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Beaudoin v. A.D. Bowman & Sons Lumber Co.

February 2, 2009

PASCAL BEAUDOIN, BRANDY WATKINS, CAROL FOURNIER, AS EXECUTOR/LIQUIDATOR OF THE ESTATE OF JACQUES FOURNIER AND MARTINE PAUL AS TUTRIX TO THE INFANTS GUILLAUME FOURNIER AND FEDERICK FOURNIER, PLAINTIFFS,
v.
A.D. BOWMAN & SONS LUMBER CO., INC. AND DONALD H. WATER, DEFENDANTS.



The opinion of the court was delivered by: Thomas J. McAVOY Senior United States District Judge

DECISION and ORDER

Plaintiffs commenced the instant action seeking to recover for damages caused by an accident on Route 11, County of Broome, State of New York. This matter was tried before a jury which, among other things, found no liability as to Defendant Bowman Lumber. Plaintiffs now move for a new trial pursuant to Fed. R. Civ. P. 59 on the grounds that: (1) the Court improperly responded to a jury question; and (2) the jury's verdict as to Defendant Bowman Lumber was seriously erroneous and a miscarriage of justice. Defendant Bowman Lumber opposes the motion.

I. FACTS

During the trial in this matter, counsel for Defendant Bowman Lumber questioned witness Larry Levine concerning an investigation by the Occupational Safety Health Administration ("OSHA") of the subject accident. Bowman's counsel asked whether the accident was investigated by OSHA and whether OSHA is the federal agency charged with the responsibility of ensuring worker safety. After receiving affirmative responses to both questions and before any further questioning, Plaintiff's counsel objected. At sidebar, counsel for Plaintiffs argued that OSHA's only role was to investigate injuries or causes of injuries to an employee by an employer and Bowman was not the employer. After some discussion at sidebar, there were two additional questions posed to Levine concerning OSHA. The follow-up questions were the result of an agreement by the parties. The questions and the responses were as follows:

Q: Okay. Mr Levine, we just mentioned that OSHA appeared at the site. Did they speak to the Bowmans?

A: Did they speak to Bowmans, I believe they did.

Q: As a result of that, did anything happen with respect to Bowman?

A: No.

During the jury's deliberations, it requested that the testimony of Larry Levine concerning the OSHA investigation be read back. The jury specifically requested "to reread the testimony by Larry Levine regarding OSHA...." Counsel for Plaintiffs asked that the Court instruct the jury that the actions and determinations of OSHA should play no role in the deliberations because OSHA only investigates employers and had no jurisdiction over non-employers, including Bowman. Fearing that any further instruction would be directing a verdict one way or another and would be presuming to know the reason why the jury asked for the read back, the Court declined to give any further instruction and had the relevant testimony read back to the jury without any explanation by the Court. The Court explained to the attorneys:

[Y]ou're always tempted to explain the law to the jury but in this case I think since the question was agreed upon, there wasn't any instructions and the Court completely forgot about that during the charge conference. Nobody gave me a request to charge or not charge and frankly I didn't think about that during the charge conference. So I think I'm going to let it alone....

The jury ultimately returned with a verdict of liability against Defendant Waters and a finding of no-liability against Bowman.

II. STANDARD OF REVIEW

"[A] new trial under Rule 59(a) 'may be granted even if there is substantial evidence supporting the jury's verdict,' and (2) 'a trial judge is free to weigh the evidence himself, and need not view it in the light most favorable to the verdict winner.'" Manley v. AmBase Corp., 337 F.3d 237, 244-45 (2d Cir. 2003) (quoting DLC Mgmt. Corp. v. Town of Hyde Park, 163 F.3d 124, 133-34 (2d Cir. 1998)). "[A] motion for a new trial pursuant to Fed. R. Civ. P. 59 may be granted by the district court, although there is evidence to support the jury's verdict, so long as the district court determines that, in its independent judgment, 'the jury has reached a seriously erroneous result or [its] verdict is a miscarriage of justice.'" Nimely v. City of New York, 414 F.3d 381 (2d Cir. 2005) (quoting Munafo v. Metropolitan Transportation Authority, 381 F.3d 99, 105 (2d Cir. 2004)). A motion for a new trial might be based on an argument that the trial was unfair to the moving party or that there was an error in the jury instructions. See S.E.C. v. DiBella, 2007 WL 2904211, at *3 (D. Conn. 2007). "One example of a miscarriage of justice would be an improper jury charge that ...


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