represented that the material was produced to defendant promptly upon their receipt of it, and defendant does not dispute that assertion. At least some of the evidence in question was mentioned at the pretrial conference on September 12, 1994, but defendant sought no additional discovery and no continuance, either then or at trial. Defendant's expert, moreover, contradicted plaintiff's expert as to the likelihood of the future surgery, so defendant obviously had an opportunity to meet plaintiff's evidence.
I find no failure on the part of the plaintiff's counsel to make appropriate disclosure and no prejudice. Nor did defendant adequately preserve the point, given the lack of any application for a continuance of further discovery.
The Size of the Verdict
A jury's award of damages will not be disturbed unless it is so excessive that it shocks the judicial conscience and constitutes a denial of justice.
Ismail v. Cohen, 899 F.2d 183, 186 (2d Cir. 1990); Martell v. Boardwalk Enterprises, Inc., 748 F.2d 740, 750 (2d Cir. 1984); Koerner v. Club Mediterranee, S.A., 833 F. Supp. 327, 333 (S.D.N.Y. 1993).
In assessing whether a damage award is excessive, a New York court sitting in diversity may look to other jury awards condoned and remitted by the courts of the state whose substantive law governs the rights of the parties -- in this case, New York courts. See Raucci v. Town of Rotterdam, 902 F.2d 1050, 1058 (2d Cir. 1990). It is noted that New York appellate courts regard prior awards as not binding but instructive. Martell, 748 F.2d at 750.
Plaintiff's injuries were serious. Plaintiff was an athletic twenty-six year old when the accident occurred. He was subjected to severe pain following the incident. He has endured two operations thus far and is faced with the prospect of one or two additional operations, possibly including knee replacement. There is permanent damage to the joint. He is in constant, although varying, pain. He has been forced to curtail sharply a number of the athletic activities that formed an important part of his life. His life expectancy is over forty-two years, and he thus is likely to endure the consequences of this accident for a lengthy period. Medical expenses to date have been approximately $ 20,000. By the time of trial, however, there was evidence that Hill was doing well; he testified that his knee was much better by 1992-93.
I recognize that there was no claim of economic loss. Plaintiff presented no evidence that the accident interfered with plaintiff's career in any substantial way, except that his injuries have made travel for his business more painful. But I am not prepared to say that a rational jury, assuming it believed plaintiff and his expert as did this one, could not have reached this result.
An examination of the $ 400,000 award to plaintiff in light of the evidence and of awards for injuries of varying degrees of comparability establishes that the damage award is not excessive or shocking to the conscience. On an inflation-adjusted basis, the jury's award of damages in this case may be on the high end of awards sustained by New York courts.
However, I find that the award does not constitute a denial of justice and therefore will not be disturbed.
Judgment As A Matter of Law
The motion for judgment as a matter of law is without merit. There was ample evidence from which the jury could have found negligence, including the admitted failure of the defendant to post a sign or otherwise to warn its customers that one side of the double glass door through which one normally entered and left the store was locked. The evidence of causation and damage was obvious. Nor is there any responsible basis for asserting that no reasonable jury could have found plaintiff free of contributory negligence.
Stay Pending Decision
The application for a stay pending decision of this motion is moot.
Defendant's motion is denied in all respects.
Dated: November 15, 1994
Lewis A. Kaplan
United States District Judge