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DEWING v. ORKIN EXTERMINATING CO.

August 25, 1995

CAROL DEWING, Plaintiff, against ORKIN EXTERMINATING COMPANY, INC., d/b/a ORKIN PEST CONTROL, Defendant.


The opinion of the court was delivered by: THOMAS J. MCAVOY

 AND ORDER

 Before the court are two post-trial motions in the above-captioned matter. Defendant Orkin Exterminating asks the Court to set aside the verdict of the jury under Fed. R. Civ. P. 50(b) and renews their motion for judgment as a matter of law under Fed. R. Civ. P. 50(a)(1). Plaintiff Carol Dewing moves under Fed. R. Civ. P. 59(a) for a new trial.

 I. BACKGROUND

 Plaintiff claims that on July 8, 1991, defendant negligently applied pesticides at her place of employment, thereby causing her various physical and emotional injuries. Her cause of action came on for trial on May 15, 1995. Defendant moved for judgment as a matter of law both at the close of plaintiff's evidence and at the close of all evidence: the Court reserved on both motions. The jury retired at noon on Friday, May 19, 1995, but reported itself deadlocked at 7:00 p.m. that same evening. The Court gave the jury an Allen charge, Allen, 164 U.S. 492, 41 L. Ed. 528, 17 S. Ct. 154 (1896), and then dismissed the jury for the weekend at their request. Deliberations resumed on May 23, 1995 and after three hours of deliberations the jury rendered a verdict in favor of plaintiff.

 A. Defendant's Motion for Judgment as a Matter of Law:

 Defendant Orkin points out that at trial it was plaintiff's burden to prove defendant's negligence through a showing, by a preponderance of the evidence, of the familiar essential elements of negligence: 1) that defendant owed a cognizable duty of care to plaintiff; 2) that the defendant breached that duty; 3) and that plaintiff was damaged as a proximate result of that breach. See Stagl v. Delta Airlines, 52 F.3d 463, 467 (2d Cir. 1995). Defendant argues, as it did at trial, that since plaintiff's claims allege a breach by defendant of what is actually a specialized, professional standard of care applicable to defendant as a licensed pest control operator applying a federally regulated commercial pesticide, it was incumbent upon plaintiff to introduce some evidence defining that specialized standard of care. According to defendant, plaintiff's failure to introduce any evidence establishing either the applicable specialized standard or defendant's breach of that standard compels the Court to set aside the jury's verdict and enter judgment as a matter of law in their favor.

 1. The Standard for Judgment as a Matter of Law:

 The Second Circuit has established the standard for granting a judgment as a matter of law. The court in Mattivi v. South African Marine Corp., "Huguenot", 618 F.2d 163 (2d Cir. 1980), stated that:

 
the trial court cannot assess the weight of conflicting evidence, pass on the credibility of the witnesses, or substitute its judgment for that of the jury. Rather, after viewing the evidence in a light most favorable to the non-moving party (giving the non-movant the benefit of all reasonable inferences), the trial court should grant a judgment n. o. v. only when (1) there is such a complete absence of evidence supporting the verdict that the jury's findings could only have been the result of sheer surmise and conjecture, or (2) there is such an overwhelming amount of evidence in favor of the movant that reasonable and fair minded men could not arrive at a verdict against him.

 Id. at 167-68; see Samuels v. Air Transport Local 504, 992 F.2d 12, 14 (2d Cir. 1993); Mallis v. Bankers Trust Co., 717 F.2d 683, 688-89 (2d Cir. 1983). *fn1" Rule 50 of the Federal Rules of Civil Procedure governs the procedure for granting judgment as a matter of law by motion made before the jury retires, pursuant to Rule 50(a), or motion after the jury has spoken, pursuant to Rule 50(b). Fed.R.Civ.P. 50; see Samuels, 992 F.2d at 14.

 2. The Standard Applied:

 One issue that was hotly disputed at trial was the identity of the pesticide which was applied in plaintiff's presence. Defendant maintained, and defendant's service ticket reflected, that only Whitmire 565 plus, a pyrethrin compound, was applied on the date in question. Plaintiff claimed that PT 400 Ultraban, a chlorpyrifos containing compound, was sprayed in her presence: she testified that she was alarmed at the proximity of the pesticide application and affirmatively observed that the can being used was marked "PT 400 ultraban."

 Defendant points to the expert testimony of their witness Dr. Douglas Mampe, who testified that three of the four swab samples taken by the New York Department of Environmental Conservation ("NYDEC") four days after the disputed application showed no chlorpyrifos and the fourth showed a minute trace quantity. Defendant's expert opined that the absence of chlorpyrifos on the swabs rendered it scientifically impossible that PT 400 Ultraban was applied on the date in question. Defendant further points to the testimony of plaintiff's witness Charles Weiss, a NYDEC chemist, who stated that, barring some ...


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