United States District Court, D. Colorado
PATRICK G. WADE, Plaintiff,
UNION PACIFIC RAILROAD COMPANY, a corporation, Defendant.
ORDER ON (1) MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT AND FOR NEW TRIAL, AND (2) MOTION TO REVIEW RULE 54(D) TAXED BILL OF COSTS
RAYMOND P. MOORE, District Judge.
This matter is before the Court on two motions by Plaintiff: (1) Motion for Judgment Notwithstanding the Verdict and For New Trial Pursuant to F.R.C.P. Rule 59 (the "Motion") (ECF No. 93); and (2) Motion to Review Rule 54(D) Taxed Bill of Costs (the "Review Motion") (ECF No. 101). This suit arose out of Plaintiff Patrick Wade's claim of injury resulting from an incident in February 2012, wherein Plaintiff's railroad-issued winter overshoes allegedly caught in the grating of a step on Defendant Union Pacific Railroad Company's locomotive. Under the Federal Employers' Liability Act ("FELA"), 45 U.S.C. § 51, et seq., railroads are liable if carrier negligence played any part in producing the injury. This case was tried to a jury of eight, which on December 9, 2013 returned a verdict in favor of Defendant. The Motion requests that the Court issue an order granting Plaintiff judgment notwithstanding the verdict on the issue of Defendant's negligence under FELA. The Motion also requests that the Court grant a new trial on all remaining issues or, alternatively, on all issues including negligence. The Review Motion challenges taxing for costs with respect to a demonstrative exhibit used at trial. As set forth below, the Motion and the Review Motion are DENIED.
I. Legal Standard for the Motion
Fed. R. Civ. P. 50(b) governs post-trial motions for judgment as a matter of law. The Rule speaks in terms of "renewing" a motion previously made at trial and provides that post trial, "the movant may file a renewed motion for judgment as a matter of law and may include an alternative...request for a new trial under Rule 59." Fed.R.Civ.P. 59 governs the granting of a new trial, and provides that the Court may grant a new trial "after a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in federal court."
A new trial may be granted if the district court concludes that the "claimed error substantially and adversely" affected the party's rights. Sanjuan v. IBP, Inc., 160 F.3d 1291, 1297 (10th Cir. 1998). After a jury trial, a new trial may only be granted if the court "concludes that the jury's verdict was so against the weight of the evidence as to be unsupportable." Bangert Bros. Const. Co., Inc. v. Kiewit W. Co., 310 F.3d 1278, 1299 (10th Cir. 2002) (citing Skinner v. Total Petroleum, Inc., 859 F.2d 1439, 1442-43 (10th Cir. 1988)).
However, "[t]he Seventh Amendment protects a party's right to a jury trial by ensuring that factual determinations made by a jury are not thereafter set aside by the court, except as permitted under common law.... Thus, under the Seventh Amendment, the court may not substitute its judgment of the facts for that of the jury." Ag Services of America, Inc. v. Nielsen, 231 F.3d 726, 730-31 (10th Cir. 2000), cert. denied, 532 U.S. 1021, 121 S.Ct. 1961, 149 L.Ed.2d 757 (2001).
A. Procedural Requirements
Before turning to the merits of the motion at issue, the Court will address a point raised in Defendant's briefing-that because Plaintiff failed to move for directed verdict on the issue of Union Pacific's negligence, he has not met the procedural requirements for a judgment notwithstanding the verdict on that issue.
A pre-verdict Rule 50(a) motion is generally a prerequisite to a post-verdict motion filed under Rule 50(b). Dawson v. Johnson, 266 Fed.Appx. 713, 718 (10th Cir. 2008). However, Rule 50(b) is construed liberally, Anderson v. United Telephone Co. of Kansas, 933 F.2d 1500, 1503 (10th Cir.1991), and the Court "may excuse technical non-compliance when the purposes of the rule are satisfied." Scottish Heritable Trust, PLC v. Peat Marwick Main & Co., 81 F.3d 606, 610 (5th Cir.1996); see also E.E.O.C. v. W. Trading Co., Inc., 291 F.R.D. 615, 619 (D. Colo. 2013) (citing cases).
The Court finds that despite the technical non-compliance, Plaintiff raised the issues presented in the Motion sufficiently at trial to put Defendant on notice of the alleged errors, which serves the purpose of the provisions of Rule 50(a) and (b). See, e.g., Marshall v. Columbia Lea Reg'l Hosp., 474 F.3d 733, 739 (10th Cir. 2007). Moreover, Defendant addressed the negligence issue-including the testimony regarding the LaCrosse boot "hanging up on stairs"-in its evidentiary presentation such that it lost no opportunity at trial to address the claims raised in the Motion. The Court will thus address the Motion on its merits.
B. The Evidence of Negligence-Judgment As A Matter of Law
Plaintiff argues that "there was ample evidence that...Defendant had actual knowledge of a risk...to its employees created by wearing the Lacrosse anti-slip footwear which Defendant knew or should have known could hang up' or catch while descending vertical locomotive steps. Once possessed with this knowledge, Defendant was required to take some affirmative action to correct the condition and failing to do so constitutes evidence of negligence under the FELA." (ECF No. 93 at 6.) According to Plaintiff, it was unreasonable for the jury to conclude that there was no negligence given both (1) the evidence of safety complaints about the LaCrosse footwear, and (2) the "undisputed evidence" at trial that Defendant decided in February 2012 to make the previously discretionary LaCrosse footwear mandatory for certain employees. Based upon this evidence, Plaintiff argues that the Court should now grant him judgment notwithstanding the verdict and/or a new trial.
The Court disagrees. Plaintiff's characterization sterilizes the evidence and removes credibility determinations from the jury's decision. While true that there was testimony by some railroad employees about "hanging up" complaints, there was also testimony from railroad management that known complaints were limited to issues of the weight of the boot, difficulty of removal and similar matters. Expert testimony, if accepted, cast doubt on whether the boot could, indeed, "hang up" on locomotive steps. And the jury was provided with an exemplar boot and an exemplar step which it could examine closely. The jury could have reached the decision that the LaCrosse boot did not and could not "hang up" in the manner contended and discounted the limited testimony about purported "hang up" complaints based on the witnesses' closeness to Mr. Wade, union affiliation, or simply on their manner and appearance while testifying. The Court will not substitute its judgment ...