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May 6, 1996


The opinion of the court was delivered by: CHIN


 On June 15, 1992, Domenick Raspente, an individual with a long history of mental illness, was struck by a train while trespassing on railroad property under the influence of alcohol and medication. Raspente commenced this personal injury action against defendants National Railroad Passenger Corporation, a/k/a Amtrak ("Amtrak"), and John Springer to recover for his injuries.

 On May 2, 1996, on the second day of the second trial of this case, I granted defendants' motion for judgment as a matter of law pursuant to Fed. R. Civ. P. 50(b) dismissing the complaint. Although I stated my reasons on the record, I write now to more fully explain the basis for my decision.

 Statement of the Case

 A. Prior Proceedings

 This case was first tried from March 25, 1996 through April 2, 1996. Jury deliberations commenced the morning of April 2nd, and, at the end of the day on April 2nd, the jury wrote a note stating that it was deadlocked at 7-1. The jury returned the next day for further deliberations. In the early afternoon on April 3, 1996, it rendered a verdict as follows: It concluded that defendants were negligent and that plaintiff was contributorily negligent. It apportioned fault at 50% for plaintiff and 50% for defendants, but it awarded plaintiff zero in damages.

 In view of the seriousness of plaintiff's injuries, the jury's finding that defendants were 50% at fault could not be reconciled with its award of zero in damages. Hence, I granted plaintiff's motion for a new trial, although I denied his request that the new trial be limited to a determination of the amount of damages. I also denied defendants' motion for judgment on the pleadings. Although I was strongly of the view that plaintiff's claims were without merit, I also concluded that plaintiff had presented sufficient evidence from which a jury could reasonably conclude that defendants were at fault, at least in part. Argument was heard and my decision was rendered from the bench on April 24, 1996.

 The second trial commenced on May 1, 1996.

 B. The Second Trial

 At the second trial, plaintiff presented his own testimony and the testimony, by deposition, of Louis Coiro and John Springer. Coiro was the Amtrack police officer who found plaintiff at the scene of the accident. Springer was the train engineer who is also a defendant in the case. The only other evidence offered and received was a redacted copy of Coiro's report and two photographs of plaintiff's hip and leg (to show the injuries).

 Significantly, an issue arose with respect to the distance between "catenaries" -- metal configurations that hold up the overhead wires under which trains run -- at the site in question. At the first trial, defendants had stipulated that the distance between catenaries was approximately 300 feet. After the first trial, however, defendants actually measured the distances, and because of those measurements, defendants refused to stipulate at the second trial to the distance between catenaries. Plaintiff's counsel was advised of these circumstances on the first day of trial, after opening statements had been given.

 At approximately 11:25 a.m. on the second day of trial, plaintiff's counsel advised the Court that he had no other witnesses available to call at that moment, but that he had a witness on the way. *fn1" Hence, the trial could not proceed.

 On one occasion during the first trial, the proceedings had to be adjourned early for the day and the jury sent home precisely because plaintiff's counsel did not have a witness available to testify. I cautioned counsel at that time that if it happened again plaintiff would be deemed to have rested. Notwithstanding that warning, on a second occasion in the first trial plaintiff's counsel did not have a witness ready -- fortunately, however, a witness appeared within a few minutes.

 Because of these difficulties in the first trial, prior to the second trial I again instructed plaintiff's counsel to be sure that he had witnesses ready at all times so that the trial would not be delayed. Yet, on the second morning of the second trial, after the completion of plaintiff's testimony and following a mid-morning recess, plaintiff's counsel did not have a witness ready and available to testify.

 Accordingly, I asked plaintiff's counsel what additional evidence he proposed to offer on liability. He responded that he intended to call his investigator, Alan Levine, and an Amtrak design engineer, George Brunner, both of whom testified at the first trial. He stated that their testimony would be essentially the same as their testimony at the first ...

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