Opinion

Benbow

Court: District Court, E.D. New York
Filed: May 7, 2026
Cited by: 0 cases
Authority: More cited than 41.2%

The opinion

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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JAMES BENBOW, MEMORANDUM & ORDER

17-CV-6457(EK)(JRC)

Plaintiff,

-against-

POLICE OFFICER BRIAN FEELEY; POLICE

OFFICER MATTHEW ROSIELLO,

Defendants.

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ERIC KOMITEE, United States District Judge:

Following a two-week trial, a jury found Officers

Brian Feeley and Matthew Rosiello liable for the use of

excessive force, assault, and battery against plaintiff James

Benbow. The jury awarded Benbow $190,000 in compensatory

damages. Now before the Court are the parties’ post-trial

motions. Defendants move for judgment as a matter of law or, in

the alternative, a new trial. Plaintiff moves for a new trial

as to damages only. For the following reasons, both motions are

denied in their entirety.

Background

The Court presumes the parties’ familiarity with the

procedural and factual background of this case, as set forth in

Judge Cho’s report and recommendation (R&R) on defendants’

motion for summary judgment and the Court’s order adopting the

R&R in large part. See Benbow v. City of New York, No. 17-CV-

6457, 2022 WL 22902936 (E.D.N.Y. Aug. 31, 2022) (report and

recommendation); Benbow v. City of New York, No. 17-CV-6457,

2024 WL 5165073 (E.D.N.Y. Dec. 19, 2024) (order).

Trial on Benbow’s Section 1983 excessive force claim

and state assault and battery claims commenced on October 27,

2025. The trial was bifurcated into liability and damages

phases. During the first phase, the jury found Feeley and

Rosiello liable on all counts. See Verdict Form 1-2, ECF No.

213-6.1

Defendants then requested, and the Court agreed, to

pose certain special interrogatories to the jury that defendants

argued were relevant to their defense of qualified immunity.

See Defs.’ Nov. 4 Ltr., ECF No. 203. Those interrogatories read

as follows:

Did Officer Feeley reasonably believe, even if

mistaken, that Mr. Benbow was holding a firearm in his

hand at the time Officer Feeley fired at him?

Did Officer Rosiello reasonably believe, even if

mistaken, that Mr. Benbow was holding a firearm in his

hand at the time Officer Rosiello fired at him?

Did Officer Feeley reasonably believe, even if

mistaken, that Mr. Benbow was moving in the general

direction of any other person at the time Officer

Feeley fired at him?

Did Officer Rosiello reasonably believe, even if

mistaken, that Mr. Benbow was moving in the general

1 Page numbers in citations to transcripts and briefs refer to internal

pagination. Page numbers in citations to all other record documents refer to

ECF pagination.

direction of any other person at the time Officer

Rosiello fired at him?

Verdict Form 3-4. The jury answered, “No,” to each question.

Id.

During the damages phase, the jury awarded Benbow

$190,000: $133,000 from Feeley and $57,000 from Rosiello. Id.

at 6.

Defendants now move for judgment as a matter of law

under Federal Rule of Civil Procedure 50 or, in the alternative,

a new trial pursuant to Rule 59. Plaintiff seeks a new trial as

to damages only.

Legal Standard

Under Federal Rule of Civil Procedure 50, “[i]f a

party has been fully heard on an issue during a jury trial and

the court finds that a reasonable jury would not have a legally

sufficient evidentiary basis to find for the party on that

issue,” the district court may:

(A) resolve the issue against the party; and

(B) grant a motion for judgment as a matter of

law against the party on a claim or defense that,

under the controlling law, can be maintained or

defeated only with a favorable finding on that

issue.

Fed. R. Civ. P. 50(a)(1). If a party moves for judgment as a

matter of law before the case is submitted to the jury under

Rule 50(a), and the Court declines to grant that motion, they

may renew it up until 28 days after the entry of judgment. See

Fed. R. Civ. P. 50(b).

Motions for judgment as a matter of law “should be

granted cautiously and sparingly,” Meloff v. New York Life Ins.

Co., 240 F.3d 138, 145 (2d Cir. 2001),2 and only if

there exists 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 the evidence in favor of the movant is

so overwhelming that reasonable and fair minded

persons could not arrive at a verdict against it.

Brady v. Wal-Mart Stores, Inc., 531 F.3d 127, 133 (2d Cir.

2008). In deciding a Rule 50 motion, the Court “must give

deference to all credibility determinations and reasonable

inferences of the jury, and may not . . . consider the weight of

the evidence.” Id.

A district court may also “grant a new trial on all or

some . . . issues” under Federal Rule of Civil Procedure 59(a).

“Unlike judgment as a matter of law, a new trial may be granted

even if there is substantial evidence supporting the jury’s

verdict. Moreover, a trial judge is free to weigh the evidence

himself, and need not view it in the light most favorable to the

verdict winner.” DLC Mgmt. Corp. v. Town of Hyde Park, 163 F.3d

124, 134 (2d Cir. 1998). But the “court should only grant such

2 Unless otherwise noted, when quoting judicial decisions this order

accepts all alterations and omits all citations, footnotes, and internal

quotation marks.

a motion when the jury’s verdict is egregious.” Id.; see also

Ali v. Kipp, 891 F.3d 59, 64 (2d Cir. 2018) (district court

should only grant new trial if “it is convinced that the jury

reached a seriously erroneous result or that the verdict is a

miscarriage of justice”).

Discussion

A. Defendants’ Motion for Judgment as a Matter of Law or,

in the Alternative, a New Trial

Defendants’ motion is denied on all counts.

1. The Verdict Was Not Against the Weight of the

Evidence

Defendants argue that, even viewing the trial evidence

in the light most favorable to Benbow, they are entitled to

judgment as a matter of law. In the alternative, they argue

that a new trial is warranted under Rule 59(a) because the

jury’s verdict was against the weight of the evidence. Defs.’

Mot. 2, 10, ECF No. 217-1. “[W]e focus on Rule 59(a), which has

a less stringent standard than Rule 50.” Manley v. AmBase

Corp., 337 F.3d 237, 245 (2d Cir. 2003). But even under that

more lenient standard, the Court sees no miscarriage of justice

in the jury’s verdict. See Ali, 891 F.3d at 64.

The jury’s finding that defendants used excessive

force was not against the weight of the evidence. The Court

properly instructed the jury that “the use of deadly force is

unreasonable, unless the officer had probable cause to believe

that the person posed a significant threat of death or serious

physical injury to the officer or to others at the time the

force was used.” Trial Tr. 1109:4-8, ECF No. 221; see also

O’Bert ex rel. Estate of O’Bert v. Vargo, 331 F.3d 29, 36 (2d

Cir. 2003) (articulating standard). Defendants did not, and do

not, contest this instruction. See Proposed Jury Instr. 8-9,

ECF No. 158 (proposing the inclusion of this instruction). And

the jury’s responses to the special interrogatories clearly

manifested its finding that, under this standard, the use of

deadly force was unreasonable. The jurors did not simply

conclude that Benbow was not pointing a gun at anyone; they

found that it would have been unreasonable for defendants to

believe that Benbow was “holding a firearm in his hand” or even

that he was “moving in the general direction of any other

person” when they fired. Verdict Form 3-4 (emphasis added).

Defendants place much emphasis on the evidence

suggesting that Benbow had a gun on his person. See Defs.’ Mot.

3-4. But again, even assuming he had a gun, the jury clearly

rejected the notion that Benbow was threatening anyone with a

gun. And that conclusion was not “seriously erroneous.” Ali,

891 F.3d at 64.

Whether Benbow pulled a gun on defendants and their

colleagues was, at trial, ultimately a matter of his word versus

theirs. And the jury’s conclusion that he did not pull a gun on

the officers can be located within the range of reasonable

outcomes here. Though defendants raised questions about

Benbow’s credibility, the officer defendants’ testimony was also

(unsurprisingly) self-serving.3 The only objective evidence to

support the officers’ claim that Benbow pulled a firearm from

his waistband was grainy video footage of Benbow’s initial

encounter with, and flight from, the officers. See Pl.’s Ex. H.

That footage stops before the shooting and, as the Court noted

at summary judgment, the video is ambiguous. Benbow, 2024 WL

5165073, at *9.

Moreover, plaintiff presented sufficient evidence to

support the jury’s finding that he was not facing the officers

when Feeley and Rosiello shot him. The medical records showed

that Benbow received two bullet wounds to his back. See, e.g.,

Pl.’s Exs. 36, 38; see also Trial Tr. 580:3-584:6, 595:20-

597:21, 602:1-7, ECF No. 228 (Dr. Drukteinis’s testimony

regarding the location of Benbow’s external and internal

injuries). While defendants presented evidence to support their

claim that they did not shoot Benbow in the back, the jury may

reasonably have rejected the testimony on this point from the

defendants’ ballistics and crime-scene reconstruction expert,

3 One other (non-party) officer testified in a manner supportive to the

officer-defendants’ testimony. See Trial Tr. 426:13-23, ECF No. 227

(Anderson). But the answers to the special interrogatories necessarily

indicate that the jury rejected this testimony, too.

George Krivosta. Mr. Krivosta testified that a single bullet

hit Benbow’s belt buckle, passed through his jacket, sweatshirt,

and the skin of his left lower back, struck his spine, and

embedded in the skin of his right lower back, somehow losing

speed at the end and failing to exit his body. Trial Tr.

906:14-907:21, 930:2-22, ECF No. 229. It may not have aided Mr.

Krivosta’s credibility that he is not a medical doctor, id. at

919:4-8, has never inspected the body of a live gunshot victim,

id. at 927:21-928:4, and adopted an argumentative tone with

counsel and the Court. See, e.g., id. at 909:14-24; 921:25-

922:2, 926:12-15.

Defendants argue that plaintiff’s expert witnesses,

Dr. Dan Drukteinis and Mr. Howard Ryan, “acknowledged” that the

medical evidence was consistent with “defendants’ version of

events regarding plaintiff’s bullet wounds.” Defs.’ Mot. 4.

But, viewed holistically, that is not the fairest or best

reading of the testimony at issue. See Trial Tr. 607:11-20, ECF

No. 228 (Dr. Drukteinis: there were “metallic fragments that

were through the body that would not have been on that alleged

path that [defense counsel is] describing.”); id. at 699:21-

700:6 (Mr. Ryan: “I agree with the scenario [defense counsel is]

setting up that would put him here, but we still have a bullet

inside that wound that’s unaccounted for.”). And neither expert

agreed that the wounds to Benbow’s back were necessarily caused

by a single bullet. Id. at 616:10-14 (Drukteinis); Trial Tr.

1001:4-15, ECF No. 221 (Ryan).

Defendants also point to the ways in which Benbow’s

recitation of the events on the night of the shooting did not

entirely align with his expert evidence. Defs.’ Mot. 2-3. But

those discrepancies are not fatal, especially as regards a

layman’s recitation of the location of his bullet wounds.4

Ultimately, “where, as here, a verdict is predicated

almost entirely on the jury’s assessments of credibility, such a

verdict generally should not be disturbed . . . .” Raedle v.

Credit Agricole Indosuez, 670 F.3d 411, 418-19 (2d Cir. 2012).

Defendants’ motion for a new trial based on the weight of the

evidence is therefore denied.

2. Defendants Are Not Entitled to Judgment as a

Matter of Law

Because defendants’ Rule 59 motion fails, so too does

their Rule 50 motion for judgment as a matter of law. See

Manley, 337 F.3d at 245; see also Giles v. Rhodes, 171 F. Supp.

2d 220, 229 n.5 (S.D.N.Y. 2001) (“Having failed to meet the more

relaxed requirements of Rule 59(a), which allows me to consider

credibility and the weight of the evidence . . . it is

4 Defendants devote much of their briefing to Benbow’s arguably

uncredible explanation for why he ran from the officers. See Defs.’ Mot. 3.

But that testimony is irrelevant except to the extent that it undermined his

credibility more generally.

axiomatic that [defendants] cannot satisfy Rule 50(b)’s

standards.”).

3. Defendants Are Not Entitled to Qualified Immunity

Defendants also argue that the Court should grant

their Rule 50(b) motion because they are entitled to qualified

immunity.5 This difficult question turns on the details of the

special interrogatories and certain important trial decisions by

the defense. Ultimately, the Court disagrees that either

defendant is entitled to qualified immunity.

Qualified immunity shields police officers, like all

state officials, from a suit for damages unless the officers

(1) “violated a statutory or constitutional right” (2) that was

“clearly established at the time of the challenged conduct.”

Terebesi v. Torreso, 764 F.3d 217, 230 (2d Cir. 2014). Here,

because the jury determined that the officers used excessive

force against Benbow, thereby violating his Fourth Amendment

rights, the key question is whether those rights were clearly

established as of March 7, 2015. The Supreme Court has

repeatedly cautioned that courts should not “define clearly

established law at a high level of generality, since doing so

5 Defendants moved for judgment as a matter of law before the case was

submitted to the jury, arguing that “no reasonable jury could find for

plaintiff” and “the individual defendants are entitled to qualified

immunity.” Trial Tr. 959:16-960:14, ECF No. 230. Accordingly, they

preserved their ability to now renew that motion under Federal Rule of Civil

Procedure 50(b). See Tolbert v. Queens Coll., 242 F.3d 58, 70 (2d Cir. 2001)

(“The posttrial motion is limited to those grounds that were specifically

raised in the prior motion for JMOL.”).

avoids the crucial question [of] whether the official acted

reasonably in the particular circumstances that he or she

faced.” Plumhoff v. Rickard, 572 U.S. 765, 779 (2014).

Citing Tennessee v. Garner, 471 U.S. 1, 11-12 (1985),

plaintiff contends that it was clearly established as of March

2015 that “a police officer could not use deadly force to seize

someone who did not pose a significant threat of death or

serious physical injury to the officer or to others.” Pl.’s

Opp’n 7, ECF No. 220. The Supreme Court has rejected similar

formulations of clearly established law, holding that they frame

the right at issue at too high a level of generality. See,

e.g., Mullenix v. Luna, 577 U.S. 7, 12-13 (2015). On its facts,

however, Garner clearly establishes that a police officer may

not use deadly force to apprehend an unarmed, fleeing suspect.

471 U.S. at 3-4.6

Both of those facts — whether Benbow was fleeing and

whether he was unarmed — were disputed at trial. And if there

is a dispute “as to the material historical facts,” those

“factual questions must be resolved by the factfinder.” Zellner

v. Summerlin, 494 F.3d 344, 368 (2d Cir. 2007); see also Jones

6 In Hemphill v. Schott, the Second Circuit clearly established that

police cannot shoot a suspect who is surrendering and obeying the officers’

commands, even if they reasonably believe him to be armed. 141 F.3d 412, 417

(2d Cir. 1998). We have surfaced no case involving a suspect who (1) was

fleeing; and (2) had a gun on his person; but (3) was not pointing it at

anyone or even holding it in his hand.

v. Treubig, 963 F.3d 214, 225 (2d Cir. 2020) (“[I]f there are

unresolved factual issues which prevent an early disposition of

the [qualified immunity] defense . . . , the jury should decide

these issues on special interrogatories.”). Although step two

of the qualified immunity analysis — which assesses “the

reasonableness of an officer’s view of the law” — is the

province of the court, factual questions “may dictate whether

any reasonable officer would have understood that his conduct

was unlawful.” Jones, 963 F.3d at 231, 232-33. And “the

reasonableness of an officer’s perception of the facts (whether

mistaken or not) is the province of the jury.” Id. at 231.

The jury’s special interrogatory responses resolved

the question of whether the officer defendants could have

reasonably perceived Benbow to be running toward them or their

colleagues (rather than fleeing) but not whether they could have

reasonably believed him to be armed. The jurors concluded that

neither officer could have “reasonably believe[d], even if

mistaken, that Mr. Benbow was moving in the general direction of

any other person” when they shot him. Verdict Form 4. In other

words, he was clearly running away. But the jury’s conclusion

that the officers could not have “reasonably believe[d], even if

mistaken, that Mr. Benbow was holding a firearm in his hand”

when they fired, id. at 3, still leaves unresolved whether they

could have reasonably believed Benbow was armed at all.

Defendants did not request, and the Court therefore did not

pose, any special interrogatories on that question.7

Because defendants have the burden of proof “as to the

facts necessary to establish [their] entitlement to [the]

qualified immunity” defense, Outlaw v. City of Hartford, 884

F.3d 351, 370 (2d Cir. 2018), it was their responsibility “to

request that the jury be asked the pertinent question.” Jones,

963 F.3d at 234. Defendants did not do so here, so “we must

construe the evidence most favorably to [Benbow] in conducting”

the qualified immunity analysis. Ortiz v. Stambach, 137 F.4th

48, 69 (2d Cir. 2025); see also Zellner, 494 F.3d at 368 (“If

the defendant does not make [the appropriate special

interrogatory] request, he is not entitled to have the court, in

lieu of the jury, make the needed factual finding.”).

Viewing the evidence in the light most favorable to

Benbow, a reasonable jury could have concluded that he was not

armed. Whether Benbow was armed was largely a question of the

officers’ words versus his. And “[c]redibility determinations

. . . are jury functions, not those of a judge.” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

Here, the jury clearly accepted Benbow’s version of

events, at least on certain key issues. For example, through

7 In fact, the Court posed the exact questions that defendants

requested, see Defs.’ Nov. 4 Ltr., modifying their phrasing only to insert

the names of the defendants to which the questions were applicable.

its interrogatory responses, the jury thoroughly rejected the

defendants’ (and Officer Anderson’s) testimony that Benbow

pulled a gun on them. See Trial Tr. 211:24-212:21, ECF No. 226

(Rosiello); Trial Tr. 364:4-10, 379:14-19, ECF No. 227 (Feeley);

id. 426:13-23 (Anderson). The jury also clearly accepted

Benbow’s testimony that he was running away. See Verdict Form

3-4; see also Trial Tr. 103:19-25, ECF No. 226 (Benbow). And we

cannot second-guess the jury’s credibility determinations on a

Rule 50 motion. See Diesel v. Town of Lewisboro, 232 F.3d 92,

203 (2d Cir. 2000).

The remaining evidence, viewed in the light most

favorable to Benbow, does not undermine the conclusion that a

reasonable jury could have concluded that Benbow was unarmed.

The only non-testimonial evidence consisted of (1) a gun whose

NYPD voucher connected it, not to Benbow, but to his companion

on the night in question, Trial Tr. 346:3-347:14, ECF No. 227;

(2) the grainy security footage, which we already declined to

view as the officers urged at summary judgment, see Benbow, 2024

WL 5165073, at *9; and (3) video taken after the shooting that

shows a gun on the ground several feet from Benbow, Pl.’s Ex. I.

Assuming, as the jury found, that the officers’ testimony was

not deserving of credence, it would not have been unreasonable

for the jury to question where this gun came from. Finally, for

whatever reason, defendants chose not to introduce Benbow’s plea

allocution at trial. So, on that score, we are left only with

Benbow’s testimony that he falsely admitted to possession of a

firearm to avoid additional jail time. See Trial Tr. 91:7-20,

ECF No. 226.

Of course, Rosiello and Feeley may have believed, even

if mistakenly, that Benbow was armed. Indeed, before arriving

at Amarachi Prime, the officers received a report from an

auxiliary officer inside the club that a “tall male, black,

wearing all black” (and accompanied by a “second male that was

shorter with a bag”) had a firearm. See Trial Tr. 459:8-462:14,

ECF No. 227 (Detective Mitchell). But whether that tip was a

sufficient basis for defendants to reasonably believe Benbow was

armed when they ultimately fired their weapons was a question

for the jury: “[a] mistake of fact . . . in the absence of an

additional jury finding that the mistake was reasonable (when

there are disputed material facts on that question) is

insufficient to support an officer’s claim that he is entitled

to qualified immunity.” Jones, 963 F.3d at 228.8

Construing the evidence in the light most favorable to

Benbow, as we must, defendants have not demonstrated “the

8 Defendants point to the Court’s holding, at summary judgment, that the

auxiliary officer’s tip “was sufficient to establish (at least) arguable

probable cause to arrest plaintiff for possession of a firearm.” Defs.’ Mot.

7. But that conclusion was based on the collective knowledge doctrine, see

Benbow, 2024 WL 5165073, at *8, and defendants have cited no case applying

the collective knowledge doctrine to excessive force claims. Accordingly,

that holding is not dispositive here.

nonexistence of a clearly established right” violated by their

use of deadly force. Tellier v. Fields, 280 F.3d 69, 84 (2d

Cir. 2000). Qualified immunity does not apply.

If the Court was weighing the evidence, we might well

conclude that Benbow was armed or, at the very least, that the

officers could have reasonably believed that he was armed. But

it is not our place to make such factual findings. See Jones,

963 F.3d at 234 (“Having agreed to submit the non-pertinent

question to the jury, [defendants] cannot then have the district

court, in addressing a Rule 50 motion, usurp the jury’s role by

substituting its own finding on the pertinent question.”).

4. Neither Benbow’s Counsel’s Violations of the Court’s

Pre-Trial Orders nor the Admission of Mr. Ryan’s

Undisclosed Opinion Warrants a New Trial

Defendants raise two further arguments in support of

their motion for a new trial: that (1) plaintiff’s counsel’s

violations of the Court’s orders on the parties’ motions in

limine unduly prejudiced the jury; and (2) the erroneous

admission of Mr. Ryan’s undisclosed expert opinion swayed the

jury. Both arguments fail.

First, the Court agrees that plaintiff’s counsel

violated our pre-trial orders on the parties’ motions in limine

by (1) asking his client about the disposition of the underlying

criminal charges; and (2) asking Rosiello whether Benbow’s DNA

evidence was on the gun. Indeed, the Court admonished counsel

on the record for doing so. See Trial Tr. 83:14-84:22, ECF No.

226; Trial Tr. 327:2-25, ECF No. 227. However, those violations

were not so prejudicial as to warrant a new trial. “[A] party

seeking a new trial on the basis of opposing counsel’s improper

statements to the jury faces a heavy burden.” Marcic v.

Reinauer Transp. Cos., 397 F.3d 120, 124 (2d Cir. 2005). And

“rarely will an attorney’s conduct so infect a trial with undue

prejudice or passion as to require reversal.” Id.

Defendants argue that plaintiff’s counsel’s violations

“went to the heart of one of the most important issues in the

case: whether plaintiff had a gun when he was shot.” Defs.’

Mot. 12. But defendants themselves invoke what they call “the

mountain of evidence . . . that plaintiff indeed possessed a

gun.” Id. at 13. If there is a reason the jury was unconvinced

that Benbow possessed a gun on the night in question, it is

likely because defendants did not sufficiently marshal that

evidence. For example, they elected not to introduce Benbow’s

plea allocution (in which he admitted that he had a gun) or

question him about it at all. Nor was that admission, or Mr.

Benbow’s own testimony about it, a point of focus during the

defense summation. See Trial Tr. 1053:5-7, ECF No. 221

(mentioning the plea allocution only in passing).

Any effect Benbow’s testimony regarding the dismissal

of the criminal charges may have had was also mitigated by the

Court’s curative instruction to the jury. Trial Tr. 90:22-91:1,

ECF No. 226; see Patterson v. Balsamico, 440 F.3d 104, 119 (2d

Cir. 2006) (no “undue prejudice or passion” where court gave

curative instruction to “the jurors immediately upon their

return to the courtroom”). As to counsel’s question regarding

the lack of DNA evidence, defendants themselves posit that “any

curative would [not] have had any effect other than to draw

additional attention to [the] topic.” Defs.’ Mot. 13. This was

particularly true given that the question (whether “Mr. Benbow’s

DNA [was] recovered from [the] gun”) went without answer. Trial

Tr. 326:15-25, ECF No. 227.

Defendants also argue that Benbow’s testimony

regarding the dismissed criminal charges might have generated

undue sympathy. In particular, they point to his subsequent

testimony that he had been “locked up for four years,” which

they say, “unfairly and inaccurately suggested that plaintiff

had been unlawfully incarcerated in connection with the

incident.” Defs.’ Mot. 12. But that statement was part of

Benbow’s answer to why he pleaded guilty to possession of a

firearm on the night in question, even though he claims he was

not armed. See Trial Tr. 91:7-20, ECF No. 226. And Benbow’s

reasons for accepting the plea deal were clearly relevant to the

weight the jury might place on his state-court allocution.

Second, the Court properly admitted Mr. Ryan’s

undisclosed opinion that the bullet wound to Benbow’s right

flank was an entry wound. We originally struck that testimony,

and later admitted it only after defense counsel opened the door

by asking his own expert witness, “And in the report, Mr. Ryan

opined that plaintiff was shot in the right side by Officer

Rosiello, right?” Trial Tr. 860:2-8, ECF No. 229; cf. Ohler v.

United States, 529 U.S. 753, 755 (2000) (“If a party who has

objected to evidence of a certain fact himself produces evidence

from his own witness of the same fact, he has waived his

objection.”). Furthermore, defendants’ expert, Mr. Krivosta,

was able to offer rebuttal testimony on this point, see, e.g.,

Trial Tr. 873:24-874:21, ECF No. 229, meaning any prejudice was

slight. See Brennan-Centrella v. Ritz-Craft Corp. of Pa., 788

F. App’x 799, 803 (2d Cir. 2019) (the “district court acted

within its substantial discretion by permitting [defendant] to

cross-examine [plaintiff’s expert] on his undisclosed testimony

and permitting [defendant’s] expert to offer an opinion in

response”); cf. Lorme v. Delta Air Lines, Inc., 251 F. App’x

691, 692-93 (2d Cir. 2007) (even if expert’s testimony went

beyond his report, opposing counsel’s decision not to call a

rebuttal expert or “actively pursue other alternatives short of

preclusion[] suggest[ed] the prejudice, if any, was slight”).

B. Plaintiff’s Motion for a New Trial

Benbow’s motion for a new trial on damages is denied.

1. The Jury’s Compensatory Damages Award Was Not

Egregiously Inadequate

Benbow first argues that a new trial on damages is

warranted because the “jury’s award of $190,000 in compensatory

damages shocks the conscience.” Pl.’s Mot. 2, ECF No. 216. In

effect, he contends that the jury’s award was inconsistent with

its finding of liability given “Benbow’s undisputed injuries.”

Id. But “[w]hen a party points to an apparent inconsistency in

a jury verdict,” the court “must adopt a view of the case, if

there is one, that resolves any seeming inconsistency, making

every attempt to reconcile the jury’s findings.” Singh v. Mem’l

Sloan Kettering Cancer Ctr., No. 23-63, 2024 WL 4586396, at *1

(2d Cir. Oct. 28, 2024), cert. denied, 146 S. Ct. 896 (2025);