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Lee v. Charles

United States District Court, S.D. New York

March 24, 2014

AMANDA LEE, Plaintiff,
JOEL B. CHARLES, and JOHN W. WANY, Defendants.

For Plaintiff Amanda Lee John P. Bostany

For Defendants Joel B. Charles and John W. Wany JAMES G. BILELLO & ASSOCIATES Christopher Miller.


JOHN F. KEENAN, District Judge.

Before the Court is Plaintiff's motion for a new trial. Although Plaintiff prevailed at trial, she now contends that this Court's instructions to the jury were plainly erroneous and prejudicial, such that the jury's award of damages was diminished. For the reasons that follow, the motion is denied.

I. Background

The facts of this personal injury case are set forth in several of this Court's prior opinions, particularly Lee v. Charles, ___ F.Supp.2d ___, 2013 WL 6415722 (S.D.N.Y. 2013). Briefly stated, at about 11:20 P.M. on September 18, 2012, Plaintiff Amanda Lee was walking westbound on York Avenue in the north crosswalk at East 68th Street in Manhattan when she was struck by a car owned by Defendant John W. Wany and driven by Defendant Joel B. Charles.

Prior to trial, the Court granted summary judgment for Plaintiff as to liability. A jury trial was scheduled to determine the proper amount of damages. See id. at *2-4. Before the trial began, the parties each submitted their requested jury charges. Plaintiff submitted only three: New York Pattern Jury Instruction ("PJI") 2:280 (Injury and Pain and Suffering); PJI 2:281 (Life Expectancy Tables); and PJI 2:284 (Shock, Emotional Distress and Physical Consequences Thereof). (ECF No. 91.) The Court incorporated each of these requested instructions into the jury charge. (Miller Aff. of Dec. 27, 2013 Ex. 1 at 3).

The damages trial was held November 13-18, 2013. At trial, Plaintiff presented evidence that she sustained a "serious injury" as defined in New York Insurance Law ยง 5102(d), namely, a tibia fracture. The Court now recounts the trial testimony only as is relevant to the instant motion.

Plaintiff first called Dr. Jerry Lubliner, an orthopedic surgeon, to testify as an expert witness. Dr. Lubliner testified on direct examination that when he examined Plaintiff a year after the accident, her fracture had healed and her knee showed a full range of motion. (Trial Tr. at 40-41.) Dr. Lubliner stated that Plaintiff complained of recurrent pain, although he noted: "Pain is what we call subjective. You cannot take a picture of it. You cannot measure it. The patient tells you about it." (Id. at 41.) On cross-examination, Dr. Lubliner added that he found no atrophy and no swelling in Plaintiff's knee, thigh, or calf. (Id. at 51, 56-58.) Nor did he find any torn ligaments, nor did he observe any limp or abnormality in Plaintiff's gait. (Id. at 59-61.) Dr. Lubliner did testify, however, that he believed Plaintiff would be permanently limited in her ability to ski, hike, run, and swim. (Id. at 63.)

Plaintiff next called Dr. Joseph Persico, a physical therapist who had worked with her and who was also permitted to testify an expert in the field of physical therapy. Dr. Persico testified at some length regarding his treatment of Plaintiff from October 2012 to February 2013. He recounted that over the course of her therapy, she regained the ability to put weight on the injured knee. (Id. at 129-30.) He stated that Plaintiff was not recommended to be discharged from physical therapy in February (id. at 104, 106, 148), but that she never returned for more treatment after her February 4 visit. (Id. at 134-35.) Dr. Persico also read a May 1, 2013 discharge note from Plaintiff's physical therapy records, which stated, in part: "Patient has met both long- and short-term goals and has been discharged." (Id. at 118.)

Plaintiff then took the stand to testify regarding her damages. When asked on direct examination about her hobbies, Plaintiff answered that she had been an "avid long-distance runner, " although she had run only one race, a half-marathon in Iceland. (Id. at 159.) She also recounted her international travel. (Id.) As for activities, Plaintiff testified that she was interested in caving, but that she had found it "really difficult to get into that hobby" because she had not found other people with that interest. (Id.) She further testified that she had "been trying to get into wall climbing and rock climbing." (Id.) She also noted her interest in swimming, skiing, and hiking. (Id. at 175-76.)

On cross-examination, Plaintiff testified that she had not taken any painkillers since the spring of 2013. (Id. at 207-09.) She discussed her family vacation to Disneyworld in June 2013, during which she travelled via airplane, walked around the parks, and rode the attractions. (Id. at 208-11.) She also testified that no doctor had advised her not to run or ski, and that she had gone swimming twice since her accident. (Id. at 211-12.) On redirect examination, Plaintiff stated that she joined a gym after the accident, but only visited the gym between three and five times in 2013. (Id. at 222.)

Plaintiff rested at the conclusion of her testimony and the Court made the finding that she had been seriously injured under the Insurance Law. For reasons that are not relevant to the instant motion, Defendants did not call any witnesses. (Id. at 150-55, 239-41.)

The charge conference was held on November 18, 2014. Neither side got exactly the charge it wanted. Defense counsel objected to the inclusion of PJI 2:284 (Shock, Emotional Distress and Physical Consequences Thereof) on the grounds that there was no allegation or evidence that Plaintiff suffered psychological injuries or emotional trauma. (Id. at 236-37.) The Court overruled counsel's objection and included the substance of PJI ...

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