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SHIMON v. WONG

January 13, 1996

MARILYN J. SHIMON, Plaintiff, against DICK J. WONG, Defendant.


The opinion of the court was delivered by: SPATT

 SPATT, District Judge.

 On November 22, 1995, following a three day trial in this personal injury action, the jury returned a verdict in favor of the plaintiff Marilyn Shimon, awarding her damages in the sum of $ 75,000.00 for past injury, pain and suffering and the sum of $ 25,000.00 for pain and suffering in the future. The defendant Dick J. Wong conceded liability in this action.

 The defendant now moves, pursuant to Fed. R. Civ. P. 50(b), for an order directing that the jury's award of $ 25,000.00 for future pain and suffering be stricken. The defendant contends that the award for future pain and suffering is not consistent with the jury's findings that the plaintiff sustained neither permanent bodily loss, permanent bodily limitation, nor significant bodily limitation. The defendant argues that the jury found only that the plaintiff had overcome the serious injury threshold on the "90 out of 180 days" provision of N.Y. Ins. Law § 5102(d).

 DISCUSSION

 When a court evaluates a claim of inconsistency with regard to a jury's responses to special verdict sheet questions, the court should "'adopt a view of the case, if there is one, that resolves any seeming inconsistency.'" McGuire v. Russell Miller, Inc., 1 F.3d 1306 (2d Cir. 1993) (quoting Brooks v. Brattleboro Memorial Hosp., 958 F.2d 525, 529 (2d Cir. 1992) and Fiacco v. City of Rensselaer New York, 783 F.2d 319, 325 (2d. Cir 1986), cert. denied, 480 U.S. 922, 94 L. Ed. 2d 698, 107 S. Ct. 1384 (1987)); see also, Fed. R. Civ. P. 49. In the absence of a rational harmonization of the jury's answers, the court must vacate the judgment and order a new trial. Id.

 The Supreme Court and the Second Circuit have given the district courts a clear directive to strive to uphold a jury's verdict, stating,

 
A district court has a duty to reconcile the jury's answers on a special verdict form with any reasonable theory consistent with the evidence and to attempt to harmonize the answers if possible under a fair reading of those answers. Gallick v. Baltimore & Ohio R.R., 372 U.S. 108, 119, 83 S. Ct. 659, 666, 9 L. Ed. 2d 618 (1963); Pierce v. Southern Pacific Transp. Co., 823 F.2d 1366, 1370 (9th Cir. 1987). The court must search for a reasonable way to read the verdicts as expressing a coherent view of the case, Toner v. Lederle Lab., 828 F.2d 510, 513 (9th Cir. 1987), cert. denied, 485 U.S. 942, 108 S. Ct. 1122, 99 L. Ed. 2d 282 (1988), and if there is any way to view a case that makes the jury's answers to the special verdict form consistent with one another, the court must resolve the answers that way even if the interpretation is strained. Atlantic & Gulf Stevedores, Inc. v. Ellerman Lines, Ltd., 369 U.S. 355, 364, 82 S. Ct. 780, 786, 7 L. Ed. 2d 798 (1962). The district court should refer to the entire case and not just the answers themselves. Royal Cup, Inc. v. Jenkins Coffee Service, Inc., 898 F.2d 1514, 1519 (11th Cir. 1990).

 McGuire, supra, 1 F.3d at 1311 (emphasis supplied). It is within this framework that the Court addresses the present motion.

 The Court instructed the jury regarding the statutory definition of "serious injury" under New York state law and posed the following questions to the jury regarding four thresholds for recovery set forth in N.Y. Ins. Law § 5201(d):

 
1. As a result of the accident involved in this case, has the plaintiff Marilyn Shimon sustained a permanent loss of a body organ, member, function or system?
 
2. As a result of the accident involved in this case, has the plaintiff Marilyn Shimon sustained a permanent consequential limitation of use of a body organ or member?
 
3. As a result of the accident involved in this case, has the plaintiff Marilyn Shimon sustained a significant limitation of use of a body function or system?
 
4. As a result of the accident involved in this case, has the plaintiff Marilyn Shimon sustained a medically determined injury or impairment of a non-permanent nature, which prevented her from performing substantially all of the material acts which constitute her usual and customary daily activities for not less than ...

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