United States District Court, S.D. Florida
J. O'SULLIVAN UNITED STATES MAGISTRATE JUDGE.
MATTER came before the Court on the Plaintiffs Rule
59(a)(1)(A) Motion for New Trial and Incorporated Memorandum
of Law (DE# 165, 8/10/17) and the Defendants' Motion to
Strike the Post-Trial [P]roffer . . . of Trooper Harold
Gracey's Testimony and Declaration of Trooper Harold
Gracey as Proffer of Testimony (DE# 172, 8/24/17).
13, 2017, the jury rendered a verdict in favor of the
defendants and against the plaintiff. See Verdict (DE# 140,
7/13/17). On the same day, the Court entered a final judgment
in accordance with the verdict. See Final Judgment
(DE# 141, 7/13/17).
plaintiff filed the instant motion on August 10, 2017.
See Plaintiff's Rule 59(a)(1)(A) Motion for New
Trial and Incorporated Memorandum of Law (DE# 165, 8/10/17)
(hereinafter "Motion for New Trial"). The following
day, the plaintiff filed the declaration of Trooper Harold
Gracey. See Plaintiff's Notice of Filing Proffer
(DE# 168, 8/11/17) (hereinafter
"Proffer"). The defendants filed their response in
opposition to the instant motion on August 22, 2017.
See Defendants' Response to Plaintiffs Motion
for New Trial and Incorporated Memorandum of Law (DE# 171,
8/22/17) (hereinafter "Response"). The plaintiff
filed her reply on August 29, 2017. See Plaintiffs Reply
Memorandum in Support of Rule 59(a)(1)(A) Motion for New
Trial (DE# 165) (DE# 174, 8/29/17) (hereinafter
matter is ripe for adjudication.
decision to grant a new trial pursuant to Rule 59(a)(1)(A) of
the Federal Rules of Civil Procedure is within the
Court's discretion. Burger King Corp. v. Mason.
710F.2d 1480, 1486 (11th Cir. 1983). Rule 59(a)(1)(A) states
that a court may grant a motion for 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). A Rule 59 motion for new trial "is governed
by a less stringent standard" than "a renewed
motion for judgment as a matter of law under Rule
50(b)." George v. GTE Directories Corp., 195
F.R.D. 696, 701 (M.D. Fla. 2000). When ruling on a Rule 59(a)
motion for new trial, the trial judge must determine "if
in his opinion, the verdict is against the clear weight of
the evidence . . . or will result in a miscarriage of
justice." Ins. Co. of N.A. v. Valente, 933 F.2d
921, 923 (11th Cir. 1991) (quoting Hewitt v. B.F.
Goodrich Co., 732 F.2d 1554, 1556 (11th Cir. 1984)).
plaintiff argues that she is entitled to a new trial because:
(1) "Trooper Gracey was not permitted to testify as to
his conclusions at trial, and his report setting forth those
conclusions and its supporting diagram were stricken on the
basis of the Florida accident report privilege" and (2)
the Court struck Paul Ramos who could testify as to the
plaintiffs fall risk and current care needs. See
Motion for New Trial (DE# 165 at 1-4).
outset, the undersigned notes that the jury found defendant
Timothy Leverette not liable. Therefore, the jury never
reached the question of damages. See Verdict (DE#
140, 7/13/17). As such, the Court's exclusion of witness
Paul Ramos had no impact on the jury's verdict. The Court
is also unpersuaded by the plaintiffs argument that the
striking of Mr. Ramos as a witness somehow impinged on the
credibility of the plaintiff.
plaintiff is also not entitled to a new trial on the ground
that Trooper Harold Gracey's testimony was improperly
limited at trial or that portions of the accident report were
improperly excluded from the evidence. In the instant case,
Trooper Gracey did not witness the accident and was not
listed as an expert. On a motion in limine, the Court ruled
that "the portions of the crash report and the updated
crash report which [were] based on the statements and
observations of individuals involved in the crash (including
the diagrams) [would be] excluded from the evidence presented
at trial, " but permitted "[e]stimates of damage to
the vehicles" because those were "within Trooper
Gracey's observations." Order (DE# 96 at 4). The
Court also ruled that "[Trooper] Gracey's assessment
of fault for the accident [would be] excluded as unduly
prejudicial under Rule 403." Id. Consistent
with these rulings, Trooper Gracey was permitted to testify
about his observations when he arrived at the scene of the
A. I was patrolling 826 eastbound in the area of Northwest
12th Ave at which time I observed eastbound traffic coming to
a stop. I was on the FHP motorcycle. I passed traffic on the
right shoulder. And as the traffic, the front of the traffic
was stopped, I noticed a Nissan Sentra upside down in the
Q. What physical evidence was there on the ...