Giard v. Darby, No. CIV.A.03-30044-KPN.
| Decision Date | 08 March 2005 |
| Docket Number | No. CIV.A.03-30044-KPN. |
| Parties | George L. GIARD, Plaintiff v. Harvey J. DARBY and C.R. England, Inc., Defendants |
| Court | U.S. District Court — District of Massachusetts |
Robert C. Sacco, Lyon, Ferriter & Fitzpatrick, Holyoke, MA, for Plaintiff.
Ann Elizabeth Cascanett, Morrison, Mahoney, & Miller LLP, Lee S. MacPhee, Morrison Mahoney LLP, Boston, MA, for Defendants.
MEMORANDUM AND ORDER REGARDING DEFENDANTS' MOTION FOR A NEW TRIAL (Document No. 73)
On January 14, 2005, after a one week trial, a jury entered a verdict favorable to George L. Giard ("Plaintiff") in this personal injury action. The jury found Harvey J. Darby ("Darby") and Darby's employer, C.R. England, Inc. ("C. R. England") (together "Defendants"), liable to Plaintiff in the amount of $650,000. On January 24, 2005, the court, after calculating interest, entered judgment against Defendants in the amount of $803,299.84. Presently before the court is Defendants' Motion for a New Trial, filed pursuant to Fed.R.Civ.P. 59(a). In essence, Defendants assert that the jury verdict was contrary to the weight of the evidence, that "pernicious error" intruded into the trial, and that the damages awarded were excessive. For the reasons which follow, the court will deny Defendants' motion.
This background is sketched in a light most favorable to the jury's verdict. See O'Connor v. Huard, 117 F.3d 12, 14-15 (1st Cir.1997). A car driven by Plaintiff and a tractor trailer owned by C.R. England and operated by Darby collided on January 28, 2000, at approximately 7:40 p.m. on Routes 5 and 10 in Whately, Massachusetts. The accident occurred near the Whately General Store. Giard was traveling south when Darby attempted to enter the highway from the store to head north. The front of Giard's car collided with the tractor portion of the tractor trailer near the gas tank. Neither Plaintiff nor Darby saw the other's vehicle immediately prior to the collision. Plaintiff was seriously injured; Darby was not.
Officer Robert Fisher of the Whately Police Department immediately responded to the scene and spoke with both Darby and Plaintiff. He later met them again at the hospital. As a result of his investigation, Officer Fisher cited Darby for failure to use care in turning and failure to use care in starting.
Darby testified that he had been traveling south on Routes 5 and 10 when he pulled into the store's parking lot to obtain directions to the Yankee Candle warehouse. Adele Corcoran, part owner of the store, advised Darby that he needed to turn around and go north, but should not turn north out of the parking lot; rather, he should travel south to where there was adequate room to make a u-turn. Instead of following these directions, Darby attempted to go north as follows: he pulled the tractor trailer out across the road, reversed back into the parking lot and then began to exit the lot again. It was then that the collision occurred. At the time, there was a tree, a sign, as well as some brush along the side of Routes 5 and 10 which possibly, if not likely, blocked Darby's view.
Plaintiff admitted to having had one beer in the hour or two prior to the accident. Officer Fisher detected no alcohol on Plaintiff's breath during the course of his investigation. However, a laboratory test performed approximately two hours after the accident revealed that Plaintiff had a .05 blood alcohol count. Defendants presented an expert, Laura Green, Ph.D., who opined that Plaintiff's blood alcohol level at the time of the accident ranged anywhere between .06 and .08. She further opined that Plaintiff had consumed approximately 3 2/3 12 oz. containers of beer and that the driving ability of a person of Plaintiff's size who had consumed as much would have been impaired at the time of the accident.
Dr. David Pesuit, an accident reconstruction expert, testified on Plaintiff's behalf. His analysis focused on the amount of time that the tractor trailer driven by Darby was located within the southbound travel lane of Routes 5 and 10 in which Giard was driving. He opined that the truck was in that lane for approximately 1.38 seconds and that Plaintiff could not have reacted in sufficient time to stop or otherwise avoid a collision. When comparing the damage to the respective vehicles, Dr. Pesuit also opined that, at the time of impact, Plaintiff's vehicle was traveling at approximately 40 miles per hour within a ten mile per hour differential.
Darby's employment was terminated soon after the accident because C.R. England determined that the collision was "preventable" in accord with its employment policies. As for Plaintiff, he was released from the hospital on the evening of the accident, but returned the next day coughing up blood and complaining of chest pain. Approximately three months later, Plaintiff went to see a Dr. Arnould complaining of pain in his lower back and left leg.
Drs. Charles Mick and Saavas Papazaglou, both of whom treated Plaintiff for his injuries, testified that, as a result of the accident, Plaintiff had a herniated disc at the L4 and L5 levels which compressed the nerve roots between the L5 and S1 levels. Surgery in May of 2000 alleviated the herniation, but the damaged nerve root failed to repair itself. Plaintiff now has limited use of his left leg and will be required to use a brace for the rest of his life.
Craig Moore, Ph.D, an economist, also testified on Plaintiff's behalf. Based on Plaintiff's age and inability to continue in his prior profession as a carpenter/contractor and Plaintiff's representations regarding his average yearly income, Dr. Moore opined that the present value of Plaintiff's lost earning capacity exceeded $736,000.
In addition to his own testimony, Plaintiff offered testimony from Margaret Sysko, a friend with whom he resides, and his sister, Patricia Reynolds, as to the pain and suffering he has experienced as a result of the accident. In sum, these witnesses testified that Plaintiff is unable to walk, sit or stand without significant discomfort. In addition, they testified that Plaintiff has difficulty sleeping, continues to have severe pain in his lower back and, as indicated, has not regained full use of his left leg.
Fed.R.Civ.P. 59(a) provides in pertinent part that "[a] new trial may be granted to all or any of the parties and on all or part of the issues ... in an 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." The Supreme Court has described the scope of the rule as follows:
The motion for a new trial may invoke the discretion of the court in so far as it is bottomed on the claim 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; and may raise questions of law arising out of alleged substantial errors in admission or rejection of evidence or instructions to the jury.
Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 251, 61 S.Ct. 189, 85 L.Ed. 147 (1940). Accord Cigna Fire Underwriters Co. v. Macdonald & Johnson, Inc., 86 F.3d 1260, 1262-63 (1st Cir.1996).
Here, Defendants argue that a new trial should be granted for three reasons: (1) the verdict is against the weight of the evidence; (2) there were errors in the admission of certain evidence, in particular the testimony of Dr. Pesuit; and (3) that the damages awarded were excessive. The court considers each argument in turn.
With regard to Defendants' first argument, as the parties are well aware, "[a] district court may set aside a jury's verdict and order a new trial only if the verdict is so clearly against the weight of the evidence as to amount to a manifest miscarriage of justice." Federico v. Order of Saint Benedict, 64 F.3d 1, 5 (1st Cir.1995). That is simply not the case here. Rather, there was more than ample evidence, as detailed above, for the jury to have reasonably found Defendants liable to Plaintiff in negligence. The court also believes that the jury could have reasonably found that Defendants failed to sustain their burden of proof with respect to the affirmative defense of comparative negligence. In essence, the jury easily could have determined that Darby negligently operated his tractor trailer when he attempted to redirect it in a northerly direction and by darting out into the roadway to accomplish that task.
To be sure, Defendants make much of the fact that the tractor trailer was large, had running lights and conspicuity tape and should have been seen, if not anticipated, by Plaintiff. However, in the court's opinion, the jury could have readily found, based on the evidence, that Plaintiff did not see and could not have anticipated the tractor trailer. Moreover, the jury could have reasonably found that Darby himself understood the danger of attempting to proceed north out of the store's parking lot (he actually walked across the road before attempting the procedure) contrary to the request made by the store's owner. In addition, the jury properly could have considered the traffic citations which Darby, but not Giard, received.
The jury could also reasonably have found that Plaintiff was not a contributing cause of the accident. Indeed, as the court recalls, Defendants did not even raise comparative negligence in their closing arguments, even though the court instructed the jury on that defense and included comparative negligence questions on the special verdict form. As Plaintiff now argues, it is sheer speculation on Defendants' part that the accident would not have occurred had Plaintiff seen the tractor trailer at the last moment. To repeat, the jury could have reasonably concluded that the tractor trailer driven by Darby was not visible to Plaintiff before it suddenly entered the...
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