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KEENAN v. WALDORF CARTING COMPANY

September 1, 2004.

JOHN MICHAEL KEENAN, Plaintiff,
v.
WALDORF CARTING COMPANY, Defendant.



The opinion of the court was delivered by: HENRY PITMAN, Magistrate Judge

OPINION AND ORDER

I. Introduction

Plaintiff John Michael Keenan ("Keenan") brought this diversity action seeking damages for personal injuries suffered on May 9, 2001 when he was allegedly run over by a garbage truck owned by defendant Waldorf Carting Company ("Waldorf"). The matter was tried to a jury from March 29, 2004 though April 2, 2004. On April 2, 2004, the jury rendered a verdict awarding Keenan $50,000 for pain and suffering through the date of the verdict, $50,000 for lost wages through the date of the verdict and $100,000 for future lost wages. The jury awarded no damages for future pain and suffering. The jury also found that 45% of the responsibility for the accident lay with Keenan. Plaintiff and defendant have both moved for a new trial and/or to amend the judgment pursuant to Rule 59, Fed.R.Civ.P. For the reasons set forth below, plaintiff's motion is granted in part and denied in part. Defendant's motion is denied in all respects.

  II. Facts

  On May 9, 2001, plaintiff, after teaching a yoga class on Manhattan's upper west side, was rollerblading southbound on Broadway. Plaintiff testified at trial that while he was rollerblading, a garbage truck in front of him was driving erratically and switching lanes without signaling. Plaintiff testified that as he was proceeding south in the vicinity of 31st Street and Broadway, the garbage truck suddenly turned right and plaintiff had to jump onto the sidewalk to avoid the truck. As he jumped onto the sidewalk, plaintiff testified that he hit a garbage can, flipped over and landed on his back on the sidewalk. Plaintiff testified that the garbage truck then drove onto the sidewalk and ran over his right leg and left ankle — fracturing his femur and fibula.*fn1

  New York City Police Officer Lundt, who responded to the accident scene, provided a slightly different account of the accident. He testified that when he arrived, plaintiff informed him that he had collided with the garbage truck while in the street and subsequently hit the garbage can. Plaintiff testified on rebuttal that he never told Officer Lundt where the accident occurred, but simply told him that he was struck by a garbage truck.

  As a result of the accident, plaintiff spent one week in New York's Bellevue Hospital where he underwent surgery to repair the damage to his leg. Specifically, plaintiff had a metal rod, the length of his femur, inserted into his leg and screwed into place. Plaintiff also had metal plates screwed into his ankle bone in order to help stabilize that fracture. After the surgery, plaintiff was prescribed morphine and codeine for pain. Plaintiff was subsequently transferred to Thomas Jefferson Hospital, closer to his home in Pennsylvania, where he spent another four to five days. Dr. Eric Hume, who treated plaintiff at Thomas Jefferson Hospital, testified that plaintiff suffered a "high energy injury" to his femur, as indicated by the crumbling of the bone around the fracture.

  Following his release from Thomas Jefferson Hospital, plaintiff spent one month in a wheel chair. He attended rehabilitation sessions several times a month and eventually began using leg braces. Plaintiff was unable to work for seven to twelve months following the accident. The rod, plates and other appliances were removed from his leg and ankle in a second surgery performed approximately eighteen months after the accident.

  At the time of trial, plaintiff had returned to work and was able to perform all activities of daily living. Dr. Hume testified that plaintiff had made a "very good recovery" and that plaintiff's fractures had healed so well that they were no longer apparent in x-rays (Hume Depo. at 32 & 34). Dr. Hume also testified that he believed that plaintiff would always suffer some "soreness and stiffness when he does his yoga" (Hume Depo at 35).

  Dr. Hume's testimony concerning plaintiff's recovery was corroborated by plaintiff's demonstration of the accident in court. During his testimony, plaintiff left the witness stand and lay down on the floor to demonstrate how the accident happened and the position of his legs during the accident. During this demonstration, plaintiff exhibited what appeared to be normal or better than normal flexibility and did not exhibit any signs of pain.

  Plaintiff testified that other instructors began teaching his classes while he was out of work and that these instructors continued to teach plaintiff's classes even after he returned to work. Plaintiff was paid on the basis of the number of classes taught. As a result, he earned less money after he returned to work than he did prior to the accident. Plaintiff also testified that as a result of his injuries, he will never be able to perform advanced yoga positions and, thus, never be able to become an advanced yoga instructor. Advanced yoga instructors earn more money than plaintiff does in his current position.

  III. Analysis

  A. Plaintiff's Motion

  Plaintiff moves for a new trial on the issue of damages on the grounds that (1) it was inconsistent for the jury to award damages for future lost wages but not for future pain and suffering and (2) the amount of damages awarded for past pain and suffering ...


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