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Case 7:12-cv-02164-ER Document 5 Filed 10/18/17 Page 1 of 8
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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`RICARDO MARTINEZ,
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`~I
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`Plaintiff,
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`- against -
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`OPINION AND ORDER
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`16-CV-2164 (RLE)
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`METRO-NORTH COMMUTER RAILROAD,
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`.
`Defendant.
`~~~~~~~~~~~~~~~~~~~~!
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`RONALD L. ELLIS, United States Magistrate Judge:
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`Plaintiff Ricardo Martinez ("Martinez"), a carman at Defendant Metro-North Commuter
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`Railroad Company ("Metro-North") filed this action under the Federal Employers' Liability Act,
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`49 U.S.C. § 53 et seq ("FELA"). Martinez alleged that on April 18, 2013, he sustained injuries
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`during the course of his employment at Metro-North. Metro-North denied that the injury was
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`caused by any negligence on its part, and alleged that Martinez's own negligence contributed, in
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`whole or in part, to his injuries. The case was tried before a jury from July 18 through 20, 2017.
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`The jury returned a verdict in favor of Martinez, and awarded damages of $510,000. The jury
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`further found that there was no contributory negligence by Martinez.
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`On August 4, 2017, Metro-North moved to set aside the verdict pursuant to Rule 59(a) of
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`the Federal Rules of Civil Procedure.
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`It identified two grounds for the motion: (1) the Court
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`erroneously admitted evidence protected by the self-critical analysis privilege and evidence of
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`post-accident remedial measures and (2) the finding of no contributory negligence by Martinez
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`was against the weight of the evidence. For the reasons which follow, the motion is DENIED.
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`

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`Case 7:12-cv-02164-ER Document 5 Filed 10/18/17 Page 2 of 8
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`A, Lt~al Standard~
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`I. DISCUSSION
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`Under Rule 59(a), a new trial may be granted following a jury trial "for any of the
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`reasons for which new trials have heretofore been granted in actions at law in the courts of the
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`United States." See Fed R. Civ. P. 59(a). Ordinarily, a court should not grant a new trial "unless
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`it is convinced that the jury has reached a seriously erroneous result or that the verdict is a
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`miscarriage of justice." Smith v. Lightning Bolt Productions, Inc., 861 F.2d 363, 370 (2d Cir.
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`1988). Unlike a judgment as a matter of law, a new trial may be granted under Rule 59 even if
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`substantial evidence exists to support the jury's verdict. See Song v. Ives Laboratories, Inc., 957
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`F .2d 1041, 104 7 (2d Cir. 1992). Moreover, in considering a motion for a new trial, a court "is
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`free to weigh the evidence ... and need not view it in the light most favorable to the verdict
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`winner." Id. (quoting Bevevino v. Saydjari, 574 F.2d 676, 684 (2d Cir. 1978)). Nevertheless, a
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`court should grant a Rule 59 motion only where the jury verdict is "egregious" given the
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`evidence presented. DLC Mgmt. Corp. v. Town of Hyde Park, 163 F.3d 124, 134 (2d Cir. 1998).
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`As an initial matter, the Court's consideration of Metro-North's motion is hampered
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`because the memorandum in support does not indicate the specific items of evidence which it
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`believes were erroneously placed in evidence. There are no references in the memorandum 1 to
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`actual exhibits; to trial testimony; or any discussions, on or off the record, that identify the
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`alleged errors at the trial. For example, Metro-North alludes to evidence regarding "self-critical
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`analysis privilege" but no specific invocation of the alleged privilege is identified. This lack of
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`specificity alone is fatal to Metro-North's motion because it cannot demonstrate a "seriously
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`1 Prior to the taking of testimony, counsel for Metro-North does identify three Plaintiffs exhibits, 7 A, 78, and 7C,
`as relevant to the post-accident remedial measures issue. (Tr. at 2:6-12.) As noted by Plaintiffs counsel, however,
`the exhibits do not actually show any changes to the area where the accident occurred. (Tr. at 4:4-12.)
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`2
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`

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`Case 7:12-cv-02164-ER Document 5 Filed 10/18/17 Page 3 of 8
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`erroneous result" without reference to the evidence before the jury. Even were Metro-North to
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`make proper references to the record, however. its motion is meritless.
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`B. The Self-Critical Analysis Privilege
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`The self-critical analysis, or self-evaluative, privilege "has led a checkered existence in
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`the federal courts." Wimer v. Seal and Service, Inc., No. 96-CIV-8730 (MHD), 1997 WL 3 75661,
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`at *l (S.D.N.Y. July 3, 1997). "Neither the Supreme Court nor the Second Circuit has settled the
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`question of whether the self-critical analysis privilege should be recognized as a matter of federal
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`law." Mitchell v. Fishbein, 227 F.R.D. 239, 251 (S.D.N.Y. 2005). To the extent that it is
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`recognized, the privilege is based on the premise that it is good public policy for an entity to
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`perform confidential analysis of its actions with an eye toward correcting errors and improving
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`performance and that "disclosure of documents reflecting candid self-examination will deter or
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`suppress socially useful investigations and evaluations or compliance with the law or with
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`professional standards." E.B. v. New York City Board of Education, 233 F.R.D. 289, 296
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`(E.D.N.Y. 2005) (quoting Mitchell, 227 F.R.D. at 252)); Sheppard v. Consolidated Edison Co. of
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`New York, Inc., 893 F. Supp. 6, 7 (E.D.N.Y. 1995) The privilege "only applies to the analysis or
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`evaluation itself, and not to the facts which are analyzed." Lasky v. Am. Broad. Cos. Inc., 1986
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`WL 9223, at *2 (S.D.N.Y. Aug. 13, 1986).
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`The privilege cannot be invoked in the abstract. The party seeking the privilege has the
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`burden of demonstrating that the privilege applies to the information sought to be kept private:
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`[F]irst, the information must result from a critical self-analysis undertaken by the
`party seeking protection; second, the public must have a strong interest in
`preserving the free flow of the type of information sought; finally, the information
`must be of the type whose flow would be curtailed if discovery were allowed.
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`Chemical Bank v. Affiliated FM Insurance Co., 1994 WL 89292, at* 1 (quoting Note, The
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`Privilege of Self-Critical Analysis, 96 Harv.L.Rev. 1083, 1086 (1983); Dowling v. American
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`3
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`

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`Case 7:12-cv-02164-ER Document 5 Filed 10/18/17 Page 4 of 8
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`Hawaii Cruises, Inc., 971 F.2d 423, 425-26 (9th Cir. 1992). Metro-North does not identify any
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`evidence which appropriately falls within the claimed privilege. It identifies no confidential self-
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`analysis to which the privilege would attach and presented no witness to support counsel's
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`assertions about the character or intent of any meetings. Here, the invocation of the purported
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`privilege was limited to arguments by counsel for Metro-North prior to the presentation of any
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`evidence:
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`MR. RIOS: It's defendant's position that this procedure with the safety committee
`was created for the railroad to be proactive in inquiring and possibly curing
`conditions that may exist. And while they invite the general population of the
`work force to provide information, the purpose of it is to improve the working
`conditions, which I think is paramount to the self-critical analysis privilege.
`The privilege is basically that companies should do this type of analysis,
`investigation, etc., so that they can improve the workplace and not be subjected to
`the use of this information during litigation, and that would cause a chilling effect
`on entities that do perform this type of analysis such as safety committee meetings.
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`Trial Transcript ("Tr.") at 6:4-16 Counsel's reliance on committee meetings does not provide
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`support for the privilege as the description of those meetings indicates that the topics discussed
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`were meant to be made public:
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`Q. By the way, when you have these meetings, do you just discuss one topic?
`How does that work?
`A. No. We discuss numerous topics. Anything that anybody wants to bring to the
`table is mentioned that day. Could be anything from those bolts to a crane that has
`something wrong with it, to just anything. Stop signs for forklifts. There were a
`few different things we talked about.
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`(Tr. at 181: 19-25) (Testimony of Gerald T. Adams, general foreman of the shop where the
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`accident occurred, Tr. at 177: 17-178:7). Any argument based on self-critical analysis thus has no
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`foundation and is meritless.
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`B. Post-Accident Remedial Measures
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`Citing Rule 407, Federal Rules of Evidence, Metro-North asserts that the Court
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`impermissibly allowed evidence related to its actions after the incident. Rule 407, however, only
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`4
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`

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`Case 7:12-cv-02164-ER Document 5 Filed 10/18/17 Page 5 of 8
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`prohibits evidence offered to prove: negligence; culpable conduct; a defect in the product or its
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`desien: or a need for a warning or instruction." F. R. Evid. 407. The Court may admit evidence
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`for other purposes, "such as impeachment." Id. As with the self-critical analysis evidentiary
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`issue, however, Metro-North does not specify what evidence was "erroneously permitted" that
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`violated the legal framework on post-accident remedial measures. Martinez had argued that any
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`post-incident evidence it intended to offer was admissible to rebut Metro-North's claim that
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`Martinez was contributorily negligent. See Pitasi v. Stratton Corp., 968 F.2d 1558, 1560-61 (2d
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`Cir. 1992). Metro-North decided not to submit a memorandum in opposition to Martinez's
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`position.
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`Prior to the limited arguments in the memorandum in support of the instant motion,
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`Metro-North did not address the scope of the Pitasi case concerning post-accident behavior, and
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`does not make clear what specific testimony or exhibits violated the principles discussed in that
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`case. In contrast, Martinez presented substantial evidence concerning the circumstances leading
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`to his injury, including complaints from employees at public safety meetings. Even in the
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`absence of testimony concerning events after the incident, there was ample evidence for the jury
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`to reach its verdict. The Court concludes that were Metro-North to actually identify what
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`specific evidence it proposed to challenge, and to successfully demonstrate that such evidence
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`raised questions under Rule 407, the admission of such evidence did not materially affect the
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`jury's verdict.
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`C. Allegation of Contributory Negligence
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`As with the other bases asserted by Metro-North, its arguments concerning contributory
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`negligence by Martinez are fatally hampered by the failure to provide any record citation to
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`support its claims. For example, Metro-North asserts that "[t]here was ample evidence presented
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`5
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`

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`Case 7:12-cv-02164-ER Document 5 Filed 10/18/17 Page 6 of 8
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`of the plaintiffs negligence" but refers generally to three items in support of this position. First,
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`Metro-North maintains that Martinez testified that he was walking backward at the time of the
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`incident. Second, it claims that another employee testified that when he worked the crane that
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`Martinez was operating at the time of the incident, he walked forward. Third, Metro-North cites
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`general safety rules which require employees to be alert for hazards.
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`These examples simply do not meet Metro-North's burden in seeking to overturn the
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`jury's determination that Martinez was not contributorily negligent. First, while Metro-North
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`does have some support for its assertion that Martinez was moving "backward," see, e.g., Tr. at
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`49:9 ("fell backwards"), the overall testimony was somewhat ambiguous. See, e.g., Tr. at 148:9
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`(Martinez was "walking like backwards, sideways"). Each side got to argue to the jury about
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`what actually happened. After hearing the conflicting testimonies, it was the jury's role to
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`decide the facts concerning Martinez's behavior.
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`The testimony by the witness who also did the job that Martinez was performing at the
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`time of the accident is also not clear and unambiguous:
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`Q. When you make the move, do you usually walk -- you said in
`front of you. Are you usually walking in a forward motion?
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`A. Yeah.
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`(Tr. at 156: 19-21) (emphasis added).
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`More importantly, this dispute about the direction Martinez was moving at the time of the
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`accident was not the dispositive question for the jury. Rather, the jury was asked to find whether
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`Martinez was negligent. There was considerable testimony concerning the substantial size and
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`weight of the crane being operated by Martinez, and arguments to the jury whether it was more
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`important to always face forward or to watch the crane and its path. While Metro-North focuses
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`on the direction Martinez was moving, it failed to elicit testimony that Martinez's actions were
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`6
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`

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`Case 7:12-cv-02164-ER Document 5 Filed 10/18/17 Page 7 of 8
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`negligent. Indeed, the only witness asked directly about the issue (and the only person who
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`witnessed the accident that testified at trial) indicated the opposite;
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`Q. And in the 10 to 15 seconds before Mr. Martinez's accident occurred, did you
`see him do anything which you understood to be contrary to Metro-North safety
`rules?
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`A. He was doing everything right.
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`(Tr. 152:9-11, 25) (testimony of Christopher Ilardi, a carman at Metro-North for nine years, Tr.
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`at 144:19-145:3)
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`The jury heard the evidence, and concluded that Martinez was not negligent. The Court
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`should not second guess that decision:
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`A trial judge should be least inclined to disturb a jury's verdict, based entirely or
`primarily upon witness credibility, where the conflicting accounts of the witnesses are
`equally plausible (or implausible), and there is no independent evidence in the trial record
`clearly demonstrating that, if a miscarriage of justice is to be avoided, one party's
`witnesses should not be believed. In those circumstances, the trial judge should accept the
`jury's findings, regardless of any doubts of his own in the matter.
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`Ricciuti v. New York City Transit Auth., 70 F. Supp. 2d 300, 308 (S.D.N.Y. 1999). In this case,
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`there was credible evidence presented by Martinez to support the verdict.
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`D. Allegation that the Jury's Verdict was Excessive
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`Metro-North only makes passing reference to the amount of the jury's verdict, including
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`on page eight of its memorandum the statement that the damages award was excessive. The
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`statement seems no more than an afterthought, and there is no development of this argument, no
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`comparison of allegedly similar cases, and no discussion of why the damages are supposedly
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`excessive. This does not approach Metro-North's burden on this issue. A jury verdict is
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`excessive if it is so high as to "shock judicial conscience." Nairn v. Nat 'l R.R. Passenger Corp.,
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`837 F.2d 565, 567 (2d Cir. 1988). This is not such a case. The evidence presented by Martinez,
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`if credited by the jury, could have sustained a greater amount than the verdict in this case.
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`7
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`

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`Case 7:12-cv-02164-ER Document 5 Filed 10/18/17 Page 8 of 8
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`II. CONCLUSION
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`Metro-North raises multiple issues in its post-trial motion. It has presented no evidence
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`from the record to support any of the bases set forth in the motion. The motion is DENIED in its
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`entirety. IT IS HEREBY ORDERED that judgment be entered for Plaintiff Ricardo Martinez,
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`and against Defendant Metro-North Commuter Railroad Company, in the amount of $510,000.
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`The Clerk of the Court is directed to close case 16-CV-2164.
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`SO ORDERED this 18th day of October 2017
`New York, New York
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`~ The Honorable Ronald L. Ellis
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`United States Magistrate Judge
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`8
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