Plaintiff (P) was badly burned as a result of a hotel fire that occurred while Plaintiff was a paying guest at the Defendant’s (D) large, prestigious hotel. Plaintiff remained in the hospital for the burns suffered in the fire for several weeks. [Tort law note here: P is considered a business invitee under tort law and is owed a duty of care to protect against known dangers and those that might be discovered through the exercise of reasonable care.]  Upon release from the hospital, P hired an attorney who filed a tort complaint against D in federal court that included a jury demand. The complaint was promptly and properly served on D.

Police and fire officials had investigated the blaze. The fire marshal’s report found that the blaze had started in an employees’ locker room and had involved an accelerant (something that makes fires burn faster), in this case a flammable maintenance product, supplies of which were routinely stored in an adjacent room. The fire marshal’s report was inconclusive as to whether the fire had been deliberately set or whether the accelerant had been spilled and formed a puddle in a low spot on the floor of the locker room and was somehow ignited. The police officers’ report, which was limited to determining if a crime had been committed, concluded, “despite the involvement of an accelerant, to date there is a lack of evidence that would justify immediate further criminal investigation.”

Two days after the fire, D had contacted its insurer, InsCo. InsCo handled D’s liability insurance (that would cover losses to third parties, such as P, for which D might be liable). InsCo assigned an investigator to the case immediately, and that investigator completed a very thorough investigation of the fire, interviewing many people and checking into some conditions (such as the contents of nearby dumpsters), that the police and fire authorities did not.

After the complaint was filed, D answered, denying negligence. Disclosure followed in which, among other FRCP 26(a)(1)A)(i) disclosures D identified the names of all 225 hotel employees who were working at the time of the fire and on the two days prior to that. As required in this case by FRCP 16(b), the court conducted a scheduling conference and issued its FRCP 16(b)(3) Scheduling Order, which included, as permitted by subsection vii of that rule, a last date for identifying witnesses. See also FRCP 16(c)(2)(G).

28.  (15 points) Again assume that summary judgment was denied in Question 24. The case eventually goes to trial before a jury. D continues to believe that P has insufficient evidence of the hotel’s negligence. Due to the severe, painful, and disfiguring injuries suffered by P D fears that a jury may make a large award of damages due to its sympathy for P and not correctly weigh the evidence of liability that D feels is insufficient to support P’s claims. What procedural mechanisms can D’s attorney use to ensure that D can oppose a possible jury verdict for P as being against the weight of the evidence? D’s attorney also fears that the trial judge, based on the earlier denial of D’s summary judgment motion, may allow a jury verdict for P to stand despite a lack of sufficient evidentiary support on liability. If the trial judge does allow the jury verdict to stand despite D’s properly made motions, on what basis will the appellate court review those later rulings of the trial court?