The opinion of the court was delivered by: Jeffrey L. VIKEN United States District Judge
ORDER DENYING PLAINTIFF'S MOTION FOR JUDGMENT AS A MATTER OF LAW OR NEW TRIAL
Pending before the court is plaintiff's motion for judgment as a matter of law or, in the alternative, for a new trial. (Docket 170). Defendant resists the motion in its entirety. (Docket 180). For the reasons set forth below, the court denies plaintiff's motion.
FACTS AND PROCEDURAL HISTORY
The court limits its recitation to those facts necessary to resolve the pending motion. If needed, the court shall provide additional facts in its discussion of the merits of the motion.
On August 4, 2006, plaintiff Gregory P. Warger and defendant Randy D. Shauers were involved in a motor vehicle collision on U.S. Highway 385 in Pennington County, South Dakota. (Docket 1 at ¶¶ 5-7). At the time of the collision, Mr. Warger was operating a motorcycle and Mr. Shauers was operating a three-quarter ton pickup pulling a 28-foot long camper trailer. Id. at ¶¶ 5-6. The collision resulted in serious injury to Mr. Warger, including but not limited to the loss of his lower left leg. Id. at ¶ 9. On December 12, 2008, Mr. Warger filed suit against Mr. Shauers, asserting a claim of negligence and seeking to recover for property damage, present and future lost wages, present and future pain and suffering, loss of enjoyment of life, permanent disability, present and future medical expenses, and prejudgment interest. Id. at pp. 2-3. Mr. Shauers denied the allegations and asserted various affirmative defenses, most prominent of which was contributory negligence.*fn1 Both parties asserted their right to a jury trial. (Dockets 1 at p. 4 & 6 at p. 3).
A jury trial commenced on July 20, 2010.*fn2 On July 22, 2010, the court declared a mistrial as a result of a violation of the court's in limine order by counsel for Mr. Shauers. (Docket 104). A second trial commenced on September 20, 2010. On September 29, 2010, the jury returned a verdict in favor of Mr. Shauers. (Docket 159). The same day, the Clerk of Court entered judgment in favor of Mr. Shauers and against Mr. Warger. (Docket 162). On October 25, 2010, Mr. Warger filed a motion for judgment as a matter of law pursuant to Fed. R. Civ. P. 50 or, in the alternative, for a new trial pursuant to Fed. R. Civ. P. 59. (Docket 170; see also Dockets 171 & 182). Mr. Shauers resisted the motion. (Docket 180).
Mr. Warger raised three grounds in support of his motion: (1) the verdict was against the weight of the evidence; (2) the verdict was the product of the misconduct of Mr. Shauer's counsel; and (3) the verdict was the product of juror misconduct. (Docket 171). The court shall address each argument in turn.
A. Whether the Verdict was Against the Weight of the Evidence When resolving a motion for judgment as a matter of law under Fed. R. Civ. P. 50, the court must determine whether there is sufficient evidence to support the jury's verdict.*fn3 Anderson Marketing, Inc. v. Maple Chase Co., 241 F.3d 1063, 1065 (8th Cir. 2001). The court must view the evidence in a light most favorable to the prevailing party and must give great deference to the jury's verdict. Id.; Howard, 615 F.3d at 995. Further, the court "must not engage in a weighing or evaluation of the evidence or consider questions of credibility." Howard, 615 F.3d at 995 (citation and internal quotation marks omitted); see also White v. Pence, 961 F.2d 776 (8th Cir. 1992) (same) (discussing in detail the difference between motions for judgment notwithstanding the verdict*fn4 and motions for new trial). The court will not reverse a jury's verdict unless it finds "no reasonable juror could have returned a verdict for the non-moving party." Anderson Marketing, Inc., 241 F.3d at 1065 (citation and internal quotation marks omitted); see also Structural Polymer Group, Ltd. v. Zoltek Corp., 543 F.3d 987, 991 (8th Cir. 2008) ("In reviewing the sufficiency of the evidence to support the jury's verdict, [the court] interpret[s] the record in a light most favorable to the prevailing party, affirming unless no reasonable juror could have reached the same conclusion."). "Judgment as a matter of law is appropriate only when all of the evidence points one way and is susceptible of no reasonable inference sustaining the position of the nonmoving party." Howard, 615 F.3d at 995 (citation and internal quotation marks omitted).
The standard for granting a new trial under Fed. R. Civ. P. 59 is even higher. Id. The "decision to grant a new trial lies within the sound discretion of the trial court."*fn5 Id. The court should grant a new trial only to avoid a miscarriage of justice. Id.; see also Structural Polymer Group, Ltd., 543 F.3d at 991 ("A new trial motion premised on a dispute about the strength of the supporting proof should be granted only if the verdict is against the weight of the evidence and allowing it to stand would result in a miscarriage of justice.") (citation and internal quotation marks omitted). Unlike a motion for judgment as a matter of law, in evaluating a motion for a new trial, the court "can rely on its own reading of the evidence--it can weigh the evidence, disbelieve witnesses, and grant a new trial even where there is substantial evidence to sustain the verdict." White, 961 F.2d at 780 (citation and internal quotation marks omitted).
Armed with an understanding of the standards governing motions for judgment as a matter of law and motions for a new trial, the court now turns to the merits of Mr. Warger's claim.
The jury returned a verdict in favor of Mr. Shauers. (Docket 159). In order to do so, as instructed by the court in its final jury instructions, the jury had to have found Mr. Shauers was not negligent, or his negligence was not a legal cause of Mr. Warger's injuries, or both parties were negligent, but Mr. Warger's negligence was more than slight in comparison to Mr. Shauers. See Docket 160 at pp. 30-31 (pp. 29-30 of the instructions). The court also instructed the jury (1) Mr. Warger had the burden to prove by the greater convincing force of the evidence Mr. Shauers was negligent, his negligence was the legal cause of Mr. Warger's injuries, and the amount of damages, if any, legally caused by Mr. Shauers' negligence and (2) Mr. Shauers had the burden to prove by the greater convincing force of the evidence Mr. Warger was contributorily negligent. (Docket 160 at p. 10; p. 9 of the instructions). In light of these governing principles, the court finds there was sufficient evidence for a reasonable jury to return a verdict in favor of Mr. Shauers and to find by the greater convincing force of the evidence Mr. Shauers was not negligent or, if he was negligent, Mr. Warger was contributorily negligent more than slight. See Anderson Marketing, Inc., 241 F.3d at 1065 (The court will not reverse a jury's verdict unless it finds "no reasonable juror could have returned a verdict for the non-moving party.") (citation and internal quotation marks omitted).
In support of its finding, the court looks to the evidence admitted at trial. The evidence on the issue of liability consisted of exhibits and the testimony of lay witnesses Clint Elmore, Lieutenant David Berkley, Mr. Shauers, and Michelle (Misty) Shauers and expert witnesses Brad Booth and Dr. Jubal Hamernik.*fn6 (Docket 163). The court shall provide a brief summary of each witness's testimony.
Mr. Elmore testified he was traveling northbound on Highway 385 on his motorcycle when he saw Mr. Warger stop at the stop sign on the north fork of the Y intersection between Sheridan Lake Road and Highway 385, enter Highway 385 and travel south for a short distance, turn his left blinker on, and set up to stop in order to return to Sheridan Lake Road by virtue of a left turn onto the south fork of the Y intersection. Mr. Elmore testified he observed Mr. Warger's vehicle travel southbound on Highway 385 at a fast rate of speed. Mr. Elmore testified he noticed Mr. Shauer's was looking to the right and was concerned Mr. Shauers would not be able to stop in time. Mr. Elmore observed the collision in his rear-view mirror and returned to assist. Mr. Elmore provided a statement to Lieutenant Berkley at the scene of the collision.
Mr. Elmore believed Mr. Warger had sufficient time to safely enter Highway 385.
Mr. Kappelman vigorously cross-examined Mr. Elmore. On cross-examination, Mr. Kappelman impeached Mr. Elmore's ability to see the events surrounding the collision and his memory of the events. Mr. Elmore testified the events surrounding the collision occurred during a matter of seconds, at a 90 mile per hour closing speed from his perspective, during busy traffic, and while he was paying attention to his own driving. Mr. Kappleman questioned Mr. Elmore regarding the written statement he provided to Lieutenant Berkley at the scene of the accident. Mr. Elmore admitted he did not include in his written statement most of the details about which he testified. He did not indicate in his written report that Mr. Warger stopped at the north fork of the Y intersection before turning onto Highway 385, that Mr. Warger put his blinker on as soon as he turned onto Highway 385, that Mr. Shauers was traveling too fast, would not be able to stop in time, and was looking to the right.
Mr. Elmore provided statements a week after the collision and then three months after the collision and did not indicate Mr. Shauers was looking to the right. Mr. Elmore first stated Mr. Shauers was looking to the right during Mr. Elmore's deposition approximately three years after the collision.
Lieutenant Berkley of the South Dakota Highway Patrol testified regarding his observations at the scene of the collision and the steps he took to collect evidence. Lieutenant Berkley arrived at the scene approximately twenty minutes after the collision. He observed a motorcycle lying in the ditch along the southbound lane of Highway 385 and observed skid marks from Mr. Shauers' vehicle starting from the southbound lane through the northbound lane toward the area where the motorcycle rested. He also observed the skid marks caused by the path of travel of Mr. Warger's motorcycle. The skid marks began near the center line of the highway. Lieutenant Berkley photographed all the skid marks. He was aware Mr. Shauers' trailer sustained damages to its right corner.
Mrs. Shauers testified in both parties' cases-in-chief. Mrs. Shauers testified regarding the checklist she and Mr. Shauers perform on their truck and camper before taking any trip, including the trip to South Dakota.
Mr. Shauers drove approximately 15,000 miles before the collision.
Mrs. Shauers testified Mr. Shauers was a very safe driver who pays attention to the roadway and is always aware of other vehicles. When Mrs. Shauers asked Mr. Shauers to look at a feature along the road, Mr. Shauers refused because he needed to pay attention to the roadway. Mrs. Shauers has rules for her children to follow when in the vehicle. She does not allow raised voices, sudden movements, or screams and does not allow the children to move around inside the vehicle. Mrs. Shauers testified Mr. Shauers was driving between 45 to 50 miles per hour before braking to avoid ...