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November 13, 1992



The opinion of the court was delivered by: TULLIO GENE LEOMPORRA



 On January 22, 1991, plaintiff, James E. Strauss, filed a civil rights action under 42 U.S.C. § 1983 *fn1" against Philadelphia Police Officers Richard Springer and Robert Clift and the City of Philadelphia, alleging excessive use of force by the officers against him. Plaintiff contended that the City was in violation of the statute since it had a custom, usage, or policy in failing to properly train its officers resulting in their use of unconstitutional police methods. The suit arose from an incident *fn2" which occurred in the early morning hours of August 28, 1989, at an Acme Warehouse at 31st and Thompson Streets in Philadelphia, where a series of gunshots were fired by the defendant officers at the plaintiff, one of which struck him in the hip area. Plaintiff sought damages under the civil rights statute and also brought pendent state causes of action for assault and battery and negligence against the defendants. *fn3"

 Defendants filed a Motion for Partial Summary Judgment on April 9, 1992 to dismiss the negligence claims against them. In a Memorandum and Order dated May 18, 1992, I denied this motion.

 Trial commenced before a jury on June 9, 1992. Just prior to the start of the proceedings, defendants filed a Motion in Limine seeking to have specific documents and expert opinion on these documents excluded from being offered as evidence during the trial. *fn4" At the close of plaintiff's case, the defendants motioned for a directed verdict pursuant to Fed. R. Civ. P. 50 (N.T. 6/17/92 at p.146). This motion was denied and the defendants presented their case. At the conclusion of their case, they again motioned for a directed verdict which was also denied (N.T. 6/18/92 at 11, 18). *fn5"

 Due to the complexity of the case and the numerous issues to be considered, the jury was given special interrogatories *fn6" to be answered during its deliberations and returned to the court as its verdict. On June 19, 1992, the jury came back with the following verdict:

2. The City of Philadelphia did not have a custom, policy, or regulation which deprived plaintiff of his constitutional rights under § 1983;
3. Officers Springer and Clift did not commit an assault and battery upon the plaintiff on August 28, 1989;
4. Officers Springer and Clift were 40% negligent in their actions on the night in question;
5. Plaintiff, James Strauss, was found 60% contributorily negligent;
6. The City of Philadelphia was responsible for the negligence of their officers;
7. Under Pennsylvania comparative negligence law, the percentage of negligence attributable to the officers was found to be 40%, and the percentage of negligence attributable to the plaintiff was assessed at 60%, thereby foreclosing any recovery for the plaintiff for negligence against the officers or the City;
8. Officers Springer and Clift's actions were not done wilfully, maliciously, wantonly with reckless disregard for the plaintiff's constitutional rights and no punitive damages were awarded;
9. Damages were awarded against the city of Philadelphia only in the amount of $ 5,260.11 for past medical expenses, $ 2,500.00 for future medical expenses, and $ 4,000.00 for past loss of earnings, totalling $ 11,760.11;
10. No damages were awarded against officers Springer and Clift.

 The verdict was entered on July 1, 1992. On July 16, 1992, plaintiff filed this instant Motion for a Partial New Trial under Fed. R. Civ. P. 59 and raised these contentions in support of his motion:

1. A partial new trial against defendants officers Springer and Clift, limited to damages alone, should be granted on the grounds that the jury verdict:
(a) was inadequate in that no damages were awarded against the officers,
(b) was against the clear weight of the evidence and inconsistent to the verdict of liability under § 1983, and
(c) would result in a miscarriage of justice.
2. A partial new trial should be awarded against defendant City of Philadelphia on all issues of liability under 42 U.S.C. § 1983 and damages, based on the grounds that the court made substantial mistakes or errors of law in rejecting plaintiff's evidence, and that the exclusion of such evidence was an abuse of discretion. The errors of law are as follows:
(a) the court improperly excluded relevant and admissible testimony from plaintiff's police expert, Dr. James Fyfe, as to the basis for his expert opinion regarding police practices and procedures in the City of Philadelphia; and
(b) the court improperly restricted Dr. Fyfe's testimony and prevented him from giving full and complete expert testimony regarding police practices and procedures in the City of Philadelphia and practice of the City of Philadelphia, by requiring that he be asked questions relating to his expert opinions only in the form of hypothetical questions.

 Defendants filed their response on August 3, 1992. Arguments were heard on the motion at a hearing held on September 2, 1992. Plaintiff filed a supplemental brief in support of his motion on September 18, 1992. For the reasons discussed infra, plaintiff's Motion for a Partial New Trial is denied.


 Rule 59(a) of the Federal Rules of Civil Procedure provides, in part, that:

A new trial may be granted to all or any of the parties and on all or part of the issues (1) in any action in which there has been a trial by jury, for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of the United States. . . .

 Fed. R. Civ. P. 59(a).

 The decision to grant or deny a new trial is committed to the sound discretion of the district court. Allied Chemical Corp. v. Daiflon , Inc., 449 U.S. 33, 36, 101 S. Ct. 188, 191, 66 L. Ed. 2d 193 (1980); Shanno v. Magee Indus. Enterprises, Inc., 856 F.2d 562 (3d Cir. 1988); Bonjorno v. Kaiser Aluminum & Chemical Corp., 752 F.2d 802 (3d Cir. 1984). A court may order a new trial if 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. Maylie v. National Railroad Passenger Corp., 791 F. Supp. 477 (E.D. Pa. 1992); see Stainton v. Tarantino, 637 F. Supp. 1051, 1078 (E.D. Pa. 1986). However, granting new trials because the verdict is against the weight of the evidence is proper only when the record shows that the jury's verdict resulted in a miscarriage of justice or where the verdict on the record cries out to be overturned or shocks the conscience. Williamson v. Consolidated Rail Corp., 926 F.2d 1344 (3d Cir. 1991); EEOC v. Delaware Dept. of Health, 865 F.2d 1408, 1413 (3d Cir. 1989); Roebuck v. Drexel University, 852 F.2d 715, 736 (3d Cir. 1988).



 A. The verdict is inadequate.

 Plaintiff first argues that he is entitled to a partial new trial on the issue of damages alone since the jury found that Officers Springer and Clift violated his civil rights by using excessive force against him, yet awarded him no damages against them.

 Plaintiff states in his brief at page 4 *fn7" that the court properly instructed the jury as to the law under § 1983 and the elements of damages if they found liability on this issue. Plaintiff argues that once the jury found liability, it was required by the court's instructions to consider the elements of damages identified by the court and that the jury's statement that damages against the officers were not applicable (N/A) shows that they did not understand and failed to follow and/or disregarded the court's instructions, so that they did not consider these elements of damages at all. Plaintiff further asserts that by contrast when the jury found that the evidence did not support a particular type of damage against the City, it entered a zero, and that if it had followed the court's instructions on damages against the officers and concluded that such damages were unsupported by the record, they would have similarly entered $ 0.00 on each line of the interrogatories for each element of damages against Officers Springer and Clift instead of writing "N/A".

 "Where there is a view of the case that makes the jury's answers to special interrogatories consistent, they must be resolved that way. For a search for one possible view of the case which will make the jury's finding inconsistent results in a collision with the Seventh Amendment, . . . and the Seventh Amendment requires that if there is a view of the case which makes the jury's answers consistent, the court must adopt that view and enter judgment accordingly." Atlantic & Gulf Stevedores v. Ellerman Lines, 369 U.S. 355, 364, 82 S. Ct. 780, 786, 7 L. Ed. 2d 798, 806-807 (1962); Griffin v. Matherne, 471 F.2d 911 (5th Cir. 1973), cert. denied, 465 U.S. 1102, 104 S. Ct. 1599, 80 L. Ed. 2d 130 (1984).

 The test to be applied in reconciling conflicts between the jury's answers is whether the answers may fairly be said to represent a logical and probable decision on the relevant issues as submitted. Anastasio v. Schering Corp., 838 F.2d 701 (3d Cir. 1988); Griffin v. Matherne, supra; United States v. 0.78 Acres of Land, More or Less, et al., 81 F.R.D. 618 (E.D. Pa. 1979). The Third Circuit added in Anastasio at 710, citing Gallick v. Baltimore & Ohio R.R., 372 U.S. 108, 119, 83 S. Ct. 659, 666, 9 L. Ed. 2d 618 ...

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