相關資料如下
http://www.tuoqiu.com/template/3.htm
老貓找了一下west law,一共有(從1990到今天)全美一共47個案件(聯邦與地方的案件(含上訴案)針對您所提的藥劑
其中有兩個案件值得您參考
FOR EDUCATIONAL USE ONLY
West Reporter Image (PDF)
897 F.Supp. 44
Motions, Pleadings and Filings
United States District Court,
N.D. New York.
Carol DEWING, Plaintiff,
v.
ORKIN EXTERMINATING COMPANY, INC., d/b/a Orkin Pest Control, Defendant.
No. 93-CV-594.
Aug. 25, 1995.
Homeowner brought action against exterminating company alleging that she had been negligently exposed to pesticides, and after jury returned verdict for homeowner which awarded past damages but no future damages, exterminating company moved to set aside verdict and renewed motion for judgment as matter of law, and homeowner moved for new trial. The District Court, McAvoy, Chief Judge, held that: (1) finding that homeowner had negligently been exposed to pesticide causing injuries was supported by evidence, and (2) award for past injuries but not for future damages was not against weight of evidence.
Motions denied.
West Headnotes
[1] KeyCite Notes
272 Negligence
272VIII Dangerous Situations and Strict Liability
272k306 k. Dangerous Substances. Most Cited Cases
(Formerly 23k9.13)
Finding that exterminating company had improperly used pesticide containing chlorpyrifos in homeowner's presence, warranting recovery under New York law by homeowner for injuries allegedly caused by pesticide, was supported by homeowner's testimony that she saw workers using brand of pesticide which contained chlorpyrifos, even though experts for both company and homeowner testified that had pesticide containing chlorpyrifos been used larger amounts of chlorpyrifos should have been detected in home.
[2] KeyCite Notes
272 Negligence
272VIII Dangerous Situations and Strict Liability
272k306 k. Dangerous Substances. Most Cited Cases
(Formerly 23k9.13)
Under New York law, label of pesticide container which stated that other than applicator no humans should be allowed to have contact with treated surfaces until after pesticide had dried was sufficient evidence to establish standard of care and to allow recovery by homeowner in action against exterminating company based on allegations that homeowner was negligently exposed to pesticide containing chlorpyrifos.
[3] KeyCite Notes
170A Federal Civil Procedure
170AXVI New Trial
170AXVI(A) In General
170Ak2311 k. In General. Most Cited Cases
170A Federal Civil Procedure KeyCite Notes
170AXVI New Trial
170AXVI(B) Grounds
170Ak2338 Verdict or Findings Contrary to Law or Evidence
170Ak2338.1 k. In General. Most Cited Cases
Less stringent standard applies to motion to set aside verdict and for new trial than applies to motion for judgment as matter of law; however, trial judge's disagreement with jury's verdict, standing alone, is insufficient reason to grant motion for new trial. Fed.Rules Civ.Proc.Rule 59, 28 U.S.C.A.
[4] KeyCite Notes
115 Damages
115IX Evidence
115k183 Weight and Sufficiency
115k185 Personal Injuries and Physical Suffering
115k185(3) k. Disease Resulting from Injury. Most Cited Cases
115 Damages KeyCite Notes
115X Proceedings for Assessment
115k208 Questions for Jury
115k208(3) k. Permanent Character of Injuries and Future Suffering. Most Cited Cases
Award only of past damages without award of future damages to homeowner who alleged that negligence of exterminating company in allowing her to be exposed to pesticides caused injury was supported by expert testimony that exposure to pesticides in question would not cause ongoing harm and by fact that homeowner was extensively cross-examined about her current lifestyle and various activities, even though experts for homeowner testified that her injuries were permanent; jury was free to accept testimony of experts as to past injuries while rejecting their conclusions as to permanency.
[5] KeyCite Notes
157 Evidence
157XII Opinion Evidence
157XII(F) Effect of Opinion Evidence
157k569 Testimony of Experts
157k570 k. In General. Most Cited Cases
170A Federal Civil Procedure KeyCite Notes
170AXV Trial
170AXV(F) Taking Case or Question from Jury
170AXV(F)2 Questions for Jury
170Ak2148 Credibility of Witnesses
170Ak2148.1 k. In General. Most Cited Cases
Assessment of credibility of party's testimony and of that of competing expert witnesses is uniquely within province of jury.
*45 Kiley, Feldmann, Whalen (James J. Devine, of counsel), Poughkeepsie, NY, for plaintiff.
Decker & Hallman (Richard P. Decker, of counsel), Atlanta, GA, for defendant.
MEMORANDUM-DECISION AND ORDER
McAVOY, Chief Judge.
Before the court are two post-trial motions in the above-captioned matter. Defendant Orkin Exterminating asks the Court to set aside the verdict of the jury under Fed.R.Civ.P. 50(b) and renews their motion for judgment as a matter of law under Fed.R.Civ.P. 50(a)(1). Plaintiff Carol Dewing moves under Fed.R.Civ.P. 59(a) for a new trial.
I. BACKGROUND
Plaintiff claims that on July 8, 1991, defendant negligently applied pesticides at her place of employment, thereby causing her various physical and emotional injuries. Her cause of action came on for trial on May 15, 1995. Defendant moved for judgment as a matter of law both at the close of plaintiff's evidence and at the close of all evidence: the Court reserved on both motions. The jury retired at noon on Friday, May 19, 1995, but reported itself deadlocked at 7:00 p.m. that same evening. The Court gave the jury an Allen charge, Allen v. U.S., 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896), and then dismissed the jury for the weekend at their request. Deliberations resumed on May 23, 1995 and after three hours of deliberations the jury rendered a verdict in favor of plaintiff.
A. Defendant's Motion for Judgment as a Matter of Law:
Defendant Orkin points out that at trial it was plaintiff's burden to prove defendant's negligence through a showing, by a preponderance of the evidence, of the familiar essential elements of negligence: 1) that defendant owed a cognizable duty of care to plaintiff; 2) that the defendant breached that duty; 3) and that plaintiff was damaged as a proximate result of that breach. See Stagl v. Delta Airlines, 52 F.3d 463, 467 (2d Cir.1995). Defendant argues, as it did at trial, that since plaintiff's claims allege a breach by defendant of what is actually a specialized, professional standard of care applicable to defendant as a licensed pest control operator applying a federally regulated commercial pesticide, it was incumbent upon plaintiff to introduce some evidence defining that specialized standard of care. According to defendant, plaintiff's failure to introduce any evidence establishing either the applicable specialized standard or defendant's breach of that standard compels the Court to set aside the jury's verdict and enter judgment as a matter of law in their favor.
1. The Standard for Judgment as a Matter of Law:
The Second Circuit has established the standard for granting a judgment as a matter of law. The court in *46 Mattivi v. South African Marine Corp., “Huguenot”, 618 F.2d 163 (2d Cir.1980), stated that:
the trial court cannot assess the weight of conflicting evidence, pass on the credibility of the witnesses, or substitute its judgment for that of the jury. Rather, after viewing the evidence in a light most favorable to the non-moving party (giving the non-movant the benefit of all reasonable inferences), the trial court should grant a judgment n.o.v. only when (1) there is such a complete absence of evidence supporting the verdict that the jury's findings could only have been the result of sheer surmise and conjecture, or (2) there is such an overwhelming amount of evidence in favor of the movant that reasonable and fair minded men could not arrive at a verdict against him.
Id. at 167-68; see Samuels v. Air Transport Local 504, 992 F.2d 12, 14 (2d Cir.1993); Mallis v. Bankers Trust Co., 717 F.2d 683, 688-89 (2d Cir.1983).FN1 Rule 50 of the Federal Rules of Civil Procedure governs the procedure for granting judgment as a matter of law by motion made before the jury retires, pursuant to Rule 50(a), or motion after the jury has spoken, pursuant to Rule 50(b). Fed.R.Civ.P. 50; see Samuels, 992 F.2d at 14.
FN1. While the 1991 amendments to Rule 50 abandoned the terms “directed verdict” and “judgment not withstanding the verdict” in favor of the encompassing “judgment as a matter of law” terminology, the standard for granting the motions was not altered. See Fed.R.Civ.P. 50 Advisory Committee's note, 1991 Amendment.
2. The Standard Applied:
One issue that was hotly disputed at trial was the identity of the pesticide which was applied in plaintiff's presence. Defendant maintained, and defendant's service ticket reflected, that only Whitmire 565 plus, a pyrethrin compound, was applied on the date in question. Plaintiff claimed that PT 400 Ultraban, a chlorpyrifos containing compound, was sprayed in her presence: she testified that she was alarmed at the proximity of the pesticide application and affirmatively observed that the can being used was marked “PT 400 ultraban.”
Defendant points to the expert testimony of their witness Dr. Douglas Mampe, who testified that three of the four swab samples taken by the New York Department of Environmental Conservation (“NYDEC”) four days after the disputed application showed no chlorpyrifos and the fourth showed a minute trace quantity. Defendant's expert opined that the absence of chlorpyrifos on the swabs rendered it scientifically impossible that PT 400 Ultraban was applied on the date in question. Defendant further points to the testimony of plaintiff's witness Charles Weiss, a NYDEC chemist, who stated that, barring some clean up of the office, he would have expected to find a substantial presence of chlorpyrifos on the swabs had the application plaintiff described occurs.
[1] The short answer is, however, that contrary to defendant's assertions of having conclusively established such facts as to bind the jury to its view, neither Mampe's opinion nor Weiss's testimony established conclusively that PT 400 ultraban was not applied in plaintiff's presence. The jury was free to accept or reject Mampe's expert opinion as to how much chlorpyrifos he believed should have been present four days after application. Furthermore, Weiss's testimony was qualified by whether or not the office had been cleaned or otherwise altered in the intervening period. While defendant's evidence may well have presented a strong case that PT 400 Ultraban was not applied, plaintiff's testimony of her own observations constitutes sufficient evidence from which the jury could have concluded that plaintiff's factual claim that she was indeed exposed to PT 400 Ultraban by defendant's application was true.
[2] Defendant also argues that no evidence of the standard of care to be met in applying PT Ultraban 400 was offered. While plaintiff's evidence in this regard was thin indeed, the Court finds that the label on the PT 400 Ultraban, which was offered in evidence and presented to the jury, was sufficient to supply such a standard. At the threshold, both parties agree that “it is a violation of federal law to apply Ultraban in a manner inconsistent with its labeling.” *47 (Deft. Memo. of Law at 5). The label of the PT 400 Ultraban which plaintiff claimed was applied at her workplace in her presence reads as follows: “
DIRECTIONS FOR USE
....
Cover aquariums and fish bowls and remove birds from area prior to treating. Treated areas should be vacated during application.FN2 OTHER THAN APPLICATOR DO NOT PERMIT HUMANS OR PETS TO CONTACT TREATED SURFACES UNTIL THE SPRAY HAS DRIED.” (Trial Ex. P-6).
FN2. The Material Safety Data Sheet describing PT 400 Ultraban accompanying plaintiff's exhibit also indicates that “treated area should be vacated during application.” (Trial Ex. P-7 at 4).
The label also contains a cautionary statement of practical treatment which advises that “If inhaled: Remove person to fresh air.” (Trial Ex. P-6).
The Court finds that the PT 400 Ultraban label is some evidence establishing a standard of care under which application should ideally proceed. As such, thin though it may be, the label is a sufficient evidentiary basis from which the jury could draw a standard of care applicable to their negligence inquiry. The Court likewise finds that based on plaintiff's testimony, a reasonable jury could have believed that defendant Orkin breached the standard of care established by the label.
Taken together then, the Court finds that there was sufficient evidence from which the jury could have concluded that: Orkin's representative sprayed PT 400 Ultraban on the day in question; that the instructions and warnings established a specialized standard of care for application of PT 400 Ultraban; and that defendant Orkin breached that standard of care by its application under the circumstances described by plaintiff.
It follows from the foregoing that there was at trial neither such a complete absence of evidence supporting the verdict that the jury's findings must have been the result of sheer surmise and conjecture, nor such an overwhelming amount of evidence in favor of the defendant that a reasonable jury could not have arrived at a verdict against it. As such, defendant's motion for judgment as a matter of law is DENIED.
B. Plaintiff's Motion For a New Trial:
Plaintiff has moved for a new trial under Rule 59(a), claiming that because the jury awarded plaintiff only past damages without awarding future damages, the jury's verdict is incomplete and against the clear weight of the credible evidence.
1. The Standard Under Rule 59:
[3] A less stringent standard applies to a motion to set aside the verdict and for a new trial pursuant to Rule 59(a). “A trial court should grant such a motion when convinced that the jury has reached a seriously erroneous result or the verdict is a miscarriage of justice.” Katara v. D.E. Jones Commodities, Inc., 835 F.2d 966, 970 (2d Cir.1987); see Newmont Mines Ltd. v. Hanover Ins. Co., 784 F.2d 127, 132 (2d Cir.1986). A trial judges's disagreement with the jury's verdict alone, however, is insufficient reason to grant the motion for a new trial. Mallis, 717 F.2d at 691; see Saloomey v. Jeppesen & Co., 707 F.2d 671, 679 (2d Cir.1983). It is in light of this standard that the Court examines plaintiff's motion for a new trial.
2. The Standard Applied:
Plaintiff points to the medical testimony of Dr. Arjun Patel, M.D., and Dr. Jerome Blumenthal, a certified psychiatrist, both of whom testified that as a result of the incident plaintiff's injuries are permanent, that she will require medical care continuing into the future, and that she will continue to be totally disabled from employment permanently. Plaintiff also points to the testimony of her economist, Jerry Miner, Ph.D. who testified to plaintiff's past and future lost wages and the cost of future medical care. Plaintiff notes that the jury directly adopted Miner's calculations as to plaintiff's past lost wages and made plaintiff an award of those past lost wages, as well as an award for plaintiff's past medical expenses and past pain and suffering, but failed to award plaintiff anything for future lost wages, pain and suffering and medical expenses. Plaintiff argues *48 that in the absence of contrary medical testimony the jury could not have concluded that plaintiff suffered damages up to the date of verdict but no damages beyond that date. She argues that since the defendant's entire theory was that plaintiff suffered no injury from defendant's actions, and since there was no evidence that plaintiff's injuries had resolved, the jury's verdict awarding only past damages is incomplete, contrary to the weight of the evidence, and unjust.
[4] The Court finds, however, that the jury's verdict is neither incomplete, against the weight of the credible evidence, or unjust. As defendant Orkin points out “it does not follow that simply because a jury finds one witness to be generally believable, it will resolve all factual disputes in accordance with the testimony of that witness.” Justice v. Hoke, 45 F.3d 33, 35 (2d Cir.1995). The jury was perfectly free to accept the testimony of Patel and Blumenthal as to plaintiff's past injuries and damages while rejecting their conclusions as to the permanency of plaintiff's condition. This is particularly true where, as here, during plaintiff's testimony the jury could assess her condition (both physical and emotional), and her credibility for itself. Furthermore, plaintiff was extensively cross-examined about her current life style generally and various activities in particular. Finally, the testimony of defendant's witness Dr. Michael Wernke, a toxicologist and pharmacologist, supplied some evidentiary basis for the fact-finder to conclude that exposure to the pesticides in question would not cause on-going harm.
[5] In short then, plaintiff's motion turns primarily on the jury's assessment of the credibility of her own testimony and the testimony of competing expert witnesses. Such fact-finding is uniquely within the province of the jury, see Piesco v. City of New York, 12 F.3d 332, 345 (2d Cir.1993); Metromedia Co. v. Fugazy, 983 F.2d 350, 363 (2d Cir.1992), and upon examination of the record the Court finds no other basis upon which to conclude that the jury's verdict was either seriously erroneous or a miscarriage of justice. See Katara, 835 F.2d at 970. As such, plaintiff's motion for a new trial is hereby DENIED.
III. CONCLUSION
For all the foregoing reasons both defendant's Rule 50 motion for judgment as a matter of law and plaintiff's Rule 59 motion for a new trial are hereby DENIED.
IT IS SO ORDERED.
N.D.N.Y.,1995.
Dewing v. Orkin Exterminating Co., Inc.
897 F.Supp. 44
http://www.tuoqiu.com/template/3.htm
老貓找了一下west law,一共有(從1990到今天)全美一共47個案件(聯邦與地方的案件(含上訴案)針對您所提的藥劑
其中有兩個案件值得您參考
FOR EDUCATIONAL USE ONLY
West Reporter Image (PDF)
897 F.Supp. 44
Motions, Pleadings and Filings
United States District Court,
N.D. New York.
Carol DEWING, Plaintiff,
v.
ORKIN EXTERMINATING COMPANY, INC., d/b/a Orkin Pest Control, Defendant.
No. 93-CV-594.
Aug. 25, 1995.
Homeowner brought action against exterminating company alleging that she had been negligently exposed to pesticides, and after jury returned verdict for homeowner which awarded past damages but no future damages, exterminating company moved to set aside verdict and renewed motion for judgment as matter of law, and homeowner moved for new trial. The District Court, McAvoy, Chief Judge, held that: (1) finding that homeowner had negligently been exposed to pesticide causing injuries was supported by evidence, and (2) award for past injuries but not for future damages was not against weight of evidence.
Motions denied.
West Headnotes
[1] KeyCite Notes
272 Negligence
272VIII Dangerous Situations and Strict Liability
272k306 k. Dangerous Substances. Most Cited Cases
(Formerly 23k9.13)
Finding that exterminating company had improperly used pesticide containing chlorpyrifos in homeowner's presence, warranting recovery under New York law by homeowner for injuries allegedly caused by pesticide, was supported by homeowner's testimony that she saw workers using brand of pesticide which contained chlorpyrifos, even though experts for both company and homeowner testified that had pesticide containing chlorpyrifos been used larger amounts of chlorpyrifos should have been detected in home.
[2] KeyCite Notes
272 Negligence
272VIII Dangerous Situations and Strict Liability
272k306 k. Dangerous Substances. Most Cited Cases
(Formerly 23k9.13)
Under New York law, label of pesticide container which stated that other than applicator no humans should be allowed to have contact with treated surfaces until after pesticide had dried was sufficient evidence to establish standard of care and to allow recovery by homeowner in action against exterminating company based on allegations that homeowner was negligently exposed to pesticide containing chlorpyrifos.
[3] KeyCite Notes
170A Federal Civil Procedure
170AXVI New Trial
170AXVI(A) In General
170Ak2311 k. In General. Most Cited Cases
170A Federal Civil Procedure KeyCite Notes
170AXVI New Trial
170AXVI(B) Grounds
170Ak2338 Verdict or Findings Contrary to Law or Evidence
170Ak2338.1 k. In General. Most Cited Cases
Less stringent standard applies to motion to set aside verdict and for new trial than applies to motion for judgment as matter of law; however, trial judge's disagreement with jury's verdict, standing alone, is insufficient reason to grant motion for new trial. Fed.Rules Civ.Proc.Rule 59, 28 U.S.C.A.
[4] KeyCite Notes
115 Damages
115IX Evidence
115k183 Weight and Sufficiency
115k185 Personal Injuries and Physical Suffering
115k185(3) k. Disease Resulting from Injury. Most Cited Cases
115 Damages KeyCite Notes
115X Proceedings for Assessment
115k208 Questions for Jury
115k208(3) k. Permanent Character of Injuries and Future Suffering. Most Cited Cases
Award only of past damages without award of future damages to homeowner who alleged that negligence of exterminating company in allowing her to be exposed to pesticides caused injury was supported by expert testimony that exposure to pesticides in question would not cause ongoing harm and by fact that homeowner was extensively cross-examined about her current lifestyle and various activities, even though experts for homeowner testified that her injuries were permanent; jury was free to accept testimony of experts as to past injuries while rejecting their conclusions as to permanency.
[5] KeyCite Notes
157 Evidence
157XII Opinion Evidence
157XII(F) Effect of Opinion Evidence
157k569 Testimony of Experts
157k570 k. In General. Most Cited Cases
170A Federal Civil Procedure KeyCite Notes
170AXV Trial
170AXV(F) Taking Case or Question from Jury
170AXV(F)2 Questions for Jury
170Ak2148 Credibility of Witnesses
170Ak2148.1 k. In General. Most Cited Cases
Assessment of credibility of party's testimony and of that of competing expert witnesses is uniquely within province of jury.
*45 Kiley, Feldmann, Whalen (James J. Devine, of counsel), Poughkeepsie, NY, for plaintiff.
Decker & Hallman (Richard P. Decker, of counsel), Atlanta, GA, for defendant.
MEMORANDUM-DECISION AND ORDER
McAVOY, Chief Judge.
Before the court are two post-trial motions in the above-captioned matter. Defendant Orkin Exterminating asks the Court to set aside the verdict of the jury under Fed.R.Civ.P. 50(b) and renews their motion for judgment as a matter of law under Fed.R.Civ.P. 50(a)(1). Plaintiff Carol Dewing moves under Fed.R.Civ.P. 59(a) for a new trial.
I. BACKGROUND
Plaintiff claims that on July 8, 1991, defendant negligently applied pesticides at her place of employment, thereby causing her various physical and emotional injuries. Her cause of action came on for trial on May 15, 1995. Defendant moved for judgment as a matter of law both at the close of plaintiff's evidence and at the close of all evidence: the Court reserved on both motions. The jury retired at noon on Friday, May 19, 1995, but reported itself deadlocked at 7:00 p.m. that same evening. The Court gave the jury an Allen charge, Allen v. U.S., 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896), and then dismissed the jury for the weekend at their request. Deliberations resumed on May 23, 1995 and after three hours of deliberations the jury rendered a verdict in favor of plaintiff.
A. Defendant's Motion for Judgment as a Matter of Law:
Defendant Orkin points out that at trial it was plaintiff's burden to prove defendant's negligence through a showing, by a preponderance of the evidence, of the familiar essential elements of negligence: 1) that defendant owed a cognizable duty of care to plaintiff; 2) that the defendant breached that duty; 3) and that plaintiff was damaged as a proximate result of that breach. See Stagl v. Delta Airlines, 52 F.3d 463, 467 (2d Cir.1995). Defendant argues, as it did at trial, that since plaintiff's claims allege a breach by defendant of what is actually a specialized, professional standard of care applicable to defendant as a licensed pest control operator applying a federally regulated commercial pesticide, it was incumbent upon plaintiff to introduce some evidence defining that specialized standard of care. According to defendant, plaintiff's failure to introduce any evidence establishing either the applicable specialized standard or defendant's breach of that standard compels the Court to set aside the jury's verdict and enter judgment as a matter of law in their favor.
1. The Standard for Judgment as a Matter of Law:
The Second Circuit has established the standard for granting a judgment as a matter of law. The court in *46 Mattivi v. South African Marine Corp., “Huguenot”, 618 F.2d 163 (2d Cir.1980), stated that:
the trial court cannot assess the weight of conflicting evidence, pass on the credibility of the witnesses, or substitute its judgment for that of the jury. Rather, after viewing the evidence in a light most favorable to the non-moving party (giving the non-movant the benefit of all reasonable inferences), the trial court should grant a judgment n.o.v. only when (1) there is such a complete absence of evidence supporting the verdict that the jury's findings could only have been the result of sheer surmise and conjecture, or (2) there is such an overwhelming amount of evidence in favor of the movant that reasonable and fair minded men could not arrive at a verdict against him.
Id. at 167-68; see Samuels v. Air Transport Local 504, 992 F.2d 12, 14 (2d Cir.1993); Mallis v. Bankers Trust Co., 717 F.2d 683, 688-89 (2d Cir.1983).FN1 Rule 50 of the Federal Rules of Civil Procedure governs the procedure for granting judgment as a matter of law by motion made before the jury retires, pursuant to Rule 50(a), or motion after the jury has spoken, pursuant to Rule 50(b). Fed.R.Civ.P. 50; see Samuels, 992 F.2d at 14.
FN1. While the 1991 amendments to Rule 50 abandoned the terms “directed verdict” and “judgment not withstanding the verdict” in favor of the encompassing “judgment as a matter of law” terminology, the standard for granting the motions was not altered. See Fed.R.Civ.P. 50 Advisory Committee's note, 1991 Amendment.
2. The Standard Applied:
One issue that was hotly disputed at trial was the identity of the pesticide which was applied in plaintiff's presence. Defendant maintained, and defendant's service ticket reflected, that only Whitmire 565 plus, a pyrethrin compound, was applied on the date in question. Plaintiff claimed that PT 400 Ultraban, a chlorpyrifos containing compound, was sprayed in her presence: she testified that she was alarmed at the proximity of the pesticide application and affirmatively observed that the can being used was marked “PT 400 ultraban.”
Defendant points to the expert testimony of their witness Dr. Douglas Mampe, who testified that three of the four swab samples taken by the New York Department of Environmental Conservation (“NYDEC”) four days after the disputed application showed no chlorpyrifos and the fourth showed a minute trace quantity. Defendant's expert opined that the absence of chlorpyrifos on the swabs rendered it scientifically impossible that PT 400 Ultraban was applied on the date in question. Defendant further points to the testimony of plaintiff's witness Charles Weiss, a NYDEC chemist, who stated that, barring some clean up of the office, he would have expected to find a substantial presence of chlorpyrifos on the swabs had the application plaintiff described occurs.
[1] The short answer is, however, that contrary to defendant's assertions of having conclusively established such facts as to bind the jury to its view, neither Mampe's opinion nor Weiss's testimony established conclusively that PT 400 ultraban was not applied in plaintiff's presence. The jury was free to accept or reject Mampe's expert opinion as to how much chlorpyrifos he believed should have been present four days after application. Furthermore, Weiss's testimony was qualified by whether or not the office had been cleaned or otherwise altered in the intervening period. While defendant's evidence may well have presented a strong case that PT 400 Ultraban was not applied, plaintiff's testimony of her own observations constitutes sufficient evidence from which the jury could have concluded that plaintiff's factual claim that she was indeed exposed to PT 400 Ultraban by defendant's application was true.
[2] Defendant also argues that no evidence of the standard of care to be met in applying PT Ultraban 400 was offered. While plaintiff's evidence in this regard was thin indeed, the Court finds that the label on the PT 400 Ultraban, which was offered in evidence and presented to the jury, was sufficient to supply such a standard. At the threshold, both parties agree that “it is a violation of federal law to apply Ultraban in a manner inconsistent with its labeling.” *47 (Deft. Memo. of Law at 5). The label of the PT 400 Ultraban which plaintiff claimed was applied at her workplace in her presence reads as follows: “
DIRECTIONS FOR USE
....
Cover aquariums and fish bowls and remove birds from area prior to treating. Treated areas should be vacated during application.FN2 OTHER THAN APPLICATOR DO NOT PERMIT HUMANS OR PETS TO CONTACT TREATED SURFACES UNTIL THE SPRAY HAS DRIED.” (Trial Ex. P-6).
FN2. The Material Safety Data Sheet describing PT 400 Ultraban accompanying plaintiff's exhibit also indicates that “treated area should be vacated during application.” (Trial Ex. P-7 at 4).
The label also contains a cautionary statement of practical treatment which advises that “If inhaled: Remove person to fresh air.” (Trial Ex. P-6).
The Court finds that the PT 400 Ultraban label is some evidence establishing a standard of care under which application should ideally proceed. As such, thin though it may be, the label is a sufficient evidentiary basis from which the jury could draw a standard of care applicable to their negligence inquiry. The Court likewise finds that based on plaintiff's testimony, a reasonable jury could have believed that defendant Orkin breached the standard of care established by the label.
Taken together then, the Court finds that there was sufficient evidence from which the jury could have concluded that: Orkin's representative sprayed PT 400 Ultraban on the day in question; that the instructions and warnings established a specialized standard of care for application of PT 400 Ultraban; and that defendant Orkin breached that standard of care by its application under the circumstances described by plaintiff.
It follows from the foregoing that there was at trial neither such a complete absence of evidence supporting the verdict that the jury's findings must have been the result of sheer surmise and conjecture, nor such an overwhelming amount of evidence in favor of the defendant that a reasonable jury could not have arrived at a verdict against it. As such, defendant's motion for judgment as a matter of law is DENIED.
B. Plaintiff's Motion For a New Trial:
Plaintiff has moved for a new trial under Rule 59(a), claiming that because the jury awarded plaintiff only past damages without awarding future damages, the jury's verdict is incomplete and against the clear weight of the credible evidence.
1. The Standard Under Rule 59:
[3] A less stringent standard applies to a motion to set aside the verdict and for a new trial pursuant to Rule 59(a). “A trial court should grant such a motion when convinced that the jury has reached a seriously erroneous result or the verdict is a miscarriage of justice.” Katara v. D.E. Jones Commodities, Inc., 835 F.2d 966, 970 (2d Cir.1987); see Newmont Mines Ltd. v. Hanover Ins. Co., 784 F.2d 127, 132 (2d Cir.1986). A trial judges's disagreement with the jury's verdict alone, however, is insufficient reason to grant the motion for a new trial. Mallis, 717 F.2d at 691; see Saloomey v. Jeppesen & Co., 707 F.2d 671, 679 (2d Cir.1983). It is in light of this standard that the Court examines plaintiff's motion for a new trial.
2. The Standard Applied:
Plaintiff points to the medical testimony of Dr. Arjun Patel, M.D., and Dr. Jerome Blumenthal, a certified psychiatrist, both of whom testified that as a result of the incident plaintiff's injuries are permanent, that she will require medical care continuing into the future, and that she will continue to be totally disabled from employment permanently. Plaintiff also points to the testimony of her economist, Jerry Miner, Ph.D. who testified to plaintiff's past and future lost wages and the cost of future medical care. Plaintiff notes that the jury directly adopted Miner's calculations as to plaintiff's past lost wages and made plaintiff an award of those past lost wages, as well as an award for plaintiff's past medical expenses and past pain and suffering, but failed to award plaintiff anything for future lost wages, pain and suffering and medical expenses. Plaintiff argues *48 that in the absence of contrary medical testimony the jury could not have concluded that plaintiff suffered damages up to the date of verdict but no damages beyond that date. She argues that since the defendant's entire theory was that plaintiff suffered no injury from defendant's actions, and since there was no evidence that plaintiff's injuries had resolved, the jury's verdict awarding only past damages is incomplete, contrary to the weight of the evidence, and unjust.
[4] The Court finds, however, that the jury's verdict is neither incomplete, against the weight of the credible evidence, or unjust. As defendant Orkin points out “it does not follow that simply because a jury finds one witness to be generally believable, it will resolve all factual disputes in accordance with the testimony of that witness.” Justice v. Hoke, 45 F.3d 33, 35 (2d Cir.1995). The jury was perfectly free to accept the testimony of Patel and Blumenthal as to plaintiff's past injuries and damages while rejecting their conclusions as to the permanency of plaintiff's condition. This is particularly true where, as here, during plaintiff's testimony the jury could assess her condition (both physical and emotional), and her credibility for itself. Furthermore, plaintiff was extensively cross-examined about her current life style generally and various activities in particular. Finally, the testimony of defendant's witness Dr. Michael Wernke, a toxicologist and pharmacologist, supplied some evidentiary basis for the fact-finder to conclude that exposure to the pesticides in question would not cause on-going harm.
[5] In short then, plaintiff's motion turns primarily on the jury's assessment of the credibility of her own testimony and the testimony of competing expert witnesses. Such fact-finding is uniquely within the province of the jury, see Piesco v. City of New York, 12 F.3d 332, 345 (2d Cir.1993); Metromedia Co. v. Fugazy, 983 F.2d 350, 363 (2d Cir.1992), and upon examination of the record the Court finds no other basis upon which to conclude that the jury's verdict was either seriously erroneous or a miscarriage of justice. See Katara, 835 F.2d at 970. As such, plaintiff's motion for a new trial is hereby DENIED.
III. CONCLUSION
For all the foregoing reasons both defendant's Rule 50 motion for judgment as a matter of law and plaintiff's Rule 59 motion for a new trial are hereby DENIED.
IT IS SO ORDERED.
N.D.N.Y.,1995.
Dewing v. Orkin Exterminating Co., Inc.
897 F.Supp. 44
選擇“Disable on www.wenxuecity.com”
選擇“don't run on pages on this domain”
