Richard KEARNEY, Plaintiff-Appellant, v. Commissioner Brian FISCHER, Joseph F. Haluska, Medical Director of Southport Correctional Facility, Superintendent Napoli, Southport Correctional Facility, M. Bridge, Deputy Superintendent for Administrative Services at Southport Correctional Facility, New York State Department of Correctional Services, Defendants-Appellees, 609 F. App'x 673

SUMMARY ORDER Appellant Richard Kearney, pro se, appeals from the district court’s judgment, pursuant to a jury verdict, dismissing his deliberate indifference claim brought under 42 U.S.C. § 1983 and awarding nominal damages on his claim under the Americans with Disabilities Act (“ADA”). We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal. I. Evidentiary Rulings “We review a district court’s evidentiary rulings for abuse of discretion, and will reverse only for manifest error.” Cameron v.

City of New York, 598 F.3d 50, 61 (2d Cir.2010) (internal quotation marks omitted). The evidentiary rulings challenged by Kearney do not constitute an abuse of discretion. The court did not err in excluding Kearney’s deposition testimony. Kearney was available to testify and did so, and no other circumstance justified his use of his own deposition testimony. See Fed. R.Civ.P. 32(a); In re Sims, 534 F.3d 117, 140-41 (2d Cir.2008). We similarly reject Kearney’s argument that the district court erred in admitting Dr. Haluska’s testimony, despite his lack of specialization in orthopedics.

We note that although the jury was instructed on the appropriate treatment of expert testimony, Dr. Haluska was not explicitly admitted as an expert witness. Nevertheless, the bulk of his testimony was admissible as lay testimony because it related to his personal experience reviewing Kearney’s medical records. See Fed. R.Evid. 701; see also Bank of China, New York Branch v. NBM LLC, 359 F.3d 171, 181 (2d Cir.2004). Any error in admitting the balance of the testimony was harmless. See Bank of China, 359 F.3d at 183 (applying harmless error standard to improper admission of expert testimony).

We also find no abuse of discretion in the district court’s remaining evidentiary rulings. Kearney presented no evidence that the relevant video or audio recordings he sought to admit actually existed. In addition, the district court did not abuse its discretion in proceeding without the testimony of Dr. Schwab, as the subpoena power is generally unavailable to compel the attendance of unretained experts. Fed.R.Civ.P. 45(d)(3)(B)(ii). II. Verdict Form We review decisions as to the format and language of the verdict form for abuse of discretion. Lore v. City of Syracuse, 670 F.3d 127, 159-60 (2d Cir.2012).

The district court does not abuse its discretion where “the verdict form, when read in conjunction with the instructions to the jury, clearly presents the material factual issues raised by the pleadings and evidence.” Id. at 160. An objection to the verdict form not raised at trial is waived unless the error is fundamental, or “so serious and flagrant that it goes to the very integrity of the trial.” Id. (internal quotation marks omitted). Kearney waived his objections to the verdict form by failing to raise them at trial.

In any event, the court did not abuse its discretion by not describing Kearney’s precise theory of his claims. The jury charge, which must be read in conjunction with the verdict sheet, see id., included descriptions of his claims. III.Sufficiency of the Evidence “[A] party is not entitled to challenge on appeal the sufficiency of the evidence to support the jury’s verdict on a given issue unless it has timely moved in the district court for judgment as a matter of law on that issue.” Kirsch v. Fleet St., Ltd., 148 F.3d 149, 164 (2d Cir.1998).

However, we will reach the waived issue if to ignore it would result in manifest injustice. Id. We rarely disturb the credibility determinations made by the jury during trial. Dunlap-McCuller v. Riese Org., 980 F.2d 153, 158 (2d Cir.1992). Kearney did not move for judgment as a matter of law, and no manifest injustice would result from declining to reach his sufficiency arguments on appeal. To prevail on his deliberate indifference claim, he had to prove by a preponderance of the evidence that he had a serious injury and that Dr. Haluska knew of and disregarded an excessive risk to his health or safety.

See Smith v. Carpenter, 316 F.3d 178, 184 (2d Cir.2003). Based on the evidence presented at trial, the jury reasonably could have found that Dr. Haluska did not recklessly disregard Kearney’s medical needs. We also conclude that the evidence at trial sufficiently supports the damages awarded to-Kearney for the ADA violation. Based on the evidence presented at trial, the jury could have reasonably concluded that Kearney had not suffered actual injury and only nominal damages were appropriate. See Amato v. City of Saratoga Springs, 170 F.3d 311, 317 (2d Cir.1999). IV.

Judgment as a Matter of Law “We review de novo a district court’s decision to grant a Rule 50 motion for judgment as a matter of law.” Cash v. Cnty. of Erie, 654 F.3d 324, 332 (2d Cir.2011). A court may grant a Rule 50 motion only if “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.” Fed.R.Civ.P. 50(a)(1).

To the extent Kear-ney challenges the district court’s grant of judgment as a matter of law on his deliberate indifference claim in favor of Fischer, Napoli, and Bridge, we find no error. Kearney did not present evidence at trial to show these defendants “knew of and disregarded [his] serious medical needs.” Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir.1998). V. Appointment of Substitute Counsel A district court’s decision denying a motion to appoint counsel is reviewed for abuse of discretion. Leftridge v. Conn. State Trooper Officer No. 1283, 640 F.3d 62, 68 (2d Cir.2011).

Factors to consider in determining whether to appoint counsel in a civil case include: (1) the nature of the factual issues involved; (2) the importance of credibility determinations; (3) the plaintiffs apparent ability to present the case; and ,(4) the' complexity of the legal issues involved. Hodge v. Police Officers, 802 F.2d 58, 61 (2d Cir.1986). Here, the Hodge factors do not strongly favor the appointment of counsel. Nonetheless, it is troubling that Kearney’s difficulties communicating with counsel appear to have been, at least partially, a result of his incarceration.

However, Kearney never disputed that he chose not to take counsel’s call, and he gives no explanation for his failure to contact counsel and explain why he was unable to receive the call. Given these considerations and the fact that the Hodge factors do not overwhelmingly support appointment of counsel, the district court did not abuse its discretion in relieving counsel and refusing to appoint new representation. We have considered Kearney’s remaining arguments and find them to be without merit. Accordingly, we AFFIRM the judgment of the district court.