RAMON E. REYES, JR., United States Magistrate Judge.
Ellicia Stowe ("Stowe" or "plaintiff") seeks damages from National Railroad Passenger Corporation ("Amtrak" or "defendant") under the Federal Employers Liability Act ("FELA") for personal injuries she sustained during the performance of her duties as an Amtrak employee. I presided over the five-day jury trial that began on October 25, 2010. At the end of trial, the jury returned a verdict for defendant finding that Amtrak's negligence, which was admitted, did not cause any of Stowe's alleged injuries. Plaintiff has since moved for a new trial pursuant to Rule 59(a) of the Federal Rules of Civil Procedure.
For the reasons that follow, plaintiffs motion is denied.
Amtrak employed Stowe beginning in February 1998. Since that time, she has worked for Amtrak in various positions.
At trial, the jury heard testimony about the day of the incident from Stowe, her mother Monica Medina, co-worker Robert Ermer, Amtrak Police Officer Paul Pisano, and Amtrak labor representative John Michael (Charles) Jackson. Stowe, Medina, and friend and co-worker Shelley Ann Martin also testified as to Stowe's present-day condition, and what effects the incident had on her daily living. Cathy Ryan, an Amtrak manager, testified as to Stowe's recent work history, internal Amtrak documents about the incident, and Stowe's medical leave. The jury also heard medical testimony from experts Dr. Leonard Bleicher, Dr. Arthur Wardell, and Dr. Edward Crane, treating physician Dr. Lauren Stimler-Levy and treating psychologist Nancy Julius, Ph.D.
Stowe argues that she is entitled to a new trial because: (1) the verdict was against the weight of the evidence; (2) the verdict was against the weight of the law; (3) the Court erred in instructing the jury on causation; (4) the Court erred in granting Amtrak's motion for judgment as a matter of law with respect to Stowe's fear of cancer claim; (5) the Court erred in admitting evidence of Stowe's sexual history; (6) the Court demonstrated antipathy toward Stowe's case; and (7) the verdict is defective as a matter of law due to juror misconduct.
A trial court may order a new trial "for any reason for which a new trial has [previously] been granted in an action at law in federal court." FED.R.CIV P. 59(a)(1)(A). However, a motion for a new trial under Rule 59 ordinarily "should not be granted unless the trial court is convinced that the jury has reached a seriously erroneous result or that the verdict is a miscarriage of justice." Medforms, Inc. v. Healthcare Mgmt. Solutions, Inc., 290 F.3d 98, 106 (2d Cir.2002). As such, a new trial is warranted if the trial court finds that the verdict was against the weight of the evidence or law, DLC Mgmt. Corp. v. Town of Hyde Park, 163 F.3d 124, 133 (2d Cir.1998), or finds that "errors [were] likely to have had a substantial effect on the jury's resolution of the factual disputes at
Plaintiff argues that as a matter of law, she was entitled to some damages since defense counsel admitted that she injured her left shoulder and chest as a result of the incident. (Plaintiffs Memorandum of Law in Support of Motion of Plaintiff Ellicia Stowe for Post-Trial Relief ("Pl. Mem."), dated Nov. 26, 2010, at 4.) In his opening statement, defense counsel made the following statements that could arguably be construed as admissions against Amtrak:
It is true that an attorney's statements during opening and closing arguments may constitute admissions of his client; however, to bind the client by such statements, they must constitute "a clear and unambiguous admission of fact." United States v. McKeon, 738 F.2d 26, 30 (2d Cir.1984) (citing Oscanyan v. Arms Co., 103 U.S. 261, 263, 26 L.Ed. 539 (1880)); see also Butynski v. Springfield Terminal Ry. Co., 592 F.3d 272, 277 (1st Cir.2010) (explaining that to qualify as a binding admission, counsel's opening "statement, when viewed in context, must be clear and unambiguous"); Robinson v. McNeil Consumer Healthcare, 615 F.3d 861, 872 (7th Cir.2010) (quoting MacDonald v. General Motors Corp., 110 F.3d 337, 340 (6th Cir.1997) ("[I]n order to qualify as judicial admissions, an attorney's statements must be deliberate, clear and unambiguous.")). All inferences must be made in favor of the party against whose interests the admission was allegedly made, particularly considering that "opening statement[s] of counsel [are] ordinarily intended to do no more than to inform the jury in a general way of the nature of the action and defense so that they may better be prepared to understand the evidence."
Contrary to Stowe's contention, counsel's statement that she "is entitled to fair and reasonable compensation" did not unequivocally mean that she was entitled to some compensation. Rather, counsel acknowledged that a plaintiff who is injured as the result of negligence is generally entitled to compensation for such injuries. The statement intimated to the jury that Amtrak's theory of the case was not if any compensation was appropriate, but rather how much. However, the statement does not constitute a clear and unambiguous admission that would take the issue of whether she was entitled to anything out of the jury's consideration.
The most troubling statements, and the only ones upon which Amtrak's counsel could have bound its client to a finding for Stowe, were "Amtrak admits that Ms. Stowe was injured" and "[s]he injured her left shoulder." (Tr. at 19.) Yet, Amtrak's counsel during summation directly addressed the statement, and recanted:
(Id. at 1022-23.) Moreover, throughout the trial, Amtrak consistently challenged not only the extent of Stowe's injuries, but whether she sustained any compensable injury at all. Viewing the identified statements about Stowe's injured left shoulder in isolation, Amtrak seemingly conceded that, at the very least, she had a compensable shoulder injury; however, in the context of the opening, wherein counsel qualified his statements as what he thought the evidence would show, and that he was pointing out "landmarks to look for," (id. at 19), his statements were not so clear and unambiguous as to qualify as a binding admission by Amtrak that Stowe injured her left shoulder.
In fact, during plaintiffs opening statement to the jury, her counsel said: "The railroad is saying that she never got hurt." (Id. at 12.) Equally telling, plaintiff never moved for judgment as a matter of law that she sustained shoulder injuries based on Amtrak's alleged admission. She did not object to Amtrak's statement during summation that the jury had to decide whether she was injured at all. Nor did she object to the inclusion of "shoulder injuries" as part of the causation question on the verdict sheet. And so, it seems that Stowe did not reasonably perceive Amtrak's opening statement as a binding admission during trial. Drawing all inferences in Amtrak's favor, counsel's opening statements did not constitute a binding admission that Stowe suffered a compensable shoulder injury, and therefore, the question of whether Stowe suffered any injury at all remained one for the jury to decide.
Plaintiff also argues that the verdict was against the weight of the evidence. (Pl. Mem. at 4-10.) The trial court may grant a motion for a new trial on grounds that the verdict was against the weight of the evidence even if there is substantial evidence to support the jury verdict. DLC Mgmt., 163 F.3d at 134. The judge is also free to weigh the evidence independently, rather than in the light most favorable to the prevailing party. Id. Although free to weigh the evidence independently, the "court should rarely disturb a jury's evaluation of a witness's credibility." Id. Accordingly, "[w]here the resolution of the issues depended on assessment of the credibility of
I recognize that the jury heard evidence from which it could properly have found that Stowe sustained at least some of her claimed injuries as a result of the safe door incident, but the jury also heard substantial evidence to support its verdict.
An Amtrak security camera in Stowe's office captured the incident and next 28 minutes or so. (Tr. Def. Exh. T, Camera 14, 12:08-12:39.) It is not clear from the video that the door actually struck Stowe (nor is it clear that it did not), but the video does show Stowe 10 minutes after the door fell walking around her office, bending down, and reaching into the safe. All the while, she does not have a look of pain or discomfort on her face. Additionally, Stowe testified about how the door struck her, where it hit her, and the pain that immediately resulted—equating the pain to that of contractions during childbirth. (Tr. at 547, 781-82.) Her testimony was contradicted by the version of events in the video. Not only did she not appear to be experiencing contraction-like pain, but her description of the incident was not consistent with how the events unfolded on camera. Undoubtedly, this affected the jury's assessment of her credibility. Indeed, from the video alone one could infer that the safe door did not actually strike Stowe at all.
Moreover, the jury heard from competing medical experts—Dr. Crane, defendant's expert orthopedic surgeon, and Dr. Bleicher, Stowe's expert physiatrist—and the jurors were equally entitled to accept or reject their opinions as to the injuries Stowe sustained and their cause. See In re Methyl Tertiary Butyl Ether (MTBE) Products Liability Litigation, 739 F.Supp.2d 576, 604 (S.D.N.Y.2010) (A jury is "free to accept or reject the expert's opinions in whole or in part and to draw its own conclusions" from the testimony.) Dr. Crane testified that upon review of the records and his independent medical examination of Stowe, there were no objective findings of residual injury to the chest, neck, or lower back. (Tr. at 598.) He also opined that the causal connection between the incident and Stowe's alleged shoulder injury was "very questionable." (Id. at 601.) He noted that a preoperative MRI indicated that her shoulder was normal. (Id. at 599.) He also indicated that the only possible objective finding of a shoulder injury in her surgical records was a "frayed labrum," which he explained is "commonly seen absent any trauma . . . as part of the normal aging process even in a young person. It's very commonly seen in
Dr. Bleicher, by contrast, testified that she had chest, neck, lower back, and shoulder injuries all of which he opined were caused by the incident. Indeed, despite the fact that nothing in the medical records indicated bruising or discoloration and that Stowe said she never had bruising following the incident, he testified that she had a hematoma, bruising, and swelling on her left breast caused by the incident. (Id. at 254.)
When presented with conflicting medical opinions as to a person's injuries and causation, it is within the province of the jury to assess credibility and resolve the conflict. Here, it is obvious from the jury's verdict that it chose to credit Amtrak's medical expert over Stowe's, and in addition to the video, it is obvious that the determination of whether she was physically injured at all turned largely on the credibility of both Stowe herself and the experts.
Similarly, Stowe's credibility and that of her psychologist's opinion regarding Stowe's depression and PTSD diagnosis played a crucial role in the jury's determination that she sustained no mental or emotional injuries. Dr. Julius testified that Stowe met the criteria for PTSD, categorizing the safe door incident as a "life-threatening horror." (Id. at 454.) Yet the jury was instructed that they could disregard her opinion entirely if they found that the reasons given in support of her opinion were not sound, were contradicted by other evidence, or were contrary to common sense. (Id. at 1057).
The jury heard that the Diagnostic and Statistical Manual of Mental Disorders ("DSM-IV TR") lists a set of illustrative events that trigger PTSD (and qualify as "life-threatening horrors") including "military combat, violent personal assault, sexual assault, physical attack, robbery, mugging, being kidnapped, being taken hostage, terrorist attack, torture, incarceration as a prisoner of war, or in a concentration camp[,] [n]atural or man made disasters, severe automobile accidents or being diagnosed with a life threatening illness." (Id. at 453-54.) Although not
Furthermore, Dr. Julius's diagnosis and opinion rested entirely upon her belief of Stowe's subjective statements of her symptoms and pain. (See id. at 436-37 (describing Stowe's symptoms all in terms of what Stowe told her); id. at 448 ("I believe everything `she told me about her pain. . . . I generally believe my patients."); id. at 486 ("My job is to believe the patient.").)
Finally, although Dr. Julius was accepted as a treating physician, she did not see Stowe for the first time until August 2010 only two months prior to trial. (Id. at 443.) Moreover, Stowe never previously sought treatment from any mental health practitioner. (Id. at 814-15.) The jury heard all of this, and also that Stowe was in fact referred to Dr. Julius not by a doctor, but by her attorneys, (id. at 419)—providing more evidence to doubt the sincerity of Stowe's statements upon which Dr. Julius relied, and of the psychic pain Stowe claimed. Recognizing that Dr. Julius's diagnosis was based entirely upon Stowe's self-serving statements, and hearing those statements for themselves, the jury could properly, and clearly did, disregard her opinion as to Stowe's depression and PTSD.
Given the credibility assessments that the jury clearly made, I cannot find that the jury verdict was seriously erroneous or a miscarriage of justice. As such, the motion for a new trial on grounds that the verdict was against the weight of the evidence must be denied.
Next, plaintiff argues that the causation instruction was erroneous and warrants a new trial. (Pl. Mem. at 12.) The court should order a new trial if the jury instructions were erroneous, and such error may have influenced the jury's verdict. Gordon v. N.Y.C. Bd. of Educ., 232 F.3d 111, 116 (2d Cir.2000). If, however, a court is convinced that the error was harmless—that is, that it did not influence the verdict—no new trial is warranted. Id. Jury instructions are not erroneous if "taken as a whole and viewed in light of the evidence, [the charge] show[s] no tendency to confuse or mislead the jury as to principles of law which are applicable." Hathaway v. Coughlin, 99 F.3d 550, 552-53 (2d Cir.1996). "[T]he particular words used in a jury instruction may (depending on the circumstances) be less important than the meaning or substance of the charge as a whole." Owen v. Thermatool Corp., 155 F.3d 137, 139 n. 1 (2d Cir.1998). In the instant case, no new trial is warranted because the causation instruction was not erroneous.
I charged the jury with the statutory language regarding the FELA causation standard, rather than the exact pattern instruction offered in Modern Federal Jury Instructions. The charge on causation was:
(Tr. at 1062-63 (emphasis added).) Plaintiff contends that these instructions "failed to adequately advise the jury of the FELA standard of causation." (PI. Mem. at 12.) Plaintiff argues that the instruction was erroneous by omitting the phrases "even the slightest" and "no matter how small," which she had requested. (Pl. Mem. at 12-13.) Plaintiff further contends that use of the phrase "the cause" immediately prior to giving the causation instruction and later use of the phrase "the result" "compounded" the error by "re-injecting the concept of proximate causation into the instruction."
FELA provides:
45 U.S.C. § 51 (emphasis added). In the oft-quoted Rogers v. Missouri Pac. R.R. Co., 352 U.S. 500, 506, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957), the Supreme Court explained that under FELA, "the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought." (emphasis added). The courts of appeals have almost uniformly interpreted Rogers as standing for the proposition that the FELA causation standard is relaxed from the common-law proximate cause standard. Williams v. Long Island R.R. Co., 196 F.3d 402, 406 (2d Cir.1999) (citing Rogers and recognizing that FELA requires a relaxed standard of causation); see also McBride v. CSX Transp., Inc., 598 F.3d 388, 399, 403-06 (7th Cir.2010), cert. granted, ___ U.S. ___, 131 S.Ct. 644, 178 L.Ed.2d 475 (2010) (holding that FELA requires a "relaxed" standard of causation based on Rogers and collecting other circuit decisions that hold the same).
That the charge here differed from the pattern instructions and Stowe's requested charge does not mean that it was erroneous or flawed. Pattern instructions are not a mandate for the trial court to use particular language, nor is a party entitled to the exact wording of jury instructions that they request. Rather, "a trial court has discretion in the style and wording of jury instructions so long as the instructions, taken as a whole, do not mislead the jury as to the proper legal standard. . . ." Parker v. Sony Pictures Entm't, Inc., 260 F.3d 100, 106-107 (2d
Stowe's suggestion that omission of these phrases is per se clear error finds no support in Rogers or Second Circuit precedent. Of the plethora of Second Circuit cases that plaintiff cites as using the phrase "even the slightest," not a single one discussed the phrase in the context of a FELA jury charge, or so much as hinted that the language is mandatory. Plaintiff also relies on Hausrath v. New York Central Railroad Company, 401 F.2d at 638. As plaintiff quotes, the Sixth Circuit opinion stated that "it is reversible error for a judicial charge to fail to employ and emphasize both the `in whole or in part' causal language of the statute and the interpretative language of the Supreme Court in the Rogers case." Id. In the same paragraph, however, the Sixth Circuit also cautioned that it did "not seek to provide mandatory language for judicial charges in FELA cases." Id.
Contrary to the stand-alone quote cited by plaintiff, the charge in Hausrath was not found to be erroneous merely because the charge omitted the Rogers language, but rather because the charge as a whole did not contain sufficient emphasis on the "in whole or in part" language and in fact highlighted common law proximate cause. 401 F.2d at 638. In Hausrath—unlike this case—the statutory language was mentioned once, but immediately explained as requiring proof of proximate cause, meaning "`the closest cause, the direct cause, the cause but for which this would never have happened in the first place.'" Id. at 636, 638 (quoting the jury charge). The charges in two preceding Sixth Circuit cases, Morrison v. New York Central Railroad Company, 361 F.2d 319 (6th Cir. 1966), and Tyree v. New York Central Railroad Company, 382 F.2d 524 (6th Cir. 1967), also used the term "proximate cause;" however, the Sixth Circuit upheld both charges since greater emphasis was placed on the statutory "in whole or in part" language when taking the instructions as a whole. Morrison, 361 F.2d at 320-321; Tyree, 382 F.2d at 526-27, 528-29.
Unquestionably, the charge in the instant case was more akin to Summers v. Missouri Pacific Railroad System, 132 F.3d 599 (10th Cir.1997), which was also upheld. The charge in Summers contained no traditional proximate cause language; rather, the court charged the jury with the "in whole or in part" language of the statute. Id. at 606. In Summers, the Tenth Circuit noted that although inclusion of the Rogers interpretation was the "clearest articulation of the appropriate causation standard," "the use of the statutory language is not so misleading as to present a ... basis for reversal." 132 F.3d at 607. See also, e.g., Houghton v. Port Terminal R.R. Ass'n, 999 S.W.2d 39, 44-45 (Tex.App.1999) (upholding jury questions that used "in whole or in part" but omitted "even the slightest"); Staley v. Iowa Interstate R.R., Ltd., No. Civ. 3-99-CV-80169, 2001 WL 1678769 at *2 (S.D.Iowa Aug. 15, 2001) (same). Cf. Roberson v. Nat'l R.R. Passenger Corp., Civ. A. No. 86-3359, 1988 WL 26478, at *1-2, *5 (E.D.Pa. Mar. 11, 1988) (granting a new trial "out of an abundance of caution" where the jury charge contained both statutory and Rogers language and commonlaw proximate cause language, such as "but for the act or omission").
Taking the charge in this case as a whole, excluding the requested language did not call to mind a more burdensome standard of causation such that Amtrak's negligence had to be the sole cause of Stowe's injury.
As a whole, the jury charge properly instructed the jury on the FELA causation standard. The charge clearly informed the jury that they should find Amtrak caused Stowe's injuries if Amtrak's negligence played any part in bringing about her injuries, and did not otherwise intimate that Amtrak's negligence needed to be the sole cause of her injuries. Therefore, this is not a basis upon which to grant a new trial.
Plaintiff also asserts that she is entitled to a new trial because I improperly granted defendant's Rule 50(a) motion and dismissed her fear of cancer claim. (Pl. Mem. at 15.) The court may grant a Rule 50(a) motion as to an issue or claim if "the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the [non-moving] party on that issue." FED.R.CIV.P. 50(a)(1). The court should direct a verdict under Rule 50 "when, viewing the evidence in the light most favorable to the non-moving party, `there can be but one conclusion as to the verdict that reasonable persons could have reached.'" Ehrlich v. Town of Glastonbury, 348 F.3d 48, 52 (2d Cir.2003) (quoting Indu Craft, Inc. v. Bank of Baroda, 47 F.3d 490, 494 (2d Cir.1995)). As part of the inquiry, the court should review the whole record, but may not weigh conflicting evidence or make credibility determinations. Reeves v. Sanderson
After the close of plaintiff's evidence, and before the issue was submitted to the jury, defendant moved for judgment as a matter of law on plaintiff's claim for fear of cancer damages as part of her pain and suffering award. (See Dkt. No. 58.) Prior to hearing the motion, I was inclined to allow the issue to reach the jury; however, I noted that I did not believe the jury would render a verdict for plaintiff based on the weak evidence presented and indicated that I was inclined to strike any such award before entering judgment in any event because there was not a proper evidentiary basis. (Tr. at 411-12.) However, upon arguing the motion, defendant expressed concern for the precedent that might be set by allowing a claim for fear of cancer predicated on blunt force trauma injuries to reach the jury. (Id. at 897-99.) With this concern in mind, and finding that there was no evidentiary basis to find for plaintiff on the fear of cancer claim, I granted the motion and dismissed the claim prior to the jury charge conference. (Id. at 901.)
Generally, "an employer may be held liable under FELA for risks that would be too remote to support liability under common law." Williams v. Long Island R.R. Co., 196 F.3d 402, 407 (2d Cir.1999) (internal quotation omitted). However, plaintiffs seeking fear of cancer damages in FELA cases, "must satisfy a high standard in order to obtain them." CSX Transp., Inc. v. Hensley, 556 U.S. 838, 129 S.Ct. 2139, 2141, 173 L.Ed.2d 1184 (2009) (emphasis added). In Norfolk & Western Railway Company v. Ayers, 538 U.S. 135, 147-48, 123 S.Ct. 1210, 155 L.Ed.2d 261 (2003), the Supreme Court recognized that FELA claimants who allege a cognizable injury can seek compensation for fear of cancer as part of pain and suffering damages for that injury. The Court later explained that a claimant would have "to prove that his alleged fear [was] genuine and serious." Id. at 157, 123 S.Ct. 1210.
Although the parties agree that Stowe alleged a cognizable injury underlying her fear of cancer requiring that her claim be assessed under the Ayers standard, the parties interpret plaintiff's burden under Ayers very differently. Plaintiff contends that Ayers requires merely that a FELA claimant's fear of cancer be "genuine and serious" once she alleges an underlying physical injury, a purely subjective standard. (Pl. Mem. at 16.) On the other hand, defendant asserts that Ayers requires the fear to be objectively reasonable, as well as subjectively genuine and serious. (Def. Mem. at 27.) The application of Ayers in the instant case is admittedly murky since the predicate injury in Ayers—asbestosis—was indisputably linked to increased risk of cancer, whereas the predicate injury here—blunt force trauma—has a questionable (at best) link to increased risk of cancer.
In Ayers, the Court explained that "[p]hysically injured plaintiffs ... may recover for `reasonable fears' of a future disease." 538 U.S. at 149, 123 S.Ct. 1210 (quoting D. Dobbs, Law of Torts 844 (2000)). Yet, the Court affirmed "only the qualification of an asbestosis sufferer to seek compensation for fear of cancer as an element of his asbestosis-related pain and suffering damages. It is incumbent upon such a complainant ... to prove that his alleged fear is genuine and serious." Id. at 157, 123 S.Ct. 1210. In rendering its decision, the Court explained at length the expert testimony at trial establishing an "undisputed relationship between exposure to asbestos sufficient to cause asbestosis, and asbestos-related cancer" and risks
Moreover, as a matter of policy to merit an award of pain and suffering based on fear of cancer, there must be some objective reasonableness to the fear, owing to some verifiable connection between the predicate injury and cancer. Otherwise, every FELA claimant could testify to a genuinely and seriously felt fear of cancer, and recover. As noted, however, fear of cancer claims must satisfy a higher standard, specifically to prevent "`unlimited and unpredictable liability.'" Ayers, 538 U.S. at 147, 123 S.Ct. 1210 (quoting Metro-North Commuter R.R. Co. v. Buckley, 521 U.S. 424, 435, 117 S.Ct. 2113, 138 L.Ed.2d 560 (1997)); see also id. at 157, 123 S.Ct. 1210 (recognizing that only a fraction of those exposed to asbestos will develop asbestosis thus reducing the "universe of potential claimants to numbers neither `unlimited' nor `unpredictable'"). A purely subjective genuine and serious standard, as plaintiff interprets Ayers, would result in such unlimited and unpredictable liability. Accordingly, a FELA plaintiff claiming fear of cancer, even with a cognizable injury, must be able to show that they have an objectively reasonable fear, which is both genuine and serious.
As an initial matter, Stowe cannot establish that she has a cognizable injury caused by Amtrak, which led to her fear of cancer. The jury found that Amtrak's negligence did not cause Stowe any of the injuries she alleged. So, even if there was sufficient evidence to submit the fear of cancer claim to the jury, this jury could not have awarded pain and suffering damages for her fear of cancer. Since I have already found that the jury's verdict must be upheld, a new trial is not warranted as there is no cognizable injury upon which Stowe's fear of cancer claim can rely.
But even so, Stowe did not establish that her alleged fear of cancer was reasonable in relation to her injuries. Stowe's medical expert opined that her risk of cancer was increased on two theories: (1) her injuries required her to undergo CT scans, which increased her exposure to radiation, which thus generally increased her risk of cancer, and (2) the incident caused microcalcifications in her left breast, which increased her risk of breast cancer. (Tr. at 266-69.)
First, although I acknowledge that plaintiff's expert opined that her exposure to radiation via CT scans and mammograms increased her risk of cancer, specifically for breast cancer, "fluid cancer, leukemia, blood cancers, [and] thyroid cancers," (id. at 284, 291), Plaintiff's own testimony did not establish a genuine or serious fear resulting from radiation. Stowe and her psychologist were very specific that breast cancer was the only cancer she feared, and that it resulted from seeing a "black spot" in a monitor and being told that the spot was from the "hit." (Id. at 436, 473, 477, 758-61.) So, even conceding generally that a link exists between radiation and cancer, Stowe's fears were not predicated on those increased risks—perceived or actual.
Second, Stowe failed to establish any connection between trauma to the chest and an increased risk of breast cancer that would lead to a reasonable fear. The only evidence offered that such a link exists came from Dr. Bleicher, Stowe's expert physiatrist. I permitted Dr. Bleicher to testify as to those opinions he formed while reviewing Stowe's medical files as a physiatrist, but he was not accepted as, nor purported to be, an oncologist or expert in the field of oncology. (Id. at 223-24, 236.)
Dr. Bleicher testified that the incident caused injuries to the soft tissues of Stowe's left breast and upper chest wall, based on "direct contusion which developed hematoma, bruising, swelling." (Id. at 254.)
Dr. Bleicher then opined that the incident resulted in direct trauma to Stowe's chest, which resulted in a hematoma, which resulted in calcium deposits in the breast, which increased her risk of breast cancer. (Id. at 282.) He could, however, not cite to one medical journal that supported his statement that microcalcifications (or blunt force trauma) increase the risk of breast cancer. (Id. at 332-33.) Moreover, he admitted that his opinion regarding Stowe's increased risk of cancer was based on "general medic[al] knowledge, information available to ... everybody... that information is available in mass media and internet." (Id. at 370-71; see also id. at 390.) Given this admission, Dr. Bleicher was not qualified to testify as to any verifiable link between breast cancer and direct trauma. Plaintiff offered no other evidence of any connection, or of the reasonableness of her alleged fear of cancer based on blunt force trauma to the chest.
A reasonable fear must be founded in some relationship between the underlying injury and cancer, and even if not a substantially higher risk,
Finally, setting aside the reasonableness of her fear, the theories set forth by plaintiff—without corroborating competent medical evidence—create a serious "potential for a flood of trivial suits, the possibility of fraudulent claims that are difficult for judges and juries to detect, and the specter of unlimited and unpredictable liability." Consol. Rail Corp. v. Gottshall, 512 U.S. 532, 557, 114 S.Ct. 2396, 129 L.Ed.2d 427 (1994). Dr. Bleicher testified that anyone with a blunt trauma injury has an
On the basis of the insufficient evidence offered, no rational jury would have had a basis to find that Stowe had a reasonable fear of cancer resulting from her alleged injuries. As such, her fear of cancer claim was properly dismissed and does not warrant a new trial.
Stowe's next argument—that the jury heard highly prejudicial information about her sexual history and health and that this information may have biased the jury against her—fails because as plaintiff acknowledges, I offered a limiting instruction to cure any prejudicial effect of this exact information, and her counsel rejected the attempt. (Pl. Mem. at 23; Tr. at 902.) Plaintiff cannot now assert that she was prejudiced by the admission of such evidence when she expressly rejected the Court's attempt to cure any potential prejudice.
As defendant notes, juries are presumed to follow the instructions they are given. Bingham v. Zolt, 66 F.3d 553, 563 (2d Cir.1995). The offered instruction would have cured whatever minimal prejudice may have flowed from questioning that brought to light Stowe's sexual history and health.
Additionally, the evidence was not improperly admitted in the first place. Stowe contends that Amtrak's arguments leave open any woman who is claiming psychological injuries to the introduction of evidence about her sexual history. Stowe's contention, however, is flawed because Amtrak offered such evidence only as it related to her fear of cancer claims, not her claims of general emotional distress. (See Tr. at 901-02 (offering to strike all sexual history and health testimony after dismissal of fear of cancer claims, and defendant noting no objection to such instruction).) During the trial, I explained my reasoning for allowing crossexamination on Stowe's sexual history and health as it related to her fear of cancer claims, in addition to offering a curative instruction to cure any potential prejudice. Plaintiff's arguments in this motion do not change my mind as to the relevance of Stowe's sexual history, or to the finding that the matters were not so prejudicial as to outweigh their probative value.
Even if any such evidence was admitted in error, this is not a ground for granting a new trial unless it affected Stowe's "substantial rights." FED.R.CIV.P. 61. This means that the court must find that the improper evidence "was so clearly prejudicial to the outcome of the trial that [it is] convinced that the jury ... reached a seriously erroneous result or that the verdict is a miscarriage of justice." Nimely, 414 F.3d at 399. Generally, "unless it is likely that in some material respect the factfinder's judgment was swayed by the error," no substantial right was affected and a new trial is not warranted. Perry v. Ethan Allen, Inc., 115 F.3d 143, 150 (2d Cir.1997) (internal quotation marks omitted).
The only argument Stowe makes that her substantial rights were affected is the jury verdict against her and the fact that her credibility was in issue. Here, as already discussed, the jury's verdict was not against the weight of evidence or the law. Additionally, plaintiff's argument that information regarding her sexual history and health somehow negatively affected her credibility is unavailing. Plaintiff asserts that since her credibility was at the forefront of this case, "`even the smallest error may have been enough to tilt the balance.'" (Pl. Mem. at 23 (quoting Nimely, 414 F.3d at 400).) The problem with this
Plaintiff also alleges that the Court exhibited antipathy toward her case to such an extent that she was deprived of a fair trial. Specifically, she alleges that the combination of disparate treatment of the parties' medical experts and lenient treatment of defense counsel showed the Court's antipathy or bias against Stowe to the jury. (Pl. Mem. at 24.)
A new trial is warranted on grounds of judicial bias only if "the judge's behavior was so prejudicial that it denied [a party] a fair, as opposed to a perfect, trial." Shah v. Pan Am. World Services, Inc., 148 F.3d 84, 98 (2d Cir.1998) (quoting United States v. Rosa, 11 F.3d 315, 343 (2d Cir.1993)) (alterations in original). "Specific remarks and rulings cannot be viewed in isolation," rather the alleged improper conduct must be viewed in context of the entire record. Szafran v. Sandata Technologies, Inc., 205 Fed.Appx. 864, 868 (2d Cir.2006). The record does not reflect that the Court made improper or biased rulings against Stowe, and as such, did not conduct the trial in a manner so prejudicial as to deprive her of a fair trial.
Plaintiff contrasts and compares my treatment of her expert, Dr. Bleicher, and defendant's expert, Dr. Crane, to support her position that I was biased against her case. Plaintiff argues first that a credibility instruction given after Dr. Bleicher was accepted as an expert, but not similarly given upon accepting Dr. Crane as an expert conveyed that Dr. Bleicher's testimony should not be accepted, and "implicitly conveyed the Court's endorsement of Amtrak's case." (Pl. Mem. at 25.) She also contends that I unfairly limited her cross-examination of Dr. Crane regarding a previous case, but allowed defendant wider latitude. Finally, she argues that I controlled questioning of the experts in a biased way. The medical experts were not treated disparately, and thus, my actions could not have broadcast bias to the jury.
As to the credibility instruction, the logical leap made by plaintiff here is untenable—that a credibility instruction actually evinces to the jury that a witness is incredible. Here, upon accepting Dr. Bleicher as an expert in physiatry, I gave a credibility instruction that the jurors would ultimately make a determination as to whether to accept or reject his testimony. Nothing about that statement alone implies that a witness is incredible. It is virtually identical
The fact that the instruction was not given again when Dr. Crane was accepted as an expert, (Tr. at 635-36), is of little import.
Moreover, the instruction with respect to Dr. Bleicher cuts both ways. He was the only expert whose qualifications were genuinely contested at trial. The jury heard extensive questioning calling into doubt Dr. Bleicher's credentials. The instruction as much legitimized Dr. Bleicher's standing as an expert, as it prevented the jurors from presuming expert testimony is incontrovertible. The credibility instruction was given to clarify a legal issue "and thus minimize possible confusion in the jurors' minds" and not to undermine Dr. Bleicher's credibility. Szafran, 205 Fed.Appx. at 869. The instruction was neutral on its face, and not improperly given.
Plaintiff's objection to the way I handled questioning of Dr. Bleicher and Dr. Crane about prior inadmissible reports fails to recognize the differences between the way counsel broached the subject. The only information relevant to Stowe's case contained in those prior actions was the rejection of the experts' reports and the prior courts' reasons for so doing. A limited amount of information was permitted to refresh the doctors' memories about each case, but beyond a general statement, further details were irrelevant and excluded. A comparison of the colloquies that took place highlights the impropriety of plaintiff's counsel's approach.
To summarize defendant's colloquy: Counsel asked Dr. Bleicher whether he knew of any time a court found his expert opinions inadmissible. Upon Dr. Bleicher's response that he was not, counsel gave the name of the case (Perl v. Meher) and stated that "[i]t was an automobile accident" and a decision from January 6, 2010. Counsel explained the court's finding that Dr. Bleicher's affirmation was inadmissible, and upon Dr. Bleicher's denial of having seen it, showed him the case. Dr. Bleicher volunteered that the reason for its inadmissibility was lack of range of motion numbers and that the exam took place in 2005. I directed counsel to move on, and so the colloquy ended. I also noted that plaintiff's counsel would have the opportunity to clear up any relevant facts. (See Tr. at 226-28.)
Plaintiff's contention that Amtrak was permitted to question Dr. Bleicher at great length about the case in which his report was found inadmissible is not only contradicted by the record, but it is clear that I permitted plaintiff to address exactly the same issue as defendant. What plaintiff was consistently prevented from doing was bringing in details about the substantive claims of the prior case, which were entirely irrelevant to Stowe's claims and Dr. Crane's credibility. Defendant was not similarly stymied because counsel made no attempt to bring in superfluous information. Plaintiff's characterization that I "severely limited any questions or testimony regarding the previous court's ruling" ignores the fact that her counsel tried to go beyond what had relevance to her case, and that I permitted Amtrak to go no further than plaintiff during its colloquy of Dr. Bleicher. I did not prevent plaintiff from inquiring about or referencing the fact that another court found Dr. Crane's report inadmissible; I, in fact, reiterated on the record that was the point plaintiff was making, and what the jury should consider in assessing Dr. Crane's testimony.
As for the "curt series of commands" to plaintiff's counsel, counsel's repeated disregard of my instructions left me no choice. Repeated instruction to counsel was necessary here to prevent the disclosure of irrelevant information. Ullman v. Starbucks Corp., 152 F.Supp.2d 322, 327 (S.D.N.Y.2001) (trial court entitled to act to "confine counsel to evidentiary rulings").
Plaintiff also complains that I controlled questioning of the expert witnesses in a biased manner. The trial court has "wide latitude" in controlling the presentation
First, Stowe contends that Dr. Crane was permitted to give "long-winded, nonresponsive answers" on cross examination, but Dr. Bleicher was instructed to give yes or no answers only. During defendant's voir dire of Dr. Bleicher, I sua sponte instructed Dr. Bleicher that counsel was "entitled to yes or no answers to the extent that [he could] give them." (Tr. at 222 (emphasis added).) This instruction came after a tedious colloquy on a very simple question—whether Dr. Bleicher could admit patients to the hospital:
(Tr. at 221-22.) Dr. Bleicher's responses were not only unnecessarily long-winded, they were unresponsive. Dr. Bleicher was avoiding simple and direct questions, which required defendant to re-ask and reiterate those questions, unnecessarily prolonging his testimony. An instruction from the Court was necessary to move his testimony along. A review of Dr. Crane's testimony reveals that he was not similarly evasive in responding to plaintiff's questions, though occasionally adding tidbits to his "yes or no" responses. Because Dr. Crane answered the questions asked, however, an instruction from the Court was
Plaintiff also complains that her counsel was at times directed to let Dr. Crane finish, but does not cite specific examples; I can find only one such instance. On recross-examination, plaintiff asked again about Dr. Crane's previously inadmissible report. Upon hearing Dr. Crane explain his understanding of why his report was ruled inadmissible, plaintiff's counsel recharacterized the testimony stating: "Putting in the basis of your findings, you say, is a nuisance?" (Id. at 702.) Dr. Crane began explaining, in response, what he meant by the testimony, however, counsel cut in as Dr. Crane continued. At that point, I directed counsel to let Dr. Crane finish.
The Court's participation in this colloquy was aimed at ensuring the jury had accurate information to assess Dr. Crane's credibility since it was clear that a simple "yes or no" response would not have accurately answered counsel's question, and since there was a real danger that the characterization of Dr. Crane's testimony would not be clarified since direct, cross, re-direct, and re-cross-examination had already been undertaken. Allowing Dr. Crane to finish his answer did not cross the line to advocacy on Amtrak's behalf, especially considering that the direction intimated no new questions or how Dr. Crane should finish his response.
Finally, Plaintiff asserts that I allowed certain types of questions to be asked of Dr. Bleicher, but prohibited the same types of questions from being asked of Dr. Crane. Plaintiff cites an example of a colloquy allowed between Dr. Bleicher and defense counsel and two colloquies during which an objection was sustained against plaintiff's counsel while questioning Dr. Crane. (Pl. Mem. at 25-26.) Plaintiff's examples presume that either there was something improper with the defense colloquy, or that there was nothing improper about her counsel's colloquies—she does not explain which. In the identified colloquies, both sides were trying to highlight information that each expert's direct testimony left out. However, the objections to plaintiff's questions were sustained because they were argumentative. Defendant's question was not. Moreover, plaintiff did not even object to defendant's question during trial.
Given that the medical experts were not treated unfairly during the course of trial, none of these complaints warrants a basis for a new trial.
Plaintiff claims that in addition to unfairly treating Dr. Bleicher, I treated defense counsel leniently despite his disregard for my rulings and his personal attacks and argumentative behavior throughout the trial. Initially, plaintiff argues that defendant disregarded my rulings regarding Stowe's sexual history,
Plaintiff also cites twelve statements made by defense counsel during opening and closing arguments as being a personal attack or argumentative. (Pl. Mem. at 27-28.) It is notable that I sustained an objection to the first statement plaintiff cites, which was made during opening arguments. Of the rest, Plaintiff failed to object at trial to any statements about which she now complains. Plaintiff's argument, then, is that I exhibited prejudice by not sua sponte intervening on her behalf. My lack of sua sponte intervention on plaintiff's behalf did not evince partiality for either side, and so could not have become a determining factor for the jury. McCallum, 348 Fed.Appx. at 696 (where the record demonstrates "that the jurors have been impressed with the trial judge's partiality to one side to the point that this became a factor in the determination of the jury," judicial bias warrants a new trial).
Moreover, although many of the statements raised in plaintiff's motion were "hardly commendable," Marcic v. Reinauer Transp. Companies, 397 F.3d 120, 127 (2d Cir.2005), and had counsel objected I may well have sustained some of those objections, the stray comments made during defendant's summation spanning thirty-pages of transcript after a week-long trial did not "so infect [the] trial with undue prejudice or passion as to require [a new trial]." Id. at 124 ("[W]here the jury's verdict finds substantial support in the evidence, counsel's improper statements will frequently be de minimis in the context of the entire trial.").
Notwithstanding the fact that there was no biased treatment of the experts or lenient treatment of defendant, I instructed the jurors at the end of trial that they "should not interpret anything I ... said or [did] as expressing an opinion about the facts." (Tr. at 1049.) And so even if it is possible that some rulings, though properly made, could have conceivably resulted in an inference by the jury that I felt one way or another about the case, they were instructed to disregard those things. And since jurors are presumed to follow the court's instructions, a new trial is not warranted on this basis. See, e.g., Luca v. County of Nassau, 344 Fed.Appx. 637, 639 (2d Cir.2009) (denying new trial where trial judge counterbalanced a pointed and impartial comment with a curative instruction).
Finally, plaintiff asserts that she is entitled to an evidentiary hearing to determine whether prejudicial information was in fact brought to the jury's attention, and thus whether a new trial may be warranted on the basis of juror misconduct.
(Pl. Mem., Exh. L.) Defendant asserts that the request for an evidentiary hearing to explore whether the jury was exposed to extraneous information is procedurally deficient due to the delay in raising the issue with the court. Although defendant's assertion arguably raises a basis for dismissing plaintiff's contention for untimeliness, plaintiff's argument fails on the merits in any event.
Courts must balance the need to ensure that the parties received "a fair trial, with a verdict based only on properly admitted evidence" against the general policy disfavoring investigation of and interference with jury deliberations. Cocconi v. Pierre Hotel, 146 F.Supp.2d 427, 429 (S.D.N.Y.2001). Accordingly, "probing jurors for `potential ... misconduct or extraneous influences' after they have reached a verdict is justified `only when reasonable grounds for investigation exist,' in other words, where there is `clear, strong, substantial and incontrovertible evidence that a specific, nonspeculative impropriety has occurred which could have prejudiced the trial.'" United States v. Stewart, 433 F.3d 273, 302-03 (2d Cir.2006) (quoting United States v. Moon, 718 F.2d 1210, 1234 (2d Cir.1983)). Here, there is no clear, strong, substantial and incontrovertible evidence of specific, nonspeculative impropriety sufficient to justify probing into the jury deliberations.
Plaintiff argues that Moody's vague assertions that Juror Number Three had some specialized knowledge or training that helped him understand the difference between objective and subjective symptoms is evidence that Juror Number Three acted as a "non-testifying expert" in the jury room, discussing "extra-record facts." (Pl. Reply at 15.) First, the attorney affidavit amounts to nothing more than selfserving hearsay, which is not clear and strong evidence to support hauling the jurors back here to probe jury deliberations in search of evidence sufficient to set aside the verdict. Severino v. Am. Airlines, No. 07-CV-941, 2009 WL 1810014, at *3 (S.D.N.Y. June 24, 2009); United States v. Abcasis, 811 F.Supp. 828, 835-36 (E.D.N.Y.1992). On this basis alone, plaintiff's motion fails.
But even accepting the affidavit, plaintiff's motion fails. Moody's statement that Juror Number Three had some training or knowledge is too vague to infer that this juror held himself out as an expert or even had any specialized medical knowledge or training, which he used to improperly influence the deliberations. Moody did not even identify a potential source of this "training" beyond Moody's understanding that it had something to do with the "upper part of the body."
I note, instead, that Juror Number Three expressed an interest in "fitness" during voir dire—an interest that plaintiff's counsel chose not to explore upon
Even if Juror Number Three improperly introduced extraneous information, the court still "must apply an objective test, assessing for itself the likelihood that the outside influence would affect a typical juror." Bibbins v. Dalsheim, 21 F.3d 13, 17 (2d Cir.1994). In the instant case, the difference between subjective and objective symptoms was explained in detail to the jury by the medical experts. (Tr. at 248, 587-88, 594, 601, 605, 653, 676-78, 729; Levy Dep. at 133-34, 140-41.) The jury also repeatedly heard the experts categorize Stowe's symptoms as subjective, and reiterate that various objective findings of abnormality or injury were not present. (E.g., Tr. at 588-90, 592, 594, 596, 598 729-30, 732, 750.) Thus, even the most generous reading of the attorney affidavit would establish only that cumulative extraneous information entered the jury room.
Since the jury heard repeated, competent, accessible testimony from qualified medical experts regarding Stowe's subjective and objective symptoms in relation to her claimed injuries, it is highly unlikely that cumulative information from a fellow juror would have affected the typical juror's decision. See Chase Manhattan Bank, N.A. v. T & N PLC, 162 F.3d 1147 (2d Cir.1998) (table decision), available at 1998 WL 634218, at *3 (affirming district court decision that jurors exposure to a newspaper article regarding the case that merely repeated testimony at trial was not prejudicial); Cocconi, 146 F.Supp.2d at 436 ("Extraneous information is nonprejudicial if it is cumulative of properly admitted evidence....").
Since there is no evidence, let alone clear, strong and substantial evidence, that extraneous prejudicial information came to bear upon the jury's verdict, an evidentiary hearing on the matter is unwarranted, as is a new trial on the basis of juror misconduct.
For all of the foregoing reasons, plaintiff's motion for a new trial is denied. The Clerk of Court is respectfully requested to enter final judgment in defendant's favor.
(Tr. at 819.) However, plaintiff's counsel withdrew his request for a sidebar when defense counsel offered to move on and ask no further questions in this potentially sensitive area. (Id.) Moreover, the jury was instructed that answers, not questions, are evidence. Since the jury heard that Stowe did not take the morning after pill, it is unclear to me what prejudice could have resulted from the exchange.
(Tr. at 650.)
