Tardif v. City of New York et al

Filing 599

OPINION & ORDER re: 580 MOTION for Judgment as a Matter of Law; MOTION for New Trial, filed by City of New York. For the foregoing reasons, Defendant's motion for judgment as a matter of law is DENIED. Defendant's mo tions for a new trial or remittitur of damages are also DENIED. The Clerk is respectfully directed to close the motions at ECF No. 580. In addition, the Court lifts its stay regarding execution of the judgment (see ECF No. 598), now that Defendant's post-trial motions have been resolved. SO ORDERED. (Signed by Judge Kimba M. Wood on 3/14/2023) (va)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: __________________
DATE FILED: 3/14/2023

MARY TARDIF,
Plaintiff,
13-CV-4056 (KMW)

-against-

OPINION & ORDER

CITY OF NEW YORK,
Defendant.
-------------------------------------------------------X
KIMBA M. WOOD, United States District Judge:

On June 13, 2013, Plaintiff brought this action alleging, inter alia, a respondeat superior
claim against Defendant based on an alleged assault and battery by Sergeant Giovanni Mattera.
(See Compl., ECF No. 1; see also Third Am. Compl., ECF No. 135.) On July 1, 2022, following
a nine-day jury trial, a jury returned a verdict in favor of Plaintiff, finding that Sergeant Mattera’s
conduct toward Plaintiff constituted battery and that Defendant was liable to Plaintiff based on
respondeat superior. (Verdict Form at 2, ECF No. 587.) The jury awarded damages to Plaintiff
in the amount of $431,250. (Id.) Judgment was entered on July 12, 2022. (ECF No. 550.)
Defendant moved at trial for judgment as a matter of law, pursuant to Rule 50 of the
Federal Rules of Civil Procedure, on which the Court reserved its decision. (Trial Tr. 1089:7–
12; 1116:24–1117:10.) Defendant now renews that motion, or in the alternative, moves for a
new trial pursuant to Rule 59. (ECF No. 580.) Defendant also moves for remittitur of the
damages award. (Id.) Upon review of the record, including trial testimony and a video of some
of the interaction between Sergeant Mattera and Plaintiff, and the parties’ submissions, the Court
finds no basis to disturb the jury’s verdict. Therefore, Defendant’s motions are DENIED.

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BACKGROUND
The Court assumes familiarity with the background of this case, and reviews only those
portions pertinent to Defendant’s post-trial motions.
I.

Procedural History
On June 13, 2013, Plaintiff sued Defendant, the New York City Police Department, and

officers and officials for violations of the Americans with Disabilities Act and various federal
civil rights protections, and for assault and battery pursuant to New York law, based on police
officers’ treatment of Plaintiff during her participation in demonstrations associated with the
Occupy Wall Street movement. (See Compl.; see also Third Am. Compl.) The claims that
proceeded to trial included: (1) assault and battery claims pursuant to New York law against
Sergeant Thomas McManus individually, and (2) a respondeat superior claim against Defendant
predicated on alleged assaults and batteries by Sergeant Giovanni Mattera and Sergeant
McManus. A jury reached a verdict in favor of Defendant and the individual officers on all of
Plaintiff’s claims. (J., ECF No. 356.)
On appeal, the Second Circuit affirmed the judgment as to the assault and battery claims
against Sergeant McManus and the related respondeat superior claim against Defendant arising
from Sergeant McManus’s alleged conduct, but vacated the judgment as to the respondeat
superior claim against Defendant relating to Sergeant Mattera’s alleged assault and battery. (See
ECF No. 368.) The case was remanded for a new trial on the remaining respondeat superior
claim against Defendant. (Id.)
II.

Trial Proceedings
Trial began on June 21, 2022. Plaintiff testified first, then called Dr. Gregory Lawler, a

neuroradiologist, as her first witness. Plaintiff next called Dr. Ranga Krishna, a neurologist, and
then Ms. Linda Lajterman, a certified life care planner.
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Plaintiff’s Testimony
Plaintiff began her testimony by describing an encounter with Sergeant Mattera in the
early morning of March 21, 2012, during the course of her participation in an Occupy Wall
Street protest. Plaintiff testified that Sergeant Mattera threw her down during the encounter,
which caused her head to hit the ground. (Trial Tr. 163:15–178:25.) She testified that, in the
ensuing moments, she lost consciousness and was transported by ambulance to a hospital. (Id.
179:4–21.) At the hospital and afterward, Plaintiff began experiencing headaches, nausea,
dizziness, and impaired vision. (Id. 180:1–182:6.) Shortly thereafter, on March 24, 2021,
Plaintiff received an MRI of her brain. (Id. 390:15–391:2–4; 470:21–22.)
Plaintiff also testified that the symptoms she began experiencing at the hospital continued
until the time of trial. (Id. 179:22–182:15; 183:22–184:9; 193:5–195:9.) In her words, these
conditions “took a lot away from [her],” and prevented her from being “where [she] wanted to be
with [her] work and where [she] wanted to be in life.” (Id. 195:14–196:7.)
Defense counsel questioned Plaintiff concerning a number of incidents between January
2012 and February 2018 in which Plaintiff had hit her head, which Defendant asserted could
have caused the symptoms of which Plaintiff complained. (Id. 247:6–250:4.) During that time,
Plaintiff was the subject of a number of MRIs that sought to assess any damage to Plaintiff’s
brain. (Id. 249:9–11.) Plaintiff was also questioned about, among other things, her medical
records from a visit to a physician in January 2021, which state that “the patient states she has
never had these symptoms prior to November 2020 and notes that she has no preexisting history
of headaches, vertigo, or visual symptoms.” (Id. 206:12–213:14.) In response to defense
counsel’s challenging the consistency of that medical record with Plaintiff’s testimony at trial,
Plaintiff testified that her statement to her doctor concerned only the severity of her symptoms,
and testified that the physician’s notes did not reflect the full extent of her discussion at that visit.
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(Id. 211:3–212:8.)
Dr. Lawler’s Testimony
Plaintiff’s expert Dr. Lawler, a neuroradiologist, testified regarding five MRI studies of
Plaintiff’s brain conducted in April 2009, on March 24, 2012, shortly after the incident with
Sergeant Mattera, in February 2018, in January 2021, and in July 2021. (Trial Tr. 389:21–391:8;
430:5–22.) He stated that MRIs typically consist of approximately 500 images of the brain, and
that in reviewing Plaintiff’s MRIs, he “compare[d] anatomically each slice with the
corresponding slice on different studies.” (Id. 396:9–24; 399:17–400:4.)
Upon review of the MRIs, Dr. Lawler testified that all of Plaintiff’s post-incident MRIs,
beginning with the March 24, 2012 MRI, showed an abnormality in the white matter on the right
hemisphere of Plaintiff’s brain. (Id. 356:15–362:6; 396:9–24; 430:5–22.) He also testified that
this abnormality was “stable” across the post-incident MRIs, and that the pre-incident MRI from
April 2009 did not show this abnormality. (Id. 389:22–390:3; 393:2–20; 403:5–21.) Dr. Lawler
testified that the abnormality in the post-incident MRIs, also known as a white matter
hyperintensity, is “usually permanent” and is evidence of “axonal injury”—that is, damaged
brain tissue. (Id. 357:4–358:19.) In his opinion, the particular location of this white matter
hyperintensity, at the gray/white matter junction of the brain, indicated that Plaintiff had suffered
a “rapid deceleration injury” to her brain. (Id. 359:13–362:6.) In response to defense counsel’s
questioning regarding what defense counsel described as “a small fuzzy spot” on an image from
the April 2009 MRI, which defense counsel asserted appeared in the same location as the
abnormality Dr. Lawler observed in Plaintiff’s later studies, Dr. Lawler stated that, although this
one image might show an “averaging of the cortex . . . giving . . . [the] appearance that there’s a
hyperintensity,” upon his review of “all the images [in the April 2009 study, he] did not see a
hyperintensity in the area” about which defense counsel had asked. (Id. 474:5–7; 490:7–13.)
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Dr. Krishna’s Testimony
Dr. Krishna, a neurologist, testified regarding his neurological examination of Plaintiff
and his review of the five MRIs of Plaintiff’s brain described above. He testified that his exam
showed that Plaintiff “had a rapid decline in her short-term memory” (Trial Tr. 510:17–511:9),
which when considered alongside Plaintiff’s complaints of symptoms including headaches,
dizziness, nausea, and impaired vision, was consistent with a traumatic brain injury. (Id.
514:22–516:6.)
Dr. Krishna testified that the white matter intensity he observed in the post-incident
MRIs, but not in the pre-incident MRI, indicated that Plaintiff had suffered head trauma. (Id.
511:15–515:14; 522:9–524:9.) Furthermore, he testified that these records showed that Plaintiff
had “axonal loss in the corona radiata [the area of the brain that transmits informational fibers],
and [that] this was consistent over the years.” (Id. 517:24–518:8.) Specifically, Dr. Krishna
stated that the abnormality he observed in the post-incident MRIs was “a fixed neurological
deficit” that was “present from 2012 onwards,” that it was in “the same location, and [that] the
damage . . . ha[d] not changed. . . . [T]he size, intensity stayed the same.” (Id. 522:9–524:9;
530:7–531:4.)
Dr. Krishna also testified that damage from a traumatic brain injury is permanent, and
thus that Plaintiff would require ongoing care for symptoms resulting from that injury. (Id.
531:18–532:3.) In response to defense counsel’s questioning regarding Plaintiff’s medical
records from 2009, 2012, and 2014 concerning other incidents in which Plaintiff hit her head, Dr.
Krishna declined to change his opinion that Plaintiffs symptoms were consistent with a traumatic
brain injury, evidence of which he first observed in the March 24, 2012 post-incident MRI. (See
id. 558:1–564:3.) Notwithstanding defense counsel’s assertion that some of Plaintiff’s medical
records did not note Plaintiff’s symptoms, Dr. Krishna maintained that he believed Plaintiff’s
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symptoms had been ongoing since 2012 and were permanent, but that their “intensity [could]
change on a day-by-day basis.” (Id. 563:1–564:3.) Accordingly, Dr. Krishna recommended the
following forms of future medical care, nearly all of which he believed Plaintiff would require
for the rest of her life: regular specialist visits, therapy, regular brain imaging, continuing
neurological care and medication, and nerve injections. (Id. 533:21–537:16.)
Ms. Lajterman’s Testimony
Ms. Lajterman, a certified life care planner, testified on Plaintiff’s behalf regarding the
estimated costs of Plaintiff’s future medical care. In arriving at an overall life care plan for
Plaintiff, Ms. Lajterman testified that she reviewed Plaintiff’s medical records, Dr. Krishna’s
report, and that she interviewed Plaintiff regarding Plaintiff’s functional limitations. (Trial Tr.
622:5–625:10; 672:1–17.) In particular, Ms. Lajterman compared Plaintiff’s interview responses
with “the records to see if what [Plaintiff] told [her was] consistent with what [Plaintiff] was
reporting to her treaters.” (Id. 672:13–17.) When questioned about Plaintiff’s past treatment,
Ms. Lajterman testified that “[t]welve years of past treatment isn’t going to impact what goes
into [her] report” because her report concerned Plaintiff’s future projected care costs. (Id.
671:17–21.) Ms. Lajterman estimated these costs at $1,131,062.20, not accounting for any
discount to present value. (Id. 631:7–17.)
Following deliberations, the jury returned a verdict in favor of Plaintiff on her battery
claim, but declined to do so on her assault claim. (Id. 1251:1–5.) The jury awarded $431,250 in
future compensatory damages. (Id. 1251:14–17.)

DISCUSSION
The Court addresses the parties’ arguments pursuant to Rule 50 and 59 separately. As
discussed in more detail below, there is no basis to overturn the jury’s verdict.
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I.

Motion for Judgment as a Matter of Law Pursuant to Rule 50
Rule 50 of the Federal Rules of Civil Procedure provides that “[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 court may . . . resolve
the issue against the party . . . [and] grant a motion for judgment as a matter of law[.]” Fed. R.
Civ. P. 50(a)(1). This rule “imposes a heavy burden on a movant,” a burden that is “‘particularly
heavy’ where, as here, ‘the jury has . . . returned its verdict’ in favor of the non-movant.” Cash
v. Cnty. of Erie, 654 F.3d 324, 333 (2d Cir. 2011) (quoting Cross v. N.Y.C. Transit Auth., 417
F.3d 241, 248 (2d Cir. 2005)).
In ruling on a Rule 50 motion, a court must “give deference to all credibility
determinations and reasonable inferences of the jury, and may not weigh the credibility of
witnesses or otherwise consider the weight of the evidence.” Bucalo v. Shelter Island Union
Free Sch. Dist., 691 F.3d 119, 128 (2d Cir. 2012) (internal quotations and citations omitted).
Accordingly, a court may set aside a verdict only if there is “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 . . . such an overwhelming amount of evidence in favor of the movant
that [a] reasonable and fair minded [jury] could not arrive at a verdict against him.” Song v. Ives
Laboratories, Inc., 957 F.2d 1041, 1046 (2d Cir. 1992) (internal quotations and citation omitted).
At trial, Defendant moved for judgment as a matter of law pursuant to Rule 50 on three
grounds. First, Defendant sought dismissal of Plaintiff’s assault claim for lack of evidence.
(Trial Tr. 1089:7–12.) Second, Defendant “move[d] to dismiss [damages] claims associated with
[P]laintiff’s alleged brain injury,” arguing that no reasonable juror could find that Sergeant
Mattera’s actions on March 21, 2012 caused Plaintiff’s brain injury. (Id. 1106:11–1107:5.)
Finally, Defendant argued that no reasonable juror could conclude that Plaintiff’s claim for
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future economic damages was attributable to any injury allegedly caused by Sergeant Mattera’s
conduct. (Id. 1107:6–24.) The Court reserved its decision on Defendant’s Rule 50 motion. (Id.
1117:9–10.) Because the jury did not find Defendant liable for assault (id. 1250:25–1251:5),
Defendant’s first basis for judgment as a matter of law was rendered moot.
As for Defendant’s second argument, there was sufficient evidence to support the jury’s
finding that Sergeant Mattera’s conduct caused Plaintiff’s traumatic brain injury. The jury
instructions state that the jury “may award compensatory damages only for injuries that Plaintiff
proved by a preponderance of the evidence were caused by wrongful conduct committed by
Sergeant Mattera.” (Jury Instructions at 12.) Defendant asserts that Plaintiff’s direct testimony
regarding the onset of symptoms from a traumatic brain injury in 2012 was contradicted by
Plaintiff’s testimony on cross-examination and by her medical records. (Def.’s Mem. at 9, ECF
No. 582.) According to Defendant, “none of [Plaintiff’s] medical records until 2020—following
another head injury—document the symptoms now claimed as evidence of a traumatic brain
injury in 2012.” (Def.’s Reply at 3, ECF No. 596.)
Defendant also contends that “no reasonable juror could have found [P]laintiff’s
[medical] expert[s’] opinions reliable,” and that these experts could not or did not offer an
opinion as to the cause of Plaintiff’s symptoms. (Def.’s Mem. at 5, 9–10, 12.) Thus, the jury
was left to “speculate as to causation of [Plaintiff’s] alleged brain injury.” (Id. at 12.) In support
of this argument, Defendant states that Dr. Krishna failed to consider Plaintiff’s medical records
from April 2018 in coming to his conclusions, and that Dr. Lawler “was unable to definitively
state whether the MRI from 2009 did or did not show the same T2 white matter hyperintensity
[as in Plaintiff’s 2021 imaging].” (Id. at 10–12.)
Defendant’s assertion that Plaintiff’s medical experts were “unreliable” (see id. at 9–10,

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11) challenges their credibility and the weight that should be given to their testimony. These
issues were properly before the jury, and it apparently credited the testimony of Plaintiff and her
medical experts over the alternative arguments as to causation that were advanced by Defendant,
as it was entitled to do. In addition, to the extent Defendant contends that Plaintiff’s medical
records are in conflict with her testimony, the jury was permitted to resolve any conflict against
Defendant and conclude that the March 21, 2012 incident caused Plaintiff’s brain injury.
Accordingly, the Court declines to intrude on the jury’s role to assess witness credibility and
weigh the evidence in a Rule 50 motion.
As for Defendant’s third argument, there was a legally sufficient basis for the jury to find
that Plaintiff’s future damages were attributable to her alleged injury (and thus to Sergeant
Mattera’s conduct). Defendant argues that Plaintiff’s recommended future medical care cannot
be distinguished from any care she otherwise would have required for her pre-existing
conditions. (Def.’s Mem. at 13.) In particular, Defendant states that Dr. Krishna was unable to
“offer[] any opinion as to which portion, if any, of [Plaintiff’s] future medical care is attributable
to the injury [P]laintiff was claiming in this case or [is] a result of her other conditions[.]” (Id.)
Defendant contends that Ms. Latjerman “was also unable to offer an opinion as to whether the
care she determined was necessary was based [on P]laintiff’s previous and underlying health
issues or due to the interaction with [Sergeant] Mattera.” (Id.)
The fact that Plaintiff’s experts did not expressly state that Plaintiff’s future damages
were attributable to her alleged brain injury does not mean that the jury, in light of the evidence
available to it, could not have reached that conclusion. Dr. Krishna testified that he believed a
traumatic brain injury caused Plaintiff to experience symptoms such as visual disturbances,
short-term memory loss, dizziness, balance issues, and headaches. (See, e.g., Trial Tr. 514:22–

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515:14; 517:20–518:8; 520:24–521:20.) He also described various forms of treatment to address
the symptoms resulting from a traumatic brain injury, including regular specialist visits, therapy,
and medication. (Id. 533:18–537:16.) Ms. Lajterman stated that she was not opining on
etiology—the underlying cause of Plaintiff’s symptoms—in her capacity as a life care planner.
(Id. 674:11–21.) Instead, she testified as to the cost of Dr. Krishna’s recommendations for
Plaintiff’s future care. (Id. 625:24–631:14.) The jury was permitted to assess these experts’
testimonies, including any weaknesses Defendant asserts they contain, and draw its own
conclusion as to attribution of Plaintiff’s future medical care.
In sum, Plaintiff has offered both witness testimony and documentary evidence that
support the jury’s verdict. Viewing this evidence in the light most favorable to Plaintiff, the jury
could have reasonably concluded from this evidence that Sergeant Mattera’s actions caused
Plaintiff’s brain injury, and that her alleged future damages were attributable to that injury.
Therefore, Defendant has failed to show that the jury lacked a legally sufficient basis in arriving
to its verdict.
II.

Motion for a New Trial Pursuant to Rule 59
Pursuant to Rule 59, a “court may, on motion, grant a new trial on all or some of the

issues . . . after a jury trial, for any reason for which a new trial has heretofore been granted in an
action at law in federal court[.]” Fed. R. Civ. P. 59(a)(1). Although the standard for granting a
new trial pursuant to Rule 59 is less onerous than that for granting judgment as a matter of law
pursuant to Rule 50, it is still high. See DLC Mgmt. Corp. v. Town of Hyde Park, 163 F.3d 124,
133–34 (2d Cir. 1998); see also Manley v. AmBase Corp., 337 F.3d 237, 244–45 (2d Cir. 2003).
For a court to order a new trial, it must conclude that “the jury has reached a seriously erroneous
result or . . . the verdict is a miscarriage of justice.” Song, 957 F.2d at 1047 (quotations and
citations omitted). Moreover, in considering a Rule 59 motion, “a court should rarely disturb a
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jury’s evaluation of a witness’s credibility.” DLC Mgmt. Corp., 163 F.3d at 134.
Defendant argues that there are three reasons to reject the jury’s verdict. First, Defendant
argues that the jury’s verdict was against the weight of the evidence. (Def.’s Mem. at 8–14.)
Second, Defendant contends that the jury’s verdict was inconsistent because the jury awarded
Plaintiff nothing for past compensatory damages, but awarded $431,250 for future compensatory
damages. (Def.’s Mem. at 14–16; see also Def.’s Reply at 7–8.) Third, Defendant argues that
the jury’s award is excessive. (Def.’s Mem. at 16–18.)
The Jury’s Verdict Was Not Against the Weight of the Evidence
As for Defendant’s first argument, there was sufficient evidence, described in detail
above, to support the jury’s finding that Sergeant Mattera’s actions caused Plaintiff’s brain
injury. Both Drs. Lawler and Krishna testified that they observed evidence of a traumatic brain
injury in all of the post-incident MRIs, but not in the pre-incident MRI, and that the damage
observed in the post-incident MRIs was consistent over time. (See, e.g., Trial Tr. 393:2–20;
430:5–22; 522:9–524:9.) Furthermore, Dr. Lawler rejected defense counsel’s contention that “a
small fuzzy spot,” in one image from the April 2009 MRI showed that the abnormality existed
prior to 2012, explaining that, upon review of all the images in that MRI, he concluded that there
was no hyperintensity in that area. (Id. 474:1–18.) Defendant has not persuaded the Court that
the jury’s apparent finding that Drs. Lawler and Krishna were credible should be rejected. As for
Defendant’s argument regarding the apparent absence of Plaintiff’s symptoms prior to 2020,
Plaintiff’s medical records from her hospital visit immediately after the March 21, 2012 incident
show that she was experiencing nausea, vomiting, visual blurring, and headaches. (Pl.’s Ex. 29,
ECF No. 593-1.) In addition, Plaintiff’s medical records from January, March, and November
2014 show that she was experiencing headaches, balance issues, vision impairment, and memory
loss throughout that time. (Pl.’s Ex. 27, ECF No. 593-2.) Accordingly, the Court declines to
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conclude that the jury’s verdict was “seriously erroneous” or a “miscarriage of justice.”
Defendant Has Waived Its Inconsistency Objection
Defendant contends that the jury’s finding of no liability for past damages is inconsistent
with its finding of liability for future damages. “It is well established that a party waives its
objection to any inconsistency in a jury verdict if it fails to object to the verdict prior to the
excusing of the jury.” Kosmynka v. Polaris Indus., Inc., 462 F.3d 74, 83 (2d Cir. 2006). There is
no dispute that Defendant did not object on inconsistency grounds before the Court discharged
the jury. The parties, however, disagree as to whether Defendant has waived its objection to the
jury’s award.
Defendant argues that the Court should overlook its failure to timely object for two
reasons. First, it suggests that the Court dismissed the jury before Defendant had an opportunity
to voice an objection. (Def.’s Reply at 7.) Second, Defendant contends that a timely objection
would have been futile because, even if made, the nature of the inconsistency was such that it
would not have been curable upon resubmission to the jury. (Id. at 6.) The jury’s error, in
Defendant’s view, “did not result from an error in the charge or the verdict form.” (Id.) Instead,
Defendant contends that “the factual findings underlying the jury’s verdict were irreconcilable,”
and thus “this inconsistency could not have been remedied through resubmission.” (Id.)
These arguments lack merit. First, nothing in the record suggests that Defendant was
denied the opportunity to timely raise an inconsistency objection. For example, Defendant could
have objected after the Court had finished reading the jury’s verdict and before the jurors were
polled, or as the jurors were leaving the courtroom, when there was still time for the Court to
recall them. Defendant failed to do so. (See Trial Tr. 1251:21–25; 1252:19–1253:4.)
Second, Defendant’s argument regarding the futility of resubmission is not persuasive.
Defendant has not adequately explained why a potential inconsistency in the jury’s award could
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not have been corrected “by resubmitting the matter to the jury after providing ‘some further
instruction.’” Anderson Group, LLC v. City of Saratoga Springs, 805 F.3d 34, 48 (2d Cir. 2015)
(quoting Kosmynka, 462 F.3d at 83–84). Moreover, if Defendant was aware of the potential for
inconsistency, it has not explained why it did not alert the Court accordingly, so that it could be
addressed. See Kosmynka, 462 F.3d at 83–84 (explaining that the purpose of the timely
objection requirement is to “expos[e] the inconsistency before the jury is dismissed, so that the
court has available to it the option of re-submitting the questions to the jury after some further
instruction”). Therefore, the Court concludes that Defendant has waived its argument regarding
the inconsistency of the jury verdict, and a new trial would not be appropriate on that ground.1
Even if Defendant had made a timely objection with respect to this claimed
inconsistency, Defendant’s inconsistency argument fails on the merits. “When the jury’s
findings appear to be inconsistent with each other, the Seventh Amendment requires that if there
is a view of the case which makes the jury’s answers . . . consistent, the court must adopt that
view[.]” Auwood v. Harry Brandt Booking Off. Inc., 850 F.2d 884, 891 (2d Cir. 1988). That is,
“if there is any way to view a case that makes the jury’s answers to the special verdict form
consistent with one another, the court must resolve the answers that way even if the
interpretation is strained.” McGuire v. Russell Miller, Inc., 1 F.3d 1306, 1311 (2d Cir. 1993).
Defendant argues that the jury’s decision not to award past compensatory damages
cannot be reconciled with its decision to award future compensatory damages. There is,
Defendant, citing Kosmynka, states that the “Second Circuit has agreed that the inconsistency of a verdict
need not always be remedied through resubmission prior to the discharge of the jury.” (Def.’s Reply at 6.) It is true
that Kosmynka did not impose an absolute obligation on a party dissatisfied with a verdict to ensure that the court
keep the jury. Kosmynka, 462 F.3d at 83. The focus of that discussion in Kosmynka, however, was on whether the
court had been placed “on notice of the inconsistency.” Id. At that point, “each party has the choice of what to
advocate and the court has the choice of what to do.” Id. Here, however, Defendant has not established that it
placed the court on notice. At no point before or after the jury had returned its verdict did Defendant raise the issue
of a potential inconsistency with respect to the past and future compensatory damages awards. Accordingly,
Defendant’s reliance on Kosmynka on this issue is misplaced.
1

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however, a view that reconciles the two—namely that the jury may have believed that it should
consider the evidence in support of calculating past and future damages separately. Accordingly,
the jury may have found that Plaintiff had not provided enough evidence from which it could
calculate an amount of past compensatory damages. Indeed, Plaintiff concedes that “there is no
evidence in the record about past medical expenses” (Pl.’s Mem. Opp’n at 22, ECF No. 590),
and thus the jury may have concluded that it could only speculate as to the amount. By contrast,
the jury may have concluded that Plaintiff had provided enough evidence, in particular Dr.
Krishna’s and Ms. Lajterman’s testimonies, to calculate an amount of future compensatory
damages, which it found to be $431,250. Thus, it was possible for the jury to conclude that there
was enough evidence to find that Sergeant Mattera’s conduct caused Plaintiff’s brain injury,
while also concluding that Plaintiff had not provided enough evidence from which the jury could
calculate a specific value of past compensatory damages to be awarded. Viewed in this light, the
jury’s past and future compensatory damages awards are not “ineluctably inconsistent.” Munafo
v. Metro. Transp. Auth., 381 F.3d 99, 105 (2d Cir. 2004) (quoting Tolbert v. Queens Coll., 242
F.3d 58, 74 (2d Cir. 2001)).
The Jury’s Award Was Not Excessive
Defendant seeks remittitur of the jury’s future compensatory damages award, arguing that
it was excessive. (Def.’s Mem. at 16–18.) “Compensatory damages ‘are intended to redress the
concrete loss that the plaintiff has suffered by reason of the defendant’s wrongful conduct.’”
State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 416 (2003) (quoting Cooper Indus.,
Inc. v. Leatherman Tool Grp., Inc., 532 U.S. 424, 432 (2001)). “A district court may order a new
trial in whole or limited to damages, or grant remittitur by conditioning the denial of a
defendant’s motion for a new trial on the plaintiff accepting the reduction in damages, if the
court finds that the damages awarded by the jury are excessive.” Rainone v. Potter, 388 F. Supp.
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2d 120, 121 (E.D.N.Y. 2005) (citing Tingley Sys. v. Norse Sys., 49 F.3d 93, 96 (2d Cir. 1995)).
A federal court reviewing the amount of damages awarded pursuant to a state law claim,
as here, must apply state law. See Cross v. N.Y.C. Transit Auth., 417 F.3d 241, 258 (2d Cir.
2005); see also Gasperini v. Ctr. for the Humanities, Inc., 518 U.S. 415, 419, 430–31 (1996).
Pursuant to New York law, “[i]n reviewing a money judgment . . . in which it is contended that
the award is excessive or inadequate . . . [a court] shall determine that an award is excessive or
inadequate if it deviates materially from what would be reasonable compensation.” N.Y.
C.P.L.R. § 5501(c). “In applying this standard, a district court reviews the evidence presented at
trial in support of the challenged damage award and compares the award to other New York
cases in which evidence of similar injuries was presented.” Presley v. U.S. Postal Serv., 317
F.3d 167, 173 (2d Cir. 2003). “Great deference must be accorded the interpretation of the
evidence by the jury if there is present credible evidence sufficient to support that interpretation,
even if other evidence can be found in the record which would support a contrary conclusion[.]”
Simone v. Crans, 891 F. Supp. 112, 112 (S.D.N.Y. 1994) (Parker, J.).
As an initial matter, neither of the cases Defendant cites in support of remittitur (see
Def.’s Mem. at 17–18) involved a brain injury, as is the case here. The Court notes that
Defendant contends that the Court should base its excessiveness inquiry primarily on “cases
involving similar force allegations.” (Id. at 17.) The proper focus of a damages award inquiry,
however, is on the nature of the injuries suffered, whatever their causes may be. See 2 AM. L. OF
TORTS §§ 8:7–9 (2022).
In this case, Plaintiff alleges that she will require various forms of medical care to treat
the headaches, nausea, vision impairment, and memory loss resulting from her traumatic brain
injury. As described above, Dr. Krishna and Ms. Lajterman testified as to the medical necessity

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and estimated cost, respectively, of this future medical care. In light of the evidence presented,
the jury found that an award of $431,250 would fairly compensate Plaintiff for future damages
resulting from Sergeant Mattera’s conduct. (Verdict Form at 2.) The jury further provided that
this amount was intended to provide compensation for a period of 48.6 years. (Id.)
The jury’s award is appropriate when compared with damages awards for brain injuries
in other New York state cases. Courts have awarded plaintiffs amounts ranging from $500,000
to $3 million for future pain and suffering on account of brain injuries. See, e.g., Ramirez v. City
of New York, 719 N.Y.S.2d 289 (App. Div. 2001) (“Ramirez”); Henaghan v. Algie, No.
04233/2008, 2013 WL 6036725 (Suffolk Cty. Ct. Nov. 14, 2013) (“Henaghan”); Paek v. City of
New York, 812 N.Y.S.2d 83 (App. Div. 2006) (“Paek”).
In Ramirez, the Appellate Division upheld an award of $500,000 for future pain and
suffering where “the plaintiff sustained permanent brain damage as a result of an assault upon
him by police officers.” 719 N.Y.S.2d at 289–90. This award did not specify a period of time
over which the amount of future damages was intended to provide compensation. In Henaghan,
a court awarded the plaintiff $525,000, based on his life expectancy of twenty-one years (or a
per-year rate of $25,000), in future damages associated with his traumatic brain injury. 2013 WL
6036725, at *4–5. In that case, the plaintiff suffered from short-term memory impairment and
had some difficulty speaking, but “did not demonstrate any need for long-term home health care,
nor other assistance.” Id. at *4. The court noted that the severity of that plaintiff’s injuries did
not appear to be as great as in other traumatic brain injury cases, in which plaintiffs were
awarded between $650,000 and $2.1 million for future pain and suffering. Id. Finally, in Paek,
the Appellate Division reduced an award of $5 million for future pain and suffering over 40
years to $3 million. 812 N.Y.S.2d at 84–85. In that case, the plaintiff “sustained a severe brain

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injury resulting in, inter alia, permanent cognitive impairment affecting her memory,
concentration, organizational ability and emotional response.” Id. at 85. The award in Paek
amounts to an annual rate of $75,000.
In light of these decisions, the Court finds that the jury’s award of $431,250 for a period
of 48.6 years—or approximately $8,873 for each year—does not deviate materially from what
would be reasonable compensation. Because this award was not excessive, the Court declines to
remit the jury’s award of future compensatory damages to Plaintiff.

CONCLUSION
For the foregoing reasons, Defendant’s motion for judgment as a matter of law is
DENIED. Defendant’s motions for a new trial or remittitur of damages are also DENIED.
The Clerk is respectfully directed to close the motions at ECF No. 580. In addition, the
Court lifts its stay regarding execution of the judgment (see ECF No. 598), now that Defendant’s
post-trial motions have been resolved.
SO ORDERED.
Dated: New York, New York
March 14, 2023

/s/ Kimba M. Wood
KIMBA M. WOOD
United States District Judge

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