P.K. HOLMES, III, Chief Judge.
Currently pending before the Court is Plaintiff Michael Reed's Motion for New
"The court may, on motion, grant a new trial on all or some of the issues ... 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). "Under Rule 59, the decision to grant a new trial lies within the sound discretion of the trial court." Haigh v. Gelita USA, Inc., 632 F.3d 464, 471 (8th Cir.2011). "The key question in determining whether a new trial is warranted is whether it is necessary to prevent a miscarriage of justice." Id. The Court will address each of the grounds raised by Plaintiff as warranting a new trial in turn.
The Court "has wide discretion in formulating instructions for the jury." Hose v. Chicago Northwestern Transp. Co., 70 F.3d 968, 977 (8th Cir.1995) (internal quotation omitted). In reviewing jury instructions, the Court must consider "whether the instructions, when taken as a whole and viewed in light of the evidence and applicable law, fairly and adequately present the issues in the case to the jury." Id. (internal quotation omitted). The primary issue presented by the evidence in this case was whether Malone's was negligent when its employees were working from a scissor lift and a pipe saddle fell from a pipe outside the scissor lift and hit Mr. Reed, who was working below.
Plaintiff argues that the Court erred in declining to give an instruction, proffered by Plaintiff, on OSHA regulation 29 C.F.R. § 1926.451, regarding safety measures to be taken when "there is a danger of tools, materials, or equipment falling from a scaffold and striking employees below." In its Motion for New Trial, Plaintiff's counsel represents that "[t]he Court declined to give the instruction, apparently believing that a scissor lift was not a scaffold." (Doc. 65, p. 2). The Motion further draws the Court's attention to Exhibits B and C, "OSHA interpretations indicating OSHA's interpretation that a scissor lift is a `scaffold' for purposes of the OSHA regulations before the Court." Id. at p. 3. The representations contained in Plaintiff's Motion are completely at odds with the Court's actual findings regarding instructing the jury on OSHA regulations. The Court discussed, at length, its reasoning regarding instructing the jury on particular OSHA regulations, as reflected in the transcript
(Doc. 67, pp. 5-7) (emphasis added).
As evidenced by the Court's statements, and contrary to the representations contained in Plaintiff's Motion, the Court was well aware that scaffolding regulations apply to scissor lifts. In fact, it was the Court that first researched OSHA interpretations regarding which regulations apply to scissor lifts and presented those findings to counsel for the parties. The Court engaged in such research after hearing argument back and forth during sidebars about which regulations might apply in this case, and after viewing the proposed instructions given to the Court by the parties. Despite the fact that this case has a lengthy history of litigation and motion practice, at no time prior to the instant Motion for a New Trial did counsel for the parties direct the Court's attention to, cite to, or base any arguments on OSHA interpretations of fall-protection regulations in regard to scissor lifts. Rather, it was the Court that conducted that research in an effort to correctly instruct the jury, and it was the Court that brought the OSHA interpretations to the
The Court notes further that the OSHA interpretations attached as exhibits to Plaintiff's Motion serve to bolster the Court's decision not to instruct the jury on the regulation regarding fall protection under the general scaffolding regulation. Both question 1 and question 2 in Exhibit B relate to requirements for safely stacking material on a scissor lift. (Doc. 64-2). In response to question 2, OSHA states that "[p]rovisions in Subpart L include requirements for barricades or other physical means to protect employees from objects that may fall off scaffolds. Section 1926.451(h), Falling object protection, provides..." (Doc. 64-2, p. 2) (first emphasis added, second emphasis in original). Therefore, OSHA states, both in the language of the regulation itself and in its interpretation of the regulation, that 29 C.F.R. § 1926.451 is meant to protect employees from objects falling off a scaffold.
To summarize the Court's findings regarding which regulations should be included in the instructions given to the jury, the Court considered four OSHA regulations to determine what regulations regarding falling-object protection might apply in this case: 29 C.F.R. § 1926.501(c) (general duty to provide protection from falling objects), 29 C.F.R. § 1926.451(h) (general falling object protection for scaffolds), 29 C.F.R. § 1926.453 (regulation specific to aerial lifts), and 29 C.F.R. § 1926.452(w) (regulation specific to mobile scaffolds). The first three regulations were all, at some point, argued by one or both parties to be potentially applicable in this case. Based on a review of OSHA interpretations, including but not limited to the interpretation attached as Exhibit A to this Order, the Court first eliminated the aerial lift regulation as being inapplicable in this case, as OSHA has stated that scissor lifts are not aerial lifts, but must instead conform to scaffolding regulations. Since scissor lifts are mobile, they must also conform to the mobile scaffold regulation. (Ex. A). However, the Court reviewed the mobile scaffold regulation and saw nothing specifically regarding falling-object protection or any language which would be otherwise applicable to the case at hand based on the parties' presentation of the case. The Court, therefore, eliminated the mobile scaffolding regulation as inapplicable to this case.
The Court next considered the regulation regarding falling-object protection for scaffolds, 29 C.F.R. § 1926.451(h). That regulation provides, in relevant part:
Based on the language of the regulation itself, the Court eliminated the scaffold regulation for falling object protection as inapplicable in this case, finding that the regulation "applies to employees on the scaffold and their protection and, number two, objects that are falling from the scaffold itself." (Doc. 67, pp. 5-6). In this case, it was not argued by any party, and therefore was not in dispute, that any object fell onto an employee on the scissor lift or fell from the scissor lift onto Mr. Reed. Rather, an object outside the scissor lift — a pipe saddle on which a Malone's employee was working — fell and hit Mr. Reed, who was working below. By process of elimination, the Court found that the only regulation regarding protection from falling objects which might be applicable
Therefore, contrary to the representation made in Plaintiff's Motion, the Court did not have any belief — apparent or otherwise — that a scissor lift was not a scaffold for purposes of applying OSHA regulations. Rather, the Court found that, although a scissor lift must conform to the applicable scaffolding regulations, the scaffolding regulation for falling-object protection was inapplicable given the facts of this case, based on a straightforward interpretation of the language of the statute.
As noted above, counsel for the parties at no time presented the Court with OSHA interpretations regarding the applicability of scaffolding regulations to scissor lifts in order to support their respective positions as to what regulations should be included in the jury instructions. It does not appear that, prior to being prompted by the Court, counsel for Plaintiff researched such OSHA interpretations, even though the requested regulation was "extremely material to the theory of the case offered by Plaintiff." (Doc. 65, p. 3). The Court notes that, had counsel for Plaintiff desired, given the fact that the accident at issue in this case took place in 2006, counsel could have inquired of OSHA directly as to what regulations should be applied to the facts of the case and how they should be applied. Exhibit B to Plaintiff's Motion is an OSHA interpretation that was prompted by an attorney inquiry dated October 1, 2004. OSHA issued its interpretation just three months later — on January 19, 2005. It does not appear, however, that counsel for Plaintiff either asked OSHA for clarification or otherwise researched OSHA interpretations prior to, or during, trial. It is disingenuous, now, for counsel to present the Court with OSHA regulations, as a basis for a new trial, representing that the Court was uninformed or misinformed, when counsel had not previously presented the Court with such interpretations but the Court had nevertheless researched such interpretations and presented them to counsel.
The Court finds that the instruction on OSHA regulations which was given to the jury, when viewed in light of the evidence presented at trial and applicable law, fairly and adequately presented the issues in the case to the jury.
Plaintiff argues that the Court should have instructed the jury that "[i]n a worksite where more than one employer is present, the OSHA Regulations that I have instructed you about created a specific duty of compliance by all employers for the good of all employees on the worksite." (Doc. 64-4). Plaintiff argues that such instruction would be in line with applicable law as set forth in Solis v. Summit Contractors, Inc., 558 F.3d 815 (8th Cir.2009).
Originally, the Court had planned to add a paragraph, similar to Plaintiff's proffered instruction, appended to the instruction regarding applicable OSHA regulations. The additional paragraph read, "[w]hen more than one employer is involved at a particular worksite, more than one employer may be responsible for complying with the above regulation for the safety of all employees present at the work site." (Doc. 67, p. 7). Although similar to Plaintiff's proffered instruction, the paragraph offered by the Court for consideration
While, as cited by Plaintiff, the Solis opinion does state that 29 U.S.C. § 654(a)(2) "creates a specific duty to comply with standards for the good of all employees on a multi-employer worksite," Solis, 558 F.3d at 818, that statement must be read in the context of the entire opinion. To infer from that statement that all employers are responsible for complying with any OSHA regulation for the good of all employees at a multi-employer worksite construes the Solis holding far too broadly. The Solis Court merely upheld the Secretary of Labor's application of the controlling employer citation policy contained in the Multi-Employer Policy, finding that such application was not precluded by the provisions of 29 U.S.C. § 654. Neither the Solis Court nor the Multi-Employer Policy go so far as to say that all employers are responsible to all employees in every situation. Such an interpretation would essentially obviate the need to have the Multi-Employer Policy or the Solis decision in the first place, as there would be no need to ascertain — at length and in detail — whether an employer is a creating, exposing, correcting, or controlling employer in any given situation if it could simply be said that all employers are responsible for compliance. The Court persists in its finding, therefore, that Plaintiff's proffered instruction was an oversimplification of the law applicable to this case.
The Court notes that it is also not clear that Plaintiff's theory of the case was that Malone's should be held responsible as a controlling employer. In the event that Plaintiff wished to argue that Malone's should be held responsible under one of the other provisions of the Multi-Employer Policy, the Court was presented with no case law upholding those other provisions outside the fairly narrow holding of the Solis case, given the facts of this particular case.
While the Court originally considered including the paragraph stating that more than one employer may be responsible at a worksite, the Court decided after further consideration of Solis opinion that such a statement was also an oversimplification, as it did not adequately clarify which employers might be responsible given the facts of this case. Plaintiff's counsel suggested giving the jury the Multi-Employer Policy. The Court declined that suggestion. The Policy is six pages long and would have been unduly confusing. Furthermore, the Policy is not law.
(emphasis added).
Plaintiff argues that, as a result of his proffered instruction not being given, the jury was required to find that the OSHA regulations which refer to "employer" were only for the benefit of employees of such employer. (Doc. 65, p. 4). Plaintiff's counsel requested that an instruction regarding OSHA regulations be given.
As stated above, the Court finds that the instruction on OSHA regulations that was given to the jury, when viewed in light of the evidence presented at trial and applicable law, fairly and adequately presented the issues in the case to the jury.
"The trial court has broad discretion in commenting on evidence." United States v. White, 671 F.2d 1126, 1130 (8th Cir.1982). "The court has responsibility for directing the jury in matters of law, and may comment on the evidence to give appropriate assistance to the jury, so long as it does so fairly and impartially." Id. (internal citation omitted). The Court has a duty to ensure that the evidence in a case is clear and understood. Ray v. United States, 367 F.2d 258, 262 (8th Cir.1966). However, any comments made by the Court should not "unfairly emphasize testimony nor add to or change the evidence given." Id. (emphasis added).
"There can be no doubt that a federal judge ... is more than a mere moderator and may assist the jury in arriving at a just conclusion by explaining and commenting upon the evidence and by expressing his opinion upon the facts, provided he clearly states to the jury that all matters of fact are submitted to their determination." Franano v. United States, 310 F.2d 533, 537 (8th Cir.1962). The Court recognizes, however, that "a trial judge should exercise care and discretion in expressing an opinion so as to not mislead or, in effect, to destroy the jury's right as the sole arbiters of all fact questions." Id. A trial judge should not, in making any comment, become clearly argumentative or assume the role of an advocate. Id. "A charge must be viewed in its entirety in determining whether a jury would have been misled or unduly influenced by the portions to which objection has been made." Id.
Malone's asked that no instruction regarding OSHA regulations on falling-object protection be given. (Doc. 66, p. 10). The Court gave Plaintiff the option of either (1) not instructing as to 29 C.F.R. § 1926.501(c), or (2) having the Court instruct the jury as to 29 C.F.R. § 1926.501(c) with the understanding that the Court would make a comment as to that regulation being included. Plaintiff's counsel objected to the Court making any comment, but requested that 29 C.F.R. § 1926.501(c) be included in the instructions given to the jury. The Court allowed Plaintiff's counsel to make a record of his objection.
The Court instructed as to 29 C.F.R. § 1926.501(c) by giving the regulation in full:
After instructing as to 29 C.F.R. § 1926.501(c), the Court commented as follows:
Plaintiff argues that the Court's comment precluded a fair evaluation of the evidence by the jury. Plaintiff argues that "the comment left the distinct impression that OSHA had absolutely no regulation which regulated working above other workers on a scissor lift when objects can be dropped on those working below." (Doc. 65, p. 5). Plaintiff also objects to the fact that the Court told the jury that the instruction was requested by Plaintiff, arguing that such comment led to an inference that Plaintiff did something wrong in requesting an instruction on an inapplicable regulation and also misled the jury because Malone's requested a similar instruction.
First, the Court does not believe that its comment precluded a fair evaluation of the evidence. In fact, the Court's intent in commenting was to promote a fair evaluation of the evidence. While the Court agreed to give an instruction on a regulation, which was applicable to the worksite in this case, the Court did not want to leave the jury with an incorrect impression that — merely because the regulation was included in the instruction — the Court was also instructing that the regulation undoubtedly applied to the particular facts of this case. The Court did not say that the regulation did not apply. Rather, the Court let the jury know that it questioned the relevance of one of the regulations relied on by Plaintiff. See White, 671 F.2d at 1130 (finding trial court did not err by commenting on the relevance of cases relied on by defendants); see also Franano v. United States, 310 F.2d 533, 537 (8th Cir.1962) (a federal judge may assist the jury by expressing his opinion upon the facts). The Court also drew the jury's attention to language in the regulation that the Court found important for the jury to consider and very briefly analyzed such language. See Quercia v. United States, 289 U.S. 466, 469, 53 S.Ct. 698, 77 L.Ed. 1321 (1933) (stating that it is within the trial judge's province to draw the jury's attention to parts of evidence the Court thinks important, and that a trial judge "may analyze and dissect the evidence, but he may not either distort or add to it"). The jury was left to make its own decision, based on the evidence and arguments presented, as to whether the regulation applied and, if so, whether it was violated.
It is the Court's view that its comment was a "fair, dispassionate and judicial" comment that did not exceed the bounds of fair comment or constitute prejudicial error. See United States v. De Pugh, 434 F.2d 548, 555 (8th Cir.1970) (finding trial judge comment stating to the jury that "I think it would be a fair finding that the government proved beyond a reasonable doubt" that a criminal defendant acted willfully as not beyond the bounds of propriety); see also United States v. Neumann, 887 F.2d 880 (8th Cir.1989) (en banc) (finding no plain error where trial judge commented that it seemed to him that the elements of the crime of bank robbery were satisfied "if [the defendant] is the man who did it"), White, 671 F.2d 1126 (finding no error in trial court commenting on the relevance of cases relied on by defendants), United States v. Eagan, 516 F.2d 1392 (8th Cir.1975) (finding no plain error where trial judge commented that "if the jury believed all of the Government's witnesses, the Government has established every element of the crime charged"), Gant v. United States, 506 F.2d 518, 520 (8th Cir.1974) (finding no reversible
The Court also clearly instructed the jury that "[n]either in these instructions nor in any ruling, action or remark that I have made during the course of this trial have I intended to give any opinion or suggestion as to what your verdict should be ... What the verdict shall be is the sole and exclusive duty and responsibility of the jury."
The Court does not agree with Plaintiff's statement that the Court's comment "left the distinct impression that OSHA had absolutely no regulation which regulated working above other workers on a scissor lift when objects can be dropped on those working below." (Doc. 65, p. 5). The jury was instructed on the falling-object regulation which the Court found to be most applicable to the facts of this case. The jury was, therefore, made aware that OSHA had a general regulation regarding when someone may be exposed to falling objects. As stated by the Court above, OSHA also has regulations relating to falling-object protection when working on a scaffold. The Court does not dispute that these OSHA regulations exist. The Court simply found that those regulations do not apply to the facts of this case. It may very well be the case that OSHA has no specific regulations which would assign fault to an employee working in a scissor lift who accidentally drops a pipe saddle located outside of the scissor lift onto a person working below. Simply because Plaintiff would like a regulation that better supports his case to exist does not mean that the Court will instruct as to any regulation requested by Plaintiff, edited in the manner that Plaintiff prefers. By instructing as to 29 C.F.R. § 1926.501, the Court informed the jury that OSHA regulations regarding falling-object protection, which were discussed at length during the trial, did exist. By commenting, the Court let the jury know that the given instruction
Second, the Court finds that including the statement that the instruction was requested by Plaintiff did not cause the comment to cross a line into unfairness, partiality, or advocacy on behalf of either party. The Court's statement that Plaintiff requested the instruction, when viewed in the context of the numerous pages of final instructions given to the jury, did not mislead or unduly influence the jury. If such a statement "would so influence a jury, then the intelligence and independence of a jury no longer deserves our confidence." Ray, 367 F.2d at 262.
The Court notes that it has the discretion to comment on evidence during a trial, and so might have commented on the applicability of the fall-protection regulation during Plaintiff's presentation of evidence. Certainly, had the Court chosen to comment during the trial, the jury would have been made aware that the Court was not convinced of the applicability of the regulation advanced by Plaintiff, and that it was Plaintiff and his counsel arguing the applicability of such regulation. Indeed, given the fact that Plaintiff presented evidence and argument throughout the trial regarding the applicability of and compliance with OSHA regulations, the Court cannot assume that the jury was, at the time the final instructions were given, ignorant of Plaintiff's theory of the case. The Court, therefore, does not agree that the Court's comment led to an inference that Plaintiff did something wrong by asking for an instruction that was in line with their theory of the case, which had been fully argued to the jury.
The Court also finds that the statement that Plaintiff requested the instruction was not misleading to the jury, as argued by Plaintiff. Although Malone's may have originally submitted a similar instruction, it later took the position that no instruction on OSHA fall protection standards should be given, leaving only Plaintiff requesting an instruction on OSHA regulations. (Doc. 66, pp. 10-11).
Plaintiff argues that the Court erred in denying his oral motion in limine
It appears that Plaintiff is arguing that, in considering whether Third-Party Defendant Gilbert Project Services, Inc. ("Gilbert") was negligent in causing injury to Mr. Reed, the jury should not have been allowed to consider evidence of prior wrong acts (i.e., allowing other contractors to work over other employees) in order to show that Gilbert acted in accordance in causing injury to Mr. Reed. First, the evidence of the practice of other contractors on the same worksite at which Malone's and Mr. Reed were working, at or near the
Second, assuming arguendo that such evidence was evidence of "other acts" which might otherwise be prohibited under Rule 404(b)(1), as recognized by Plaintiff, Rule 404(b) prohibits such evidence unless it is admissible for another purpose, "such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." Fed.R.Evid. 404(b)(2). In this case, evidence of the acts of other contractors was otherwise admissible as tending to show that Gilbert had knowledge of the practices of other contractors at the worksite regarding what, if any, safety measures were taken when persons were working over other persons at the Simmons Foods worksite. Such knowledge would be relevant as tending to show that Gilbert may have been negligent in performing its duties to supervise and manage the Simmons Foods construction project to avoid injuries that might be caused by a lack of adequate preventative safety measures. Plaintiff argues that there was no suggestion by Malone's that the evidence was being used for this purpose. Again, assuming that no such suggestion was made, the Court is nevertheless not bound by any recitation of purpose by the parties to a case when making a determination as to whether evidence is relevant and admissible. If that were true, the Court could be forced, by virtue of poor lawyering in any given case, to admit inadmissible evidence, or to exclude admissible evidence. The Court determined that evidence of the acts of other contractors at the Simmons Foods worksite during the course of the same construction project was admissible, and persists in that finding, based on the reasoning set forth above. No new trial is warranted on this basis.
Plaintiff argues that the Court erred in failing to give an instruction, proffered by Plaintiff, that "as a matter of law, Simmons Foods, Inc. ("Simmons Foods") was not negligent in the occurrence." (Doc. 64-7). The issue of Simmons Foods' negligence was previously litigated, and the District Court found that Simmons Foods was not negligent in relation to the accident. Reed v. Malone's Mechanical, Inc., No. 09-CV-02061 at Doc. 75 (W.D.Ark. 2010). Therefore, the Court ruled prior to trial that "although presentation of evidence regarding Simmons Foods' involvement in the circumstances surrounding the occurrence will undoubtedly be necessary to some extent, the parties are collaterally estopped from presenting evidence or argument implicating that Simmons Foods was or may have been negligent in relation to the occurrence at issue." (Doc. 55, p. 4).
The parties were, therefore, prevented from presenting evidence or argument as to the negligence of Simmons Foods. The negligence of Simmons Foods was not at issue in this case. Plaintiff's Motion for New Trial acknowledges, "Defendants did not contend at trial that Simmons was negligent." (Doc. 65, p. 8). Therefore, a jury instruction stating that Simmons Foods was not negligent was unnecessary and, without further explanation
Plaintiff argues that, because the Court did not give his proffered instruction regarding the non-negligence of Simmons Foods, "the jury could have easily concluded that Simmons was negligent and completely responsible for the injuries to Michael Reed, thus resulting in the jury's conclusion that there was no negligence on the part of Malone's Mechanical, Inc." Id. Plaintiff concludes that, under the circumstances, failure to give the proffered instruction resulted in prejudice to himself and should result in a new trial.
The jury was instructed as to the three essential elements that Plaintiff had to prove in order to recover on his negligence claim: (1) that he sustained damages, (2) that Malone's was negligent, and (3) that such negligence was a proximate cause of Mr. Reed's damages. The jury was also instructed as to what they needed to consider or find "[i]n determining whether Michael Reed, Malone's Mechanical, or Gilbert Project Services were negligent." The jury was not, at any point, instructed to consider whether Simmons Foods was negligent. Based on the jury's finding that Malone's was not negligent, the Court may only infer that the jury did not find that Plaintiff satisfied his burden of proof on the three essential elements as instructed by the Court. Craig Outdoor Adver., Inc. v. Viacom Outdoor, Inc., 528 F.3d 1001, 1022-23 (8th Cir.2008) ("Absent evidence to the contrary we presume the jury followed the instructions it was given."). In considering those three elements, the jury was not required to consider the negligence of any other party, and the Court cannot and will not speculate that it must have done so in reaching a verdict. Furthermore, any such speculation cannot be the basis for a finding of prejudicial error warranting a new trial. Id. ("Mere speculation that a jury verdict may have been based on the jury's own misunderstanding of the law, even though properly instructed, is an insufficient basis on which to upset a jury verdict.").
In deciding whether to grant a motion for a new trial, the "key question" is "whether a new trial is necessary to prevent a miscarriage of justice." Maxfield v. Cintas Corp., 563 F.3d 691, 694 (8th Cir.2009). "A new trial should be granted only if the evidence weighs heavily against the verdict." Id.
Plaintiff argues that "[g]iven that OSHA Regulations presented to the Court require taking some action to protect workers below, 29 CFR pt. 1926, it is against the great weight of the evidence for the jury to find no negligence on the part of Malone's Mechanical." (Doc. 65, pp. 8-9). First, as discussed at length above, the Court remains unconvinced that any OSHA regulation presented to the Court would apply to Malone's employees in this action insofar as necessitating that they take measures to prevent the accidental falling of an object from outside the scissor lift onto a person working below. Nevertheless, the jury was allowed to consider whether Malone's may have violated 29 C.F.R. § 1926.501. Second, assuming that any regulation would be applicable to require that Malone's take some safety precaution that it failed to take, the jury was correctly instructed, using language taken from Arkansas Model Instruction 601, that a violation of a regulation, "although not necessarily negligence, is evidence of negligence to be considered by you along with all the other facts and circumstances in the case."
Therefore, the jury was entitled to find that the OSHA regulation regarding
As his final point, Plaintiff argues that the jury should not have been permitted to consider any possible negligence of Gilbert in this case. Plaintiff argues that he moved for judgment as a matter of law as to Malone's third-party claim against Gilbert, but "the Court held that Plaintiff did not have standing to ask for judgment as a matter of law." (Doc. 65, pp. 9-10). Plaintiff then argues that "the jury may have determined that Gilbert Project Services was solely at fault in this matter," implying that such speculated determination may have resulted in the jury's finding of no negligence on the part of Malone's.
First, as a point of clarification, the Court did not hold that Plaintiff lacked standing to ask for judgment as a matter of law.
Second, Plaintiff again speculates as to the reason underlying the jury's verdict in this case and surmises that the jury's consideration of Gilbert's negligence may have caused the jury to find that Malone's was not negligent. Again, the jury was properly instructed on the negligence of the parties, and the Court will not overturn the verdict based on speculation.
Third, the Court previously set forth, at length, its reasons for allowing Gilbert's negligence to potentially be apportioned in this action, and will not discuss those reasons again herein, but stands by its earlier Order. (Doc. 15). However, even assuming arguendo that the Court erred in making the ruling that the jury should be able to apportion fault to Gilbert, because the jury found that Malone's was not negligent, the issue is moot because the jury never even reached the issue of whether Gilbert's was negligent to any degree. And, it does not follow that the jury's finding that Malone's was not negligent must have been the result of consideration
Based on the reasoning set forth above, the Court finds that no new trial is warranted or necessary in this case so as to prevent a miscarriage of justice.
IT IS THEREFORE ORDERED that Plaintiff's Motion for New Trial (Doc. 64) is DENIED as to all issues raised.
The Court, however, thought that editing the regulation in such a way would have been misleading to the jury as it takes the portions which are most beneficial to Plaintiff out of the context of the regulation as a whole. The Court believes that Plaintiff's proffered edits to subsection (3) would have been particularly misleading to the jury in that they include a deletion of the ultimate conjunctive requirement included in that subsection, which is the portion that would indicate that the regulation does not apply to the incident at issue in this case. The Court believed it most fair to give the complete regulation, without edits, to the jury for consideration.
