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February 26, 1996

Mark Waldorf, Plaintiff
Edward J. Shuta, et al., Defendant.

The opinion of the court was delivered by: WALLS

 Walls, District Judge

 In the latest trial in this case, a jury rendered a verdict of $ 3,086,500 for plaintiff Mark Waldorf ("Waldorf"), including $ 2,500,000 for pain and suffering and $ 586,500 for past and future lost earnings. Waldorf argues that these amounts were shockingly low and against the weight of the evidence. Hence, he moves for a new trial. In the alternative, Waldorf moves for additur.

 I. Background

 On November 17, 1982, Mark Waldorf was involved in a motor vehicle accident in Kenilworth, New Jersey. As a result, he became a C6-C7 quadriplegic. Waldorf then sued defendant Borough of Kenilworth (the "Borough") as well as numerous other parties.

 In 1988, the case was tried to determine liability and damages. The jury awarded Waldorf $ 8,400,000. The Borough and one of its police officers appealed several issues. Waldorf appealed partial summary judgments in favor of the Borough on two issues. Our Court of Appeals affirmed in part, reversed in part, and remanded for a new trial.

 On July 28, 1992, the Borough admitted liability in the case. On August 4, 1992, the magistrate judge incorporated this admission into a case management order.

 In September 1992, the case was retried. This time, the jury awarded Waldorf $ 16,135,716, of which $ 15,000,000 was for pain and suffering. The defendants moved for a mistrial on the grounds that the jury had been inadvertently exposed to media coverage of a $ 30,000,000 verdict awarded in a similar case. The trial judge denied the motion. The Third Circuit vacated the verdict and remanded for a new trial.

 In October 1995, the case was tried yet again, this time before me. Here, the jury awarded $ 3,086,500. Of this amount, $ 2,500,000 was for pain and suffering, $ 195,000 for past lost earnings and $ 391,500 for future lost earnings.

 II. Standard for granting a motion for a new trial

 A court may set aside a jury verdict as contrary to the preponderance of the evidence even though a judgment notwithstanding the verdict would not be justified. DePascale v. Penn R. Co., 180 F.2d 825 (3d Cir. 1950). A motion for a new trial may be based, among other things, on the grounds that a verdict is against the weight of the evidence, that an award of damages is excessive or inadequate, or for other reasons the trial was not fair to the moving party. Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 251, 85 L. Ed. 147, 61 S. Ct. 189 (1940). A court may grant a new trial if one is needed to prevent injustice or to correct a verdict that was against the weight of the evidence. American Bearing Co. v. Litton Indus., Inc., 729 F.2d 943, 948 (3d Cir. 1984), cert. denied, 469 U.S. 854, 83 L. Ed. 2d 112, 105 S. Ct. 178 (1984).

 The authority to grant a new trial rests within the sound discretion of the court, Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 36, 66 L. Ed. 2d 193, 101 S. Ct. 188 (1980) (per curiam), but if the judge is not convinced that there has been a miscarriage of justice, then it is his or her duty to respect the jury's verdict. See Magee v. General Motors Corp., 213 F.2d 899, 900 (3d Cir. 1954). For a court to disturb a jury verdict, the damages assessed by the jury must be so unreasonable as to offend the conscience of the Court. Murray v. Fairbanks Morse, 610 F.2d 149, 152 (3d Cir. 1979).

 III. Analysis

 A. Motion for a new trial

 Waldorf moves for a new trial on the ground that the verdict was shockingly low and against the weight of the evidence. In this regard, he first attacks the award of $ 2,500,000 for pain and suffering "on its face." Waldorf then directs his fire against the awards for past and future economic losses. These, he claims, were inadequate and contrary to the weight of the evidence because of "unfairly prejudicial evidence and erroneous court rulings...." Pl.'s Br., at 21. Specifically, he points to three events during the trial: 1) the Court's decision to permit Dennis Rizzo ("Rizzo") to testify; 2) the Borough's misuse of the testimony of James Pascuitti; and 3) the Borough's closing remarks regarding occupational therapy.

 The Court now considers these arguments.

 1. The award for pain and suffering

 Waldorf claims that the $ 2,500,000 award for pain and suffering was inadequate. In support of this argument, he provides a short history of his injuries, medical and rehabilitative treatment, and related problems. He also cites three cases where plaintiffs won larger monetary judgments.

 First, the Court disagrees that the $ 2,500,000 award for pain and suffering was, "on its face," against the weight of the evidence. While clearly Waldorf is a sympathetic figure, this is not a basis for the Court to substitute its judgment of the facts and the credibility of the witnesses for that of the jury.

 Moreover, there is no evidence that the jury was swayed by any passion or prejudice that might have made it disregard the weight of the evidence. Nor is there any proof that the jury ignored the issue of pain and suffering or otherwise gave it short shrift. Indeed, the jury had ample opportunity to consider this question. Waldorf's counsel raised the issue of the plaintiff's pain and suffering repeatedly during the trial in their opening and closing arguments as well as in their examinations of him, Kristjan Ragnarsson ("Dr. Ragnarsson"), Joshua Feibusch, and others. Moreover, and importantly, the jury had the chance to observe Waldorf on the stand, in the courtroom seated at or next to his counsels' table, in a day-in-the-life-of video, and even performing a short demonstration of his exercise routine. After closing arguments, the jury deliberated approximately seven hours.

 The Court finds no reason to second-guess the jury and its decision on the pain and suffering award. The Court determines that this decision was not, on its face, against the weight of the available evidence.

 The Court turns now to the issue of the adequacy of the pain and suffering award. In this regard, the Third Circuit has noted that the examination of awards in other cases involving similar injuries serves as a helpful guide to whether a particular award is excessive. Motter v. Everest & Jennings, Inc., 883 F.2d 1223, 1230 (3d Cir. 1989). Nonetheless, it has also suggested that courts remain mindful that each verdict revolves around a unique set of facts and circumstances. Id.

 The first case Waldorf cites, Harrigan v. Ford Motor Co., 159 Mich. App. 776, 406 N.W.2d 917 (Mich. App. 1987), involved an automobile accident victim who became a C6-C7 quadriplegic. He won $ 12,000,000. The second one, Firestone v. Crown-Center Redevelopment Corp., 693 S.W.2d 99 (Mo. 1985), pertained to a 34-year-old C4 quadriplegic. She won $ 15,000,000. The third, Fleck v. KDI Sylvan Pools, Inc., 1991 U.S. Dist. LEXIS 17742, 1991 WL 261659 (E.D. Pa. Dec. 6, 1991), aff'd in part, rev'd in part, and remanded, 981 F.2d 107 (3d Cir. 1992), represents a claim for a diving accident victim who became quadriplegic. He won $ 10,000,000.

 Harrigan and Firestone are also misleading here because the $ 12,000,000 and $ 15,000,000 figures presumably include medical expenses, whereas in Waldorf's case, medical expenses were not ingredients of the verdict (a statute provides for all of his necessary medical expenses for life without limitation). In addition, the court in Fleck simply refers to a $ 10,000,000 verdict; it is unclear whether this includes economic damages, or if it is limited to pain and suffering.

 Second, a closer look at the three cases relied upon by Waldorf indicates that they differ in significant respects from the one tried in this Court. In Harrigan, Harrigan, a truck driver, was involved in a truck accident, and became a C6-C7 quadriplegic. He was paralyzed from the collarbone down. According to the court, "he has no function of the muscles of his lower extremities, his hands, his trunk or his abdomen. He has very limited control of some arm and shoulder muscles." Harrigan sued Ford in a products liability action. The jury found that he was 75 percent negligent, and he received a judgment for about $ 3,000,000.

 In Firestone, Firestone was injured when a skywalk she was on collapsed. She became a C5 quadriplegic. The court noted that "she has no movement below the shoulder level with the exception of some use of her biceps enabling her to lift her arms but leaving her without control to lower them." Firestone, 693 S.W.2d at 109. Firestone suffered a horrible myriad of ills as a result of the accident. Among other things, she lost 80 percent of her blood, requiring massive blood transfusions, and broke both of her legs. She also developed respiratory distress syndrome, which required a tracheotomy and attachment to a respirator; had extreme difficulty in breathing as her airway passage frequently clogged with phlegm; had surgery to stabilize her neck; and suffered gastric hemorrhage, bladder infections and pneumonia. She spent three months in the hospital, 2.5 months of which was in intensive care. Most of the time she could not speak, and she had to take anti-seizure drugs which caused hallucinations. After leaving the hospital, she spent four months at a rehabilitation center.

 In Fleck, Fleck was a young man who became a quadriplegic after diving into a three-and-one-half foot above-ground swimming pool and breaking his neck. The pool and its replacement pool liner did not have depth markers or "No Diving" signs. The jury, in comparing Fleck's negligence to that of the pool owner, found Fleck 64 percent negligent (although the court did not reduce the amount of Fleck's damages since the jury found he could also recover on a strict products liability theory).

 Plainly, Waldorf's injuries are horrific and his medical treatment and rehabilitation involved a great deal of pain. They must not be minimized. However, the Court is not convinced, even in light of the cases he has cited, that the ...

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