DECISION & ORDER
MARIAN W. PAYSON, Magistrate Judge.
On December 13, 2006, Mark Alan Carlson ("Carlson") filed this action against the New York State Department of Correctional Services ("DOCS") and certain of its officers at Livingston Correctional Facility, alleging that the defendants violated his rights under the First, Eighth and Fourteenth Amendments, as well as his rights under the Americans with Disabilities Act and the Rehabilitation Act. (Docket # 1). Following resolution of the defendants' summary judgment motion, Carlson's sole remaining cause of action was his claim for deliberate indifference against defendant Jamieson Parry ("Parry") under 42 U.S.C. § 1983. (Docket # 66).
After a three-day trial, a jury returned a verdict in favor of Parry on January 16, 2013. (Docket # 80). Currently pending before the Court is Carlson's motion for a new trial pursuant to Rule 59 of the Federal Rules of Civil Procedure. (Docket # 88). For the reasons discussed below, Carlson's motion for a new trial is denied.
I. Procedural History
Carlson commenced this action against Parry claiming that Parry was deliberately indifferent to Carlson's health or safety while he was incarcerated at Livingston Correctional Facility ("Livingston") in 2005. (Docket # 33 at ¶¶ 1-56). Parry, who was employed at Livingston as the Senior Corrections Counselor in 2005, denied that he was deliberately indifferent to Carlson's health or safety and asserted various affirmative defenses, including Carlson's alleged failure to exhaust his administrative remedies. (Docket # 34 at ¶¶ 18-19).
Prior to the trial, Parry filed a motion seeking dismissal of Carlson's claim on the grounds that he had failed to exhaust his administrative remedies because he had never filed a grievance concerning Parry's alleged conduct. (Docket # 70). Carlson opposed the motion, contending that he was excused from exhausting his administrative remedies through the grievance process. (Docket # 73). Specifically, Carlson asserted that he did not grieve Parry's conduct because he felt threatened and feared retaliation. (Docket # 74 at ¶¶ 39-42). According to Carlson, his concerns were two-fold: (1) Parry had the ability to assign him to harsh work assignments and (2) Parry had made a statement that Carlson interpreted to be a "direct threat of bodily injury." ( Id. at ¶¶ 39-45).
The Court denied the exhaustion motion. Specifically, the Court determined that a ruling on exhaustion would require the Court to make factual findings that were intertwined with the merits of Carlson's deliberate indifference claim. Accordingly, the Court concluded that the exhaustion defense should be submitted to the jury along with the deliberate indifference claim.
A trial was conducted between January 14, 2013 and January 16, 2013. (Docket ## 81, 82, 83, 84). On the first day of the trial, prior to jury selection, the Court conducted a conference with the parties outside the presence of the jury. (Tr. at 7). During that conference, counsel for Carlson confirmed the Court's understanding that Carlson's evidence relating to exhaustion would be limited to facts supporting "the view that... Parry's conduct and statements amounted to threats or intimidation such that a person of ordinary firmness would have been deterred from filing a grievance." ( Id. ). The parties agreed that with respect to the exhaustion issue, the jury would need to answer only a single question on the verdict form regarding whether "threats or intimidation effectively made the grievance process unavailable." ( Id. ).
Following jury selection, outside the presence of the jury and prior to Carlson's direct testimony, counsel for Carlson alerted the Court to a potential evidentiary issue. (Tr. 101). Specifically, Carlson's counsel informed the Court that he intended to elicit testimony from Carlson regarding the reasons for Carlson's failure to file a grievance with respect to Parry's conduct. Counsel indicated that he expected Carlson would testify that part of the reason that Carlson was intimidated from filing a grievance was that Carlson had witnessed or had knowledge of retaliation inflicted on other inmates who had filed grievances against other officers. ( Id. ). Carlson's counsel conceded that such testimony would not include evidence of Carlson's knowledge of any actions taken by Parry against other inmates, but would relate solely to actions other officers took against other inmates. (Tr. 102). Counsel for Parry objected to the testimony on the grounds that Carlson had failed to assert such facts in his affidavit in opposition to Parry's exhaustion motion. (Tr. 101-02). In addition, counsel for Parry contended that the testimony would likely involve hearsay and that it would be improper under the equitable doctrine of estoppel to impute other officers' conduct to Parry. (Tr. 102).
The Court determined to exclude the proposed testimony on two grounds. First, the testimony was excluded on the grounds that Carlson had failed to allege such facts in opposition to defendant's exhaustion motion and it was "too late" to do so after the commencement of the trial. (Tr. 102-03). Second, the Court concluded that testimony regarding mistreatment or retaliation suffered by other inmates at the hands of other officers involving unrelated grievances was too attenuated, as a matter of law, to support a finding that the grievance process was unavailable to Carlson because he felt threatened or intimidated. (Tr. 103-04). For that reason, the Court determined that the testimony was also irrelevant. (Tr. 104).
At the conclusion of the trial, the jury was provided a verdict form. (Docket # 80). The first question on the verdict sheet provided:
EXHAUSTION OF ADMINISTRATIVE REMEDIES
1. Do you find that plaintiff Carlson has proven by a preponderance of the evidence that defendant Parry's statements or conduct towards him amounted to threats or intimidation that would have caused a person of ordinary firmness who was similarly situated to Carlson to be deterred from filing a grievance about Parry's treatment of him?
If you answered "yes" to Question #1, please answer Question #2. If you answered "no" to Question #1, you are now finished. Please sign and date the Verdict Form and return your verdict to the Court.
( Id. at 1). The verdict returned by the jury answered this question in the negative and, in accordance with the Court's instructions, answered no additional questions. ( Id. ). Judgment was entered in favor of Parry. (Docket # 85).
Carlson now seeks a new trial on two grounds. (Docket # 88). First, Carlson contends that the Court erred by excluding evidence that Carlson had witnessed "instances of retaliation by prison officials against inmates who had filed grievances against a prison official." (Docket # 88-2 at 2). According to Carlson, such information was relevant to allow the jury to assess whether an inmate who was "similarly situated" to Carlson would have been intimidated from filing a grievance with respect to Parry's conduct. ( Id. at 4). Second, Carlson contends that the jury's verdict that a person of ordinary firmness who was similarly situated to Carlson would not have been deterred from filing a grievance was against the weight of the evidence. ( Id. at 5). According to Carlson, the evidence concerning Carlson's disability, his pain, his inability to walk, his vulnerability and Parry's vindictiveness could lead only to the conclusion that a person under such circumstances would have been too intimidated to file a grievance. (Docket # 88-1 at ¶ 15).
Parry opposes the motion on three grounds. First, Parry contends that Carlson failed to preserve his objection to the exclusion of the evidence for subsequent review. (Docket # 90 at 2). According to Parry, Rule 103 of the Federal Rules of Evidence provides that in order to preserve an objection to the exclusion of evidence at trial, a party must make a formal offer of proof. ( Id. at 3). Carlson's failure to do so, Parry maintains, precludes meaningful review and warrants denial of his request for a new trial. ( Id. at 4). In addition, Parry contends that even if the exclusion of the proposed testimony was error, such error was harmless and therefore not grounds to warrant a new trial. ( Id. at 4-5). According to Parry, there was substantial evidence to allow the jury to conclude that an inmate under the circumstances faced by Carlson would not have been intimidated from filing a grievance, particularly where the evidence showed that Carlson submitted grievances on other issues during the same time period. ( Id. at 4-5). Finally, Parry asserts that the verdict was not against the weight of ...