concurring in part and dissenting in part:
I concur with the majority’s ruling that the Superior Court’s September 25, 2001 Order granting summary judgment, in part, in favor of Appellant, C&C Construction and Maintenance Inc., (“C&C” or “Appellant” or “Cross-Appellee”), is reviewable. I further concur with the majority’s ultimate decision, on the merits, to affirm the trial court’s partial summary judgment dismissing all counts of Appellee, Juan Nales-Martinez’s (“Martinez” or “Appellee” or “Cross-Appellant”) complaint except for the breach of contract (implied contract) cause of *1060action. I also concede that if the evidence was insufficient to support the jury’s verdict, the trial court could order a remittitur but only on the condition that an option is given to either accept the remittitur or be awarded a new trial. Regrettably, however, I am constrained to depart company with my esteemed colleagues’ determination that there was insufficient evidence to support the jury’s verdict.
I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE
Martinez sued C&C on four (4) causes of action, to wit: fraud, misrepresentation, wrongful discharge and breach of contract (implied contract). C&C filed a motion for summary judgment and despite opposition by Martinez, the trial court granted C&C’s motion for summary judgment, in part, on the fraud, misrepresentation and wrongful discharge claims, but left the breach of contract (implied contract) cause of action intact. A trial by jury went forward on the single cause of action. At the conclusion of Martinez’s case-in-chief, C&C moved for judgment as a matter of law pursuant to Federal Rules of Civil Procedure 50(a).23
The trial court reserved ruling on the motion. Martinez had no good faith reason to raise and did not make a motion for judgment as a matter of law with respect to any of C&C’s defenses. After all the evidence was introduced, C&C renewed its Rule 50(a) motion. Again, Martinez did not raise a Rule 50(a) motion for judgment as a matter of law on any defense(s) alleged by C&C at the conclusion of all the evidence.
The case was thereafter submitted to the jury. Following deliberations, a verdict was returned on behalf of Martinez in the amount of $273,000.00. (Joint Appendix at 450.) Upon discharging the jury, the trial court, without any delay, sua sponte denied C&C’s reserved Rule 50(a) motion on the issue of liability. This swift and immediate ruling by the trial court effectively stripped C&C of any opportunity to independently renew his Rule 50(a) motion pursuant to Rule 50(b). The trial court then reduced the jury’s verdict to $13,483.00 without giving Martinez an option for a new trial by calculating as follows: $16.40/hour (carpenter pay rate) x 40 hours/week = $656.00 per/week; $656.00 per/week x 4 *1061weeks = $2,624.00/month; $2,624.00/month x 8 months (from October 2000 to June 2001) = $20,992.00. (Joint Appendix at 451.) Because Martinez testified that he earned $11,264.00 outside his employment with C&C in 2001, the court then divided Martinez’s, outside earnings by 12 months ($11,264.00/12 months = $938.00).24 This amount ($938.00) was then multiplied by 8 months which totaled $7,509.00.25 The court then reduced $20,992.00 by $7,509.00 to arrive at its reduced damages award of $13,483.00 in favor of Martinez.
II. ANALYSIS
This dissent is more fully expanded and elaborated in the argument that follows:
Reversal of the Trial Court’s Reduced Judgment and Reinstatement of the Jury’s Verdict is Warranted Because a Rational Jury Could Have Returned a Verdict of $273,000.00 by a Preponderance of the Evidence and There Was No Ruling For a New Trial In Lieu of the Remittitur.
During Martinez’s case-in-chief, evidence of his employment with and subsequent “lay off’ from C&C was presented. Martinez presented evidence from former employees, who testified that they understood the practice and/or “policy” of C&C was to rehire laid-off employees. Martinez also testified that he in fact knew of and accepted this policy. To add insult to injury, Martinez stated that C&C did not articulate a basis to lay him off although the job to which he was assigned was incomplete 26
On the issue of damages, evidence was admitted as to the rate of pay for C&C carpenters during the years Martinez was unemployed. Additionally, Martinez testified as to his earnings while unemployed. During C&C’s case-in-chief, C&C refuted any existence of a rehiring policy and contended that the company lays off workers due to a *1062“reduction in the workforce.” (Joint Appendix at 374.) However, C&C failed to present any evidence showing that it did not rehire carpenters up until the company ceased to exist in 2001. Instead, at trial, witnesses for C&C continually played the “blame game” wherein each conveniently testified as having insufficient knowledge of C&C’s new employees or that another division was best suited to account for the company’s “new hirees.”
This alleged lack of knowledge arguably made certain witnesses for C&C appear less credible and this became more evident at various junctures during trial when certain C&C administrative personnel, both former and current, were questioned regarding alleged hiring of individuals during Martinez’s unemployment. For example, Ms. Raquel Ruach, C&C’s former controller, testified that her job description required her to “take care of all financial records for [C&C].” (Joint Appendix at 308.) Ms. Ruach also testified that she was “in charge of the payroll department, the accounts receivable, accounts payable and budgets.” Notwithstanding Ms. Ruach’s duties at C&C, she testified as having insufficient knowledge regarding alleged C&C employees or “new hirees” because, as C&C’s controller, she merely “made sure [an employee’s] pay rate [was] the correct pay rate.” (Joint Appendix at 308; 339.) Consider the following colloquy:
Ms. Raquel Ruach — C&C Controller:
Q: Are you familiar with the name John St. Louis?
A: No, sir, I am not.
Q: Are you familiar with the name of an employee Augustin St.
Rose?
A: The name is familiar.
Q: Do you know when he started working for C&C Construction
Company?
A: No recollection.
Q: Are you familiar with the name, Addison Demmingl
A: Again, I do have recollection of that name.
Q: And is that a person who worked for C&C Construction Company?
A: The name is familiar. He could have possibly worked.
Q: Do you know when he started working for C&C Construction Company?
*1063A: No recollection.
Q: Are you familiar with Simon Montoute?
A: Name is familiar.
Q: Do you know if he worked as a carpenter for C&C Construction Company?
A: Again, I don’t know the trade of these people, sir.
Q: Do you know if he was hired, rehired on March 16, 2000?
A: Would not know that sir.
Q: Do you know the name Andreas Velasques?
A: I have no recollection of the name.
Q: Do you know an employee by the name of Stanford Xavier?
A: No recollection of the name.
Q: Do you know an employee by the name of Derek Alicia?
A: No recollection of that name.
Q: Do you know an employee by the name of Pascal Benjamin?
A: Name sounds familiar.
Q: Do you know an employee by the name of Nicholas Edwin?
A: Name sounds familiar.
Q: Do you know an employee by the name of George Henry?
A: I have no recollection of that name.
Q: Do you know an employee by the name of Tracy James?
A: Again, I have no recollection of these names.
Q: Do you know an employee by the name of Ferdinand Maynard!
A: Name sounds familiar.
Q: Do you know an employee by the name of Fred Tavernier!
A: No recollection of that name.
(Joint Appendix at 334-337.)
According to Ms. Ruach, C&C’s division of personnel as opposed to its controller processed new employees. (Joint Appendix at 337.) Ms. Ruach further testified that C&C’s Human Resources was responsible for processing new carpenters before her office verified the file for entry in C&C’s records. (Joint Appendix at 338.) Ms. Ruach neglected however, to present verified C&C records for carpenters that were either hired and/or otherwise employed by C&C.
*1064Mr. Gustave James, C&C’s former general manager, was also called as a witness during trial. Mr. James testified that Mr. Wilfredo Delerme, C&C’s personnel manager, “was responsible for hiring and layoffs.” (Joint Appendix at 366.) Mr. James further stated that although he was Mr. Delerme’s supervisor, Mr. Delerme was the individual with “discretion to hire and rehire.” (Joint Appendix at 366.)
After all the evidence and the parties.rested, the trial court gave the jury its final instructions. (Joint Appendix at 406-409.) The jury was instructed as to the phrase “preponderance of the evidence” being the standard of proof in civil cases and instructed the jury as follows:
To establish by a preponderance of the evidence means to prove that something is more likely than not so. In other words, a preponderance of the evidence means such evidence as when considered and compared with that, opposed to it has more convincing force and produces in your minds a belief that what is sought to be proved is more likely to be true than not true... [t]his rule does not, of course, require proof to an absolute certainty, since proof to an absolute certainty is seldom possible in any case.
(Joint Appendix at 406-407.)
The trial court further instructed the jury that Martinez must also prove his amount of damages by the preponderance of the evidence. Jurors were subsequently provided a special verdict form directing them, inter alia, to enter “the total amount of money, if any, which [he/she] find[s] will fairly and reasonably compensate [Martinez] for [C&C’s] breach of contract.” (Joint Appendix at 407; 448.)
Although C&C’s apparent defense was that it did not hire carpenters while Martinez was laid off, it failed to present any evidence supporting this contention or dispelling the reasonable inference circumstantially, that it (C&C) did so hire. According to the “adverse inference rule”:
If a party fails to produce evidence that is under that party’s control and reasonably available to that party and not reasonably available to the adverse party, then you may infer that the evidence is unfavorable to the party who could have produced it and it did not.
3 Kevin O’Malley, Jay E. Grenig & Hon. William C. Lee, Federal Jury Practice and Instructions [Civil] 150 § 104.26 (5th ed. 2000). Under this *1065“adverse inference rule,” when a party has relevant evidence within its control that the party fails to produce, that failure gives rise to an inference that the evidence is unfavorable to it. Int’l Union (UAW) v. NLRB, 459 F.2d 1329, 1336, 148 U.S. App. D.C. 305 (D.C. Cir. 1972); Rockingham Machine-Lunex Co. v. NLRB, 665 F.2d 303, 304 (8th Cir. 1981); see also Interstate Circuit, Inc. v. United States, 306 U.S. 208, 226, 59 S.Ct. 467, 474, 83 L.Ed. 610 (1939) (production of weak evidence when strong is available can lead only to conclusion that strong evidence would have been adverse). However, the rule that an unfavorable inference shall be drawn against a party that fails to introduce evidence known to be in its control does not apply where the party has good reason to believe that its opponent has failed to meet its burden of proof. NLRB v. Chester Valley, Inc., 652 F.2d 263, 271 (2d Cir. 1981).
Here, Martinez met his burden of proof, even though the parties failed to request an instruction under Section 104.26. The trial court did however instruct the jury as to “reasonable inferences.” Specifically, the trial court instructed the jury as follows:
In their arguments, the lawyers will ask you to infer, on the basis of your reason, experience, and common sense, from one or more established facts, the existence of some other fact. The process of drawing inferences from facts in evidence is not a matter of guesswork or speculation. An inference is a deduction or conclusion which you are permitted to draw, but you are not required to draw, from the facts which have been established by either direct or circumstantial evidence.
In other words, when you consider the evidence you are not limited solely to ... [w]hat you saw and heard as the witnesses testified. You are permitted to draw from facts which you find have been proved such reasonable inferences you feel are justified in the light of your experience and common sense.
Let me give you a simple example. You are sitting in this courtroom, and you cannot see outside. Assume that when you came in this morning, it was a beautiful, sunny, day. Assume, also, that someone just walked in the door with an umbrella that was wet and a raincoat that was dripping. You could, from such circumstantial evidence, infer that it was now raining outside. You are to consider both kinds of evidence, direct and circumstantial. The law also makes no distinction between direct and circumstantial evidence.
*1066(Joint Appendix at 402-03.)
Because the trial court instructed the jury on reasonable inferences, it was possible for the jurors to make a reasonable inference and/or a reasonable adverse inference, that C&C’s failure to produce evidence that was in their exclusive control, showing that it did not hire carpenters while Martinez was laid off meant that carpenters were in fact hired during Martinez’s unemployment. The trial court ostensibly accepted the jury’s adverse reasonable inferences when it ruled on C&C’s Rule 50(a) motion via Rule 50(b) and found C&C liable for breach of an implied contract and also found damages but not to the extent of the verdict award. The trial court’s finding could not have been made if C&C did not hire carpenters after Martinez was laid off. Moreover, damages can only be assessed after a finding of liability. Therefore, the jury’s reasonable adverse inferences, in arriving at its verdict, must also be accepted and applied on the issue of liability and damages.
More importantly, there was direct evidence adduced at trial that while Martinez was unemployed, C&C hired an individual named Juan Ignatius Isidore to work at its facility as a carpenter. For all the reasons stated, a rational juror could therefore form, from direct and circumstantial evidence, a negative inference by the preponderance of the evidence that C&C in fact rehired carpenters during Martinez’s unemployment.
It is also important to note that C&C did argue, and the trial court agreed, that loss of income claims require corroboration and that Martinez’s “self-serving” statements, standing alone, could not support his claim for damages based on loss of income.27 (Joint Appendix at 351-53.) See also Connelly v. Chardon, Civ. No. 78-53 (D.V.I. 1978); Santana v. Mack, 889 F. Supp. 223, 32 V.I. 378 (D.V.I. 1995); Williams v. Martin Marietta Alumina, Inc., 817 F.2d 1030 (3d Cir. 1987). However, at the end of all the evidence, the jury was [emphasis added] permitted to consider the rate of pay for carpenters during the years 1994 through 2001 and as such this evidence corroborated Martinez’s testimony regarding his loss of income for those years.
Because the jury was able to consider the progressive increase in the rate of pay for carpenters during 1994 through 2001 together with *1067Martinez’s testimony regarding his earnings while unemployed, a negative inference could be formed that C&C in fact rehired carpenters during Martinez’s unemployment and a rational fact-finder, when taking all these factors together, could have projected Martinez’s damages from the time he was laid off as follows:
Year Pay/Hr. Base Salary Gross Salary Amt. of O/T % of O/T Over Base Salary
1993 actual28 $11.50 $22,080.00 $32,228.00 $10,148.00 46%
1994-1995 projected29
1995-1996 projected30 $14.05 $26,976.00 $39,384.96 $12,408.96 46%
1996-1997 projected31 $14.50 $27,840.00 $40,646.40 $12,806.40 46%
1997-1998 projected32 $14.95 $28,704.00 $41,907.84 $13,203.84 46%
1998-1999 projected33 $15.45 $29,664.00 $43,309.44 $13,645.44 46%
1999-2000 projected34 $15.95 $30,624.00 $44,711.04 $14,087.44 46%
*1068Year Pay/Hr. Base Salary Gross Salary Amt. of on % of on Over Base Salary
2000-200135 8 months projected $16.40 $20,992.00 $30,648.32 $9,656.32 46%
TOTAL $186,880.00 $272,836.00 $85,956.00
Year Earnings Outside C&C36
1994__$3,000.00+
1995 $5,400.00
1996 $6,800.00
1997 $9,964.00
1998 $5,101.00
1999 $8,200.00
2000 $9,415.00
2001 $11,264.00
Total $56,144.00
The calculations set forth in the chart hereinabove do not account for interest owed on money due at 9% per annum pursuant to V.I. Code Ann. tit. 11 § 951(a)(1) or that overtime could have exceeded 46% of the base salary.
III. CONCLUSION
Given the foregoing, the trial court erred when it utilized Rule 50(b) to reduce the jury’s verdict from $273,000.00 to $13,483.00 when there was sufficient evidence from which a rational jury could have returned a verdict for Martinez in the amount of $273,000.00.
50(a) of the Federal Rules of Civil Procedure was formerly referred to as “Directed Verdict” and 50(b) of the Federal Rules of Civil Procedure was previously referred to as “Judgment N.O.V. or Judgment Notwithstanding the Verdict.”
The actual dollar amount is $938.67, however, it is obvious that the trial court chose to utilize a round figure ($938.00). (Joint Appendix at 452.)
Again, the actual dollar amount of $938.67 (not $938.00) x 8 months yields $7,509.
During trial, Mr. Gustave James, former general manager for C&C, testified that persons are hired to work on a job and are laid off when the job is done. (Joint Appendix at 354.) However, when Martinez was laid off he was working on a job that was not complete. (Joint Appendix at 355.)
C&C made this argument after Martinez’s tax returns were used to merely refresh his recollection as to his earnings for the years 1994-2001 while being laid off from C&C. The tax returns however, were not entered into evidence.
Martinez’s actual earnings from C&C during the year 1993.
During trial, Martinez testified that he did not recall the exact amount earned during this period. However, Martinez indicated that he received and/or earned $3,000.00 for twenty-six (26) weeks of unemployment in the year 1994.
Martinez’s projected earnings based on hourly pay rate for carpenters in the year 1995 plus overtime pay.
Martinez’s projected earnings based on hourly pay rate for carpenters in the year 1995 plus overtime pay.
Martinez’s proj ected earnings based on hourly pay rate for carpenters in the year 1997 plus overtime pay.
Martinez’s projected earnings based on hourly pay rate for carpenters in the year 1998 plus overtime pay.
Martinez’s proj ected earnings based on hourly pay rate for carpenters in the year 1999 plus overtime pay.
Martinez’s projected earnings based on hourly pay rate for carpenters for the period of October 2000 through June 2001 (8 months) plus overtime pay.
Represents Martinez’s actual earnings while being laid off from C&C.