10-5223-cv Anderson v. Metro-North Commuter R.R. 

### UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER Rulings by summary order do not have precedential effect. Citation to a su mmary order filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this court’s Local Rule 32.1.1. When citing a summary order in a document file d with this court, a party must cite either the Federal Appendix or an electronic database (with the notation “s ummary order”). A party citing a summary order must serve a copy of it on any party not represented by counsel. 1 At a stated term of the United States Court of Appeals for the Second Circuit, held at the 2 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on 3 the 16 thday of July, two thousand twelve. 4 5 PRESENT: 6 7 PIERRE N. LEVAL, 8 ROSEMARY S. POOLER, 9 DEBRA ANN LIVINGSTON, 10 Circuit Judges

. 11 12 13 14 JEROMIE ANDERSON, 15 Plaintiff-Appellee , 16 17 -v.- No. 10-5223-cv 18 19 METRO-NORTH COMMUTER RAILROAD, 20 Defendant-Appellant

. 21 22 23 24 25 IRA S. MAURER, The Maurer Law Firm, PLLC, Fishkill, N.Y., 26 for Plaintiff-Appellee

. 27 28 IOANA WENCHELL (José R. Rios, on the brief ), Metro-North 29 Commuter Railroad Legal Department, New York, N.Y., for 30 Defendant-Appellant

. 31 32 33 341 The Honorable Samuel Conti, of the United States District Court for the Northern District of California, sat by designation on the United States District Court for the Southern District of New York for the proceedings below.
2 Appeal from the United States District C ourt for the Southern District of New York 1 (Conti, Judge ). 1 2 UPON DUE CONSIDERATION, it is he reby ORDERED, ADJUDGED, AND DECREED 3 that the judgment of the district court is AFFIRMED IN PART, REVERSED IN PART, and 4 REMANDED for proceedings consistent with this summary order. 5 Defendant-Appellant Metro-North Commuter Railroad (“Metro-North”) appeals from the 6 judgment of the United States District Court for th e Southern District of New York, entered after 7 a jury trial, awarding Plaintiff-Appellee Jeromie Anderson (“Anderson”) $2,034,030.97 in 8 compensatory damages for an injury sustained by Anderson in the course of his employment at 9 Metro-North. We presume the parties’ familiarity with the underlying facts, the procedural history, 10 and the issues on appeal and revisit those topics be low only as necessary to facilitate this discussion. 11 I. Background 12 Stated briefly, the facts relevant on appeal are as follows. Anderson was an employee of 13 Metro-North. During the course of his employment, Anderson came into contact with a Metro14 North truck that was itself in contact with a liv e power line, resulting in an electric shock to 15 Anderson. Subsequently, Anderson sued Metro-North in the United States District Court for the 16 Southern District of New York under the Fede ral Employers’ Liability Act of 1908 (“FELA”), 45 17 U.S.C. § 51 et seq. Metro-North conceded liability; thus, the only issues at trial were whether to 18 award damages to Anderson and the amount of those damages. 192Judge Robinson has since departed the bench.

3 The jury also awarded Anders on a sum for future medical expenses. This component of the damages award is not disputed on appeal.

4The second jury did not award any damages for pa st lost fringe benefits, because the parties agreed during trial that Anderson was not entitled to any damages under this heading.

5 Judge Conti ordered a new trial with respect to the award for future medical expenses unless Anderson agreed to a remittitur of that award, and Anderson agreed to remittitur.
3 After a trial presided over by the Honorable Stephen C. Robinson, 2the jury, using special 1 interrogatories, returned an award in Anderson’s favor in the following amounts: 2 Past pain and suffering: $87,500 3 Future pain and suffering: $100,000 (for ten years of pain and suffering) 4 Past wage loss: $58,056 5 Future wage loss: $342,000 (for ten years of wage loss) 6 Past fringe benefits loss: $12,744 7 Future fringe benefits loss: $83,550 (for ten years of fringe benefits loss) 8 Anderson sought a new trial under Fed. R. Civ. P. 59. Judge Robinson granted the motion 9 on the grounds that the damages awarded represente d an impermissible compromise verdict, that 10 the verdict was unsupported by, or contrary to the weight of, the evidence, and that the award for 11 past and future pain and suffering was inadequate as a matter of law. 12 Following Judge Robinson’s departure from the bench, the case was reassigned to Judge 13 Conti. After a second trial, th e jury returned a verdict in Anderson’s favor, again using special 14 interrogatories, in the following amounts: 3 15 Past pain and suffering: $200,000 16 Future pain and suffering: $925,000 (for 32 years of pain and suffering) 17 Past wage loss: $76,100 18 Future wage loss: $881,851 (for 24.5 years of wage loss) 19 Future fringe benefits loss: $512,742 (for 24.5 years of fringe benefits loss) 4 20 Metro-North moved for a new trial, but Judge Conti in relevant part denied that motion. 5 After 214 discounting the award to present value, J udge Conti entered judgment awarding Anderson 1 $2,034,030.97 in damages. This appeal followed. 2 II. Discussion 3 On appeal, Metro-North argues principally that Judge Robinson erred by granting a new trial 4 after the first jury’s verdict and that Judge Con ti erred by not granting a new trial after the second 5 jury’s verdict. For the reasons that follow, we conclude that Judge Robinson erred in part by 6 granting a new trial and that Judge Conti did not err by declining to grant a new trial. 7 A. First Trial 8 “Our review of a district court’s decision to grant a Rule 59(a) motion [for a new trial] is 9 deferential; we will reverse only for abuse of discretion.” Manley v. AmBase Corp. , 337 F.3d 237, 10 245 (2d Cir. 2003). “A district court abuses its di scretion when (1) its decision rests on an error of 11 law (such as the application of the wrong legal principle) or a clearly e rroneous factual finding, or 12 (2) its decision – though not necessarily the product of a legal error or a clearly erroneous factual 13 finding – cannot be located within the range of permissible decisions.” Id. (internal quotation marks 14 omitted). Under our case law, where special interrogatories are used, “e rror with respect to one 15 issue will ordinarily not constitute reason to retry an issue that was separately determined.” Crane 16 v. Consol. Rail Corp. , 731 F.2d 1042, 1050 (2d Cir. 1984). Accordingly, we examine each 17 component of the first jury’s damages award separately to determine if Judge Robinson correctly 18 deemed that component to be infected by error. 19 We affirm Judge Robinson’s grant of a new trial with respect to the award for past and future 20 pain and suffering. Judge Robinson set aside this aspect of the award because he found it “so 21 inadequate as to shock the judicial conscience and c onstitute a denial of justice.” We have held that 226Judge Robinson also held that the jury’s award represented an impermissible compromise verdict. This conclusion rested on the judge’s perception that “[t]here was no evidence presented throughout the entire case that indicated that Mr. Anderson was disabled on only a temporary basis
5 “an appellate court should reverse the grant of a new trial for excessive verdict only where the 1 quantum of damages was clearlywithin the . . . limit of a reasonable range,” Ismail v. Cohen , 899 2 F.2d 183, 186 (2d Cir. 1990) (internal quotation mark s omitted), and there is no reason to apply a 3 different rule when the district court granted a new trial because the jury’s award was inadequate, 4 rather than excessive, see Caskey v. Village of Wayland , 375 F.2d 1004, 1007 (2d Cir. 1967). 5 Judge Robinson exercised his discretion in conc luding that the pain and suffering award fell 6 outside a reasonable range. We cannot say that th is decision was not within the judge’s discretion. 7 We have compared the first jury’s award for painand suffering to the awards for pain and suffering 8 in other cases with similar injuries. Because it is not apparent to us that the first jury’s award for 9 pain and suffering “was clearlywithin the . . . limit of a reasonable range,” Ismail , 899 F.2d at 186 10 (internal quotation marks omitted), we affirm Judge Robinson’s grant of a ne w trial with respect to 11 this aspect of the award. 12 The grant of a new trial with respect to the aw ard for future wage and fringe benefits loss is 13 another matter. Judge Robinson held that the jury’s determination that Anderson was only entitled 14 to compensation for ten years of future lost wa ges and benefits was not supported by the evidence. 15 Specifically, he opined that, while Anderson had pr esented evidence of permanent disability arising 16 from his accident, and Metro-North had presen ted evidence that Anderson was not presently 17 disabled at all, no evidence had been produced that Anderson was presently disabled but would 18 eventually recover his health sufficient to allow him to resume his duties as an employee of Metro19 North. 6However, our independent review of the record indicates that the first jury was entitled to 20and that his condition can be expected to improve,” and that therefore the jury must have impermissibly compromised to reachthe ten-year figure. Thus, Judge Robinson’s holding regarding a compromise verdict was essentially a reprise of his holding that the jury’s verdict was unsupported by, or contrary to the weight of, the evidence. Our discussion of the latter holding necessarily disposes of the former.

7 Anderson also argues that Judge Robinson’s order as to future lost wages and fringe benefits may be upheld because the jury erred in its calculation of appropriate damages even granting the jury’s goal of awarding damages for a period of ten years. However, we cannot uphold the order for a new trial on this basis. The valuation of fringe benefits put forward by Anderson included the cost to Metro-North of sick days and other forms of paid leave, which, on Anderson’s own admission, “were not ever given a dollar amountand appeared to cancel . . . out” with paid leave Anderson anticipated receiving from his new source of employment. The jury was entitled to depart from the valuation of fu ture lost fringe benefits put forw ard by Anderson to take these facts into account. We address Anderson’s argument re garding miscalculation of future lost wages infra , in note 8.
6 believe that Anderson would recover his health in ten years’ time. Dr. George Unis, Metro-North’s 1 expert witness, testified that Anderson was not curre ntly disabled at all. Taken with the evidence 2 that Anderson had sustained injuries at the time of his accident, Dr. Unis’s testimony implicitly 3 advanced the proposition that the type of injuri es Anderson received from his accident were not 4 permanent. The jury could have believed Dr. Unis that Anderson’s injuries were not permanent and 5 at the same time could also have believed Anderson’ s experts that those injuries had not yet healed. 6 This would leave the jury free to estimate at what point in the future Anderson’s injuries would heal. 7 See, e.g. , Romano v. Howarth , 998 F.2d 101, 107 (2d Cir. 1993) (“[It is not true] that the jury had 8 to accept the plaintiff’s testimony in its entirety, or the defendants’ testimony in its entirety, in order 9 to resolve this dispute. The truth . . . may, and often does, lie somewhere in between the divergent 10 accounts; the jury’s discretion to explore the middle ground should . . . remain[] unfettered.” 11 (emphasis omitted)). Thus, Judge Robinson was inco rrect that the jury’s conclusion that Anderson 12 was presently disabled but would recover from his injuries was without evidentiary support, and the 13 grant of a new trial as regards future lost wage s and fringe benefits was accordingly inappropriate. 7 148 Similar logic would apply to Anderson’s argument on appeal that the grant of a new trial with regard to the award for future lost wages was justified on the ground th at the jury’s award was impermissibly low, even given the fact that the jury intended to make an award for only ten years of disability. Taking into account the fact that overtime was not guaranteed to employees, the jury cannot be said to have seriously erred (if indeed it may be said to have erred at all) by awarding Anderson somewhat less than he claimed in future lost wages.

9 As explained supra note 4, the parties agreed at th e second trial that Anderson was not entitled to damages for the loss of past fringe be nefits. Accordingly, we do not discuss whether Judge Robinson was justified in granting a new trial with respect to the damages awarded by the first jury for this alleged loss.
7 We likewise are troubled by Judge Robinson’s gran t of a new trial with regard to the award 1 for past lost wages on the ground that the jury miscalculated the amount of the award. We have 2 never permitted a district court to set aside a juryverdict merely on the grounds that the jury made 3 a minor computational error. See, e.g. , Manley , 337 F.3d at 245 (“[F]or a district court to order a 4 new trial under Rule 59(a), it must conc lude that the jury has reached a seriouslyerroneous result 5 . . . .” (emphasis added) (internal quotation marks omitted)). Anderson’s estimate of his lost wages 6 was predicated on his working substantial overtime which, the undisputed evidence shows, was not 7 guaranteed to employees. Had the jury (as seem s likely to have happened) discounted Anderson’s 8 estimate of his lost wages to take this fact into account, it would have permissibly reached, if not 9 precisely the amount it awarded Anderson, at least anamount very close to it. Judge Robinson erred 10 by granting a new trial over this small miscalculation by the jury. 8 11 In short, we affirm Judge Robins on’s grant of a new trial with re gard to the first jury’s award 12 for past and future pain and suffering and reverse with respect to past and future lost wages and 13 future fringe benefits. 9 14 15 1610In particular, we have considered Metro- North’s evidentiary challenges and find them to be without merit.
8 B. Second Trial 1 Metro-North also contends that Judge Conti erred by declining to grant its Rule 59 motion 2 for a new trial after the second jury returned its verdict. Because, as we have explained, Judge 3 Robinson erred by granting a new trial with respect to damages for lost past and future wages and 4 future fringe benefits, we need consider only whether Judge Conti erred in declining to grant a new 5 trial with respect to the second jury’s award for past and future pain and suffering. 6 As with an order granting a motion for a new trial, we review an order denying such a motion 7 for abuse of discretion. See Nairn v. Nat’l R.R. Passenger Corp. , 837 F.2d 565, 566 (2d Cir. 1988). 8 Here, too, we appropriately “review awards in other cases involving similar injuries” to determine 9 whether the second jury’s award was excessive. See id. at 568. 10 Judge Conti did not abuse his discretion by declin ing to order a new trial with regard to the 11 second jury’s award for pain and suffering. The aw ards for past and future pain and suffering fit 12 within the ranges of other awards for similar injuries. 13 To the extent Appellant raises other arguments with respect to the judgment below, we have 14 considered them and reject them as meritless. 10Accordingly, for the foregoing reasons, the 15 judgment of the district court is AFFIRMED with regard to Judge Robinson’s grant of a new trial 16 respecting pain and suffering and also with regardto Judge Conti’s refusal to grant a new trial 17 respecting the same. It is REVERSED as to Judge Robinson’s grant of a new trial regarding past 18 and future lost wages and future lost fringe benefits. On remand, the district court should substitute 19 the first jury’s damages award for past and future lo st wages and future lost fringe benefits in place 20 of the second jury’s award for those elements . Thus, the appropriate damages award, before 219 discounting, will contain the following elements: 1 Past pain and suffering: $200,000 2 Future pain and suffering: $925,000 3 Past wage loss: $58,056 4 Future wage loss: $342,000 5 Future fringe benefits loss: $83,550 6 7 Accordingly, Anderson’s damages award, before discounting and excluding the unchallenged award 8 for future medical expenses, should be in the amount of $1,608,606. 9 We REMAND for proceedings not inconsistent with this summary order. 10

FOR THE COURT: 11 Catherine O’Hagan Wolfe, Clerk 12