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April 15, 1992


The opinion of the court was delivered by: LOUIS H. POLLAK

 This is an action under the Federal Employers' Liability Act, 45 U.S.C. §§ 51 et seq., for personal injuries that plaintiff Robert J. Maylie, Jr., suffered while in the employ of defendant National Railroad Passenger Corporation (AMTRAK). After the jury returned a verdict in favor of plaintiff for $ 2,567,259.60, defendant moved for a new trial under Rule 59(a) of the Federal Rules of Civil Procedure. For the reasons explained below, I will deny that motion, provided that plaintiff agrees to remittitur of $ 1,466,000.

 I. Facts and Procedural History

 This case has a long and complicated history, both before this court and before the Third Circuit. Briefly, the facts are as follows: In February 1981, Maylie was asked by his supervisor for assistance in emptying a large metal drum into a dumpster. While the two men were lifting the drum, the contents of the drum, which included an amount of liquid, shifted, and plaintiff lost his footing and fell, injuring his back. Plaintiff has not worked since the accident, and has undergone surgery on two occasions as a result of the injury. Plaintiff was also hospitalized on one occasion for non-surgical treatment of his back, and, in addition, briefly required hospitalization because of depression associated with his injury. Plaintiff claimed that, due to the negligence of defendant, the area in which he was working was slick with grease, oil, and diesel fuel. Defendant disputed plaintiff's claim. In 1982, a jury returned a verdict in favor of defendant.

 Plaintiff moved for a new trial, alleging, inter alia, that defendant, through its agent, shop superintendant Steven Scott, had used coercive tactics to discourage plaintiff's co-workers from testifying on his behalf. In February 1983, after hearing testimony and oral argument and reviewing affidavits, I determined that Dan Sinisi, one of plaintiff's co-workers, had not testified because he feared retaliation. I therefore granted plaintiff's motion. Defendant then moved for reconsideration. After a further hearing, I determined that Mr. Sinisi's decision not to testify was a matter of free choice -- i.e., that it was not the product of fear of retaliation. I then vacated my decision to grant a new trial. The Court of Appeals affirmed the judgment for defendant, and the Supreme Court denied certiorari.

 After my decision to vacate the order granting a new trial, plaintiff discovered that defendant was conducting an internal inquiry into allegations of theft and bribery directed against Mr. Scott, among others. In 1985, defendant fired Mr. Scott. Thereafter, certain witnesses who had refused to testify earlier expressed a willingness to come forward and give testimony about the slippery footing at the place of the accident. Plaintiff filed a timely motion for relief from my decision to vacate the order granting a new trial under Rule 60(b) of the Federal Rules of Civil Procedure. After a long delay necessitated by a grand jury investigation and discovery difficulties, in December 1989 I granted the motion and ordered a new trial. On appeal, the Third Circuit affirmed the determination that plaintiff's motion was timely declining to address the issue of whether the granting of plaintiff's motion constituted an abuse of discretion. See Maylie v. National Passenger R.R. Corp., 910 F.2d 1181, 1183-84 (3d Cir. 1990).

 A second trial was held in April 1991. After a two-week trial, the jury found that defendant's negligence was the proximate cause of the accident and returned a verdict in favor of plaintiff. Specifically, the jury awarded past lost wages of $ 238,000, lost future earnings of $ 414,000, and $ 2 million for pain and suffering. On April 30, judgment was entered in favor of plaintiff in the amount of $ 2,567,259.60. *fn1" This motion for a new trial ensued.

 II. Legal Analysis

 Rule 59(a) does not provide specific grounds for granting a new trial; instead, it states that, after a jury trial, a court may order a new trial "for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of the United States." Despite the rule's lack of specificity, it is clear that a court may order a new trial if the verdict was against the weight of the evidence, if the size of the verdict was against the weight of the evidence (i.e., if the jury's award was grossly excessive or inadequate), if counsel engaged in improper conduct that had a prejudicial effect upon the jury, or if the court committed a significant error of law to the prejudice of the moving party. *fn2" See Stainton v. Tarantino, 637 F. Supp. 1051, 1078 (E.D. Pa. 1986); 11 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 2805, at 38 (1973).

 Defendant's brief in support of its motion raises seven grounds for granting a new trial, which fall into three broad categories. First, defendant contends that the amounts of the jury's awards were contrary to the evidence and grossly excessive. Second, defendant alleges that the court committed various errors in admitting or refusing to admit evidence. Third, defendant argues that the court erred as a matter of law in determining the proper standards for liability and damages. Defendant's contentions will be discussed in turn. *fn3"

 A. The amount of the jury's award

 The decision whether to grant a motion for a new trial rests in the sound discretion of the court. See Gutzan v. Altair Airlines, 766 F.2d 135, 140 (3d Cir. 1985). If the court determines that a jury's award was grossly excessive and not supported by the weight of the evidence, the court may grant a motion for a new trial. See Stainton, 637 F. Supp. at 1078. In evaluating a motion for a new trial on the grounds that the jury's award was against the weight of the evidence, the court is not held to the same strict standard that applies to motions for a directed verdict or for a judgment n.o.v. To withstand a motion for a new trial, it is not sufficient that the jury's verdict is supported by substantial evidence; if there is substantial evidence to support the verdict, but the weight of the evidence is against the verdict, the court may order a new trial. See Keystone Floor Prods. v. Beattie Mfg. Co., 432 F. Supp. 869, 876 (E.D. Pa. 1977).

 Nevertheless, the court should not set aside a verdict and order a new trial merely because, had the trial been a bench trial, it would have awarded a sum different from the sum the jury determined to be appropriate. Although the court should not approve clear miscarriages of justice, the court must give due respect to the jury's traditional and valued role as finder of fact and must recognize that, even if granting the motion would result in the trying of the case before a new jury, to a certain extent granting a motion for a new trial represents a substitution by the court of its own judgment for that of the jury. See Lind v. Schenley Industries, 278 F.2d 79, 90 (3d Cir.), cert. denied, 364 U.S. 835, 5 L. Ed. 2d 60, 81 S. Ct. 58 (1960). For this reason, a court should be reluctant to grant a new trial unless it is apparent that the jury has reached a seriously erroneous result.

 The jury in the present case awarded damages for lost past wages, loss of future earning capacity, and pain and suffering. Defendant contends that the awards under all three headings were excessive and contrary to the weight of the evidence. Because each category of damages presents different issues, they must be addressed separately.

 1. Past wages

 Defendant claims that the jury's award of $ 238,000 in lost past wages was grossly excessive and not supported by the evidence. First, it contends, there was undisputed evidence that plaintiff could have obtained other employment and thus mitigated his losses. Dr. John L. Sbarbaro, Jr., testifying for defendant, stated that in his opinion plaintiff was capable of light work. In addition, Philip Spergel, Ed.D., a vocational expert, testified that jobs were available for individuals with plaintiff's limitations, and that plaintiff would have been capable of earning approximately $ 11,000 in 1982 and that, as plaintiff's condition improved, the income he was capable of earning would have risen steadily to nearly $ 25,000 by 1987, after which time it would level off. By defendant's calculations, plaintiff was capable of earning after-tax wages of $ 152,672 between the time of the accident and the time of trial. Thus, according to defendant, the actual wage loss that plaintiff was entitled to recover was approximately $ 22,000.

 Even if the jury was entitled to disregard defendant's evidence on mitigation of damages, defendant argues, its award was unfounded in the evidence. According to defendant, both parties agreed that plaintiff's lost past wages for his job with defendant amounted to $ 175,000; defendant contends that there was no evidence that would support an award greater than this amount. Thus, defendant argues, the jury could only have arrived at the $ 238,000 figure through speculation, conjecture, or improper motive.

 Defendant's first contention is without merit. The evidence presented to the jury concerning plaintiff's past ability to work was hardly uncontradicted. Dr. Randall N. Smith, plaintiff's physician, testified that, in his opinion, plaintiff was unable to work, and that he had advised plaintiff against working. Dr. Maurice Romy, a certified neurosurgeon, also stated his belief that plaintiff was unable to work. Moreover, on cross-examination, defendant's vocational expert stated that a person with the limitations identified by defendant's medical experts would have difficulty maintaining employment. There was thus conflicting evidence before the jury. With due respect for the jury's role as factfinder, it can hardly be said that the jury ignored the weight of the evidence in its decision not to reduce plaintiff's lost past wages, despite defendant's contention that plaintiff could have mitigated his losses.

 Neither party presented evidence concerning lost past compensation beyond that detailed above. The jury therefore had no evidence before it from which it could conclude that plaintiff's lost past compensation amounted to $ 238,000. There is no evidence, however, that the jury's conclusion was the result of passion or prejudice on the part of the jury, of judicial error, or of improper suggestion on the part of plaintiff's counsel; rather, it seems likely that the jury simply erred in its calculation. I will therefore offer plaintiff the opportunity to remit $ 16,000 of the jury's award, representing the difference between the jury's award and the maximum of what the jury could have found on the ...

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