The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge
Pursuant to a jury trial held in this case commencing on March 14, 2006 and ending on March 16, 2006, the jury awarded Plaintiff Anita M. Alkire a judgment of $1,040,000, finding Defendant Marriott International, Inc. negligent as to its maintenance of an elevator and negligent as to Plaintiff's extraction from that elevator. See Jury Verdict Form. Presently before the Court are Defendant Marriott's  Motion for Judgment as a Matter of Law, or in the Alternative, for New Trial, or in the Alternative, to Alter or Amend the Judgment (Remittitur); and Defendant Marriott's  Motion to Strike Plaintiff's Surreply. After considering the aforementioned motions and the filings related thereto, the evidence in this case, and the relevant statutes and case law, the Court shall DENY Defendant Marriott's  Motion for Judgment as a Matter of Law, or in the Alternative, for New Trial, or in the Alternative, to Alter or Amend the Judgment (Remittitur); and GRANT Defendant Marriott's  Motion to Strike Plaintiff's Surreply.
I. LEGAL STANDARDS AND DISCUSSION
The Court notes at the outset that the Parties have chosen not to order a transcript of the proceedings and have cited to evidence from their memory of the proceedings and presumably their notes. The filings at issue clearly indicate that the Parties have different recollections of the testimony at trial. In order to be accurate, the Court has reviewed its own notes and an unofficial trial transcript to ensure accuracy. Accordingly, any citations included herein are to an unofficial trial transcript that presently is not part of the Court record. However, the evidence cited is a reflection of the Court's memory of the evidence and its trial notes.
A. Defendant Marriott is Not Entitled to Judgment as a Matter of Law
Rule 50 of the Federal Rules of Civil Procedure provides, in pertinent part, that a motion for judgment as a matter of law made during trial may be renewed "by filing a motion no later than [ten] days after entry of the judgment[.]" Fed. R. Civ. P. 50(b). Pursuant to Rule 50(a)(2), "[a] motion for judgment as a matter of law may [originally] be made at any time before the case is submitted to the jury. The motion must specify the judgment sought and the law and facts that entitle the movant to the judgment." Fed. R. Civ. P. 50(a)(2). "Under Rule 50, a court should render judgment as a matter of law when 'a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue.'" Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 149, 120 S.Ct. 2097, 2109, 147 L.Ed. 2d 105 (2000) (quoting Fed. R. Civ. P. 50(a)) (citing Weisgram v. Marley Co., 528 U.S. 440, 447-48, 120 S.Ct. 1011, 1016-17, 145 L.Ed. 2d 958 (2000)). Entry of judgment as a matter of law under Rule 50 is warranted only if "'the evidence and all reasonable inferences that can be drawn therefrom are so one-sided that reasonable men and women could not' have reached a verdict in plaintiff's favor." McGill v. Munoz, 203 F.3d 843, 845 (D.C. Cir. 2000) (quoting Duncan v. Washington Metro. Area Transit Auth., 201 F.3d 482, 485 (D.C. Cir. 2000)). "In making that determination, a court may not assess the credibility of witnesses or weigh the evidence," Hayman v. Nat'l Acad. of Sci., 23 F.3d 535, 537 (D.C. Cir. 1994), nor may it "substitute its judgment for that of the jury," Boodoo v. Cary, 21 F.3d 1157, 1161 (D.C. Cir. 1994). See also Reeves, 530 U.S.at 150, 120 S.Ct. 2097 (citations omitted); 9A CHARLES ALAN WRIGHT & ARTHURR. MILLER, FEDERALPRACTICE AND PROCEDURE § 2524, at 256-57 (2d ed. 1995) (on a motion for judgment as a matter of law, a court "must view the evidence most favorably to the party against whom the motion is made"). "If reasonable minds could disagree about the import of the evidence, judgment as a matter of law is inappropriate." In re Lorazepam & Clorazepate Antitrust Litigation, 467 F. Supp. 2d 74, 80 (D.D.C. 2006). "In evaluating the evidence, the court should not decide the motion based on which side it believes has the 'better of the case.'" Nyman v. Fed. Deposit Ins. Corp., 967 F. Supp. 1562, 1568 (D.D.C. 1997) (quoting Carter v. Duncan-Huggins, Ltd., 727 F.2d 1225, 1227 (D.C. Cir. 1984) (citations omitted)). Because these functions are the domain of the jury and because the granting of a Rule 50 motion intrudes upon the jury's rightful province, "Rule 50 motions 'should be cautiously and sparingly granted.'" Id. (quoting 9 CHARLES ALAN WRIGHT & ARTHURR. MILLER, FEDERAL PRACTICE AND PROCEDURE § 2524, at 541-45 (1971)); see also Boodoo, 21 F.3d at 1161 (the granting of a judgment as a matter of law "is highly disfavored").
While Defendant Marriott points out that the Court never ruled on the Rule 50(a) motion it made at the close of Plaintiff's case, this was entirely appropriate, as pursuant to Rule 50(b), "[i]f the court does not grant a motion for judgment as a matter of law made under subdivision (a), the court is considered to have submitted the action to the jury subject to the court's later deciding the legal questions raised by the motion." Fed. R. Civ. P. 50(a). While Plaintiff claims that Defendant Marriott is not entitled to renew its Motion for Judgment as a Matter of Law at this juncture in the proceedings because it made its Rule 50(a) motion only at the close of Plaintiff's case and not again at the close of Defendant's case, this is not settled law in this Circuit. "As a general matter, a party has been 'fully heard' for purposes of Rule 50(a) when the party has submitted all of its evidence on the relevant claim or issue. See 9 Moore et al., supra, § 50.20. Accordingly, a defendant may move for judgment as a matter of law at the close of the plaintiff's evidence. Id." Teneyck v. Omni Shoreham Hotel, 365 F.3d 1139, 1149 (D.C. Cir. 2004). See also Fredrick v. District of Columbia, 254 F.3d 156, 161 (D.C. Cir. 2001) ("Our court has never squarely adopted th[e] general rule [that a defendant must renew its Rule 50(a) motion at the end of all of the evidence or waive it]. . . ."). Therefore, the Court shall consider the issues raised in Defendant Marriott's Rule 50(a) Motion made at the close of Plaintiff's case at this time as renewed pursuant to Rule 50(b).
However, a post-trial motion for judgment as a matter of law may be granted only upon grounds advanced in a pre-verdict motion; a movant who omits a theory from a pre-verdict Rule 50 motion waives the theory as a basis of a post-verdict motion for judgment as a matter of law. See Whelan v. Abell, 48 F.3d 1247, 1251 (D.C. Cir. 1995); U.S. Indus., Inc. v. Blake Constr. Co., 671 F.2d 539, 548 (D.C. Cir. 1982). Accordingly, the Court will look only to the grounds advanced in Defendant Marriott's Rule 50(a) Motion in deciding Defendant Marriott's post-trial Motion for Judgment as a Matter of Law.
Upon reviewing the trial transcript, the Court notes that Defendant Marriott's Rule 50(a) motion was advanced on two grounds, the first of which was explicitly denied:
MR. LYNCH: It's a motion for judgment based upon the fact that this is on the claim for negligent maintenance, based upon the fact that the plaintiff testified that she was not hurt when the elevator came to a stop. So, therefore, any negligence attached to the evacuation is too remote to be the proximate cause of plaintiff's injuries.
MR. LYNCH: The argument, Your Honor, is that negligence is too remote to be the proximate cause of her injuries.
THE COURT: Well, it seems to me that if you have the elevator and it stops because it wasn't maintained properly, which is their theme and they've got evidence through the expert relaying that, and then she is injured based on extricating, which wouldn't have occurred except for the fact that the elevator had stopped because it wasn't maintained properly . . . it's still a negligent maintenance. I think it's probably enough at this point, so I'll deny it.
Tr. Trans. at 291-92. In Defendant Marriott's Rule 50(b) Motion, Defendant again argues that Plaintiff did not produce any evidence that the elevator malfunction was the proximate cause of Plaintiff's injuries. See Def.'s Mot. at 4, 24. However, Plaintiff produced evidence of foreseeability and causation through its introduction of the existence of national standards for elevator maintenance and extrications, fire department regulations, and Marriott's own policy on the dangers of extrication, all of which "refer to potential dangers of extricating someone from a stalled elevator." See Pl.'s Opp'n at 21; Tr. Trans. at 195-99, 201, 202-03. Plaintiff's expert further testified that the method of evacuation, requiring Plaintiff to jump approximately five feet to the floor, "was incorrect" and "in violation of national standards." Tr. Trans. at 199-200. This opinion was not rebutted at trial.
Judgment was reserved by the Court with respect to the second ground raised in Defendant Marriott's Rule 50(a) Motion: "MR. LYNCH: The second part of that is a lack of notice to Marriott about the elevator history, and any notice about the events to them, there is notice to the elevator company, but we're a separate company." Tr. Trans. at 292. After counsel for Defendant Marriott, when asked by the Court, admitted that "[t]he specific notice defense was not [previously] raised," Tr. Trans. at 294, the Court stated that "[s]ince this is coming up for the first time, I will take it under advisement." Id.
There is clear evidence in the record that Defendant Marriott was on notice of maintenance problems with its elevators. Plaintiff's expert, Patrick Carrajat, designated without objection as "an expert in elevators, elevator operations, maintenance, and extraction," Tr. Trans. at 185-86, testified that passengers had been trapped in the elevator in question three or four times during the year in which Plaintiff was trapped. Tr. Trans. at 187. Furthermore, Marriott's own written procedure, which was offered into evidence and accepted without objection, indicates that a Marriott employee is responsible for contacting the elevator company every time an entrapment occurs. Tr. Trans. at 202. Finally, Defendant's own witness, Gene Kelly, a loss prevention officer for Marriott, testified that he had responded to numerous elevator malfunctions at the hotel, informing the elevator company thereof. See Pl.'s Opp'n at 20-21; Tr. Trans. at 308, 309. Defendant Marriott does not respond in any way in the briefs to Plaintiff's pointing out that evidence was introduced demonstrating that Marriott was on notice of the history of elevator malfunction with respect to Elevator 5, the elevator at issue.
Accordingly, the Court finds that Plaintiff presented evidence squarely addressing the two issues raised by Defendant Marriott in its Rule 50(a) motion (and renewed in its Rule 50(b) motion) such that the Court shall DENY Defendant Marriott's Motion for ...