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June 4, 2004.


The opinion of the court was delivered by: ROBERT PATTERSON, Senior District Judge


Danielle Rosenberg ("Plaintiff) moves for a new trial on the issue of future damages pursuant to Fed.R.Civ.P. 59(a). Zachary Aeschliman ("Defendant") moves, pursuant to Fed.R.Civ.P. 15(b) to amend his Answer to include the affirmative defense of setoff under N.Y. General Obligations Law § 15-108. For the following reasons, Plaintiff's motion is granted and the issue of Defendant's motion is not reached as granting Plaintiff's motion makes it moot.


  After a trial from March 8 to March 12, 2004, a jury found that Plaintiff and Defendant were each 50% liable for a motor vehicle collision that occurred on June 27, 2002. Liability was heavily contested at trial.

  As a result of the accident, Plaintiff fractured her second cervical vertebrae. The jury awarded Plaintiff $100,000 for pain and suffering to date and no damages for future pain and suffering. Plaintiff's case-in-chief included testimony by the Plaintiff, her mother (Maria Rosenberg), and Plaintiff's orthopedic surgeon.

  Regarding her current state of health, Plaintiff testified that she still takes sleeping pills because at night she is in pain, experiences a stiff neck and thus has difficulty sleeping. (Tr. at 44-45.*fn1) She also testified that currently she still has pains in her neck and gets "stiff necks a lot." (Id. at 46.) She takes Tylenol PM and an anti-inflammatory about three times a week. (Id.) She has not played golf or tennis (activities she previously enjoyed) since the accident, because she does not "want to do anything to her neck." (Id. at 47.) Defense Counsel did not address this testimony on cross or by counter-testimony from an examining physician.

  Plaintiff's mother testified, "She can't do everything that she used to do before. She is angry, nervous. She complains about pain in her neck, that she can't sleep. She just can't sleep." (Tr. at 84.*fn2) Defense Counsel did not cross examine this witness.

  The bulk of the parties' arguments in this motion rest on the testimony of Dr. Neubardt, Plaintiff's orthopedic surgeon. He described the fracture in Plaintiff's second cervical vertebrae. (Tr. at 22-23.*fn3) Parties do not dispute that the auto accident between the parties was the proximate cause of the fracture. Dr. Neubardt testified that the injury is "consistent with complaints of pain, of stiffness and inability to move the neck." (Tr. at 25.) Dr. Neubardt first examined Plaintiff in July 2002. (Tr. at 12.) From July 2002 up to the time of the trial, Plaintiff complained to the doctor of difficulty sleeping. (Tr. at 35.) At a May 2003*fn4 appointment with Dr. Neubardt, Plaintiff "stated that she had continued symptoms of pain in the neck of several months duration, which was localized mostly to the back of the neck and was on and off, usually worse with activities, such as extension of the neck or rotation." (Id. at 39.) According to Dr. Neubardt the range of motion in Plaintiff's neck in May 2003 was "full, but slow." (Id.)

  At a December 17, 2003 examination by Dr. Neubardt, Plaintiff complained of off and on pain and occasional swelling in her neck. Dr. Neubardt found that her range of motion was near full, but slow. (Id. at 41.) Dr. Neubardt testified within a reasonable degree of medical certainty that Plaintiff's complaints were consistent with her injury. (Id. at 43.) Plaintiff was using Ambien to help her sleep at this time. (Id. at 42.) Dr. Neubardt testified, to a reasonable degree of medical certainty, that Plaintiff's symptoms of pain, stiffness in her neck, and difficulty sleeping, "indicated that there was posttraumatic changes that were producing pain for her on a chronic basis." (Id. at 44.) Dr. Neubardt clarified that by "chronic basis" he meant "a long term lasting basis." Id.)*fn5 Dr. Neubardt, however, was not asked and did not testify explicitly that Plaintiff would suffer pain in the future.

  An MRI performed in January 2004 revealed that the fracture was healed. (Tr. at 42.) X-Rays showed no sign of instability in the fracture. (Tr. at 40.)

  Dr. Neubardt testified that Plaintiff was at an increased risk of osteoarthritis due to her fracture. "I think that would be the only condition that one would not be surprised to see in an injury such as this or this particular injury." (Tr. at 47.)

  On cross-examination, Dr. Neubardt testified that Plaintiff did not complain of pain during her office visits on August 2, 2002*fn6 (Tr. at 55), August 6, 2002 (id. at 58), and September 22, 2002 (id. at 60). Dr. Neubardt also testified, "In light of the healing of the fracture . . .[it is] true that there is no reason to expect any type of neurological complications in [Plaintiff] as a result of her fracture." (Tr. at 59.) Dr. Neubardt further testified that the fracture had healed by September 22, 2002. (Tr. at 60) As of September 20, 2002, Dr. Neubardt's prognosis was that Plaintiff could return to normal physical activity in four to six weeks. (Tr. at 61.) Dr. Neubardt testified that his exam of May 12, 2003 elicited no tenderness, i.e. "pain elicited when an area of the body is palpitated." (Id. at 64.)

  Dr. Neubardt testified that in September 2002 he instructed Plaintiff to undergo physical therapy. (Tr. at 65.) In May 2003, Dr. Neubardt learned that Plaintiff did not undergo physical therapy at that time. (Id.) Nevertheless, Dr. Neubardt testified to a reasonable degree of medical certainty that this failure to follow his instructions did not affect "her long-term course at all." (Id.) Dr. Neubardt testified that in May 2003 he prescribed physical therapy to Plaintiff again, because he thought it would "help increased motion and ultimately reduce pain." (Tr. at 68.) At her meeting with Dr. Neubardt in December 2003, Plaintiff told the doctor that physical therapy was beneficial and did increase her range of motion and decrease her pain. (Tr. at 70.) Dr. Neubardt also testified that the medical records from Rye Physical Therapy indicated that Plaintiff underwent physical therapy at that institution from June 14, 2003 through August 18, 2003. (Tr. at 71.) Dr. Neubardt testified that if Plaintiff had no reports of pain, that would have been consistent with what he would have anticipated from her course of physical therapy. (Id.)

  The doctor also testified that other than Plaintiff's complaints of pain there is no indication in his chart of subjective evidence of continued ...

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