ROBERT GI RON,

Plaintiff,

v. DAVI D MCFADDE

N, Def endant. UNI TED STATES DI STRI CT COURT

FOR THE DI STRI CT OF COL UMBI A

C i v i l A c t i o n N o . 0 7

- 0 4 2 5 D A R

M E M O R A N D U M O P I N I O N A N D O R D E R Plaintiff’s Motion for NewTrial “pur suant to Rule 59” of the F eder al Rules of Civil Procedur e (D ocument No. 50) is pending for de termination by the under signe d. Plaintiff, throug h his counsel, adva nces but two g rounds for the relief which he se eks. F irst, Plainti ff maintains that “[t] he jury ’s ver dict . . . was a seriously err oneous re sult given the undisputed evidenc e that the subjec t acc ident . . . cause d at least some injury and dama g es[,] ” (Plaintiff’s Motion for NewTrial at 5) and that “[t]he only plausible explanations for the ver dict are that the jury did not comprehe nd the Court’s instruction with reg ard to proximate cause or the jury allowed a n improper f

actor to influence its deliberations and de cision[] ” ( id . at 7). Sec ond, Plaintiff hy

pothesizes that “[s] ince the jur y also hea rd testimony

reg arding Plaintiff’s homosex ual lifesty le, the potential for bias, passion or pre

judice ag ainst Plainti ff may explain the jury ’s finding with reg ard to the issue of proxi mate ca

use.” Id. Plaintiff does not ref er a t all to 1

The “tes tim on y

regarding P laintiff

’s ho m osexual life sty le” w as off ered entirely

by Pl aintiff

. 1Giron v. McF adden 2

the trial transc ript; indeed, there is no indication in the ECF rec ords that Plaintiff, in the intervening months, ever or dere d it. 2 Def endant oppose s Plainti ff’ s motion, and submit s that “the ve rdict re turned by the jury in reg ard to da

mag es wa s a just and prope r ver dict, [and] was not the re sult of sy mpathy , passion or pre judice[.] ” De fenda

nt’s Memorandum of

Points and Authorities in Opposition to P laintiff’s Motion for a Ne w Trial ( “De fenda nt’s Opposition”) (Doc ument No. 51) a t 4. Defe ndant observe s that during the trial, De fenda nt offer ed the testimony

of the phy sician who c onducted a n independe nt medical examination of Plaintiff, and who opined, inter alia, that Plaintiff had no perma nent injury

as a r esult of the collision which wa s the subject of this ac tion. Id. at 1-2. Def endant sug g ests that “the jury in considering . . . the testimonies of both of those [board]

cer tified doctors c ould have e asily found that the e vidence was in fa ct balanc ed and [that] Plaintiff failed to mee t his burden of proof .” Id. at 3-4. 3
DISCUSSIO N Rule 59 of the F eder al Rules of Civil P roce dure pr ovides, in pertinent par t, that “[t] he court may , on motion, gra nt a new tr ial on all or some of the issues . . . after a jury trial, for a

ny
rea son for whic h a new

trial has her etofore been g rante d in an ac tion at law in fede ral c ourt[.] ” Fe d. R. Civ. P . 59(a) (1)( A). Ge nera lly , a new trial should be g rante d “only wher e the c ourt is

P laintiff in clud es as an exhibit to the motion th e transcript of the de b ene esse dep ositio n o f th e orth op edic surgeon 2 to w ho m he was ref

erred by his pri m ary

care phy sician. The o rtho pedi c surgeon assigned P laintiff a 20 % disabili ty

rating, an d op ined th at said d isability w as caused solely by the auto m ob ile accident which wa s the su bject o f th is action , and no t a later slip

and-fall. Id. at 2 -3.

See n.2 , supra . 3Giron v. McF adden 3

convince d the jury

verdic t was a ‘ seriously

err oneous re sult’ and wher e the de nial of the motion will result in ‘a cle ar misca rriag e of justice.’ ” Martinez v. District of Columbia, 503 F. Supp. 2d 353, 355 (D.D.C. 2007) ( citing Nyman v. FD IC , 967 F. Supp. 1562, 1569 (D.D .C. 1997)) (citations and inter

nal quotations omitt ed); see also In re Lorazepam & Clorazepate Antitrust Liti g., 467 F. Supp. 2d 74, 87 (D.D .C. 2006) ( “G ener ally , a new trial may only be g rante d when a manife st error

of law or fac t is presented.” ). I n the deter mination of a motion for newtrial, “the [t rial] court should be mindful of the jury ’s spec ial function in our leg al sy stem and hesitate to disturb its findings.” Martinez, 503 F. Supp. 2d at 355 (c itation and internal quotations omitted); cf. Czekalski v. LaHood, 589 F.3d 449, 456 ( D.C. Cir. 2009) (the Circuit re views de novo the trial court’ s denial of a

motion for new tria l; however , “[t] he jury ’s ver dict stands “unless the evidenc e and a ll reasona

ble infer ence s that can be draw n there from ar e so one- sided that

rea sonable men a

nd women could not disag ree on the ver dict.’”) (citation and inter nal quotations omitted). Upon consider ation of this exacting standa rd, the unde rsig ned finds that Plaintiff has failed to de monstrate that a ne w trial is war rante d. Wit hout expl anation, Plaintiff makes no ref ere nce to the tr ial transcr ipt; ins tead, he opts to rely solely upon the transc ript of the de bene

esse deposition of his treating phy sician, and to ig nore the testimony of the phy sician ca lled by 4 Def endant. Ac cording ly , Plaintiff’s claim that at trial he offe red “ undisputed” evide nce tha t he suffe red “ at least some injury ” as a result of the c ollisi on which wa s the subject of this ac tion ( see Plaintiff’s Motion for NewTrial at 5; see also Plaintiff’s Reply to Defe ndant’s Memora

ndum in

See n. 2, supra . 4Giron v. McF adden 4

Opposition to P laintiff’s Motion for Ne w Trial ( Document No. 52) at 2) is entire ly unsupported by the re cord of

the trial. Cf. Martinez, 503 F. Supp. 2d at 354, n.1 (a fter the plaintiffs timely filed a motion for ne w trial, trial cour t ordere d them “to re submit t heir [m] otion . . . with transcr ipt refe renc es[.] ”). 5 The unde rsig ned finds that Plaintiff’s sug g estion that one “pla usible expl anation[] ” for the awa rd of no da

mag es is that “the jury

did not comprehe nd the Court’s instruction with reg ard to prox imate ca

use” ( see Plaintiff’s Motion for NewTrial at 7) is equally specious: Plaintiff neither ide ntifies the instruction about which he complains, nor make s any eff ort to offe r a fac tual basis in support of his claim that “the jury did not comprehe nd” unidentified the instruction. To the extent which Plainti ff’ s claim ca n be re ad as a

sug g estion that an instruction was objec tionable, any

such sug g estion likewise fa ils: P laintiff does not indicate that he objec ted to the instruction during the cour t’s extensive confer ence reg arding the instructions, or at any time therea fter. Medina v

. District of C olumbia, No. 97-594, 2010 WL 2473700, at *14 (D.D .C. J une 18, 2010) ( “Surely [] [a party ] cannot press as g rounds for a new tria l an objection that it

never made a t the trial[.] ”); see also Fe d. R. Civ. P . 51 (d)( 1)(A) (a pa rty may assig n as er

ror “ an
err or in an instruction ac tually g iven, if that par

ty proper ly objected[.]”); cf. Czekalski, 589 F.3d at 455 (“ [A] s long a s a district judg e’s instructions ar e leg ally corr ect . . . [she] is not require d to g ive them in any

particula r lang uag e.”) (citation and inter nal quotations omitt ed).

While the u nd ersigned knows of no auth ority w

hich expressly

ho lds t hat a p arty

m oving for a new trial pu rsuant to 5 Rule 5 9(a) m

ust i nclu de th e trial transcrip t, n o o ther me ans by w hich a cou rt cou ld asse ss a claim th at a verdict w as “ag ainst th e clear w right o f th e ev iden ce” is app arent. I n t he absence of ref erences to th e ev iden ce on w hich th e m ovant relies for th at pro po sition , trial court s w ou ld be forced to plu m b t he d epth s of their me m ories, an d t hen substi tute t heir recoll ections for th e evidence off

ered du ring th e trial. No o ne can credib ly sugges t such th at a m etho do logy w as contem

plated by th e drafte rs of Rule 59 (a).Giron v. McF adden 5

Finally , Plaintiff fails to identify the “testimony

reg arding [hi s] hom osexual li festy le” which “ma

y ” ac count for the finding of the jury with respec t to damag es. See Plaintiff’s Motion for Ne w Trial a

t 7. The under signe d finds that such cla im – unsupported by any fac tual basis – can only be re g arde d as ra

nk specula

tion. I n any

event, since the testimony to which Plaintiff ref ers wa s offe red by

Plaintiff, such testimony cannot c onstitut e a g round of Plaintiff’s Motion for Ne w Trial. Cf. Medina, 2010 WL 2473700, at * 14 (a dmission of evidence to which a pa rty stipulated cannot c onstitut e a g round of a motion for new tria l).
CONCLUSION For all of the for eg oing r easons, it is, this 15 day of Oc tober, 2010, t h ORDERED that Plaintiff’s Motion for NewTrial (D ocument No. 15) is DENIED.

/s/ DEB ORAH A. ROB I

NSON United States Mag istrate Judge