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OVERPECK v. CHICAGO PNEUMATIC TOOL CO.

March 25, 1986

HOWARD N. OVERPECK and CHRISTINE OVERPECK, his wife, Plaintiffs
v.
CHICAGO PNEUMATIC TOOL COMPANY, and COATS COMPANY, INC., a Division of Hennessy Industries, Inc., Defendants



The opinion of the court was delivered by: SHAPIRO

 NORMA L. SHAPIRO, J.

 This is a product liability action brought under this court's diversity jurisdiction. 28 U.S.C. § 1332. The action was tried to a jury, and in accordance with the jury's answers to interrogatories, the court entered judgment for plaintiffs against defendants in the amount of $200,000.00. Defendants have moved for judgment N.O.V. pursuant to Fed.R.Civ.P. 50, or, in the alternative, for a new trial pursuant to Fed.R.Civ.P. 59. For the reasons which follow, the court grants defendants' motion for judgment N.O.V. and grants their alternative motion for a new trial, should the court's grant of judgment N.O.V. prove erroneous. Fed.R.Civ.P. 50(c)(1).

 The standard for granting a judgment notwithstanding the verdict is the same as that governing a directed verdict. Scott v. Plante, 641 F.2d 117, 135 (3d Cir. 1981), vacated on other grounds, 458 U.S. 1101, 102 S. Ct. 3474, 73 L. Ed. 2d 1362 (1982). The court must determine, after giving the party who secured the jury verdict the benefit of all reasonable inferences that can be drawn from the evidence, without weighing the credibility of the evidence, whether reasonable minds could only come to one conclusion. See Scott, 641 F.2d at 134. See also Brady v. Southern Railroad, 320 U.S. 476, 479-80, 88 L. Ed. 239, 64 S. Ct. 232 (1943); Fireman's Fund Ins. Co. v. Videfreeze Corp., 540 F.2d 1171, 1177-80 (3d Cir. 1976), cert. denied, 429 U.S. 1053, 50 L. Ed. 2d 770, 97 S. Ct. 767 (1977); E.J. Stewart, Inc. v. Aitken Products, Inc., 607 F. Supp. 883, 888 (E.D.Pa. 1985). Normally, when the evidence is contradictory, a judgment N.O.V. is inappropriate. Bonjorno v. Kaiser Aluminum & Chemical Corp., 752 F.2d 802, 811 (3d Cir. 1984), appeal pending, 474 U.S. 811, 106 S. Ct. 51, 88 L. Ed. 2d 41 (1985); Fireman's Fund, 540 F.2d at 1178.

 A motion for a new trial may invoke the court's discretion because the verdict was against the weight of the evidence, the damages were excessive, the trial was not fair to the moving party, or for other reasons. Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 251, 85 L. Ed. 147, 61 S. Ct. 189 (1940). A district court may grant a new trial if required to prevent injustice. American Bearing Co. v. Litton Industries, Inc., 729 F.2d 943, 948 (3d Cir.), cert. denied, 469 U.S. 854, 105 S. Ct. 178, 83 L. Ed. 2d 112 (1984). The authority to grant a new trial rests in the sound discretion of the district court, Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 36, 66 L. Ed. 2d 193, 101 S. Ct. 188 (1980) (per curiam), but if the trial judge is convinced there has been a miscarriage of justice then it is his or her duty to set aside the verdict. Magee v. General Motors Corp., 213 F.2d 899, 900 (3d Cir. 1954).

 This action involves an injury to plaintiff Howard Overpeck's eye on August 18, 1982 while using a tire changer manufactured in 1964. His eye allegedly was hit by a tool flying off of the machine. The action was sent to the jury on interrogatories pursuant to Fed.R.Civ.P. 49(b). The jury answered as follows:

 1. Have plaintiffs proved by a preponderance of the evidence that the Powerman 990 Pneumatic Tire Changer was in a defective condition because of a design defect when it was manufactured and sold and that this defect continued without substantial change until the date of the injuries of which plaintiffs complain and that it was a substantial factor in bringing about those injuries? Yes NoX

 2. Have plaintiffs proved by a preponderance of the evidence that the Powerman 990 Pneumatic Tire Changer was in a defective condition because of lack of warnings when it was manufactured and sold and that this defect continued without substantial change until the date of the injuries of which plaintiffs complain and that it was a substantial factor in bringing about those injuries? YesX No

 IF YOUR ANSWER TO QUESTION 1 or 2 IS YES, PLEASE CONTINUE TO QUESTION 3.

 3. Has defendant Coats Company, Inc. proved by a preponderance of the evidence that plaintiff Howard N. Overpeck subjectively assumed the risk of operating the defective tire changer and that this assumption of the risk was a substantial factor in bringing about the injuries of which he complains? Yes NoX

 IF YOUR ANSWER TO QUESTION 3 IS YES, PLEASE NOTIFY THE MARSHAL.

 IF YOUR ANSWER TO QUESTION 3 IS NO, PLEASE CONTINUE TO QUESTIONS 4 and 5.

 4. In what amount, if any, has plaintiff Howard N. Overpeck proved by a preponderance of the evidence that the defective condition of Coats Company, Inc.'s Powerman 990 ...


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