 384,000 verdict involved here, this Court properly may look to the amount of damages awarded to other plaintiffs in cases involving comparable 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 that they allege closely parallel the circumstances here. After reviewing jury verdicts rendered in analogous cases and conducting an independent appraisal of the evidence adduced at trial, the Court concludes that the $ 275,000 awarded for future pain and suffering exceeds the amount of damages reasonably supported by the record, and remittitur provides the most fair and efficient means by which to dispose of the present motion.
The Court here finds significant the fact that plaintiff suffered from a pre-existing condition and required no surgery or period of hospitalization as a result of her fall. Other courts have viewed such factors as determinative. For example, in Gumbs v. Pueblo Int'l, Inc., supra, the Court of Appeals for the Third Circuit further reduced a $ 900,000 damage award which the district court previously had reduced to $ 575,000. The plaintiff in Gumbs, like plaintiff here, suffered disc herniations and sought damages to compensate her for pain and suffering, mental anguish, and loss of enjoyment of life. After reviewing decisions in cases involving comparable injuries, the Third Circuit concluded that an award of $ 575,000 stood outside "even the outermost limits of the range of reasonable and acceptable verdicts for the injury the plaintiff sustained." 823 F.2d at 773. Although the Gumbs court recognized that the plaintiff's injuries "were not trivial," id., the fact that plaintiff did not submit to surgery, required no hospitalization, and suffered from a pre-existing back condition collectively led the court to conclude that the maximum recovery a jury reasonably could have awarded for past and future pain and suffering would have been $ 235,000.
Other courts have held similarly. For instance, in Seidman v. American Airlines, Inc., 923 F.2d 1134 (5th Cir. 1991), the Fifth Circuit Court of Appeals further reduced a jury award which the district court previously had reduced to $ 487,000, $ 250,000 of which was meant to compensate plaintiff for non-economic losses including pain and suffering. Relying principally on the fact that plaintiff had a pre-existing spinal condition, the court concluded that "the highest possible award that can be made for Seidman's pain and suffering, permanent disability and other non-economic losses is $ 100,000." 923 F.2d at 1141. Likewise, in Nairn v. National R.R. Passenger Corp., supra, the Court of Appeals for the Second Circuit vacated and remanded a jury verdict awarding approximately $ 400,000 for past and future pain and suffering. In Nairn, the plaintiff had suffered a back injury resulting in a 15% permanent functional impairment and non-curable disc degeneration. After reviewing awards granted in cases involving comparable injuries and noting that Nairn required no surgery nor period of hospitalization other than his initial visit to the emergency room, the court concluded that "an award for pain and suffering of at least $ 400,000 for a 15% functional impairment is one that 'shocks the judicial conscience.'" 837 F.2d at 568. See also Williams v. Martin Marietta Alumina, Inc., 817 F.2d 1030 (3d Cir. 1987) (court held excessive jury award of $ 300,000 for pain and suffering where plaintiff was never hospitalized for his injuries, sustained no herniated or bulging disc, and suffered from a pre-existing degenerative condition).
The Court is cognizant that plaintiff has lost a measure of the independence she once enjoyed before the accident, and currently suffers from a condition that not only is painful but also presents little hope of improving with the passage of time. However, plaintiff testified that pain medication alleviates much of her discomfort and allows her to engage in a portion of her normal daily activities. Plaintiff required no surgery or period of hospitalization as a result of the accident, and, according to the testimony provided by plaintiff's own medical expert, it is highly unlikely that she will undergo any surgical procedure in the future. The Court also views with great significance plaintiff's age and condition at the time of the accident. The parties and their experts agree that plaintiff is an elderly woman who suffers from degenerative arthritis. Indeed, defendant's expert testified that in his opinion some, if not all, of plaintiff's symptoms originate from degenerative disc disease and her arthritic condition, rather than from the accident at issue. Plaintiff's life expectancy, as set forth in the mortality tables and as decided by the jury, is limited to twelve years.
Based on verdicts rendered in analogous cases and the evidence adduced at trial, this Court is of the opinion that a properly functioning jury should have found that a maximum award of $ 175,000 reasonably and fairly would compensate plaintiff for her future pain and suffering. Plaintiff therefore has the option of accepting a total reduced damage award of $ 283,585.15, or facing a new trial on the issue of damages.
For the reasons set forth above, defendant's motion under Rule 50(b) for judgment as a matter of law hereby is DENIED. Defendant's Rule 59(a) motion for a new trial on the issue of damages hereby is GRANTED unless plaintiff accepts remittitur of damages in excess of $ 283,585.15, the maximum amount of damages this Court finds reasonably supported by the record. A new trial on the issue of damages is scheduled to commence Monday, December 5, 1994, unless plaintiff files remittitur with this Court within fourteen (14) days of the date of this order.
Dated: Brooklyn, New York
November 4, 1994
John R. Bartels
UNITED STATES DISTRICT JUDGE