Shiwbodh et al v. Caribbean Airlines Limited

Filing 82

ORDER. For the reasons set forth in the attached, the plaintiff's motion to amend the judgment (ECF No. 75) is hereby GRANTED IN PART AND DENIED IN PART. The Court amends the judgment in favor of the plaintiff to $82,460.66 in economic damages and $247,381.98 for pain and suffering, leading to a total judgment amount of $329,842.64. Signed by Judge Michael P. Shea on 7/3/2018. (Self, A.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
INDRAWATIE SHIWBODH,
Plaintiff,

No. 3:12-CV-01706 (MPS)

v.
CARIBBEAN AIRLINES LIMITED,
Defendants.

RULING ON MOTION TO AMEND JUDGMENT
Plaintiff Indrawatie Shiwbodh brought this action against defendant Caribbean Airlines
Limited for injuries she allegedly suffered in the July 30, 2011 crash of Caribbean Airlines Flight
BW523. After the case returned to this Court following consolidated multi-district litigation
proceedings concerning the plane crash in the United States District Court for the Eastern
District of New York, the parties agreed that the sole remaining disputes between them were
whether the crash proximately caused the plaintiff’s injuries and the amount of damages to which
the plaintiff was entitled. To decide these issues, I held a three-day bench trial from December
11th to December 13th, 2017. I subsequently set my forth my findings of fact and conclusions of
law, Fed. R. Civ. P. 52(a)(1), in which I awarded the plaintiff $68,093.04 in economic damages
and $204,279.12 for pain and suffering. (See ECF No. 71 (“Memorandum of Decision”) at 1.)
Now before me is the plaintiff’s motion to amend these findings. (ECF No. 75.) The plaintiff
argues that the damages she was awarded did not include certain medical charges and lost wages
to which she was entitled. For the reasons set forth below, the plaintiff’s motion is granted in
part and denied in part.

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I.

Background1

Following a three-day bench trial, I issued a Memorandum of Decision on March 27,
2018, awarding the plaintiff various damages based upon injuries proximately caused by the July
30, 2011 plane crash. In particular, I concluded that “the defendant proximately caused the
following injuries to the plaintiff: (1) her ankle injury through July 29, 2015; (2) her knee injury
through September of 2012; (3) her back injury through October of 2011; and (4) her head injury
through May of 2012. (Memorandum of Decision at 1.) I also found “that the plaintiff [was]
entitled to $68,093.04 in economic damages and $204,279.12 for pain and suffering, for a total
judgment amount of $272,372.16.” (Id.)
The plaintiff’s medical expenses constituted $55,690.43 of her economic damages. (Id.
at 36.) These damages were lower than they otherwise would have been, however, due to the
plaintiff’s failure “to present [these damages] in a comprehensible manner.” (Id. at 33.) In
particular, the plaintiff “merely included a series of medical bills in the record” and “did not
present any testimony linking these various bills to specific medical treatments.” (Id. at 33-34.)
As a result of this failure, I determined that I would “award the plaintiff damages for only those
medical bills admitted into evidence that contain[ed]: (1) a corresponding treatment report or
other report reflecting the plaintiff’s treatment; (2) a clear indication of which provider issued the
medical bill; (3) a clear statement of the charges incurred; and (4) the date of the treatment.” (Id.
at 34.) Without such information, I could not find that the plaintiff had carried her burden to
prove by a preponderance of the evidence that the lists of otherwise unexplained charges
included in the trial record were actually linked to the plaintiff’s compensable injuries and, thus,

I presume the parties’ familiarity with the facts of this proceeding and therefore only
briefly describe the facts relevant to this ruling.
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constituted recoverable damages.

See S. Leo Harmonay, Inc. v. Binks Mfg. Co., 597 F. Supp.

1014, 1030 (S.D.N.Y. 1984) (“It is fundamental to the law of damages that one complaining of
injury has the burden of proving the extent of the harm suffered . . . .”). I listed the medical bills
in the trial record that met this standard in a table in my Memorandum of Decision. (Id. at 3536.)
The remainder of the plaintiff’s economic damages stemmed from her lost earnings due
to her inability to work after the plane crash. (Id. at 40.) These lost earnings, however, were
limited to the period in which the defendant conceded it had proximately caused all of the
plaintiff’s injuries—i.e., from the plane crash on July 30, 2011 to October 31, 2011. (Id.) I
limited the plaintiff’s damages in this way due to the testimony of plaintiff’s expert, Dr. Jeffrey
Joy, who testified that he could not speak to—and was not asked to look into—the impact of
each of the plaintiff’s individual injuries on her inability to work. (Id. at 38-39.) The plaintiff
did not present any other expert testimony attesting to the effects of the plaintiff’s individual
injuries on her ability to work during the relevant periods described above.
The plaintiff filed her motion to amend the judgment on April 24, 2018. (ECF No. 75).
II.

Discussion
a. Legal Standard

Federal Rule of Civil Procedure 52(b) (“Rule 52(b)”) provides in relevant part: “On a
party’s motion filed no later than 28 days after the entry of judgment, the court may amend its
findings—or make additional findings—and may amend the judgment accordingly.” The
purpose of Rule 52(b) “is to give the district court an opportunity to correct manifest errors of
law or fact at trial, or in some limited situations, to present newly discovered evidence.” United
States v. Local 1804-1, Int'l Longshoremen's Ass'n, 831 F. Supp. 167, 169 (S.D.N.Y. 1993). A

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Rule 52(b) motions is a limited vehicle, however, and it may not be used to “introduce evidence
that was available at trial but was not proffered, relitigate old issues, . . . [or to] advance new
theories” based on “the acuity of hindsight.” Id. (internal quotation marks and citation omitted.)
“Nor does the Rule provide an avenue for a party merely ruing an oversight of its own in failing
to introduce foreseeably relevant evidence.” Soberman v. Groff Studios Corp., 2000 WL
1253211 *1 (S.D.N.Y. Sep. 5, 2000).
b. Analysis
The plaintiff makes two main arguments in her motion to amend the judgment. First, she
contends that the Court should have included various medical expenses in calculating her
medical damages. (ECF No. 75 at 3.) Second, she argues that the Court erred in calculating her
lost earnings. (Id. at 5.) I address these contentions in turn.
i.

Medical Expenses

The plaintiff contends that the Court should amend its calculation of her medical
damages to reflect evidence of various medical expenses contained in the trial record. The first
of these medical expenses consists, according to the plaintiff, of expenses she incurred in relation
to her second ankle surgery, which was performed by Dr. Enzo Sella on August 21, 2013. 2 (Id.
at 3.) In support of this contention, the plaintiff points to a list of charges in the trial record dated
August 21, 2013, in addition to those previously awarded. (Id. at 3 (citing Trial Exhibit (“Tr.
Ex.”) 17J at 1-2)).)3 While these charges – like so many submitted by the plaintiff – are far from

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The Court awarded the plaintiff $2,100 for that surgery based upon the evidence
submitted at trial. (Memorandum of Decision at 35.)
3
In the Court’s trial binder of exhibits, which reflects what was admitted into evidence,
the list of additional charges from August 21, 2013 appears on the second and third pages of
Exhibit 17 J, not pages 1 and 2.
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self-explanatory,4 they do correspond to the date of Dr. Sella’s surgery, for which there is a
treatment report in the trial record. (Tr. Ex. 8C). That report indicates that the surgery was
performed at Yale New Haven Hospital (id.), the letterhead of which appears at the top of the list
of charges shown on the second page of Exhibit 17J. Further, the list includes references, with
corresponding charges, to “sponge super sterile,” “anesthesia,” and “recovery time,” which
confirm that these charges related to surgery. Finally, there is no suggestion from the
documents that the charges set forth in Exhibit 17J from Yale New Haven Hospital are
duplicative of the $2,100 shown on page 4 of Exhibit 17G (apparently from Dr. Sella’s medical
office), which the Court already awarded in its ruling. (See ECF No. 71 at 35.) Thus, because
there is a “corresponding treatment report,” a clear indication that Yale New Haven Hospital was
involved in that treatment and issued the medical bill, a clear statement of the charges, and an
indication in the record of the date of treatment, the Court will amend its finding of damages
with respect to Dr. Sella’s August 21, 2013 surgery to include the charges shown on the twopage medical bill from Yale New Haven Hospital included at the second and third pages of Trial
Exhibit 17J. The total amount shown on these pages, which will be added to the judgment, is
$12,827.62.
I do not agree, however, with the plaintiff’s contention that the Court erred in calculating
her damages for her third ankle surgery on July 29, 2015, which was performed by Dr. Allen
Ferrucci. (ECF No. 75 at 3.) The Court awarded the plaintiff $17,430.00 in medical damages for

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The plaintiff submitted an appendix to her Rule 52(b) motion for the first time on May
17, 2018, two days after the defendant filed its brief opposing the motion. The appendix sets
forth a reasonably clear listing of each charge, the date, the corresponding trial exhibit, the
procedure or treatment involved, the provider, and the particular injury of the plaintiff for which
the treatment was provided. This appendix was not provided at the time of trial and was not
introduced into evidence, and its late submission has effectively deprived the defendant of an
opportunity to respond to it.
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that procedure based upon the evidence submitted at trial. (Memorandum of Decision at 35.)
The plaintiff now seeks additional amounts for the same procedure, citing bills in the trial record
that list the date, “7/29/15,” a brief descriptor of some sort of medical procedure, and an amount.
(See Tr. Ex. 17G at 16-18.) The problem with these documents, however, is that they appear to
duplicate, at least to some degree, amounts the Court already awarded, and in any event the
plaintiff offers (and offered at trial) no explanation of these bills to show that they do not
duplicate or overlap with amounts included in the $17,430 figure. The $17,430 was based on a
document in Exhibit 17G with the heading “Connecticut Orthopaedic Specialists”, the date of
July 29, 2015, and a list of charges for specifically described procedures, such as “repair lower
leg tendons,” “ankle arthroscopy,” “release of lower leg tendon,” “repair of ankle ligament,” and
“repair of foot tendon.” (Ex. 17G, p. 8). The documents to which the plaintiff now draws the
Court’s attention – which are at pages 16-18 of Trial Exhibit G – carry the heading “Conn.
Ortho. Spec.,” which, absent any other explanation provided by the plaintiff, indicates that these
documents reflect charges by the same provider. These documents list charges corresponding to
“7/29/15” that describe identical or nearly identical procedures to those shown on page 8, i.e.,
“arthroscopy, ankle”, “repair, dislocating peroneal,” “repair, primary, disrupted L,” and “repair,
tendon, flexor, foot.” The charges on these documents, however, differ in amount from those set
forth on page 8. It may well be that there is an innocent explanation for this, such as that the
latter documents reflect hospital charges incurred by Connecticut Orthopaedic Specialists, but
that is just speculation.5 Again, it was for the plaintiff to introduce evidence that each of the

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The plaintiff urges the Court to draw this speculative inference from the handwritten
notation “facility” on pages sixteen through eighteen. Without any evidence as to who made the
notation, when, and under what circumstances, however, I decline to do so.
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charges represents recoverable damages, which includes showing that they do not duplicate
amounts already awarded. She has failed to do so in this instance.
Next, the plaintiff contends that the Court should have included various medical costs
associated with Dr. Martin Hasenfeld’s treatment of her back through October 31, 2011.6 (ECF
No. 75 at 4.) Her argument relies upon two pieces of evidence—Trial Exhibits 17C and 17K.
(Id.). The plaintiff has a fair point with respect to Trial Exhibit 17C, which contains three bills
(other than the one the Court included in its Memorandum of Decision) that identify Dr.
Hasenfeld as the provider, describe the treatment he provided, and correspond directly with
treatment reports in the record. (Compare Tr. Ex. 4A-C (documenting Dr. Hasenfeld’s treatment
of the plaintiff on September 27, October 3, and October 18 of 2011) with Tr. Ex. 17C at 1-2
(containing corresponding bills for treatment provided by Dr. Hasenfeld on those three dates).) I
therefore conclude that the plaintiff is entitled to medical damages for her expenses incurred
from those treatments, which amount to $1,375. (See Tr. Ex. 17C at 1-2.)
The same cannot be said for the plaintiff’s argument concerning Trial Exhibit 17K. As
an initial matter, the twin $2,400 charges the plaintiff identifies in the appendix to her motion
(ECF No. 77-1 at 5) do not appear to correspond to any of the charges in Trial Exhibit 17K,
either by dollar amount or by date. In any event, there is only one charge in that exhibit dated
before November 1, 2011. This charge reads as follows: “10/31/11 CIGNA HP ADJ
1919.50CR.” (See Tr. Ex. 17K at 2.) Such a charge (if it even is a charge) obviously does not
meet the standard described in the Court’s Memorandum of Decision. The plaintiff notes that

The Court awarded the plaintiff $900.00 in total for Dr. Hasenfeld’s treatment based
upon a bill corresponding to a treatment report contained in Trial Exhibit 4D. (Memorandum of
Decision at 35.)
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the defendant, which also pointed out the absence of the charges in question (see ECF No. 76 at
5-6), “appears to cite to a version of [Trial Exhibit 17K] that is missing its first page, as the
complete exhibit plainly contains an entry dated October 28, 2011.” (ECF No. 81 at 6.) The
plaintiff “accordingly asks the Court to enter the appropriate ruling based on the copy of Trial
Exhibit 17K that was admitted into evidence as reflected in the Court’s file.” (Id.) Since, as
noted above, the version of Trial Exhibit 17K admitted into evidence does not contain the page
or charges the plaintiff references, I deny her request to add them to her judgment.
The plaintiff also argues that the Court should amend its judgment to provide her with
medical damages corresponding to the costs of treatment she received from Dr. Lorenzo S.
Galante.7 (ECF No. 75 at 4.) She points to the entry “(Pr: LSG Fac:)” next to some of the
charges on a list in the trial record and asserts—for the first time—that “LSG” are Dr. Galante’s
initials and that “Pr” stands for “provider.” (Id. (citing Tr. Ex. 17A)). This may well be a
plausible explanation for these entries, but the time to offer such an explanation was at trial or, at
the latest, in post-trial briefing—not on a Rule 52(b) motion. In any event, these records do not
provide “a clear indication of which provider issued the medical bill.” (Memorandum of
Decision at 34.) Even if they did, the bills would still fail to meet the Court’s standard given that
they appear to list three dates for each charge. (See Tr. Ex. 17A.) Once again, there may be a
reasonable explanation for this, but if so, the plaintiff has not provided it. I decline to amend the
judgment to include the charges shown on Exhibit 17A.

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The Court declined to award the plaintiff any damages for the costs of her treatment
with Dr. Galante due to her failure to “provide enough information linking the bills in evidence
to [his] treatment reports.” (Memorandum of Decision at 34 n. 11.)
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Finally, the plaintiff contends that the Court inadvertently omitted $165 from its award
for costs associated with her treatment by Dr. Adam Mednick.8 I agree. (See Tr. Ex. 17E (listing
$2,992.00 in expenses associated with treatment from Dr. Mednick before June 1, 2012).) The
plaintiff is therefore entitled to an additional $165 in damages.
I therefore conclude that the plaintiff is entitled to an additional $14,367.62 in economic
damages for her medical expenses.
ii.

Lost Earnings

The plaintiff makes two arguments concerning the Court’s calculation of her lost
earnings. First, she contends that she “is entitled to recover lost wages for the period of time she
remained employed at Covidien [i.e., until May 23, 2012 (ECF No. 75 at 6 n. 5)] but, due to her
ankle and knee injuries, was unfit to work there.” (ECF No. 75 at 7.) In support of this
argument, she notes the Court’s citation to Dr. Ferrucci’s testimony “that the plaintiff was still
able to perform sedentary work despite her ankle and knee injuries” (Memorandum of Decision
at 39 (citing Tr. Ex. 11S at 83-85)). Since her employment at Covidien did not involve sedentary
work, she avers, she should be entitled to lost wages for the period of work she missed there.
(ECF No. 75 at 6.) But Dr. Ferrucci testified that the plaintiff’s ankle and knee injuries confined
her to sedentary work only since the time of her third ankle surgery. (See Tr. Ex. 11S at 84 (Q:
“And since the time of [the plaintiff’s third ankle surgery on July 29, 2015], do you have an
opinion, based upon a reasonable degree of medical probability, as to whether since that time,
she had a work capacity?” A: . . . “[I]t was documented that I said sedentary only. . . . I don’t

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The Court awarded the plaintiff $2,827.00 for the treatment she received from Dr.
Mednick. (See Memorandum of Decision at 5.)
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think she could do anything more than a sedentary position.”).)9 Dr. Ferrucci offered no opinion
on the plaintiff’s ability to work some three years before he began treating her, and the plaintiff
failed to present any evidence suggesting that her ankle and knee injuries alone prevented her
from returning to Covidien prior to her termination from the company.
The plaintiff also argues that she is entitled to lost wages due for periods of “six to eight”
weeks during her recoveries from her three ankle surgeries due to what the plaintiff describes as
testimony from Dr. Ferrucci noting that she would be unable to perform even sedentary work
during these periods. (See ECF No. 75 at 7 (citing Tr. Ex. 11S at 84.).) There are multiple
problems with this argument. As an initial matter, Dr. Ferrucci’s testimony does not support it.
The question and response the plaintiff cites are as follows:
Q: And since the time of [the plaintiff’s] ankle surgery, do you have an
opinion based upon a reasonable degree of medical probability, as to whether since
that time, she has had a work capacity?
A: Sedentary . . . only would have been—it was documented that I said
sedentary only. I would not—from oftentimes, six to eight weeks after surgery,
sedentary would have been appropriate for her, through today. I don’t think she
could do anything more than a sedentary position.
(Tr. Ex. 11S at 84.) Dr. Ferrucci’s response suggests that the plaintiff was capable of performing
sedentary work for six to eight weeks after her ankle surgeries and, in any event, he does not say
she was incapable of working at all during those periods. In addition, Dr. Joy concluded that the
plaintiff had suffered from near total disability since the plane crash due to the combined effect

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Dr. Ferrucci also testified in response to a question asking him whether he had an
opinion about the plaintiff’s work capacity when she first visited him on April 6, 2015 that: “I
would have said from the beginning that sedentary work was all that [the plaintiff would] be
capable of doing, but it’s not documented in any of the notes.” (Tr. Ex. 11S at 84.) Even if one
charitably construed this as an expert opinion stating that the plaintiff’s knee and ankle injuries
prevented her from performing anything other than sedentary work after that time, it would still
not cast any light on the plaintiff’s work capacity in early 2012.
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of her injuries (see Tr. Ex. 21B at 12-13 (averring that plaintiff was entitled to lost earning
capacity for all of the time since the plane crash minus the wages she earned in a failed work
attempt in February, 2012)); he also noted that the Social Security Administration had
determined that the plaintiff was disabled in 2012. (Id. at 13.) As such, it seems doubtful that
the plaintiff would have been able to perform any sort of work after her ankle surgeries in late
2012, 2013, and 2015 but for her recovery from these surgeries. In other words, even assuming
the injuries the Court found to be compensable would have prevented her from working during
these intervals, she failed to prove that those injuries—as opposed to other, non-compensable
injuries or conditions—were the “but-for” cause of her inability to work during these periods.
I therefore reject the plaintiff’s argument that she is entitled to greater damages for lost
earnings capacity. In light of this disposition, I conclude that the plaintiff is entitled to an extra
$14,367.62 in economic damages, bringing her total economic damages award to $82,460.66.
Since her award for pain and suffering consisted of triple the amount of her economic damages
(Memorandum of Decision at 41), I amend the plaintiff’s pain and suffering award to
$247,381.98.
III.

Conclusion

For the foregoing reasons, the plaintiff’s motion to amend the judgment (ECF No. 75) is
hereby GRANTED IN PART AND DENIED IN PART. The Court amends the judgment in
favor of the plaintiff to $82,460.66 in economic damages and $247,381.98 for pain and suffering,
leading to a total judgment amount of $329,842.64.

IT IS SO ORDERED.

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/s/
Michael P. Shea, U.S.D.J.
Dated: Hartford, Connecticut
July 3, 2018

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