The opinion of the court was delivered by: SCHEINDLIN
SHIRA A. SCHEINDLIN, U.S.D.J. :
Defendants Hobart Corporation ("Hobart") and Super Associated ("Super") filed motions for judgment as a matter of law pursuant to Rule 50(b) of the Federal Rules of Civil Procedure on October 21, 1996. On September 27, 1996, plaintiff moved for amendment of the retrial verdict. For the reasons set forth below, defendants' motion is denied and plaintiff's motion is granted.
This lawsuit stems from on-the-job injuries Liriano sustained when his hand was caught in a commercial meat grinder in 1993. As a result of this accident, Liriano suffered an amputation of his dominant right hand and part of his forearm. At the time Liriano suffered these injuries, he was seventeen years old and employed by Super, a grocery store in the Bronx.
The Model 4046 meat grinder that injured Liriano was designed by Hobart in 1961. The machine was equipped with a fixed pan and guard assembly. No warning labels concerning use of the meat grinder without the guard were affixed to the machine when it was sold or at any time thereafter. All parties concede that the guard was not on the machine at the time of the accident.
A jury trial was held from January 29 to February 8, 1996. The jury found for Liriano and awarded him $ 650,000. Pursuant to this Court's Opinion and Order of July 23, 1996,
a retrial was held to determine the existence and extent of Liriano's comparative negligence. On September 9, 1996, the retrial jury found in a special verdict that plaintiff was 33.3% comparatively negligent, and awarded damages in the total amount of $ 1,352,500.
APPLICABLE LEGAL STANDARD
The standard for granting a motion for judgment as a matter of law is a strict one. See Stubbs v. Dudley, 849 F.2d 83, 85 (2d Cir. 1988), cert. denied, 489 U.S. 1034, 103 L. Ed. 2d 230, 109 S. Ct. 1095 (1989). A motion under Rule 50(b) may be granted only:
where there is a complete absence of evidence supporting the verdict such that the jury's findings could only have been the result of sheer surmise and conjecture or there is such an overwhelming amount of evidence in favor of the movant that reasonable and fair minded persons could not arrive at a verdict against [the movant].
Ware v. ABB Air Preheater, Inc., 1995 U.S. Dist. LEXIS 14159, 1995 WL 574464, at *1 (W.D.N.Y. 1995) (citing Song v. Ives Laboratories, Inc., 957 F.2d 1041, 1046 (2d Cir. 1992)). In evaluating such a motion, "the Court may not weigh the evidence or assess the credibility of witnesses. Rather, the Court must view the evidence in the light most favorable to the non-moving party." Banff Ltd. v. Express, Inc., 921 F. Supp. 1065, 1068 (S.D.N.Y. 1995). See also Doctor's Associates, Inc. v. Weible, 92 F.3d 108, 111-12 (2d Cir. 1996).
Defendants' current arguments closely track those made in support of their previous Rule 50(b) motion following the first trial. First, Super maintains that because Hobart owed plaintiff no duty to warn as a matter of law, a jury should not be allowed to determine the extent of Hobart's liability to plaintiff. Second, Super argues that the Court should have charged the retrial jury that they could find plaintiff completely liable for his injuries, thus finding defendants not liable. Third, Super maintains that judgment as a matter of law must be granted as there was insufficient evidence of Hobart's fault presented at the second trial. Finally, Hobart argues that the instant motion should be granted because the testimony of plaintiff's expert should have been stricken from the record during the retrial.
II. Hobart's Legal Duty to Warn Liriano
The Court has already addressed the existence of Hobart's legal duty ...