United States District Court, S.D. New York
OPINION AND ORDER
LORNA G. SCHOFIELD, District Judge.
This case is now before the Court on Plaintiff's Motion for a New Trial Pursuant to Rule 59 of the Federal Rules of Civil Procedure. For the following reasons, Plaintiff's motion is denied.
In December 2011, Plaintiff David Lessoff brought this suit against his employer, Defendant Metro-North Commuter Railroad ("Metro-North"), for injuries that Plaintiff sustained in the course of his employment as a train conductor. Plaintiff sought judgment and damages under the Federal Employers Liability Act ("FELA"). On September 26, 2013, after a four-day trial, the jury returned a verdict for Defendant, finding that Metro-North was not negligent. On October 23, 2013, the Court entered judgment dismissing the action.
On November 9, 2013, Plaintiff filed the instant motion, arguing that the Court committed seven errors that in substance pertain to four issues: (i) evidence, argument and a jury instruction concerning assumption of risk; (ii) Plaintiff's unrelated shoulder injury; (iii) Court-imposed limits on the parties' use of time during trial; and (iv) the permissibility of Defendant's use of peremptory challenges under Batson v. Kentucky, 476 U.S. 79 (1986).
Specific facts relevant to this motion are set forth as necessary in the discussion of each issue below.
Rule 59 of the Federal Rules of Civil Procedure provides in relevant part that "[t]he court may, on motion, grant a new trial on all or some of the issues - and to any party -... (A) after a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in federal court...." Fed.R.Civ.P. 59(a)(1). "A motion for a new trial should be granted when, in the opinion of the district court, the jury has reached a seriseriously erroneous result or... the verdict is a miscarriage of justice." Chin v. Port Auth. of N.Y. & N.J., 685 F.3d 135, 146 (2d Cir. 2012) (alteration in original) (quoting Song v. Ives Labs., Inc., 957 F.2d 1041, 1047 (2d Cir. 1992)) (internal quotation marks omitted), cert. denied, 133 S.Ct. 1724 (2013). An order for a new trial may be grounded on findings, inter al i a, "that the verdict is against the weight of the evidence, that the damages are excessive, or that, for other reasons, the trial was not fair to the party moving.' Santa Maria v. Metro-N. Commuter R.R., 81 F.3d 265, 273 (2d Cir. 1996) (quoting Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 251 (1940)); see also 11 Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 2805 (3d ed. 1998) (noting the broad terms in which Rule 59(a) is stated and observing that courts have ordered new trials for "[a]ny error of law" or findings "that the verdict is against the weight of the evidence, that the verdict is too large or too small, that there is newly discovered evidence, that conduct of counsel or of the court has tainted the verdict, ... that there has been misconduct affecting the jury, " or "that the verdict was based on false testimony"). A motion for a new trial may also "raise questions of law arising out of alleged substantial errors in admission or rejection of evidence or instructions to the jury." Montgomery Ward & Co., 311 U.S. at 251.
Rule 59(a) motions are "committed to the sound discretion of the district court...." Sequa Corp. v. GBJ Corp., 156 F.3d 136, 143 (2d Cir. 1998). "It is well-settled that Rule 59 is not a vehicle for relitigating old issues, presenting the case under new theories, securing a rehearing on the merits, or otherwise taking a second bite at the apple[.]" Analytical Surveys, Inc. v. Tonga Partners, L.P., 684 F.3d 36, 52 (2d Cir. 2012) (quoting Sequa Corp., 156 F.3d at 144) (internal quotation marks omitted), cert. denied, 133 S.Ct. 1805 (2013). Moreover, pursuant to Rule 61 of the Federal Rules of Civil Procedure, "[u]nless justice requires otherwise, no error in admitting or excluding evidence-or any other error by the court or a party - is ground for granting a new trial" - i.e., "it is only those errors that have caused substantial harm to the losing party that justify a new trial." 11 Wright & Miller, supra, § 2805.
At the outset, the Court notes that all of the issues raised by Plaintiff on this motion are ones that the Court had considered before or during trial. To the extent Plaintiff seeks to relitigate those issues, the motion is denied as improper under Rule 59. Analytical Surveys, Inc., 684 F.3d at 52. Nevertheless, the Court considers and rejects each of Plaintiff's arguments on the merits.
I. Assumption of Risk
Plaintiff argues that the Court erred in allowing defense counsel to cross-examine Plaintiff on his assumption of the risks of his employment by Defendant, a defense disallowed under FELA. Plaintiff also argues that the Court erred in allowing defense counsel to argue the assumption of risk defense during summation. Plaintiff contends that the Court's instruction to the jury regarding assumption of risk did not cure those errors but further confused the jury. These arguments are incorrect.
First, as the Court noted during the trial, Plaintiff's testimony during cross-examination to which Plaintiff's counsel objected was admissible as evidence of contributory negligence. Assumption of risk - unavailing as a defense under FELA, 45 U.S.C. § 54 - is "the knowledgeable acceptance by an employee of a dangerous condition when and if such acceptance was necessary for the performance of his duties.' Ammar v. United States, 342 F.3d 133, 139 (2d Cir. 2003) (quoting Rivera v. Farrell Lines, Inc., 474 F.2d 255, 257 (2d Cir. 1973)). Contributory negligence, on the other hand, "connotes some careless act or omission on the part of the employee over aid above [mere] knowledgeable acceptance' of a risk, " id. (alteration in original) (quoting Rivera, 474 F.2d at 257), and is a permissible defense in FELA cases to reduce the amount of damages to which a plaintiff would otherwise be entitled. 45 U.S.C. § 53.
The questions to which Plaintiff's counsel objected, and the corresponding responses from Plaintiff, could be construed by reasonable jurors as evidence of contributory negligence. The exchange was as follows:
[Defense counsel]: Now, knowing [the alleged unsafe conditions], didn't you think it was prudent to just sit down before taking off your belt while you were going through CP 5 area?...
[Plaintiff]: I didn't really - it's not something that - you don't think about every moment of every second what you're doing.... At that moment I wasn't exactly 100 percent certain where I was. I wasn't paying full attention; you don't pay attention to every second of every moment you're out there.
[Defense counsel]: Well, knowing what you knew back then, in the manner that you testified here, don't you think it would have been prudent for you to brace yourself by holding on or leaning somewhere while you were within the CP 5 area doing whatever it was that you were doing at the time that the incident occurred? [Plaintiff]: Conductors can't always hold on to every part of a train at every second when they are moving through it. It's not possible to do your job that way. You have to be able to balance and move, collect fares and move about.
This testimony followed defense counsel's earlier cross-examination of Plaintiff about certain safety rules that Plaintiff was required to follow as Defendant's employee. At one point, Plaintiff acknowledged that he was required to know and was routinely tested on the rules governing crew conduct, and that he did not report the engineer's alleged rough train handling to a supervisor as required by one of those rules. At another point, Plaintiff acknowledged that he also was required to be familiar with a rule requiring him to "[e]xpect and protect against the movement of trains, engines, track cars, or other equipment at any time on any track from either direction, " and another rule requiring him to "[b]e alert[, ] attentive and aware at all times when on duty." Especially in the context of this testimony, the cross-examination at issue reasonably can be viewed as evidence of Plaintiff's failure to abide by safety rules, over and above the knowing acceptance of the risks that those rules were designed to address. As such, the objected-to questioning was properly permitted to show contributory negligence. See E. Hampton Dewitt Corp. v. State Farm Mut. Auto. Ins. Co., 490 F.2d 1234, 1242 n.4 (2d Cir. 1973) (holding that the violation of a statute or regulation by the plaintiff may be considered as evidence of contributory negligence); Renaldi v. N.Y., New Haven & Hartford RR. Co., 230 F.2d 841, 844 (2d Cir. 1956) (holding that a railroad company's safety rules "are admissible when their purpose is to protect the class of persons by whom suit is brought and when their violation can reasonably be said to contribute to the injury sued upon"); see also Fashauer v. N.J. Transit Rail Operations, Inc., 57 F.3d 1269, 1280 (3d Cir. 1995) ("Examples of evidence of contributory negligence include failing to follow specific safety instructions reasonably calculated to protect the employee from the injury that occurred; failing to report a defect when the evidence establishes that such reporting would be productive; and failing to act prudently in performing the task.").
Plaintiff also challenges the part of defense counsel's closing argument that concerned contributory negligence:
[Plaintiff] said Mat the moment I wasn't exactly one hundred percent certain where I was. I wasn't paying full  attention. You don't pay attention to every second of every moment you're out there.["] He testified he wasn't paying attention. There are safety rules.... And they're common sense basically. Be alert at all times. He's required to be alert at all times. It's one of the major safety rules. And it's a common sense rule. You know, you're on a train. You know the train moves just like any moving vehicle. You brace yourself and be alert especially.... And another one. Expect movement of the train at any time. There wasn't anything extraordinary here. No new risks. This was a reasonable day, reasonable operation, reasonable train. And he was not asked to do anything different that day other than what he had been doing every[ ]day, perform his job in a reasonably safe manner. That was his duty also. And he did not. He admitted that he did not.
Defense counsel did not argue that Plaintiff's mere awareness of the alleged unsafe conditions barred him from recovery; rather, he argued that Plaintiff's negligent failure to follow Defendant's rules was a contributing, if not sole, cause of his injury. Thus, counsel's argument was permissible.
To the extent that the jurors could have taken defense counsel's cross-examination and summation to be about assumption of risk, jury instructions adequately addressed that concern. In its final instructions to the jury, the Court granted Plaintiff's application to charge the jury on assumption of risk and gave exactly the charge that Plaintiff had proposed: "[Y]ou cannot find the plaintiff guilty of contributory negligence because he assumed the risk of working in this particular area. Assumption of risk is not a defense to this action." The Court decided to do so after specifically finding ...