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United States District Court, S.D. New York

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 injury to the Plaintiff's neck. (Id. at 72-73.)

  On cross-examination, Dr. Neubardt testified that, to a reasonable degree of medical certainty, Plaintiff has a thirty percent greater chance of developing osteoarthritis than someone who has not experienced a fracture. (Id. at 73.)


  When New York law controls the substantive claim in a diversity case in federal court, New York law applies to determinations of the adequacy or inadequacy of a damage award by a jury. Gasperini v. Center for Humanities, Inc., 116 S.Ct. 2211, 2215 (1996). "[A] jury verdict should be set aside as against the weight of the evidence where the evidence so preponderates in face of the other side that the verdict `could not have been reached on any fair interpretation of the evidence.'" Baker v. Shepard, 715 N.Y.S.2d 83, 86 (App. Div. 2000) (quoting Lolik v. Big VSupermarkets, 86 N.Y.2d 74, 76 (1995)).

  The evidence presented to the jury regarding Plaintiff's future damages consisted of the testimony of Plaintiff, Plaintiff's mother, and Plaintiff's orthopedic surgeon (Dr. Neubardt). Plaintiff asserts that the testimony regarding her future pain and suffering was "uncontroverted." (Pl.'s Mem. Law Supp. Mot. New Trial. Pursuant to FRCP 59(a) at 17.) According to Calderon v. Irani:

[A] jury's rejection of an expert's opinion cannot be made arbitrarily, but must be based on conflicting foundational facts or opinion found in the record. We have therefore held that `a jury's determination not to accept expert testimony and opinion must be supported by other testimony or by the cross examination of the expert.'
Calderon v. Irani, 296 A.D.2d 778, 779 (App. Div. 2002) (quoting Prescott v. Le Blanc, 247 A.D.2d 802, 803 (App. Div. 1998)). "The Jury was at liberty to reject the expert's opinion if it found the facts to be different from those which formed the basis for opinion." Herring v. Hayes, 135 A.D.2d 684, 684 (App. Div. 1987).

  Here, Defendant presented no expert opinion to conflict with Dr. Neubardt's opinion. However, Dr. Neubardt's opinion that Plaintiff will suffer from "chronic pain" is based on Plaintiff's complaints of pain and stiffness and not on any facts supported by his physical examination. (See Notice of Mot. Ex. D, Tr. at 44.) Defendant presented evidence to conflict with this foundational complaint, by pointing out that Plaintiff did not complain of pain at her visits with Dr. Neubardt in Summer 2002. Moreover, Dr. Neubardt testified that Plaintiff exhibited no tenderness in her neck as of May 2003 (id. at 64) and did have a slow, but full range of motion in her neck (id. at 39) and lack of pain would have been consistent with what Dr. Neubardt would have anticipated from Plaintiff's course of physical therapy (id. at 71). The jury also had an opportunity to see Plaintiff's demeanor and movements first hand to evaluate the veracity of her complaints of pain and stiffness. Finally, Plaintiff discontinued physical therapy after two months in the summer of 2003. (Id.) A reasonable juror could have determined that Plaintiff was no longer in pain and denied her future damages because they doubted that she would suffer from chronic pain.*fn7

  In contrast, Defendant presented no evidence conflicting with Dr. Neubardt's opinion that Plaintiff is 30% more likely to develop osteoarthritis than someone who has not had a bone fracture. Thus, the jury did not have a basis for discounting the expert's testimony regarding Plaintiff's increased potential for developing osteoarthritis and failing to award future damages for Plaintiff's increased risk of developing osteoarthritis.

  Plaintiff's request for a new trial is solely on the issue of future damages. Under New York C.P.L.R. § 4404, a trial court may order a new trial on all the issues "where it considers that error in some findings may have tainted others or where issues are interrelated." N.Y. C.P.L.R. § 440 (McKinney 1992), Legislative Studies and Reports (citing Bernstein v. Bernstein, 132 N.Y.S.2d 516 (1954)). It cannot be presumed that because an award of damages is inadequate that the award was the result of compromise. See Figliomeni v. Board of Education of the City School District of Syracuse, 38 N.Y.2d 178, 182 (1975). However, "[w]here there is a substantial likelihood that the jury's verdict results from a trade-off on a finding of liability, in return for a compromise on damages, the retrial should be on all issues." Farmer v. A & T Bus Co., 426 N.Y.S.2d 8, 10 (App. Div. 1983).

  It is likely that the jury's verdict in this case was the result of a compromise on the issues of liability, past damages and future damages. The jury's eleven hours of deliberation after a two-and-one-half-day trial, indicate that at least some issues were heavily contested. The Court cannot determine which issues were the most in dispute, but since Defendant produced no evidence on damages it seems more than likely that a compromise on liability was reached. Moreover, one hour after asking whether they had to fill out the entire verdict form, the jury reached a verdict. (See Court Ex. 22, submitted at 10:29 a.m. on March 12, 2004; Court Ex. 24, submitted 11:31 a.m. March 12, 2004.) Six of the ten questions on the verdict form pertained to the determination of liability; the other four related to damages. The speed with which the jury returned a lengthy verdict form after asking if it was necessary to complete the entire form, indicates that the jury did not thoroughly deliberate over each question, but rather reached a compromise verdict.


  For the foregoing reasons, Plaintiff's motion for is granted. Accordingly, a new trial on the issues of both liability and damages is granted unless the parties, within 20 days of service of a copy of the order of this Court, stipulate to increase the verdict to $175,000 for Plaintiff's past and future pain and suffering reduced by $25,000, the amount of the settlement between Plaintiff and Defendants Aaron Smith, Riteway Express, Inc, and Penske Truck Leasing Corp and by the percentage of comparative fault of 50%. See Whalen v. Kawasaki Motors Corp., 92 N.Y.2d 288, 294 (1998) (adopting the "settlement-first" method of reducing the verdict by first reducing the verdict by the amount of the settlement and then applying N.Y. C.P.L.R. § 1411 to discount the remainder by the proportion of plaintiff s comparative negligence). That is, the Court orders a new trial unless Defendant agrees to pay Plaintiff, and Plaintiff agrees to accept from Defendant, $75,000 in full settlement of her claims.


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