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Lewis v. Powers

United States District Court, D. Colorado

September 27, 2019

LUPITA LEWIS, Plaintiff,
v.
JAMES T. POWERS, Defendant.

          ORDER ON MOTION FOR NEW TRIAL

          Michael E. Hegarty United States Magistrate Judge

         This case arises from an automobile-pedestrian collision on December 12, 2013. Plaintiff Lupita Lewis, the pedestrian, alleged claims for negligence and violations of federal statutes against multiple Defendants. Am. Compl., ECF 176. On November 30, 2018, the Court dismissed all Defendants in this case except Defendant James T. Powers, who was the driver of the automobile that collided with Plaintiff. ECF 201-204. The case proceeded to a jury trial on February 11, 2019, and on February 14, 2019, the jury returned a verdict in favor of Defendant on Plaintiff’s remaining negligence claim.

         Here, Plaintiff seeks a new trial, arguing that the verdict was contrary to the weight of the evidence, and that the jury “did not follow the Court’s instructions in completing the verdict form.” Mot. 1. Plaintiff also contends that Defendant improperly appealed to the sympathy of the jury to her detriment. Defendant asserts that the evidence supported the jury’s properly decided verdict. For the following reasons, Plaintiff’s motion is denied.

         I. Legal Standards

         At the outset, Plaintiff incorrectly asks the Court to apply Colorado procedural law. Mot. 12-17. Under the Erie doctrine (cited by Plaintiff), the Court must apply state substantive law in diversity cases, but not state procedural law. Racher v. Westlake Nursing Home Ltd. P'ship, 871 F.3d 1152, 1162 (10th Cir. 2017) (“In diversity cases, the Erie doctrine instructs that federal courts must apply state substantive law and federal procedural law.”). Plaintiff does not justify, and the Court cannot perceive, any reason why the Court should deviate from this rule.

         In addition, the Court agrees with Defendant that Plaintiff waived her opportunity to seek “judgment notwithstanding the verdict” at this post-trial stage. The Tenth Circuit has instructed:

A motion denominated as a motion for directed verdict or for judgment notwithstanding the verdict should be treated as a motion for judgment as a matter of law. Fed. R. Civ. P. 50 advisory committee notes on 1991 amendment. A party must first move for judgment as a matter of law before submission of the case to the jury. Fed. R. Civ. P. 50(b). He may then renew his motion after trial. Fed. R. Civ. P. 50(c). This court may not consider an appellant’s contention that the trial court erred in denying a motion for judgment notwithstanding the verdict or for judgment as a matter of law where the appellant failed to move for a directed verdict or judgment as a matter of law at the close of evidence.

         Craft v. Yellow Freight Sys., Inc., 139 F.3d 911, 1998 WL 72783, at *8 (10th Cir. 1998) (citing Firestone Tire & Rubber Co. v. Pearson, 769 F.2d 1471, 1478 (10th Cir.1985)) (emphasis added); cf. Cavanaugh v. Woods Cross City, 718 F.3d 1244, 1250 n.1 (10th Cir. 2013) (“[T]he sufficiency-of-the-evidence issue [Appellant] raised could only be preserved for appeal by including it in a Rule 50(a) motion at the close of evidence and a Rule 50(b) motion after the jury verdict.” (emphasis in original)). In this case, the Plaintiff rested after her presentation of the evidence (Tr. 415: 1-4, ECF 258-1) and did not move for judgment as a matter of law before the case was submitted to the jury (see Id. 649-652). Thus, the Court will deny Plaintiff’s motion seeking “judgment notwithstanding the verdict.”

         Rule 59(a)(1)(A) of the Federal Rules of Civil Procedure authorizes a court to grant a new trial “for any reason for which a new trial has heretofore been granted in an action at law in federal court.” Fed. R. Civ. P. 59(a)(1)(A). Whether to grant a motion for a new trial is committed to the district court’s discretion. See M.D. Mark, Inc. v. Kerr-McGee Corp., 565 F.3d 753, 762 (10th Cir. 2009); see also Iowa Pac. Holdings, LLC v. Nat’l R.R. Passenger Corp., 853 F.Supp.2d 1094, 1097 (D. Colo. 2012) (describing that discretion as “sound”). “A motion for new trial ‘is not regarded with favor and should only be granted with great caution.’” Iowa Pac. Holdings, 853 F.Supp.2d at 1097 (quoting United States v. Kelley, 929 F.2d 582, 586 (10th Cir. 1991)).

         “If ‘a new trial motion asserts that the jury verdict is not supported by the evidence, the verdict must stand unless it is clearly, decidedly, or overwhelmingly against the weight of the evidence.’” M.D. Mark, Inc., 565 F.3d at 762 (quoting Anaeme v. Diagnostek, Inc., 164 F.3d 1275, 1284 (10th Cir. 1999)). Stated otherwise, the motion should be granted only “if the evidence points but one way and is susceptible to no reasonable inferences supporting the party opposing the motion.” Iowa Pac. Holdings, 853 F.Supp.2d at 1097 (quoting Minshall v McGraw Hill Broad. Co., 323 F.3d 1273, 1279 (10th Cir. 2003)). “When reviewing an allegation that a jury’s verdict was not supported by evidence, [I] view the record in the light most favorable to the prevailing party.” Patton v. TIC United Corp., 77 F.3d 1235, 1242 (10th Cir. 1996).

         Whether “the verdict is against the weight of the evidence presents a question of fact, not law.” Id. Even so, I may not weigh the evidence, pass on the credibility of the witnesses, or substitute my conclusions for those of the jury. Iowa Pac. Holdings, 853 F.Supp.2d at 1097. “The jury has the exclusive function of appraising credibility, determining the weight to be given to the testimony, drawing inferences from the facts established, resolving conflicts in the evidence, and reaching ultimate conclusions of fact.” Snyder v. City of Moab, 354 F.3d 1179, 1188 (10th Cir. 2003) (quoting United Phosphorus, Ltd. v. Midland Fumigant, Inc., 205 F.3d 1219, 1226 (10th Cir. 2000) (alternations omitted)).

         II. Analysis

         At the trial, the evidentiary presentations went smoothly, counsel were prepared and efficient, the jury was attentive, each side had an opportunity to present their differing interpretations of the facts, and the jury deliberated an appropriate amount of time. Against this backdrop, I address the Plaintiff’s contention that the evidence demonstrated Defendant was negligent and the Plaintiff was not, but the jury found to the contrary. Specifically, Plaintiff asserts the evidence at trial showed she was “visible” in the middle of the street, and that she was a “capable, experienced and cautious traveler.”

         First, Plaintiff is correct that certain witnesses testified she was visible in the street before the collision, despite the darkness of night. In fact, Defendant testified that there was nothing obstructing his view on the lighted roadway. Tr. 40: 13-25, 41: 1-10. However, the testimony, including that cited by Plaintiff, also revealed that at least one disinterested witness stated the Plaintiff had “walked in front -- stepped in front of the car, and the car hit the person.” Tr. 185: 11-15, ECF 258-1. This witness, who was driving in the opposite oncoming lane, testified that Plaintiff made no sudden movements, but was “continuously walking” and “looked like [she] was looking for something.” Id. 185: 19-24; 201: 3-8; see also 194: 4-8 (when asked whether the Plaintiff was hit from behind, the witness answered, “Yes. Sort of on the side.”). The same witness saw that Plaintiff was wearing an orange coat but did not see that she was carrying a white walking stick. Id. 188: 13-14; 190: 9-10. ...


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