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
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
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