The opinion of the court was delivered by: Gary L. Sharpe U.S. District Judge
MEMORANDUM-DECISION AND ORDER
Richard Rivenburgh sued his railroad employer, CSX Corporation (CSX), pursuant to the Federal Employer's Liability Act (FELA), 45 U.S.C. § 51 et. seq., claiming that he sustained hearing loss in an accident caused by CSX's failure to provide him with a safe working environment. After a jury returned a verdict in Rivenburgh's favor, CSX moved for judgment notwithstanding the verdict or, alternatively, a new trial, see Dkt. No. 102; see also FED. R. CIV. P. 50 & 59, and Rivenburgh opposed. See Dkt. Nos. 105, 106. For the following reasons, CSX's motions are denied.
After Rivenburgh completed his direct case, CSX moved for judgment as a matter of law. See Dkt. No. 88 (Minute Entry). CSX supplemented its motion at the conclusion of the case, and the court reserved. Thereafter, the jury found CSX negligent, and Rivenburgh 40% at fault, comparatively. See id. Rivenburgh was awarded $600,000.00 in past pain and suffering and $400,000.00 in future pain and suffering.*fn1 See id. CSX then moved to set aside the verdict, and the court reserved decision pending the parties' additional submissions. See id.
On October 12, 2000, Rivenburgh had been employed as a car inspector at CSX's Selkirk, New York Yard for approximately fifteen years. See (Tr. at 58), Dkt. No. 100. On that day, he was repairing boxcars in the Departure Yard Building. See id. He was not wearing hearing protection. See (Tr. at 70). He was assigned to perform various repairs, perform a brake test on an outbound train, and to replace a cutting lever on a railroad car. See (Tr. at 59, 61). Beforehand, he requested additional assistance, but no help was sent. See (Tr. at 60).
In order to replace the cutting lever, Rivenburgh had to use an acetylene torch. See id. He had been trained on acetylene torch use through classroom instruction and hands-on experience. See (Tr. at 55). At the time of the accident, he had thirty years experience using the torch. See id.
He retrieved a torch from the only repair car in the yard. See id. Before striking the igniter to light it, he examined it "the best he could."*fn3
See (Tr. at 62). He conceded at trial that he did not see slag when he initially examined the torch. See (Tr. at 64).
When he turned on the oxygen tank and struck the igniter, the torch made a loud noise. See id. He characterized the noise as an "explosion," explaining that "the next thing [he] knew, [he] was on [his] knees and...was holding [his] ears because [he] couldn't hear nothing [sic]." Id. He described the noise as "the worst noise [he] ever heard." Id. After the explosion, he retrieved the torch and inspected it, and noticed that slag was embedded on the tip. See (Tr. at 66). He turned the torch off and placed it back in the repair truck. See id. According to CSX's safety documents, it was aware of hazzards associated with acetylene torch use, including "[b]lowback of hot slag because of ... explosive gases accumulating ...." See Exhib. List D-7, Dkt. No. 92.
Rivenburgh returned to the office where he filled out a safety report. See (Tr. at 68). He recalled having a headache, feeling dizzy and disoriented, and feeling pain in his ears, neck, and head immediately after the incident. See (Tr. at 68, 69). According to his medical expert, he suffered a permanent, irreversible hearing loss in his right ear at the conversational level. See (Tr. at 62).
"Judgment as a matter of law is proper when 'a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue.'" U.S. v. Space Hunters, Inc., 429 F.3d 416, 428 (2d Cir. 2005) (citing FED. R. CIV. P. 50(a)(1)). The court must "consider the evidence in the light most favorable to the party against whom the motion was made and...give that party the benefit of all reasonable inferences that the jury might have drawn in his favor from the evidence." Id. at 429 (internal quotation marks and citation omitted); see also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). "The court cannot assess the weight of conflicting evidence, pass on the credibility of the witnesses, or substitute its judgment for that of the jury." Space Hunters, 429 F.3d at 429 (internal quotation marks and citation omitted). "A jury verdict should be set aside only where there is 'such a complete absence of evidence supporting the verdict that the jury's findings could only have been the ...