Leo v. Long Island Railroad Company

Filing 51

MEMORANDUM & ORDER: For the reasons stated, defendant's motion for a new trial is granted in part and denied in part. We direct that a new trial on damages be conducted unless plaintiff agrees to entry of a judgment for (1) $189,122.64 in p ast economic damages, (2) $1.5 million in future economic damages, (3) $100,000.00 in past non-economic damages, and (4) $200,000.00 in future non-economic damages. If plaintiff chooses to accept the foregoing terms for a judgement, he is to submit a form of judgment within two weeks. If he chooses not to do so, he is to advise the court accordingly within two weeks. (Signed by Magistrate Judge Michael H. Dolinger on 4/30/2015) Copies Sent By Chambers. (ama)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
--------------------------------x
BRIAN LEO,
:
Plaintiff,
:
-against:
LONG ISLAND RAILROAD COMPANY,
:
Defendant.
--------------------------------x

MEMORANDUM & ORDER
13cv7191 (MHD)

MICHAEL H. DOLINGER
UNITED STATES MAGISTRATE JUDGE:

Plaintiff Brian Leo commenced this lawsuit under the Federal
Employers Liability Act (“FELA”), 45 U.S.C. § 51 et seq., seeking
recovery for physical and other injuries suffered while employed by
the defendant Long Island Railroad Company (“LIRR”). Following
trial, a jury returned verdicts finding defendant liable and
awarding plaintiff a total of $3,189,122.64 in past and future
damages.

Following entry of judgment for that amount, defendant has
moved for a new trial or a remittitur of portions of the damages
award.

Plaintiff

has

opposed.

For

defendant’s motion is granted in part.

1

the

reasons

that

follow,

FACTUAL AND PROCEDURAL BACKGROUND

I. The Pertinent Trial Evidence

A. The Accident

Mr. Leo was employed by the LIRR as an assistant signalman. On
November 2, 2011 he was working to install innerduct1 under a
platform at the Kew Gardens station in Queens. While crawling on
hands and knees under the platform, he encountered a substantial
pile of large broken pieces of concrete, apparently rubble from a
pre-existing platform that had never been removed. As he crawled
over the broken concrete, a heavy piece of it dislodged and fell
onto his right wrist and arm, trapping him in that position. He
attempted to pull his hand from under the concrete but was unable
to do so. Shortly after, a fellow worker pulled the concrete slab
away, freeing his arm. (Tr. 137-38, 142-55, 251, 373).

1

According to plaintiff, innerduct is “a hollow plastic
tubing. It basically protects the cables and the fiber-optic that
goes through it.” (Tr. 142).
2

B. Medical Evidence

Mr. Leo remained at the worksite until the end of his shift.
That evening, however, encountering stiffness and swelling, he
visited the emergency room at Good Samaritan Hospital, where an Xray of his wrist showed no fracture. (Id. at 155-56; Pl.’s Ex.
[“PX”] 23 at pp. 1-6 [Record of Nov. 2, 2011 visit to Good
Samaritan Hospital]).

The next day plaintiff went to the LIRR medical facility and
was taken off work. (Tr. 157; see also PX 26 pp. 27 [LIRR Medical
Center receipt dated Nov. 3, 2011], 74-75 [Medical notations for
Nov. 3, 2011 visit to LIRR Medical Center]). Two days later he
consulted Dr. Arthur Pallotta, an orthopedic surgeon to whom he had
been referred by the hospital. The doctor observed swelling,
tenderness and abrasions on the wrist as well as sensitivity on the
median nerve.2 He diagnosed a “sprain/crush” injury and put a
splint on the arm. (Tr. 50-54, 157; PX 13 p. 5 [Medical chart dated
Nov. 4, 2011]).

2

According to Dr. Pallotta, “[t]he median nerve is one of
the nerves that innervates the muscles and the sensation in the
hand.” (Tr. 53; see also Tr. 58).
3

On November 28, 2011 -- nearly four weeks after the accident
-- Dr. Pallotta found some swelling and tenderness over the back of
the

wrist.

(Tr.

54-55).

On

December

16,

2011,

he

again

saw

plaintiff and noted continuing median-nerve sensitivity and also
observed that the ring and small fingers of the hand hung further
down than the normal cascade of the fingers on the hand, a
phenomenon known as clawing. (Id. at 55-57, 64). Noting some
weakness in the first dorsal interossei and loss of sensation in
the affected fingers, Dr. Pallotta suspected possible ulnar-nerve
injury3

and

ordered

an

electromyelogram

(“EMG”)

and

nerve

conduction study.4 The results of these tests were normal. (Id. at
57-64; see also PX 13 pp. 6

[Medical chart dated Nov. 28, 2011],

12 [Letter to LIRR Medical Department from Dr. Pallotta signed Nov.
28, 2011]).
3

Dr. Pallotta explained that the ulnar nerve “supplies the
majority of the muscles that are actually in the hand,” of which
the first dorsal interossei is one. (Tr. 59).
4

These make up a “combined test” that Dr. Pallotta
described as follows:
Muscles generally emit a particular signal. So if you put an
electrode into a muscle, you will detect a signal. If a
muscle is without that information that comes from the nerve
to the muscle, the muscle begins to exhibit a particular
type of electrical behavior or activity. And that’s the kind
of thing that can be picked up on an EMG.
(Tr. 62-63). Dr. Pallotta stated that, when assessing patients
that present with these types of injuries, the results of this
test are “just one piece in the puzzle.” (Id. at 63-64).
4

Dr. Pallotta saw plaintiff again on March 7, 2012. (Tr. 64).
Mr. Leo reported little improvement, and the doctor again found
decreased sensation in the fingers and continued clawing. He also
observed increased sensitivity in the ulnar nerve and diagnosed a
right

wrist

sprain/crush

injury

with

median-

and

ulnar-nerve

dysfunction, as well as neuritis.5 (Id. at 64-66; see also PXs 13
p. 8 [Medical chart dated Mar. 7, 2012] & 15 pp. 7-8 [Results of
test dated Feb. 1, 2012]). On plaintiff’s next visit, on April 4,
2012, the doctor observed increased drooping of the two affected
fingers. (Tr. 66). He found that sensation in the two affected
fingers

had

decreased

“a

little

bit”,

that

the

first

dorsal

interossei muscle was “slightly weak”, and that another muscle
innervated by the ulnar nerve -- the flexor digitorum profundus -“appeared to be weak, as well.” (Id. at 66-67; see also PX 13 p. 9
[Medical chart dated Apr. 4, 2012]).

In connection with the April 4 visit, Dr. Pallotta ordered
another nerve-conduction study. That study was inconclusive as to
whether the symptoms were attributable to an ulnar-nerve injury, as
the doctor had originally surmised. It did show, however, a right

5

According to Dr. Pallotta, “[n]euritis is just
inflammation of the nerve.” (Tr. 66).
5

c8-t1 radiculopathy6 and spontaneous activity at the right opponens
pollicis muscle. (Tr. 67-68; PXs 13 p. 9 & 15 pp. 4-6 [Results of
test

dated

May

11,

2012]).

As

Dr.

Pallotta

explained

these

findings, they could indicate that the source of the injury was
located at a point in the nerve system above the forearm and elbow,
and that a lack of innervation, whether of the median nerve or the
ulnar nerve, might trigger these findings. (Tr. 68-72). Further,
the doctor noted that such injury to the nerve could have been
caused by an excess of pressure on the nerve, for example if the
arm is pulled too high over the head. (Id. at 72-73).

On a May 23, 2012 visit, Dr. Pallotta found increased atrophy
and

weakness

of

the

first

dorsal

interossei.

He

also

noted

decreased sensation in the fingers. (Id. at 73-74; PX 13 p. 1
[Medical chart dated May 23, 2012]). These findings were at least
consistent with injury to the ulnar nerve or the brachial plexus,
which feeds into the ulnar nerve. (Tr. 74; see also id. at 72).

Because of his concern that the injury might originate in the

6

As described by Dr. Pallotta, radiculopathy is “meant
generally as dysfuction of a nerve with origin from where it is
exiting the spinal column” (Tr. 71; see also id. at 68), and “c8
and t1 are the major contributors to the ulnar nerve.” (Id. at
69).
6

brachial plexus, Dr. Pallotta referred plaintiff to a Dr. Patrick
Reid, a neurosurgeon. (Id. at 74-76). Dr. Reid opined that the
injury was traceable to the posterior interosseus nerve, which is
responsible for the extension of the fingers. (Id. at 75-76; PXs
16-17 [Medical records from Drs. Patrick Reid & Joseph Feinberg]).

Dr.

Pallotta

disagreed

with

that

assessment

based

on

a

subsequent examination, on October 23, 2012, when he tested the
strength of muscles innervated by the posterior interosseus nerve.
(Tr. 76-78).7 On that visit he also observed increased clawing of
the two affected fingers. (Id. at 77). He then referred plaintiff
to a brachial plexus specialist, a Dr. Christopher Winfree. (Id. at
78-79). Dr. Winfree diagnosed dysfunction of the ulnar nerve,
probably at the wrist. (Id. at 79-80; PX 20 pp. 1-3 [Letter dated
Dec. 10, 2012 from Dr. Winfree to Dr. Pallotta]).

7

We note that -- unlike for most of plaintiff’s
appointments with Dr. Pallotta –- plaintiff did not provide us
with copies of Dr. Pallotta’s notes for, inter alia, the October
23, 2012 or January 2, 2013 appointments, although, likely
accidentally, we were given two copies of the notes of both the
May 23, 2012 visit and the March 8, 2013 visit. (See PX 13 pp. 1,
3, 10, 13). In any event, we see no reason why this undermines
Dr. Pallotta’s testimony at trial; and we also point out that Dr.
Pallotta’s file includes a note, written on November 30, 2012, in
which he advises the recipient (presumably the LIRR) of
plaintiff’s inability to work at “fully duty” and explains that
plaintiff is under his care for “r[ight] wrist sprain/crush
injury w/median sensory neuropathy.” (Id. at p. 4).
7

Dr. Pallotta next saw plaintiff on January 2, 2013. He
observed a further worsening in the clawing. As for sensation, it
had marginally improved. (Tr. 81). As Dr. Pallotta explained,
plaintiff’s effort to pull his arm out from under the concrete slab
may well have injured his brachial plexus, leading to the symptoms
that he observed. (Id. at 82-83).

Dr. Pallotta saw Mr. Leo again on March 8, 2013 and in July
2013, with similar results. (Id. at 83-85; PX 13 p. 2 [Medical
chart dated Mar. 8, 2013]). Plaintiff was also referred to several
specialists by Dr. Winfree and Dr. Pallotta. (Tr. 85-90; PX 13 p.
2 & PXs 18-20 [Medical records from Drs. Neal Cayne, Sheel Sharma
& Winfree]). Among those doctors, one diagnosed a partial ulnar
nerve neuropathy. (Tr. 87; PX 19 [Medical notations by Dr. Sheel
Sharma dated June 13, 2013 & July 2, 2013]). In addition, plaintiff
was subjected to follow-up EMG and nerve-conduction studies as well
as several MRIs. The net result was that an MRI showed a swelling
of the nerve roots on the right side where the brachial plexus
exits the spinal chord. (Tr. 84, 86, 89; PX 20 pp. 9-10 [Radiology
report dated Apr. 12, 2013]).

Dr. Pallotta offered the view that plaintiff was suffering
from a dysfunction of the ulnar-nerve distribution and that this
8

dysfunction caused the clawing that he observed, although there was
no certainty as to where along the distribution the damage had
initially been inflicted. He also offered the opinion that there
were no satisfactory treatment options and that the condition would
not improve over time.8 Finally, he opined that the injury was
indeed likely caused by plaintiff’s accident involving the trapping
of his arm by a concrete slab and his effort to pull the arm from
under that slab, and that the injury is permanent, although it does
not cause neurological pain. (Tr. 82-83, 87-89, 90-96, 97, 133).

The defendant eventually concluded that plaintiff was unable
to perform the functions of his prior job, which involved, among
other requirements, the ability to scale a 90-foot pole while
carrying up to 70 pounds of weight. (Id. at 158-60; PX 9). Thus, in

8

Dr. Pallotta specifically addressed a set of procedures
called “tendon transfers,” which apparently involve “tak[ing] a
muscle into a tendon off of one location and rerout[ing] it to
another location to try to restore some functioning that’s
missing as a result of the deficit.” (Tr. 95). However, Dr.
Pallotta also stated that even a successful tendon transfer would
not fully restore plaintiff’s grip strength, although it might
“improve extension.” (Id.). Still, he did not think that this
procedure would improve the appearance of clawing on plaintiff’s
hand at all (id.), and he “would not be optimistic about
restoring function in such a way that would allow him to do, say,
climb[] ladders, which would put him a position where his safety
and the safety of others would be in question.” (Id. at 94; see
also id. at 186 (“That’s when the tendon transfer came up, and it
wasn’t going to do anything.”)).
9

September 2013, the LIRR found him medically disqualified from work
as an assistant signalman. (Tr. 163-65; PX 27 p. 1 [Sept. 12, 2013
letter from Christopher Yodice to plaintiff]).

Plaintiff testified that he continues to suffer from weakness
in the two fingers. (Tr. 167-70, 172-73). He disclaimed having
suffered from any meaningful pain beyond a few days following the
accident,

although

the

medical

records

reflect

continuing

occasional discomfort and pain in the hand even years after the
accident. (Id. at 161-62, 170; PX 26 pp. 160 [August 26, 2013
notation by Jessica Tombline, PA], 165 [June 12, 2013 notation by
Pamela D. Nelson, RN], 168 [March 13, 2013 notation by Jessica
Tombline, PA]).

As for the impact of the condition on plaintiff’s ability to
engage in recreational and other non-work activities that he had
been accustomed to participate in before the accident, he mentioned
an inability to hold a baseball, throw a football, and offer a firm
handshake. (Tr. 169-70). He also mentioned his discomfort at being
significantly dependent on the financial largesse of his parents,
who had loaned him $40,000.00 to date. (Id. at 171-72 (“Q. How does
that make you feel? A. Like a child again.”)).

10

Defendant presented testimony from a hand surgeon, Dr. Alamgir
Isani,

who

had

examined

plaintiff

after

reviewing

treatment

records. Dr. Isani testified that he had concluded that plaintiff’s
condition was not caused by damage to the ulnar nerve, as Dr.
Pallotta had suggested, because prior testing did not demonstrate
such damage and on his examination he found no atrophy of the
intrinsic ulnar muscles. (Id. at 319-21, 326-34). He further stated
that he could not make a diagnosis and at least questioned whether
there was a neurological basis for the noted clawing even though
his

grip-strength

testing

of

plaintiff

showed

a

substantial

difference between the two hands. (Id. at 316-17, 331-34, 336,
340).

C. Mitigation Efforts

Apart from the medical evidence, the trial record reflects
testimony

by

plaintiff

about

his

efforts

to

get

replacement

employment. Initially he sought help from the railroad. In followup
contacts, plaintiff dealt with a Human Resources representative,
Mr.

James

Giallorenzo,

who,

according

to

plaintiff,

simply

mentioned some general job categories and indicated that he would
“keep his eyes open.” According to plaintiff, Mr. Giallorenzo never
referred him to any openings despite plaintiff’s assurance to the
11

HR representative “that if they had a job for me, I’d be there the
next day.” (Id. at 165-66, 170; see also id. at 184-85). Mr.
Giallorenzo testified that he had referred plaintiff to the LIRR
website for job postings (id. at 291, 295-96), but he conceded that
he did not know how many positions came available on the website
for which plaintiff might have been eligible (id. at 298), that he
had never advised plaintiff that any were available (id. at 29899), that the railroad did not give injured employees such as
plaintiff any priority for open slots on the website, and that
hence plaintiff would be competing with as many as 2,000 other
applicants for any slot for which he might arguably be qualified.
(Id.

at

298-300).

The

jury

could

therefore

infer

that

the

likelihood of plaintiff obtaining employment with the LIRR under
these circumstances was minimal.

Plaintiff further testified that he had applied to many other
companies for alternative work, principally in sales, since he was
very limited in the ability to lift heavy objects. (Id. at 168). He
has received uniform rejections, typically because he would be
required

to

have

considerable

dexterity

in

handling

computer

keyboards, and he cannot do so because of the condition of his
fingers. (Id. at 168-69, 185).

12

II. Plaintiff’s Lost Wages Calculation

On

summation,

plaintiff’s

counsel

offered

the

jury

his

calculation of the total wages that plaintiff will lose in the
future based on his present inability to continue in his LIRR job.
(Id. at 404-06). Based on an assumption that plaintiff would work
to age 60, which would take him to the year 2040 -- which Mr. Leo
testified was his original intention (see id. at 141) -- and using
the wage levels embodied in the current collective bargaining
agreement (see id. at 138-41; PX 12), plaintiff calculated that his
gross pay, exclusive of fringe benefits, for the period from the
trial to 2040 would have been $2,014,212.54. (Tr. 406; Ballaine
Decl. Ex. I).9

III. The Jury Verdict

At the conclusion of the trial, the jury was given a special
verdict form (Tr. 439-42), and was instructed inter

alia

on

plaintiff’s obligation to attempt to mitigate his damages. (Id. at
432-33). The jury returned with the following findings. With

9

The parties did not dispute the accuracy of that
calculation or of plaintiff’s computation of past lost wages as
totaling $189,122.64. (Tr. 405; see also Deft’s Mem. 8).
13

respect

to

negligent

liability,

“in

it

arranging

determined

or

that

supervising

defendant

the

project

had

been

on

which

plaintiff was injured”, that plaintiff had been injured as a result
of that negligence, and that plaintiff had not been comparatively
negligent. (Id. at 446-47). As for damages, it found that plaintiff
had suffered lost earnings to date of $189,122.64 and that he would
suffer future lost earnings of $2,000,000.00. (Id. at 447). In
assessing past non-monetary losses, the jury valued plaintiff’s
damages based on physical pain and suffering and emotional distress
to date at $100,000.00, and his future expected losses of this kind
at $900,000.00. (Id. at 447-48).10

III. Defendant’s Current Motion

Defendant has moved for a new trial on two separate grounds.
First, it asks for a retrial on the basis that the jury’s awards
for future emotional injury and future lost income were excessive.
It urges either a new trial or a remittitur of these awards to not
more than $200,000.00 for future emotional distress and not more
than $700,000.00 for future lost income. (Deft’s Mem. 11-18; Deft’s

10

In charging the jury as to future non-economic injuries,
we stated that plaintiff had not testified to physical pain
beyond “the immediate aftermath of the incident in question” (Tr.
433), an instruction to which plaintiff did not object.
14

Reply Mem. 4-9). Second, defendant argues for a new trial on the
premise that the court abused its discretion in refusing to allow
admission of an edited surveillance tape, purportedly of plaintiff,
which defendant offered without any effort at authentication.
(Deft’s Mem. 19-22; Deft’s Reply Mem. 9-10).

Plaintiff opposes the motion. He contends that the challenged
jury award for future lost income was reasonable, based on the
evidence -- including defendant’s failure to offer any vocational
evidence

--

and

that

the

jurors’

award

for

future

pain

and

suffering and emotional distress was justified by comparison with
the results of assertedly comparable cases in which damage awards
or settlements equaled or exceeded plaintiff’s award. (Pl.’s Mem.
4-8). As for the surveillance tape, plaintiff defends the court’s
ruling excluding it from evidence for lack of authentication. (Id.
at 2-4).

ANALYSIS

We address defendant’s arguments in reverse order, starting
with the challenged evidentiary ruling.11 Before taking on that

11

We follow this order since upholding defendant’s challenge
to the exclusion of the surveillance tape would moot the balance
15

task, we briefly summarize the basic standards for assessing a Rule
59 motion.

I. Rule 59 Criteria

Rule 59(a)(1)(A) provides that the court “may, on motion,
grant a new trial on all or some of the issues -- and to any party
-- . . . after a jury trial, for any reason for which a new trial
has heretofore been granted in an action at law in federal court.”
Among those traditional grounds for a new trial are errors in the
admission or exclusion of evidence, see, e.g., Cameron v. City of
New York, 598 F.3d 50, 61-66 (2d Cir. 2010); Tesser v. Board of
Educ. of City Sch. Dist., 370 F.3d 314, 318-21 (2d Cir. 2004),
although such relief is not to be granted unless the movant
demonstrates that the error was not harmless, that is, “[that] ‘it
is likely that in some material respect the factfinder’s judgment
was swayed by the error.’” Tesser, 370 F.3d at 319 (brackets in
original) (quoting Costantino v. David M. Herzog, M.D., P.C., 203
F.3d 164, 174 (2d Cir. 2000)); see also O&G Industs., Inc. v.

of its motion. See, e.g., Ramirez v. New York City Off-Track
Betting Corp., 112 F.3d 38, 40 (2d Cir. 1997) (“A remittitur
should be granted only when the trial has been free of
prejudicial error.”).
16

National R.R. Passenger Co., 537 F.3d 153, 166 (2d Cir. 2008).12

The trial court is also authorized to order a new trial on the
basis that the jury verdict is against the clear weight of the
evidence. E.g., Raedle v. Credit Agricole Indosuez, 670 F.3d 411,
417 (2d Cir. 2012); Kirsch v. Fleet Street, Ltd., 148 F.3d 149, 165
(2d Cir. 1998). In assessing such a motion, the court may weigh the
evidence, including witness credibility, “and need not view the
evidence in the light most favorable to the verdict winner.”
Raedel, 670 F.3d at 418 (citing United States v. Landau, 155 F.3d
93, 104 (2d Cir. 1998)). The Second Circuit has cautioned, however,
that “‘a decision is against the weight of the evidence . . . if
and only if the verdict is [(1)] seriously erroneous or [(2)] a
miscarriage of justice. . . .’” Raedel, 670 F.3d at 417-18 (quoting

12

The harmless-error requirement is incorporated in Rule 61,
which states:
Unless justice requires otherwise, no error in admitting
or excluding evidence –- or any other error by the court
or a party –- is ground for granting a new trial, for
setting aside a verdict, or for vacating, modifying, or
otherwise disturbing a judgment or order. At every stage
of the proceeding, the court must disregard all errors
and defects that do not affect any party's substantial
rights.
As the Second Circuit has observed, “[a]n erroneous evidentiary
ruling that does not affect a party’s ‘substantial right’ is thus
harmless.” Tesser, 370 F.3d at 319.
17

Farrior v. Waterford Bd. of Educ., 277 F.3d 633, 635 (2d Cir.
2002)). Consistent with that caution and the principle that trial
judges should be very reluctant to second-guess jury assessments of
witness credibility, our circuit court has opined that “jury
verdicts should be disturbed with great infrequency.” Raedel, 670
F.3d at 418 (citing cases).

These caveats are particularly salient when the jury verdict
clearly rests substantially or solely on witness credibility. Id.
at 418-19. Where the challenge is not to a jury’s credibility
assessment, but rather to the size of its award of damages, the
analysis

is

somewhat

different,

although

caution

remains

a

watchword.

Under Rule 59(a) the court may overturn an excessive award and
either unconditionally order a new trial or condition a new trial
on the plaintiff’s refusal to accept a reduction, or remittitur, in
the award. See, e.g., Gasperini v. Center for Humanities, Inc., 518
U.S. 415, 433 (1996); Turley v. ISG Lackawanna, Inc., 774 F.3d 140,
167-68 (2d Cir. 2014); Rangolan v. Cnty. of Nassau, 379 F.3d 239,
243-44 (2d Cir. 2004). A remittitur may be authorized in at least
two circumstances:
(1) where the court can identify an error that caused the
18

jury to include in the verdict a quantifiable amount that
should be stricken, . . . and (2) more generally, where the
award is ‘intrinsically excessive’ in the sense of being
greater than the amount that a reasonable jury would have
awarded, although the surplus cannot be ascribed to a
particular, quantifiable error.
Kirsch, 148 F.3d at 165.

In the absence of a “particular discernible error,” as a
general matter the court may not set aside the jury’s award as
excessive unless “the award is so high as to shock the judicial
conscience and constitute a denial of justice.” Id. (quoting
O’Neill v. Krzeminski, 839 F.2d 9, 13 (2d Cir. 1989)); accord
Turley, 774 F.3d at 162.13 In assessing whether the award is so
excessive, “the court must ‘accord substantial deference to the
jury’s determination of factual issues.’” Frank Sloup and Crabs
Unlimited, LLC v. Loeffler, 745 F. Supp. 2d 115, 136 (E.D.N.Y.
2010) (quoting Martell v. Boardwalk Enters., 748 F.2d 740, 750 (2d
Cir. 1984)). That said, and granted that the jury has broad

13

This “shock the conscience” standard applies in cases
involving claims under federal law. When the claim generating a
damages award arises under New York law, the court is to look to
state law for remittitur standards, and that test -- embodied in
N.Y. C.P.L.R. § 5501(c) -- asks whether the award “deviates
materially from what would be reasonable compensation”, a
standard that is considered less deferential to jury decisions
than the federal test. See, e.g., Consorti v. Armstrong World
Indus., Inc., 72 F.3d 1003, 1010-12 (2d Cir. 1993). See also
Stampf v. Long Island R.R. Co., 761 F.3d 192, 206-07 (2d Cir.
2014).
19

discretion in measuring damages, “it ‘may not abandon analysis for
sympathy for a suffering plaintiff and treat an injury as though it
were a winning lottery ticket.’” Scala v. Moore McCormick Lines,
Inc., 985 F.2d 680, 684 (2d Cir. 1993) (quoting Nairn v. Nat’l R.R.
Passenger Corp., 837 F.2d 565, 568 (2d Cir. 1988)). In short, the
court must discern “an upper limit” and assess whether the jury has
surpassed it. See, e.g., Sloup, 745 F. Supp. 2d at 136 (quoting
Dagnello v. Long Island R.R. Co., 289 F.2d 797, 806 (2d Cir.
1961)).

II. The Surveillance Videotape

During defendant’s case, its counsel proposed to offer into
evidence a so-called surveillance tape that he represented had been
made in its original form by a team of Florida videographers over
ten days in July and August 2014 and then edited in unspecified
respects, reducing it from three hours to 28 minutes, a process
performed

by

an

“audiovisual

man”

under

the

direction

of

defendant’s attorney. (Tr. 220-23, 227-28). According to LIRR’s
counsel, the tape was taken of plaintiff, who had testified that he
was currently living in Florida. (Id. at 222, 225-26). Because
defendant was proposing to offer the tape without testimonial or
other authentication (id. at 222-23) and had also failed to list
20

the item on the joint pretrial order or to provide it during
discovery, plaintiff objected. (Id. at 221, 226-27; In Limine
Motion at 1-6 [Ex. E to Blumenschein Decl.].14

Following
comprehensive

oral

argument,

record,

the

and

court

in

an

reviewed

effort
the

to

ensure

entire

a

edited

videotape, which lasted about 28 minutes. (Tr. 307-08). The edited
film portrayed a man who bore at least a strong resemblance to
plaintiff. For a portion of the tape, he stood in a bar or juice
bar or similar facility, drinking a beverage from a glass that he
held principally in his left hand, while occasionally appearing to
stroke the back of his neck with his right hand. Then, in a
separate segment, the tape showed him walking down the street,
holding a small plastic bag or other white object, which at least
for some of the time he held in his right hand.15

14

Defendant’s counsel had apparently provided plaintiff’s
attorney the unedited tape less than one month before the trial
(Sept. 9, 2014 letter from William J. Blumenschein, Esq. to Mark
T. Wietzke, Esq. [appended to Ex. E to Blumenschein Decl.]), and
plaintiff did not move in limine for its exclusion before trial
because he did not learn until mid-trial that defendant proposed
to introduce it without authentication. (Tr. 220-21; see In
Limine Motion at 4).
15

It bears mention that in plaintiff’s testimony he never
suggested that he was incapable of engaging in any of the
activities portrayed in the videotape. (See, e.g., Tr. 168-70).
21

At the conclusion of the viewing and after some additional
argument, the court sustained plaintiff’s objection. (Id. at 30812). In doing so, we observed that defendant was proffering the
tape without testimony by either the videographer or the tape’s
editor or anyone else to authenticate it. As for what is required
under

Rule

901,

we

noted

that

the

Advisory

Committee

Notes

indicated that reference to the common law is appropriate, see Fed.
R. Evid. 901(b), 1972 Advisory Committee Notes at 501 (Thompson
Reuters 2015), and on that basis we referred to the New York Court
of Appeals decision in Zegarelli v. Hughes, 3 N.Y.3d 64, 781
N.Y.S.2d 488 (2004), which indicated that the requirement of
authentication could be satisfied by testimony, whether from the
videographer or another competent witness, to the effect “that a
videotape truly and accurately represents what was before the
camera”.

Id.

at

69,

781

N.Y.S.2d

at

491.

(See

Tr.

310-11).

Characterizing defendant’s stated position as “treat[ing] this
videotape as self-authenticating”, we observed that Rule 902, which
governs self-authentication, does not cover this type of evidence.
(Id. at 311).

As further support for declining to admit the videotape
without supporting evidence, we noted that much of the film was

22

quite blurry16, and that it had concededly been edited and yet
defendant had presented no evidence as to what had been edited out
or in. We further noted that current technologies allow for
substantial

alterations

and

substitutions

of

material

in

videotapes, and that the record was silent even as to whether the
tape was digital and thus lent itself to ready manipulation. (Id.
at 311).

As for what was observed on the tape, we noted that none of it
“was clearly inconsistent with plaintiff’s testimony”, though we
did observe that, with proper authentication, the tape would be
sufficiently relevant to be admitted. (Id.). We then sustained the
objection. (Id.).

Defendant’s attorney then sought to reopen the argument by
asserting once again that the jury should be left to judge the tape
as

is.

(Id.

at

312).

He

did

not

suggest

that

we

had

mischaracterized defendant’s position that the tape should be
admissible without testimonial support, and we simply noted that we
had already ruled, and adhered to our ruling. (Id.).

16

That fact is borne out by still shots from the videotape
that defendant has proffered on its current motion. (Blumenschein
Decl. Ex. G).
23

Defendant’s current challenge to this ruling is groundless.
Rule

901(a)

states

that,

“[t]o

satisfy

the

requirement

of

authenticating or identifying an item of evidence, the proponent
must produce evidence sufficient to support a finding that the item
is what proponent claims it is.” In Rule 901(b), the drafters
provide a set of ten “examples . . . of evidence that satisfies the
requirement” for various types of exhibits that a party may seek to
introduce. Of these evidentiary examples, two seem pertinent here.
Of principal relevance in this case, the first listed example
refers to “testimony of a witness with knowledge” that “an item is
what it is claimed to be”. Fed. R. Evid. 901(b)(1). The other
pertinent example, listed ninth, refers to “[e]vidence describing
a process or system and showing that it produces an accurate
result.” Fed. R. Evid. 901(b)(9).17

In the companion Rule 902, we find a list of items that are

17

The other eight examples include “Nonexpert Opinion About
Handwriting”, “Comparison by an Expert Witness or the Trier of
Fact”, “Distinctive Characteristics and the Like”, “Opinion About
a Voice”, “Evidence About a Telephone Conversation”, “Evidence
About Public Records”, “Evidence About Ancient Documents or Data
Compilations” and “Methods Provided by a Statute or Rule”. The
reference to comparisons by a trier of fact is apparently focused
on assessments of handwriting exemplars. See Fed. R. Evid.
901(b)(3), 1972 Advisory Committee Notes at 502 (West 2015). See
also United States v. Sliker, 751 F.2d 477, 497-98 (2d Cir. 1984)
(discussing court’s role in gatekeeping regarding introduction of
audio recordings based on voice similarities).
24

deemed “self-authenticating”, that is, “they require no extrinsic
evidence of authenticity in order to be admitted.” None of these
categories encompasses pictographic materials, whether videotapes
or photographs or similar items.18

Under Rule 901 the courts have consistently adhered to the
general proposition -- evident in the wording and purpose of the
rule -- that the offering party must provide “sufficient proof . .
. so that a reasonable juror could find in favor of authenticity or
identification.” United States v. Ruggiero, 928 F.2d 1289, 1303 (2d
Cir. 1991). See, e.g., United States v. Vayner, 769 F.3d 125, 12930 (2d Cir. 2014); United States v. Whitingham, 346 F. App’x 683,
685 (2d Cir. 2009); United States v. Tin Yat Chin, 371 F.3d 31, 38
(2d Cir. 2004); United States v. Dhinsa, 243 F.3d 635, 658 (2d Cir.
2001). Because of the particular characteristics of pictographic
exhibits -- which may be less than crystal-clear, may depict
objects other than what the proponent contends is portrayed, and

18

The listed items include “Domestic Public Documents That
are Sealed and Signed”, “Domestic Public Documents That are Not
Sealed but Are Signed and Certified”, “Foreign Public Documents”,
“Certified Copies of Public Records”, “Official Publications”,
“Newspapers and Periodicals”, “Trade Inscriptions and the Like”,
“Acknowledged Documents”, “Commercial Paper and Related
Documents”, “Presumptions Under a Federal Statute”, “Certified
Domestic Records of a Regularly Conducted Activity” and
“Certified Foreign Records of a Regularly Conducted Activity”.
Fed. R. Evid. 902(1)-(12).
25

(especially with the growth of computer-based technologies for
altering the item) may have been altered or manipulated -- the
courts have looked to the requirements of Rules 901(b)(1) and (9)
as

defining

the

base-level

burden

for

their

admission

into

evidence:
A party seeking to admit an item into evidence -- whether
a document, weapon, photograph, audio or video recording or
other item -- must first establish the item’s genuineness.
Fed. R. Evid. 901. This requires the proponent to “produce
evidence sufficient to support a finding that the item is
what the proponent claims it is.” Fed. R. Evid. 901. . . .
The admitting party’s burden of making a prima facie
showing that the item is genuine can be satisfied in
several ways, including the testimony of a witness with
knowledge or evidence showing that a process or system
produces accurate results. Fed. R. Evid. 901; see United
States v. Fluker, 698 F.3d 988, 999 (7th Cir. 2012). For
video recordings, like tape recordings, the proponent
should also show that the camera functioned properly, the
operator was competent in operating the equipment, and the
recording accurately represented the scene depicted. Cf.
United States v. Eberhart, 467 F.3d 659, 667 (7th Cir.
2006).
United States v. Cejas, 761 F.3d 717, 723 (7th Cir. 2014). See,
e.g., United States v. Ikezi, 353 F. App’x 482, 483 (2d Cir. 2009)
(referring to Rule 901(b)(9) as a basis for authenticating a
videotape); United States v. Castillo Chavez, 555 F. App’x 389,
395-96 (5th Cir. 2014) (upholding the admission of a surveillance
video that had been authenticated by a witness who testified “that
the video was an accurate depiction of the events”); United States
v. Capers, 708 F.3d 1286, 1306-07 (11th Cir. 2013) (videotape and
26

audio recording). Cf. Arizona Dep’t of Law, Civil Rights Division
v.

ASARCO, LLC, 844 F. Supp. 2d 957, 979 (D. Ariz. 2011) (quoting

Lucero v. Stewart, 892 F.2d 52, 55 (9th Cir. 1989)) (authenticating
photograph). See generally United States v. Barone, 913 F.2d 46, 49
(2d Cir. 1990) (Government may authenticate tape recording “through
the testimony of the technician who actually made it”); United
States v. Hemmings, 482 F. App’x 640, 642-43 (2d Cir. 2012)
(authentication of audio tapes by agent who recognized voices);
Sliker, 751 F.2d at 497-500 (relying on Fed. R. Evid. 901(b)(5) for
authenticating voice on the recording); Roy v. Bd. of Cnty.
Comm’rs,

607

F.

Supp.

2d

1297,

1307

n.24

(N.D.

Fla.

2009)

(excluding a video clip “because there is no testimony in the
record to authenticate it and it is not self-authenticating”). As
recently,

and

helpfully,

summarized

in

a

decision

quoted

plaintiff:
The plurality of jurisdictions agree that a video recording
may be authenticated by testimony from the operator,
recorder, installer, or maintainer of the equipment that
the videotape is an accurate representation of the subject
matter depicted. 32A C.J.S. Evidence § 1258 (collecting
cases). In general, a party may provide proper foundation
for the admission of a videotape by providing 1) testimony
demonstrating that the videotape fairly and accurately
illustrates the events filmed; 2) testimony regarding the
checking, operation, and handling of the recording
equipment; 3) testimony that the videotape admitted at
trial is the same as the one the witness inspected
previously, or 4) testimony that the videotape has not been
edited and fairly and accurately recorded the actual
appearance of the area and events that transpired.
27

by

James v. Virgin Islands, 2013 WL 6585638, *5 (Sup. Ct. V.I. Dec.
12, 2013) (case cites omitted).19

Notably, defendant has been unable to cite any court decisions
that have treated videotapes as self-authenticating. This is hardly
surprising in view of the limited scope of Rule 902. As noted, the
drafters of the Federal Rules of Evidence anticipated that, in
specified circumstances, certain types of exhibits may be so
evidently that which the proponent claims them to be that they may
be deemed authentic without extrinsic evidence. See Fed. R. Evid.
902, 1972 Advisory Committee Notes at 503 (Thompson Reuters 2015).
That

list

--

which

is

not

open-ended

--

does

not

include

videotapes, photographs or any pictographic or oral items of
evidence.

We acknowledge that there are a handful of cases that, at
first blush, appear to suggest that videotapes can be considered

19

The New York Court of Appeals follows the same approach.
Thus it has noted that authentication of a videotape may
“normally” be accomplished by “[t]estimony from the videographer
that he took the video, that it correctly reflects what he saw,
and that it has not been altered or edited . . . . Where the
videographer is not called ‘testimony, expert or otherwise, may
also establish that a videotape “truly and accurately represents
what was before the camera.”’” Zegarelli, 3 N.Y.3d at 69, 781
N.Y.S.2d at 491 (quoting, inter alia, People v. Patterson, 93
N.Y.2d 80, 84, 688 N.Y.S.2d 101, 104 (1999)).
28

“self-authenticating.” See, e.g., United States v. Hassan, 742 F.3d
104, 132-33 (4th Cir. 2014) (affirming the trial court’s finding
that “YouTube videos were self-authenticating under Federal Rule of
Evidence 902(11)”); United States v. Damrah, 412 F.3d 618, 628 (6th
Cir. 2005) (“The district court did not abuse its discretion in
holding that the tapes were ‘self-authenticating.’”); United States
v. Van Sach, 2009 WL 3232989, *3 (N.D. W. Va. Oct. 1, 2009) (“A
videotape which clearly identified the persons depicted in it may
be self-authenticating.”).

We easily distinguish each of these decisions, however. In
Hassan, the Fourth Circuit upheld the admission of a YouTube clip
under Rule 902(11) -- “Certified Domestic Records of a Regularly
Conducted Activity” –- and only because the clip satisfied each of
the requirements contained within that rule. 742 F.3d at 132-33.20
Accord Randazza v. Cox, 2014 WL 1407378, *4 (D. Nev. April 10,

20

Rule 902(11) specifically deems the following to be selfauthenticating:
The original or a copy of a domestic record that meets the
requirements of Rule 803(6)(A)-(C), as shown by a
certification of the custodian or another qualified person
that complies with a federal statute or a rule prescribed by
the Supreme Court. Before the trial or hearing, the
proponent must give an adverse party reasonable written
notice of the intent to offer the record -– and must make
the record and certification available for inspection -– so
that the party has a fair opportunity to challenge them.
29

2014) (excluding the transcript of a YouTube clip for failing to
meet the requirements of Rule 902(11)). In Van Sach, the Government
did call “the custodian of the record . . . to testify that the
recording is what the United States claims it is.” 2009 WL 3232989
at *3. Thus, that court’s description of the admitted video as
“self-authenticating” was perhaps somewhat inartful.

Damrah is slightly less off-point, although still ultimately
unpersuasive for our purposes. In that case, a number of videotapes
depicted relevant scenes from the early 1990s. 334 F. Supp. 2d 967,
984 (N.D. Ohio 2004). The Government had acquired these tapes in
1995 and “edited and spliced” them for purposes of trial. Id. There
was no testimony offered that spoke to either the creation of the
tapes

or

their

editing.

Id.

The

district

court

nevertheless

admitted the tapes. Id. In that case too, however, there did exist
some measure of authenticating evidence to suggest that the tapes
depicted what the Government asserted they depicted, including the
defendant’s own stipulation to the accuracy of Arabic-to-English
translations made of the tapes and the Government’s proffer of a
witness who testified to the identities of some of the individuals
shown in the video. Id. This may very well have been sufficient to
assure the trial court that “the tapes fairly and accurately
(although perhaps not completely) depict the events they purport to
30

depict.”

Id.

at

985.

Moreover,

despite

the

Sixth

Circuit’s

characterization of the trial court’s ruling as deeming the tapes
“self-authenticating,”21

we

note

that

the

trial

judge

–-

in

upholding his earlier, at-trial admission of the tapes –- relied
entirely on two decisions from the Second and Third Circuits -United States v. Goldin, 311 F.3d 191, 197 (3d Cir. 2002), and
Louis Vuitton S.A. v. Spencer Handbags Corp., 765 F.2d 966, 973-74
(2d Cir. 1985) -- neither of which stands for the proposition that
videos can ever be self-authenticating and both of which make clear
reference

to

the

authentication

testimony

proffered

at

their

respective trials.22

Moreover, to the extent that Damrah could colorably be used to
argue that, as a general matter, videotapes may be deemed self21

The Sixth Circuit appears to be quoting the trial judge
himself when it labels the video as “self-authenticating.”
Damrah, 412 F.3d at 628. It is likely that this terminology
stemmed from the trial judge’s usage of the term at the trial
itself, although no citation is provided. However, we note that
the trial judge carefully avoided describing the tapes as selfauthenticating in its subsequent decision on a motion for a new
trial that was premised, in part, on his earlier admission of the
tapes. See Damrah, 334 F. Supp. 2d at 984-85.
22

We note also that the Damrah panel referred to the trial
court ruling as not an “abuse of discretion”, reflecting the
assumption that the court was not compelled to admit such
evidence as self-authenticating. For reasons noted here, see
supra pp. 21-22, we found the proffered videotape to be too
problematic to be admitted without supporting testimony. See
infra pp. 32-33.
31

authenticating, we note that this proposition is inconsistent with
caselaw both in this Circuit and beyond. See supra pp. 25-28. See
also Linde v. Arab Bank, PLC, __ F. Supp. 3d __, __, 2015 WL
1565479, *42 (E.D.N.Y. April 8, 2015) (“Videos may be authenticated
‘on the same principles as still photographs.’”) (quoting Mikus v.
United States, 433 F.2d 719, 725 (2d Cir. 1970)). The exclusion of
such items from self-authentication is entirely justified in view
of the potential for unreliable or even seriously misleading
material being presented in this format. Accord United States v.
Ida, 1997 WL 122753, *2 (S.D.N.Y. March 18, 1997) (“In view of the
strong impact that [video] recorded evidence may have on juries .
. . the Second Circuit requires that the government produce clear
and

convincing

foundation

for

evidence
the

of

admission

authenticity
of

such

and

accuracy

recordings.”)

as

a

(internal

quotation omitted).23

The justification for the exclusion of these categories of
evidence from a rule of self-authentication is well-illustrated in

23

While the “clear and convincing” standard seems to apply
only in criminal cases, see, e.g., S.E.C. v. Badian, 822 F. Supp.
2d 352, 364 (S.D.N.Y. 2011), the requirement of authentication
applies in civil cases as well, under the less burdensome
requirement of providing authentication that is “sufficient to
support a finding” that the proffered evidence is what its
proponent asserts it to be. See, e.g., Ricketts v. City of
Hartford, 7 F.3d 1397, 1410 (2d Cir. 1996).
32

this case. As noted, the videotape, as offered, was in parts blurry
and often shot from what appears to have been a considerable
distance, leaving it unclear whether the subject was in all
instances in fact the plaintiff and what actions were being
portrayed. (See Ex. G to Blumenschein Decl.; Tr. 311). In addition,
the film was, as defendant’s counsel admitted, heavily edited by
his staff (Tr. 221-22), and there was no way -- in the absence of
testimony by the editor or someone else with personal knowledge -to determine how it had been edited and whether portions supportive
of plaintiff’s case had been deleted.24 Further, as noted, we were
not favored with any information as to the technology involved and
whether, given its nature, it lent itself to manipulation of the
product, much less whether such manipulation had actually been
employed.

Under the circumstances, we properly concluded that defendant
had failed to justify introduction of the tape. Indeed, to do
otherwise

would

have

been

grossly

24

unfair

to

plaintiff

and

Presumably, if defendant had produced the tape during the
discovery period -- which ended in the Spring of 2014 (or by the
latest as of July 1, 2014)(see Docket nos. 9 & 14) -- plaintiff’s
counsel could have undertaken the necessary inquiries. Defendant
chose, however, to delay disclosure (and, indeed, the creation of
the tape) until well after the end of that period. (See Sept. 9,
2014 letter from William J. Blumenschein, Esq. to Mark T.
Wietzke, Esq.).
33

potentially highly misleading to the jury.

In an effort to avoid this conclusion, defendant now asserts
that authentication could have been achieved if plaintiff himself
had been called to testify as to whether the video in fact was of
him and whether it accurately portrayed his activities on the days
in question. (Deft’s Mem. 20). Defendant further asserts that this
procedure was in fact utilized in one of the cases cited by
defendant’s trial attorney during colloquy. (Id. (referring to Tr.
224 (citing Hairston v. Metro-North Commuter R.R., 6 Misc.3d 399,
786 N.Y.S.2d 890 (Sup. Ct. N.Y. Cty. 2004))).

There are two short answers to this argument. First, defendant
misreads Hairston, which involved the introduction of a videotape
proffered by the plaintiff, to which defendant objected.25 The court
conducted a hearing at which the plaintiff testified as to the
accuracy of the tape, and on the basis of that testimony the court
allowed her to introduce it over defendant’s objection. Id. at 401,
786 N.Y.S.2d at 892. In short, this ruling makes plain that the
proponent of the videotape bears the burden of authenticating it,

25

The videotape had been made by defendant and turned over
to plaintiff in discovery. Apparently finding it favorable to her
case, plaintiff offered it at trial. 6 Misc.3d at 400, 786
N.Y.S.2d at 891-92.
34

which the plaintiff did in Hairston -- in contrast to our case, in
which defendant failed to do so.

Second, in our case defendant’s counsel was free to call
plaintiff as a witness to authenticate the videotape even though
Mr. Leo was not a proponent of the tape, but counsel never sought
to do so. Indeed, counsel made plain throughout our colloquy that
defendant viewed the videotape as self-authenticating, and that no
extrinsic evidence was required. Thus, plaintiff’s in limine motion
reflected the understanding that defendant was proposing to offer
the tape without testimonial support (In Limine Motion at 1, 4),
and yet defendant proceeded to argue that the tape was admissible
on that basis. (E.g., Tr. 221-22) (proposing that court simply
review the tape). Moreover, even after plaintiff’s attorney pointed
out that the plaintiff in Hairston had chosen to testify to support
her proffer of a videotape (see id. at 226 (plaintiff’s counsel
referring to Hairston as demonstrating “there’s got to be a body to
create a foundation; it doesn’t just come in”)), defendant’s
counsel never asked to call Mr. Leo. Indeed, after we had reviewed
the edited video, plaintiff’s counsel reiterated both the point
that “there’s no foundation being offered” and his objection. (Id.
at 308). In response, LIRR’s attorney did not disagree or suggest
that he was prepared to lay such a foundation. Rather, he simply
35

stated that “[w]hat counsel said is really irrelevant.” (Id.).
Finally, plaintiff’s lawyer reviewed some of the cases, “all of
which require testimony of some form, even basic foundation. I’m
not saying it requires a lot, but there does have to be something.”
(Id. at 309). Defendant’s attorney’s only response was to suggest
(inaccurately) that these cases were “referring to perhaps the
videos that are done in criminal matters. . . . But I don’t think
that’s appropriate here.” (Id. at 309-10).

In light of this crystal-clear record, when rendering our oral
ruling we articulated defendant’s position to be that it could
simply proffer the film without authenticating evidence of any
kind. (Id. at 311) (“Defendant proposes, in effect, to treat this
videotape as self-authenticating.”). Notably, although counsel
sought to reopen the argument, he did so on the same basis and did
not suggest that we had misunderstood his position. (Id. at 312).

Defendant now seeks to avoid the consequence of its trial
attorney’s quiescence on this point by noting that he had cited
Hairston during colloquy before our ruling, and that the Hairston
court

had

held

a

hearing

to

assess

admissibility,

with

the

plaintiff testifying. (See Deft’s Mem. 20, 22). Defendant thus
seems to imply that its attorney was subtly signaling that we
36

should hold such a hearing and compel plaintiff to testify. If this
is defendant’s current argument, it is seriously misguided. As the
transcript reflects, in referring to Hairston, defendant’s counsel
was arguing that there was no need for a videographer’s testimony,
and he cited Hairston -- and several other cases -- solely for that
proposition. (Tr. 224).26 The court did not dispute that point but
rather

relied

on

the

fact

that

defendant

was

taking

the

indefensible position that the videotape was admissible without any
authentication. Consistent with that posture, defendant’s lawyer
never asked to call plaintiff, and never so much as hinted that he
wished to do so.

At base, then, defendant appears implicitly to be arguing that
the court should sua sponte have called plaintiff to testify for
defendant on voir dire or should have made that suggestion to
defendant’s attorney. Plainly neither proposition is correct. The
court functions as a neutral arbiter, and it goes beyond its role
if it takes on the obligation of either counseling a litigant,
particularly one that is being represented by a presumptively

26

In any event, as noted, the plaintiff in Hairston was the
party seeking to introduce the videotape, and hence she testified
in support of her own application. 6 Misc.3d at 401, 786 N.Y.S.2d
at 892.
37

competent attorney, or advising that attorney.27

In sum, defendant’s motion for a new trial, insofar as it is
premised on the court’s evidentiary ruling, is denied.28

III. The Damages Awards

Defendant asks the court to require plaintiff to accept a
smaller

award

for

future

lost

earnings

and

future

pain

and

suffering (including emotional distress) or else face a new trial
on damages. (Deft’s Mem. 15-18). In assessing these challenges, we
apply the federal standard, which, as noted, asks whether the
jury’s award is so unreasonable in light of the evidence as to
“shock the judicial conscience and constitute a denial of justice.”
E.g., Turley, 774 F.3d at 162; Anderson v. Metro-North R.R. Co.,

27

We note that the court was fully aware at the time that
one option for defendant was to call plaintiff to testify, but
whether to do so was of course a matter for defendant’s attorney
to decide.
28

In view of the meritlessness of defendant’s evidentiary
argument, we need not decide whether the error that defendant
purports to discern was harmless. That said, given the substance
of the tape, if called upon to determine that question, we would
find that the tape would, in all likelihood, not have affected
the verdict since the actions that the tape portrayed were not
inconsistent with plaintiff’s own testimony as to his physical
limitations.
38

493 F. App’x 149, 151 (2d Cir. 2012).

Accord, e.g., Nairn, 837

F.2d at 567. We first address the award for future lost income.

A. Future Earnings

In assessing the verdict of $2,000,000.00 in future lost
income, we start by noting that the award seems plainly to have
been

premised

on

certain

fact-finding

by

the

jury.

The

justification for those findings -- which are implicit in the
amount awarded -- depends of course on the nature and extent of the
evidence before the jury. Since the jury’s verdict parallels the
calculations that plaintiff’s counsel proffered to the jury on
summation (Tr. 404-06; Ballaine Decl. Ex. I), we start with
plaintiff’s contentions at trial on this issue and the evidentiary
basis for them. We then determine whether the jury findings rest on
discernible errors in calculation or on factual assumptions that
are unsupportable in light of the evidentiary record.

Based on the current collective bargaining agreement (PX 12)
and the pay data from plaintiff’s personnel file (PX 27), plaintiff
calculated his weekly wages, with built-in periodic adjustments,
for the period starting at the time of trial and ending in 2040,

39

when he would have attained age 60. (See Ballaine Decl. Ex. I).29
He further assumed that, although he was an assistant signalman at
the time of the accident –- a position for which plaintiff would
only have been able to work for a limited number of years -- had he
not been injured, he would have been approved as a permanent
signalman at the end of his four-year probationary term, in about
April

2012.

(Tr.

174-75,

405-06).

Based

on

that

assumption,

plaintiff calculated his loss of future income -- not including
lost benefits30 -- as $2,014,212.54. (Id. at 405-06). We infer that
the jury adopted these postulates as the predicate for its $2
million verdict. Moreover, since the jurors were instructed to take
into consideration whether plaintiff could have mitigated his
damages

by

other

work

(id.

at

431-33),

we

infer

that

they

implicitly found that, with his damaged hand, his limited education
and background as a track worker doing heavy labor, as well as his
history of unsuccessful job searches post-accident, he was unlikely
to find other employment in the future to offset, in whole or in

29

The parties had agreed that the jury should be instructed
that plaintiff’s work-life expectancy was 25.7 years, and the
jury was so instructed. (Tr. 344-45; see id. at 435-36). That
span was consistent with plaintiff continuing to work until 2040.
30

Plaintiff eschewed an attempt to recover for such benefits
-- including pension and medical insurance -- since he did not
call an economist to testify as to the quantification of that
loss or otherwise proffer the evidence needed for such a
calculation. (See Tr. 406-07)
40

part, his loss of income from the railroad.

In challenging these implicit findings, defendant does not
quarrel with plaintiff’s calculation of what he would have earned
if he had remained in the railroad’s employ as a signalman until
age 60. It does argue, however, that the jury verdict founders on
several unsupportable findings.

Among

other

points,

defendant

asserts

that

the

evidence

strongly suggests that, even if not injured, Mr. Leo would not have
kept his job for very long, because of a 2010 conviction -- prior
to the accident -- for aggravated Driving While Impaired (“DWI”).
(Deft’s Mem. 17-18; see Tr. 175-78, 188-92, 231). According to
defendant, that conviction triggered the requirement that, for a
three-year period ending in 2013, an interlock device be placed on
any vehicle that plaintiff drove (Deft’s Mem. 17-18 & n.5 (citing
N.Y. Penal Law § 65.10(2)(k-1)), and a witness for the railroad -plaintiff’s supervisor, Mr. John Hanania -- testified on secondhand information that the railroad’s trucks did not have such a
device. (Tr. 230-31). Since plaintiff was assertedly required by
the LIRR to obtain a commercial driver’s license (“CDL”) by the end
of his fourth year of employment -- in Leo’s case, by April 2012 -so as to be able to operate those trucks, defendant asserts that he
41

would inevitably have been denied permanent employment status in or
about April 2012. (Deft’s Mem. 18).

Alternatively, defendant notes that the jury, by awarding the
full amount of plaintiff’s estimated future earnings as a signalman
(or lineman)31 till age 60, implicitly found that plaintiff in his
post-accident
substitute

condition

employment

would

with

likely

reasonable

not

be

able

efforts.

The

to

obtain

jury

was

instructed to take into account the expected results of such
mitigation efforts, and defendant contends that it improperly
failed to do so since the notion that plaintiff, who had a highschool degree and some college experience, could not find a job
over the next 25 years was too implausible. (Deft’s Mem. 17-18;
Deft’s Reply Mem. 7).

In addition, defendant observes that plaintiff’s calculation
of his undiminished earnings to age 60 did not take into account
income taxes, and accordingly, it says, the jury’s adoption of
plaintiff’s figure without modification was flawed. On that point,
defendant observes that the court instructed the jurors to award a

31

At trial, Mr. Hanania clarified that the railroad uses the
job titles of “signalman” and “lineman” interchangeably. (Tr.
228).
42

post-tax figure for lost earnings, and it asserts that they
apparently failed to do so. (Deft’s Mem. 16, 18; Deft’s Reply Mem.
7).

We address each of defendant’s arguments in turn,32 starting
with its contentions premised on plaintiff’s DWI conviction. There
is less to this than meets the eye.

Plaintiff advised the railroad of his 2006 arrest and the
subsequent conviction and sentence in March 2010. (Tr. 175-76, 18990). There is no dispute that in 2010 he was placed on probation
and that as part of his sentence he was authorized to hold a
conditional driver’s license that required him to have a so-called
interlock device placed on his personal car. (Id. at 174-77). There
is also no dispute that this license condition was to last for
three years -- presumably until March 2013. (Id. at 176). Testimony
by an LIRR representative -- Mr. Hanania -- established, also

32

We note that, in awarding future lost income, a jury or
the court is normally required to discount that total to present
value. See, e.g., Ramirez, 112 F.3d at 42-43. In this case,
however, at the charge conference defendant’s counsel waived any
discount, and the parties therefore stipulated that no discount
would be calculated. (Tr. 342-44). Accordingly, defendant does
not challenge the future-income verdict on the basis that it
represents an undiscounted total of projected future wage loss.

43

without

dispute,

that

for

an

assistant

signalman

to

achieve

permanent signalman status, he must acquire a CDL within four years
after he was initially hired -- in plaintiff’s case approximately
in April 2012 -- and that a failure to do so would normally trigger
termination. (Id. at 229; see id. at 174; PX 9).

From this congeries of evidence, defendant seems to argue that
plaintiff was not in a position to obtain the required CDL by the
end of the mandated four-year period or to drive LIRR trucks,
because those vehicles did not have an interlock device, and that
he would therefore have been terminated by approximately April
2012, some time before the expiration of the interlock license
condition. (Deft’s Mem. 17-18). This argument, which defendant’s
counsel pressed on summation (Tr. 366-68, 369), fails at several
places for purposes of its new-trial motion.

First,

although

defendant

asserts

that

the

condition

on

plaintiff’s license precluded his driving LIRR trucks without an
interlock device, the record does not compel that assertion.
Indeed, the only competent evidence about the nature of the license
condition came from plaintiff himself, and he explicitly testified

44

that the condition concerned only his own car. (Id. at 177).33
Whether that testimony was credible was for the jury to decide, and
in the absence of any contrary evidence the jurors’ presumed
decision to credit his testimony cannot be second-guessed on a newtrial motion.34

Second, although defendant seemed to imply that the presence
of the condition on plaintiff’s regular driver’s license would
preclude his obtaining a CDL, it offered no evidence of that

33

Neither party offered any documentation of the terms of
plaintiff’s sentence and licensure.
34

On defendant’s current motion, it cites N.Y. Penal Law §
65.10(2) (k-1) as support for its contention that during
plaintiff’s probation he was not allowed to drive any vehicle
without an interlock device. (Deft’s Mem. 17-18 n.5). At trial,
however, it never offered any evidence of that provision to the
jury and also did not request a jury instruction as to the fact
or significance of that provision.
Additionally, without wading deeply into a discussion of
this provision, we note that defendant quotes it for the
proposition that “the N.Y. Penal Law unambiguously provides that
a ‘functioning interlock device’ must be installed and maintained
‘in any vehicle owned or operated by the defendant.” (Deft’s Mem.
17-18 n.5 (quoting N.Y. Penal Law § 65.10(2)(k-1) (emphasis in
defendant’s brief)). Yet, despite defendant’s labeling of this
statute as unambiguous, defendant conveniently omits the secondhalf of the very sentence it quotes, namely, that the interlock
device be installed “in any vehicle owned or operated by the
defendant if the court in its discretion determines that such a
condition is necessary to ensure the public safety.” N.Y. Penal
Law § 65.10(2) (k-1) (emphasis added). Without any evidence about
the degree to which plaintiff’s sentencing judge exercised that
discretion, we are in no position to contradict plaintiff’s
account of his sentence.
45

asserted fact, much less evidence sufficient to preclude the jury
from finding otherwise.35 The only competent testimony was by
plaintiff, who insisted that he could have obtained a CDL. (Id. at
177, 190). In now pursuing the contrary argument, defendant cites
the testimony of Mr. Hanania, but all that he testified to was that
the LIRR required an assistant signalman to obtain a CDL for
promotion to signalman, and that LIRR trucks did not have an
interlock.36 (Id. at 229, 230-31). He did not testify that a driver
in plaintiff’s circumstance could not obtain a CDL, whether with or
without the condition of an interlock.

Third,

defendant

offered

no

evidence

suggesting

that

if

plaintiff could have obtained the required CDL but could not drive
the railroad’s trucks because of the interlock condition on his own
license, he would have been terminated. All that Mr. Hanania stated
was that a CDL was required at the end of four years of employment
as an assistant signalman, not that the employee had to be in a

35

At most, the jury might have found that if plaintiff
obtained a CDL before March 2013, it would have included the same
interlock condition, but defendant never proffered evidence to
support that assumption or explicitly argued it to the jury.
Rather it argued that plaintiff could not have obtained the CDL
in time. (E.g., Tr. 367-68).
36

It bears noting that Mr. Hanania admitted that he had no
personal knowledge as to whether the LIRR had an available
interlock device. (Tr. 230-31).
46

position at that time to drive LIRR trucks. (Id. at 229-30).
Indeed, the only evidence on this point came from plaintiff, who
testified that one could perform the required work of the signalman
without driving a truck since he could bid for a non-driving job
and other members of his group could do the driving. (Id. at 189).37
Again, the credibility of this testimony was for the jury to weigh,
and in the absence of specific testimony to the contrary, the
jurors were free to credit plaintiff’s version.

Fourth, even assuming that the LIRR did not possess an
interlock device at the time of trial -- an assertion that Mr.
Hanania offered based on his having seen an email from some
unidentified
evidence

person

that,

if

(id.

at

presented

230-31)
with

--

the

defendant

plight

of

offered
a

no

competent

assistant signalman at the end of his four-year term in plaintiff’s
circumstances (that is, able to obtain a CDL, albeit with a
condition of an interlock for a limited period of time beyond his

37

It also bears mentioning that plaintiff’s exhibit 9 –- the
“Job Specifications Form” promulgated by the LIRR for the
assistant signalman position –- states as follows: “Failure to
qualify as a Signalman within the four (4) year training program
will result in termination of employment. Qualification as a
Signalman requires at a minimum qualification as a mechanic
(signalman) via line test, obtain a CDL class “B” license, and be
an employee in good standing.” This stated list of minimum
requirements makes no mention of the specific need to drive the
truck.
47

four-year term as an assistant signalman) the railroad would have
been unable or unwilling to acquire the device for that time
period. Defendant also offered no evidence that in such a situation
the railroad would have been unwilling to delay the retention
decision for the limited time period until the license condition
expired. The jurors were free to weigh this lack of evidence by
defendant and reject the inference that the LIRR was inviting them
to draw -- that the interlock condition on the plaintiff’s drivers
license meant that plaintiff would automatically be terminated as
of April 2012.

Indeed, on the last point, plaintiff testified that, in his
experience, the four-year deadline to obtain a CDL could be
extended, implying that the railroad’s stated deadline was applied
more

flexibly

than

defendant

suggested.

(Id.

at

187-88).

In

plaintiff’s case the gap between his four-year deadline of April
2012 and the expiration of the license condition in March 2013 was
only eleven months, permitting the inference that the railroad
would have given him the necessary slack. Although the testimony of
Mr.

Hanania

could

be

read

as

suggesting

that

the

rule

was

inflexible, the jury was free to choose whom to credit on this
point. Moreover, the fact that the railroad retained plaintiff as
an assistant signalman for more than a year after his conviction
48

and sentence -- and until his injury -- despite being on notice of
the license condition imposed at sentence (see id. at 190), may
well have influenced the jury’s assessment of this particular
dispute.38

In sum, the jury’s implicit finding that, but for the injury,
plaintiff would have remained in the employ of the railroad until
age 60 was sufficiently grounded in the evidence to survive Rule 59
scrutiny.39

38

Defendant might counter that the requirement for a
licensed ability to drive trucks did not apply until the employee
had spent four years in its employ, and hence there was no reason
to terminate plaintiff early. Though it is evident that the
policy was to require a CDL only at the end of four years of
employment (Tr. 229), a jury might view that point as less than
decisive. The LIRR was apparently aware in 2010 (id. at 190) that
plaintiff had a three-year condition on his license that would -according to defendant’s assertion in this case -- unavoidably
preclude his obtaining a CDL within the four-year window, thus
ensuring that he would inevitably be terminated. If so, the
jurors might infer, the railroad would have had reason to drop
plaintiff early as an assistant signalman, since he would never
attain permanent status and his training period would be wasted.
Since the LIRR did not do so and apparently never communicated to
plaintiff that he was slated for such termination (id.), the
jurors might further reason that it was likely that plaintiff’s
supervisors had decided that his termination at the end of four
years was not inevitable and that the license requirement might
be delayed until the expiration of the interlock requirement
eleven months later, or otherwise finessed.
39

Defendant also alludes to the fact that on one occasion
plaintiff was suspended by his supervisor for disciplinary
reasons -- specifically on the basis that he had taken a day off
on the false pretense that he needed psychological treatment for
49

The more difficult question is posed by defendant’s second
challenge to the front-pay award. As noted, defendant observes that
the jury appears to have awarded a sum that rests on the assumption
that plaintiff will never be able to acquire employment that would
offset -- in whole or in part -- his lost income from the LIRR.
Defendant suggests that this finding is so unsupported by evidence
or common sense as to justify a substantial reduction in the $2
million award. (Deft’s Mem. 16-17; Deft’s Reply Mem. 7).

We start by noting the relative thinness of the record on this
topic. The evidence reflects an injury to plaintiff’s fingers on
his dominant hand that is permissibly viewed as permanent (see,
e.g., Tr. 93), and as significantly depleting the strength of his
right-hand grip (see, e.g., id. at 95), and precluding his doing
heavy labor, which is the scope of his work experience (see, e.g.,
id. at 137), both at the LIRR and before. Plaintiff’s education was
confined to high school and a few college courses (see, e.g., id.
at 136), and there is little or no evidence as to his potential job
skills for less demanding work. In addition, the jury had before it

his grief over the loss of a friend years before in the 9/11
disaster. (Tr. 241-42). That one sanction -- which apparently was
not even mentioned in plaintiff’s personnel file (id. at 242-44)
-- was subject to assessment by the jury, which could also take
into account the fact that the same supervisor testified that
plaintiff was otherwise an “average” employee. (Id. at 242).
50

testimony by plaintiff as to his efforts to obtain alternative work
-- focused on sales positions -- an account that was short on
details but did

mention the names of some of the companies that he

had

in

contacted

an

as-yet

unsuccessful

effort

to

find

a

replacement job. (Id. at 166-69). Finally, plaintiff offered his
account of his effort to obtain assistance from the railroad in
obtaining a position with it in less demanding roles (id. at 16566, 170-71), an effort that the jury was free to find would likely
be futile in view of the heavy demand for such jobs and the
conceded refusal of the railroad to offer its injured employees any
priority in obtaining one of them. (Id. at 299-300).

Missing from the trial record is any testimony by a vocational
expert (or anyone else) as to plaintiff’s residual capacities and
their match to existing jobs in the market (whether locally or in
Florida or anywhere else). Also absent was any clarifying testimony
as to whether plaintiff was continuing his job searches as of the
time of trial.

With that record before the jurors, we instructed them as to
the requirements for mitigation of damages, both past and future
(id. at 432-33), and they arrived at a verdict evidently premised
on the notion that reasonable job efforts would likely not result
51

in any alternative employment for plaintiff. As noted, defendant
contends that this finding was indefensible, because it either
ignored the mitigation requirement or else was unsupported by the
record. (Deft’s Mem. 16-17; Deft’s Reply Mem. 7). In response
plaintiff contends (1) that the verdict was defensible given the
record, which permitted the finding that no jobs would likely be
forthcoming, (2) that the jury may have permissibly found that the
award should include some additional amount for lost benefits -the fact, though not the value, of which was testified to by
plaintiff -- and (3) that the jury may have determined that
plaintiff would have worked past age 60 but for the injury and thus
measured lost wages for a longer time frame despite plaintiff’s
testimony that he planned to work only to age 60. (Pltff’s Mem. 45).40

Beyond this information, neither side offered any evidence as
to plaintiff’s job prospects. Thus defendant simply relies on the
notion that someone in plaintiff’s position, even with a weakened
dominant

right

hand,

limited

education,

and

job

experience

restricted to heavy labor, should be able at some point to obtain

40

Plaintiff also appears to suggest that the jury may have
accounted for wage increases not reflected in plaintiff’s
counsel’s chart of future earnings. (Pltff’s Mem. 4).
52

some form of employment, even if less remunerative than the
position that he lost as a result of the accident. Plaintiff, as
noted, emphasizes the broad discretion of the jury to assess future
job prospects and the failure of defendant to offer any evidence
that jobs that matched plaintiff’s reduced skills were available in
sufficient numbers to compel the inference that he likely would be
hired before age 60.

We are not persuaded by plaintiff’s argument that the jury
award may have encompassed the jurors’ estimate of the value of
fringe benefits lost by plaintiff. Plaintiff failed to proffer any
evidence of such value, and thus failed to carry his burden to show
this aspect of his damages with sufficient specificity. See, e.g.,
Boucher v. U.S. Suzuki Motor Corp., 73 F.3d 18, 22-23 (2d Cir.
1996) (citing Sales v. Republic of Uganda, 828 F. Supp. 1032, 1042
(S.D.N.Y. 1993); Gorrill v. Icelanair/Flugleidir, 761 F.2d 847, 855
(2d Cir. 1985). Compare, e.g., Stratton v. Dep’t for the Aging for
the City of New York, 132 F.3d 869, 882 (2d Cir. 1997); Okraynets
v.

Metropolitan

Transp.

Auth.,

555

F.

Supp.

2d

420,

444-49

(S.D.N.Y. 2008). Cf. Sharkey v. Lasmo, 214 F.3d 371, 376-77 (2d
Cir. 2000) (Holcomb, C.J., concurring in part). Thus we have no
reason to infer that the jury took a wild guess as to what that
number would be, and had it done so that verdict would likely have
53

been improper. At most, we may surmise that since the jurors heard
testimony that, if plaintiff had stayed in his job, he would have
had a pension and health insurance, they may fairly have been
willing to give him the benefit of any doubts as to the amount of
his lost future wages.

We also see no basis for plaintiff’s assertion that the jurors
may have done a calculation on the assumption that plaintiff would
have stayed in the job past 60 years of age. There was no basis for
such

an

assumption,

which

was

contrary

to

plaintiff’s

own

testimony. (Tr. 141). Moreover, the stated physical demands of the
job strongly suggested that it would have been difficult for
plaintiff, or any other employee in his position, to satisfy those
criteria past his projected age for retirement.

There still remains the question of whether it was defensible,
on the current record, for the jury to determine that plaintiff
would probably not be able to obtain alternative employment in the
future. The question is whether that finding was against the clear
weight of the evidence, with due consideration for the deference to
be shown jury findings. See, e.g. Elyse v. Bridgeside, 367 F. App’x
266, 268 (2d Cir. 2012); Slack v. Cnty. of Suffolk, 50 F. Supp. 3d
254, § II(A)(2) (S.D.N.Y. 2014).
54

At the outset, we note that while the plaintiff has the
obligation to mitigate his damages, the defendant bears the burden
“to demonstrate that the plaintiff could, with reasonable effort,
have so mitigated his damages.” Marasa v. Atlantic Sounding Co.,
557 F. App’x 14, 19 (2d Cir. 2014) (citing Jones v. Consolidated
Rail Corp., 800 F.2d 590, 593 (6th Cir. 1986)).41 Accord, e.g.,
Schneider v. Nat’l R.R. Passenger Corp., 987 F.2d 132, 136 (2d Cir.
1993); Morgan Stanley High Yield Sec., Inc. v. Seven Circle Gaming
Corp., 2003 WL 25835939, *2 (S.D.N.Y. Oct. 30, 2003). Although this
wording addresses past efforts by the plaintiff to seek substitute
employment, the same burden applies to evidence concerning the
plaintiff’s future job prospects. See, e.g., Harrington v. Atlantic
Sounding Co., 916 F. Supp. 2d 313, 326-27 (E.D.N.Y. 2013), aff’d
mem. sub nom. Marasa v. Atlantic Sounding Co., 557 F. App’x 14 (2d
Cir. 2014) (awarding undiminished future wages based on defendant’s
failure to meet its burden of showing available jobs that plaintiff
could

perform;

ruling

made

despite

defendant’s

proffer

of

vocational expert). Accord Russell v. Nat’l R.R. Passenger Corp.,
189 F.3d 590, 596 (7th Cir. 1999) (affirming FELA jury instructions
that placed the burden on defendant to show that future damages

41

Although Marasa involved a claim under the Jones Act, 46
U.S.C. § 50101 et seq., the circuit court applied precedent from
the FELA.
55

“might have been lessened by [plaintiff]”). Indeed, the rule that
an FELA defendant bears the burden on mitigation in the context of
both past and future pay was expressly confirmed by the Sixth
Circuit in Jones, 800 F.2d at 593-94, and the Second Circuit has
explicitly blessed that decision as “the governing legal standard
for the duty of mitigation of damages in FELA cases.” Schneider,
987 F.2d at 136.

The evidence in this case was plainly sufficient to permit the
jury to find that plaintiff had made reasonable efforts, under the
circumstances, to obtain alternate employment in the approximately
three years that had passed between his accident and the trial.
Indeed, defendant has not challenged the jurors’ finding regarding
past lost income, and we conclude, further, that the jury’s
implicit finding that suitable employment in the future is not
likely was also permitted by the evidence.

We start by noting that plaintiff testified that his job
experience prior to the accident involved not only the very heavy
exertional demands of the LIRR signalman position -- requiring that
he climb a pole up to 90 feet while holding as much as a 70-pound
weight in one hand (Tr. 158-59; PX 9 at p.2) -- but also equivalent
requirements for heavy lifting with both hands in his preceding job
56

with Cablevision (Tr. 167), and heavy lifting at his still earlier
job at Sea Coast Distributors, where he was involved in warehouse
work and delivery of maritime parts. (Id.). Indeed, he reported
that all of his prior work had involved using both hands to “lift
things”. (Id.).

The evidence also showed that as a result of his accident, he
was greatly limited in his ability to lift with his right hand, and
indeed that he was unable to lift significant weights even using
both hands. Thus the LIRR Healthcare Work Capacity Report, prepared
at the time that the LIRR separated him permanently from his
signalman job, reported a “poor right grip” due to “non functional
use of [his] third, fourth and fifth fingers” on his right, or
dominant, hand. (PX 26 p. 197 (Sept. 5, 2013 Work Capacity Report
signed by Mr. Freddy Ho)).42 Notably, in summarizing his ability to
lift, the assessor reported that plaintiff could lift from the
waist to the shoulder no more than 25 pounds, and only with two
hands together, and could use only his left hand for “overhead
activities” and opening train doors. (Id.). Indeed, the Human
Resources representative charged with dealing with plaintiff’s

42

Mr. Ho was a physical therapist in the LIRR Medical
Department and conducted the functional capacity examination of
plaintiff. (Tr. 297).
57

possible transfer to other LIRR jobs -- Mr. Geollorenzo -- conceded
that plaintiff was limited to lifting only ten to fifteen pounds
and had typing restrictions (Tr. 297-98), necessarily implying
other limitations on manipulative skills with his dominant hand.43

As for plaintiff’s efforts to obtain alternative employment,
he testified to having engaged in what he described as an intensive
search in the three years before trial for a job that would not
involve significant lifting. He mentioned a number of companies
that

he

had

contacted

for

sales-type

jobs

--

including,

as

examples, Geico, Sprint, Modells, P.C. Richards, and Barnes & Noble
-- and “every application I could fill out or look at on the
Internet.” (Id. at 168). As he reported, the places that he had
contacted, either on-line or in person, required typing skills,
presumably to input orders in a database, and because of his hand
problem he could not meet their requirements. (Id. at 167-69). In

43

In defendant’s motion, they suggest at one point that
plaintiff failed to obtain alternative work involving typing
because he had not bothered to learn the skill. (Deft’s Mem. 17)
(“[T]here is absolutely no reason to believe he cannot, through
modest effort, improve his typing speed the old-fashioned way -through practice.”). The evidence, however, suggested that
plaintiff’s shortfall in this respect was attributable to his
injury, not a disinclination to practice, and the jury was
certainly permitted to so interpret the evidence and to find that
his lack of finger strength was, as Dr. Pallotta testified, not
remediable.
58

the same vein, plaintiff also mentioned that, after moving to
Florida, he had lined up what he thought might be a viable job in
telemarketing sales, at an entity known as ACG, but he ultimately
was not hired because he could not meet the company’s typing
requirements. (Id. at 185). Notably, on cross-examination defendant
did

not

challenge

plaintiff’s

account

as

to

the

extent

and

intensity of his job-search effort.

The record also offered adequate evidence to permit a finding
by the jury that the LIRR was not a realistic source of other
employment for plaintiff. The LIRR Work Capacity Report listed, as
possible viable positions within the railroad, “travel information
clerk, usher and ticket clerk/agent.” (PX 26 p. 197 (Sept. 5, 2013
Work Capacity Report signed by Mr. Freddy Ho)). Plaintiff, however,
testified

that

he

had

communicated

with

the

Human

Resources

representative, Mr. Giallorenzo, who had mentioned these types of
jobs to him, but had never contacted plaintiff subsequently to
advise him of any available positions, although he had referred
plaintiff to the railroad website for listings. (Tr. 165-66; see
also id. at 291-92). Although there was a conflict between the two
men as to whether plaintiff ever sent his resume to Mr. Giallorenzo
(see id. at 292, 295) -- assertedly a prerequisite for any Human
Resources assistance despite the fact that plaintiff was already an
59

employee of the railroad -- the jury was free to credit plaintiff’s
version. Moreover, plaintiff testified without contradiction that
he never had any communications from Human Resources about job
openings, including openings for light work. (Id. at 163, 170-71).
In addition, Mr. Giallorenzo conceded that he was unaware of
whether, during the pertinent time, the types of jobs mentioned in
the LIRR report were actually posted on the website or the number
of such postings, if any, and, still more pointedly, he reported
that (a) the railroad received as many as 2,000 applications for
each posted job opening on the website and (b) does not give any
priority to injured LIRR employees, such as plaintiff, who are
looking to shift to less demanding positions. (Id. at 297-300). As
noted, this record fully justified the implicit finding of the jury
that

the

LIRR

was

not

a

meaningful

source

for

alternative

employment of plaintiff.

Defendant also did not proffer any evidence as to plaintiff’s
residual functional job capacities (other than the notation in the
capacity report about information and ticketing clerks) and did not
address -- whether by testimony of a vocational expert or in any
other form -- the availability of jobs that plaintiff had a
realistic chance to obtain, much less perform. On this record we
conclude that the jurors’ conclusion that plaintiff was not likely
60

to

obtain

employment

in

the

future

to

replace

in

whole

or

meaningful part the wages that he had lost as a result of the
accident was not contrary to the clear weight of the evidence. See,
e.g., Harrington, 916 F. Supp. 2d at 326-27.

In seeking remittitur on this issue, defendant suggests that
it is implausible that in the next 25 years plaintiff will be
unable to find substitute work. It then proffers the figure of
$700,000.00 as a defensible measure of future lost income, although
it offers no explanation of the basis for this sum. (Deft’s Mem.
18). We are not persuaded that this figure reflects the most that
the jury could reasonably award.

First, as noted, plaintiff’s entire work history required him
to perform physical functions that he apparently was no longer able
to do after his injury. (Tr. 158-59). Second, that physical
limitation appears to have precluded him from alternative, lowerexertion jobs that he had sought in the interim, because they
generally required manual dexterity that he no longer had. (Id. at
168). Third, the record does not reflect that plaintiff had the
education, training or experience for white-collar jobs that might
otherwise be available in the economy, and in any event the record
is entirely silent as to what categories of jobs might, as a
61

practical matter, be accessible to him, even assuming he were
retrained for them. Fourth, the jurors were presumably aware of the
fact that in recent years the American economy has experienced a
sharp reduction in jobs for workers with limited skills and
education, and an inability to perform heavy exertional work
activities, and that the overhang of large numbers of unemployed
workers in this category would make job acquisition still more
challenging.
America’s

See,

e.g.,

Workforce?,

Megan

McArdle,

BLOOMBERGVIEW

(March

What’s
25,

in

2015,

Store
8:00

for
AM),

http://www.bloombergview.com/articles/2015-03-25/what-s-in-storefor-america-s-workforce-; Susan Adams, New Report: 90 Million LowSkilled Workers to be Out of Work for Good, FORBES (June 20, 2012,
3:51

PM),

http://www.forbes.com/sites/susanadams/2012/06/20/

new-report-90-million-low-skilled-workers-to-be-out-of-work-for-g
ood/.44 Fifth, the jurors could well have relied in part on the fact
-- addressed with some frequency in the media -- that individuals
who are out of the work force for extended periods of time and do
not possess readily marketable skills are still less likely to

44

These broader vocational factors were not addressed in the
record, a failing that presumably must be attributed to
defendant’s failure to make a meaningful showing on the
mitigation issues that are part of its burden. In any event, the
jurors were properly instructed to use their “common sense” in
their deliberations (e.g., Tr. 416), and may be expected to call
upon their own experience and knowledge on these contexual facts
when assessing the persuasiveness of each side’s arguments.
62

obtain new employment in a national job market that remains quite
weak. See, e.g., Angelo Young, Despite Falling US Unemployment,
Numbers of Long-Term Unemployed and Those Who’ve Given Up on Work
Remain

High,

INT’L

BUSINESS

TIMES

(Jan.

9,

2015,

3:30

PM),

http://www.ibtimes.com/despite-falling-us-unemployment-numbers-lo
ng-term-unemployed-those-whove-given-work-1778990; Don Lee, Longterm unemployment still at record levels, LA TIMES (Sept. 10, 2014,
5 : 0 0

A M ) ,

h t t p : / / w w w . l a t i m e s . c o m /

business/la-fi-longterm-jobless-20140910-story.html#page=1;

Alan

Krueger, Judd Cramer & David Cho, Are the Long-Term Unemployed on
the

Margins

of

the

Labor

Market?,

BROOKINGS

(Spring

2014),

http://www.brookings.edu/about/projects/bpea/papers/2014/are-long
term-unemployed-margins-labor-market. See also Joe Weisenthal, The
Massive Difference in Unemployment Between Those Who Do and Don’t
Have a College Degree, BUSINESS INSIDER (June 8, 2013, 6:50 AM),
http://www.businessinsider.com/college-vs-no-college-unemployment
-rates-2013-6. Sixth, the jurors observed plaintiff testifying at
trial, and were free to make their own assessment as to how
compelling a job candidate he would likely be in a competitive job
market for which he notably lacked key skills. Depending on their
sense of how he would present in a job interview -- assuming he got
that far -- they might well have viewed him as less likely to
impress than others with whom he would have been competing for a
63

limited number of jobs involving at least some skill requirements.45

In sum, notwithstanding the fact that, even with a very skimpy
trial record, a perfectly plausible argument could have been made
that, with reasonable efforts, plaintiff would be likely to obtain
some sort of job at some level of compensation, the jurors could
permissibly have found -- as they apparently did -- that it was
more likely that plaintiff would fail in such a continued job
search. See, e.g., Harrington, 916 F. Supp. 2d at 326-27 (defendant
presented testimony of vocational expert; court nonetheless awarded
seaman undiminished future wages for expected work-life based on
inability to return to old job and lack of proof by defendant of
skills for less demanding and available work).46

45

The jurors may also have been sensitive to the apparent
fact that job applicants with disabilities may be viewed as less
competent irrespective of whether their disabilities objectively
limit their ability to perform job-related functions. See Eva
Louvet, Social judgment toward job applicants with disabilities:
Perception of personal qualities and competencies, Rehabilitation
Psychology 52(3) (2007), http://psycnet.apa.org/journals/
rep/52/3/297/.
46

It bears mention that the court in Harrington/Marasa
awarded plaintiff his undiminished future wage loss even though
defendant demonstrated the availability of light work in
plaintiff’s geographic area and the mean salary for those jobs,
and even though plaintiff had made no effort to secure
alternative employment. The court based its award on plaintiff’s
back injury, though it had been improved by surgery, and -- with
respect to the proffered job category of Information and Records
Clerk -- the fact that “plaintiff ha[d] no computer skills”. 916
64

There remains one item to be addressed in connection with this
award. As defendant notes, the jury, though instructed to award a
post-tax amount (Tr. 432), appears not to have done so. Instead,
the jurors adopted plaintiff’s calculation of his expected pretax
wages. (Compare Tr. 405-06 with Tr. 447). In resisting defendant’s
argument, plaintiff notes that defendant offered no evidence as to
tax rates, implying that as a result the award should not be
altered to account for this omission. (Pltff’s Mem. 5).

Plaintiff

does

not

directly

argue

that

the

absence

of

specification to the jury of current applicable tax rates would
necessarily preclude the jurors from estimating a figure for income
taxes on annual wages of approximately $75,000.00.47 It appears that
the jury simply failed to take this step, and since the measurement
of this deduction is subject to ready, if approximate, calculation,

F. Supp. 2d at 327. Although Harrington was 52 at the time -substantially older than Leo, who is now 34 -- it was his
physical limitations and the absence of proof that he could meet
the job requirements proffered by the vocational expert that
formed the basis for the award. Here, of course, defendant has
failed even to attempt to make such a vocational showing.
47

As plaintiff observes, the total amount awarded by the
jury, based on a 25.7 year work-span, amounts to an average of
$77,821.00 per year. (Pltff’s Mem. 4).
65

we undertake that calculation here.48 Accord Johnson v. Union
Pacific R. Co., 2007 WL 2914886, *5 (D. Neb. Oct. 4, 2007) (“A
prevailing FELA plaintiff is entitled to recover his after-tax
income losses.”); Prater v. Consol. Rail Corp., 272 F. Supp. 2d
706, 716 (N.D. Ohio July 16, 2003) (“[T]he jury must compute
plaintiff’s lost wages on an after-, rather than a pre-tax basis.)
(citing Norfolk & W. Ry. Co. v. Liepelt, 444 U.S. 490, 493 (1980)).

In doing so we recognize that even if the jury had been given
a set of current tax rates, their application to future earnings
would embody some degree of speculation since of course tax rates
do change, as do circumstances -- such as marital status -- that
might affect the rates that the plaintiff would have to pay in the
future. In any event, application of current federal and New York
State rates to the plaintiff’s estimated annual income reflects
approximately $14,500.00 in federal taxes and about $4,500.00 in
New York State taxes, or a rate of slightly more than 25 percent.
See

http://www.irs.gov/irb/2014-47_IRB/ar14.html

2014-47

(Nov.

17,

current_forms/it/it2105i.pdf

2014);

No.

www.tax.ny.gov/pdf/

(Instructions

48

(Bulletin

for

Form

IT-2105)

Since defendant does not challenge the jury verdict
awarding past lost income, we do not pursue the issue with regard
to that award, and instead focus solely on the amount awardable
for projected future lost income.
66

(2015). An adjustment of 25 percent yields a reduced future
economic-damage award of $1.5 million, which we will include in a
proposed remittitur.

B. Future Pain, Suffering & Emotional Distress

Defendant also challenges the jury’s award of $900,000.00 for
pain

and

suffering,

specifically

in

the

form

of

emotional

distress.49 (Deft’s Mem. 15-16; Deft’s Reply Mem. 4-6). Citing
various federal and state-court decisions that reduced pain-andsuffering awards, the LIRR argues that a new trial would be
appropriate unless plaintiff accepts a reduced award of not more
than $200,000.00. (Deft’s Mem. 16). In opposition, plaintiff cites
a

number

of

cases

resulting

in

far

more

generous

awards

or

settlements for arguably similar injuries, although none involved
motions to reduce a trial award. (Pltff’s Mem. 6-8).

The court’s review of a jury’s compensatory damage award for
excessiveness is “narrow”, and it may set aside such an award “only
whe[n] the award is so high as to shock the judicial conscience and

49

The award for future non-economic damages was limited to
emotional distress because there was no dispute that plaintiff
was not suffering any pain from his injury. (See Tr. 433).
67

constitute a denial of justice.” Turley, 774 F.3d at 162 (quoting
DiSorbo v. Hoy, 343 F.3d 172, 183 (2d Cir. 2003)). Accord, e.g.,
Nairn, 837 F.2d at 566-67 (quoting Batchkowsky v. Penn Central Co.,
525 F.2d 1121, 1125 (2d Cir. 1975)); Dilger v. Consol. Rail Corp.,
133 F.3d 906, 1997 WL 829251, *1 (2d Cir. Oct. 31, 1997). This
standard is more deferential to the jury’s findings than is the
state-law criterion embodied in C.P.L.R. § 5501(c), which requires
the court to look to whether the award “deviates materially from
what would be reasonable compensation.” See, e.g., Stampf, 761 F.3d
at 207 (discussing Wallace v. Suffolk Cty. Police Dep’t, 2010 WL
3835882 (E.D.N.Y. Sept. 24, 2010)). See also Dershowitz v. United
States, 2015 WL 1573321, *37 (S.D.N.Y. April 8, 2015); Bakalor v.
J.B. Hunt Transp., Inc., 2013 WL 3185546, *3 (S.D.N.Y. June 24,
2013); Okraynets, 555 F. Supp. 2d at 434-35. Nonetheless, as is the
case under section 5501(c), courts applying the federal standard
“have found it useful to review awards in other cases involving
similar injuries,” but in doing so the court must “bear[] in mind
that any given judgment depends on a unique set of facts and
circumstances.” Nairn, 837 F.2d at 568 (citing cases). As recently
explained by the Second Circuit, while recognizing that “[a]wards
for mental and emotional distress are inherently speculative[,] .
. . a legal system has an obligation to ensure that such awards for
intangibles be fair, reasonable, predictable, and proportionate.”
68

Turley, 774 F.3d at 162 (quoting Payne v. Jones, 711 F.3d 85, 93
(2d Cir. 2012)).

As we understand the evidentiary premises for the award of
future

non-economic

damages

to

Mr.

Leo,

they

involve

three

principal circumstances. First, plaintiff must live permanently
with a somewhat weakened dominant hand. This in itself will be the
source of some emotional discomfort, although it does not involve
physical pain. In addition, plaintiff’s hand weakness imposes some
modest limits on his engaging in certain recreational activities
and in his interaction with others. Second, this condition was
found by the jury to have deprived plaintiff of his career as an
employee of the railroad and of his prospects for future meaningful
alternative employment, with attendant financial worries. Third,
and perhaps more importantly, his injury has led to a loss of
independence from his parents and deprivation of the satisfaction
that comes from a fulfilling job.

In this case the plaintiff seeks to justify the jury’s award
for

these

injuries

by

citing

five

cases

in

which

awards

or

settlements were made, in part, for future pain and suffering, with
the totals ranging from $450,000.00 to $1.4 million. (Pltff’s Mem.
7).

None

is

persuasive

as

a
69

comparator

to

plaintiff’s

circumstances, which involve no future pain and no notable outward
signs of major emotional distress or dysfunction.

In Cruz v. Bay Plaza Cmty. Ctr., 2007 WL 4863936 (Sup. Ct. Bx.
Cty. Nov. 6, 2007), the parties settled for a total of $850,000.00.
The fact that this was a settlement diminishes to the vanishing
point its relevance here, since it provides no guidance as to what
a jury would have done had the matter been presented to it, much
less what a court would have done if the jury had rendered a
verdict for the agreed-upon sum. Still more pointed is the fact
that the cited report does not offer any breakdown as to how much
of the total was attributed to future pain and suffering as
distinguished from past pain and suffering.50 Further, the injuries
and

resulting

particularly

treatment,

serious

in

as

described

terms

of

in

the

producing

report,

physical

appear

pain

in

addition to mental distress. The plaintiff was apparently stabbed,
suffered “extensive bleeding”, and lacerations of both his medial
and ulnar nerves, and underwent what are described as multiple
unsuccessful “exploratory surgeries” in attempts to correct his
contracture of the hand and nerve damage. Id.

50

It appears that plaintiff did not seek recovery for
economic injuries. Cruz, 2007 WL 4863936.
70

Plaintiff’s citation of McGuire v. New York State Urban Dev.
Corp., 2008 WL 5119873 (Sup. Ct. Queens Cnty. Sept. 15, 2008), is
also unhelpful. It too involved a settlement, which, as noted,
offers

little

or

no

guidance

as

to

the

extent

of

a

jury’s

discretion in awarding damages for future emotional distress. As
for the settlement amount -- which totaled $1.4 million –- the
cited report offers no breakdown of the amount attributable to
future pain and suffering as distinguished from past pain and
suffering and from economic losses, for which the plaintiff was
also seeking recovery. Id. In any event, the injuries suffered by
the plaintiff, occasioned by a construction-site accident, involved
a partial amputation of two fingers, followed by four additional
surgeries “for amputation revisions”. Id.
appear

far

more

painful

and

traumatic

These circumstances
than

Leo’s,

thus

substantially inflating McGuire’s settlement recovery above what
plaintiff here could legitimately expect.

The remaining three cases cited by plaintiff at least involve
state-court jury awards, although in two there is no indication
that the courts were called upon to address challenges to their
size.51 See Ford v. Cnty. of Suffolk, 2009 WL 6325746 (Sup. Ct.

51

Defendant appears to suggest that jury awards that are not
subjected to an excessiveness challenge are meaningless for
71

Suffolk Cty. Oct. 5, 2009); Mucciarone v. Tammaro, 2007 WL 1830219
(Sup. Ct. Nassau Cnty. May 21, 2007); Keefe v. E&D Specialty
Stands, Inc., 16 NY. J.V.R.A. 7:C3 (Sup. Ct. Erie Cnty. May 24,
1999), aff’d, 272 A.D.2d 949, 708 N.Y.S.2d 214 (4th Dep’t 2000).
Nonetheless, they offer no meaningful support for plaintiff’s
defense of the challenged jury verdict.

In Ford, the jury awarded $450,000.00 for pain and suffering,
but the cited report does not break down the amount from this total
that is attributable to future, as compared to past, pain and
suffering. Moreover, the injuries, as described, seemingly involved
a great deal more physical pain than appears to have been suffered
by Leo, as well as more extensive permanent physical deficits. The
plaintiff suffered a fractured clavicle as well as neck pain –- the
fracture healed badly, causing injury to plaintiff’s brachial
plexus (the presumed link that triggered counsel’s citation of this
case) -- plus continuing pain and a 50-percent decrease in the

present analytical purposes. (Deft’s Reply Mem. 4-5). We
disagree, since a pattern of unchallenged jury awards would offer
a general framework for assessing whether the current verdict is
so outside the norm as to justify a remittitur. Indeed,
consistent with that point, defendant cites several decisions
that upheld jury awards as not excessive. (E.g., Deft’s Mem. 13
(citing D’Amato v. Long Island R.R. Co., 874 F. Supp. 57
(E.D.N.Y. 1995); Clark v. Burlington N., Inc., 726 F.2d 448 (8th
Cir. 1984)).
72

range of motion of the plaintiff’s arm as well as decreased arm and
hand strength. 2009 WL 6325746.

The next cited case, Mucciaroni, involved a total award of
$1.04 million to a couple for injuries sustained by the wife in an
automobile

accident.

The

cited

report

does

not

explain

the

allocation between past and future pain and suffering, and the
facts cited make clear that the total was inflated by circumstances
not present in Leo’s case. The wife was trapped in the car for some
time and had to be cut out from it. She sustained serious back
injuries, with a herniated disk impinging on the spinal cord and
causing continuing pain, permanent neck immobility, headaches and
carpal-tunnel syndrome in her dominant wrist, along with numbness
and a weakened grip, together with a likelihood of future surgery
and

the

frightening

potential

for

sudden

paralysis.

2007

WL

1830219. These factors put this case in an entirely different
category from plaintiff’s.52

The last case that plaintiff cites, Keefe, involved a jury
award of more than $2.7 million under the New York Labor Law, of

52

In addition, we note that the husband had asserted a claim
for loss of consortium, Mucciaroni, 2007 WL 1830219, and the
cited report offers no insight as to what portion of the award
was attributable to that claim.
73

which $1 million was attributable to future pain and suffering. The
plaintiff’s injuries were far more serious and productive of
permanent pain and other continuing major physical discomfort than
was Leo’s. Keefe fell through an opening in a work platform,
causing the transection of the ulnar nerve, as his arm was skewered
by a “protruding steel member”. 16 NY. J.V.R.A. 7:C3. As a result,
he underwent a failed surgery to repair the damage, and then two
tendon

transplant

transplants

procedures.

alleviated

the

Id.

initial

Moreover,
clawing

of

although
the

those

hand,

the

plaintiff was suffering from permanent numbness in the outer part
of his hand and permanent significant pain in the arm and hand as
well as permanent atrophy and weakness in the arm. Plaintiff also
presented a more substantial case than Leo that these conditions
meaningfully interfered with his ability to interact with others,
notably his young children. Id.

Defendant

also

makes

an

effort

to

unearth

sufficiently

comparable cases, in which the court passed upon a challenge to the
verdict for pain and suffering. (See Deft’s Mem. 13-15). Although
none is directly comparable -- most involving conditions likely to
cause permanent pain and in some cases significant disfigurement53

53

See Deft’s Mem. 12-13 (citing Robinson v. New York City
Dep’t of Educ., 94 A.D.3d 428, 941 N.Y.S.2d 123 (1st Dep’t 2012);
74

-- and a few are many decades old54, they do underscore the fact
that some state and federal courts have been fairly restrictive in
their assessment of such awards.55 What they do not show is a
pattern of awards for pure non-economic injury that involves
predominantly or exclusively emotional distress.

That said, we have examined other court decisions for an
insight as to governing standards, and they suggest that the
$900,000.00 award is excessive. We start with a case that defendant
cites (see Deft’s Mem. 12-13) -- Carney v. Inter-Continental Hotels
Corp., 1998 WL 474209 (S.D.N.Y. Aug. 13, 1998) -- in which the
court reduced a future-economic-loss award, but also addressed the
jury’s award of pain and suffering (past and future) for a worker

Biejanov v. Guttman, 34 A.D.3d 710, 826 N.Y.S.2d 111 (2d Dep’t
2006)).
54

See Deft’s Mem. 13 (citing Prata v. Nat’l R.R. Passenger
Corp., 70 A.D.2d 114, 420 N.Y.S.2d 276 (1st Dep’t 1979); Crandall
v. St. Mary’s Hosp. of Troy, 13 A.D.2d 595, 212 N.Y.S.2d 189 (3d
Dep’t 1961); Mracheck v. Sunshine Biscuit, 283 A.D. 105, 126
N.Y.S.2d 383 (1st Dep’t 1953)). Defendant does calculate the
amount of the awards in Crandall and Mracheck in current dollars
(see Deft’s Mem. 13 n.2), although the large time gap leaves room
for changing standards as to how much money is reasonable as
compensation for such injuries.
55

We note that reliance on state-court decisions imposing
remittitur may tend to overstate the stringency of judicial
review for our purposes because, as noted, the New York standard
for remittitur is less deferential to jury verdicts than is the
federal criterion, which applies in this case. See pp. 67-68.
75

who had lost a portion of his right index finger, below the second
joint, and was awarded $200,000.00 for “past injury, pain, and
suffering”

and

$400,000.00

for

“future

injury,

pain,

and

suffering.” Id. at *1. The court upheld both awards under New
York’s section 5501(c) test, and in doing so it cited for support
a number of New York cases, one of which is at least modestly
instructive here. Id. at *1-2.

In Taylor v City of New York, 150 Misc.2d 528, 530, 576
N.Y.S.2d 974, 976 (Sup. Ct. App. Term 1991), a so-called slip-andfall

case,

the

court

addressed,

among

other

issues,

the

justification for an award of $800,000.00 for “serious injury to
[plaintiff’s] hand.” As described by the court, plaintiff was a 25year-old mother of two. Taylor, 150 Misc.2d at 531, 576 N.Y.S.2d at
977.

As a result of the accident, she lost the use of the three

middle fingers of her dominant hand. Id. This resulted from the
severing of two tendons and damage to a third, with consequent
nerve damage. Id. In consequence, the middle finger was bent
towards the palm, the other two fingers showed a less evident
bending, and plaintiff had lost 80 percent of her strength in
carrying

objects

with

that

hand

and

in

performing

fine

manipulations, including typing. Taylor, 150 Misc.2d at 531-32, 576
N.Y.S.2d at 977. She was left with some pain in a residual scar,
76

and a tingling sensation in the affected fingers. Id. The appellate
panel upheld the jury award “in view of the young age of the
plaintiff and the seriousness of the injuries.” Id.

This reported decision does not indicate the breakdown between
past and future non-economic damages.56 Moreover, as the opinion
makes

clear,

the

plaintiff

was

suffering

permanent

pain

and

physical discomfort from the tingling sensation. Furthermore, there
is no indication as to how the court might have valued damages
based mainly or exclusively on emotional distress -- the relevant
concern here -- although we may infer that such distress was one
element of the circumstances that led to the award.

To similar effect is another decision cited in Carney, namely,
Mirand v. City of New York, 190 A.D.2d 282, 598 N.Y.S.2d 464 (1st
Dep’t 1993). In that case one of the two plaintiffs was stabbed in
the wrist, leading to immediate hospitalization and surgery, with
a hospital stay of seven days, and subsequent physical therapy.
Mirand, 190 A.D.2d at 285, 598 N.Y.S.2d at 467. The victim was left
at that point with a somewhat crooked wrist and two hanging

56

The accident occurred in 1985, six years before the
appellate decision, Taylor, 150 Misc.2d at 531-32, 576 N.Y.S.2d
at 977, thus suggesting that a significant portion of the award
was for past pain and suffering.
77

fingers, with some numbness. Id. Plastic surgery followed, leaving
one finger somewhat hanging, some scarring, limitation in the
plaintiff’s ability to grasp with the hand and occasional pain if
the hand was bumped or the weather was cold. Mirand, 190 A.D.2d at
285-86, 598 N.Y.S.2d at 467. In addition she was no longer able to
Mirand, 190 A.D.2d at 286, 598 N.Y.S.2d at 467. On this

type.
record,

the

appellate

court

upheld

an

award

of

$750,000.00,

apparently for non-economic injuries, both past and future. Mirand,
190 A.D.2d at 285-86, 291, 598 N.Y.S.2d at 467, 470-71. Again, a
substantial portion of the award is undoubtedly attributable to
past pain and suffering -- the appellate decision was issued eleven
years after the incident -- and much of it is undoubtedly addressed
to plaintiff’s pain rather than simply emotional distress.

The two more recent cases cited by defendant also involve
principally damage to hands and arms, with reduced awards ranging
from

$175,000.00

to

$350,000.00.

(Deft’s

Mem.

at

12

(citing

Robinson v. New York City Dep’t of Educ., 94 A.D.3d 428, 941
N.Y.S.2d 123 (1st Dep’t 2012); Biejanov v. Guttman, 34 A.D.3d 710,
826 N.Y.S.2d 111 (2d Dep’t 2006)). These cases are also modestly
helpful in seeking a range in which a jury may operate for such
injuries, although they have limited probative weight since (a)
they concern predominantly physical problems rather than emotional
78

distress, (b) they do not address the circumstance of an adult who
has lost the ability to perform vocationally in his field of
experience and faces the prospect of long-term joblessness and (c)
they are state-court cases applying section 5501(c), which, as
noted, is less respectful of jury decisions than the federal
standard, which we must apply here.

For further guidance we look to federal cases assessing claims
for emotional distress. Many of these cases involve the impact of
misconduct by employers or fellow employees, and the amounts that
the courts have permitted for emotional or psychological injury
vary significantly depending on whether the plaintiff suffered
meaningful psychological damage, as distinguished from the normal
depressive fallout from one or a series of distressing events at
the workplace. Compare, e.g., Turley, 774 F.3d at 162-63 (upholding
award in excess of $1 million for past and future emotional
distress based on proof of “years of grotesque psychological abuse
leading to a marked decline in Turley’s mental health and wellbeing”, including hospitalization and diagnosis of “post-traumatic
stress disorder, depression and panic disorder”) (citing Zeno v.
Pine Plains Cent. Sch. Dist., 702 F.3d 655 (2d Cir. 2012)), with
Stampf, 761 F.3d at 208, 210 (reducing remittited award for past
mental and emotional distress to $100,00.00 and award of future
79

emotional distress to $20,000.00, based on false arrest on the job;
reduction

ordered

despite

continuing

distress

at

evidence

working

in

of

the

public
same

humiliation,

place

as

fellow

employees who witnessed the arrest, and resultant alcohol abuse and
inter-personal relationship difficulties).

A similar approach seems to be common in cases involving the
loss of stable employment, a circumstance present here. Thus, in
Ramirez v. Off-Track Betting Corp., 1996 WL 210001 (S.D.N.Y. April
30, 1996), aff’d in relevant part, 112 F.3d 38 (2d Cir. 1997), a
case

involving

a

plaintiff

who

lost

his

OTB

job

in

unfair

administrative proceedings, the court granted a remittitur of the
award for emotional distress (past and future) from $1,145,625.00
to $500,000.00 but declined to reduce it further, citing evidence
of “extreme psychological harm”. Id. at *6-7 (citing cases). In so
doing, the court made plain that, absent such evidence of serious
psychiatric issues related to plaintiff’s loss of his job, it would
have awarded considerably less. Id. at *7 (“An award of this amount
would not be appropriate for emotional damages . . . except in the
most unusual circumstance.”). Thus, in justifying the reduced
award, it noted that plaintiff “was incapacitated completely for a
time and will continuously be threatened with instability in the
future.” Id. As the court observed: “Ramirez’s job at the OTB
80

tethered him to a stable existence: the job provided him not only
with the ability to obtain the monetary means and health benefits
necessary to seek treatment, but also, on a more abstract level, it
gave him the link with mainstream society that kept him a stable
and productive person.” Id. The Court of Appeals then affirmed this
aspect of the judgment. See Ramirez, 112 F.3d at 41.

This result was explicitly premised on the fact that the
plaintiff was an already psychologically damaged individual, whose
pre–existing fragility resulted in his going into an irremediable
tailspin when he lost his job. See Ramirez, 1996 WL 210001 at *6
n.3 (describing testimony of plaintiff’s psychiatrist to the effect
that after job loss “plaintiff was ‘unable to function’ and ‘never
got better”). Absent such serious injury, awards for emotional
distress are likely to be more in the range found in Stampf. See
generally MacMillan v. Millenium Broadway Hotel, 873 F. Supp. 2d
546, 559-63 (S.D.N.Y. 2012) (citing cases); Thorsen v. Cnty. of
Nassau, 722 F. Supp. 2d 277, 291-95 (E.D.N.Y. 2010) (citing cases);
Bick v. City of New York, 1998 WL 190283, *25-27 (S.D.N.Y. April
21, 1998) (citing cases).

In our case plaintiff proffered no evidence of any current
emotional dysfunction. Rather, he testified to what could fairly be
81

said to be some sadness and frustration at his plight -- an
understandable reaction (see, e.g., Tr. 171-72), and one likely to
be

prolonged

in

the

absence

of

a

significant

change

in

circumstances. He lost his job and his ability to perform in other
work that is within the range of his training, experience and now
limited physical abilities, and, according to the jury, he may well
not find comparable work again. This prolonged period of likely
enforced limitations on his professional life surely justified more
than so-called garden-variety damages.57 Nonetheless, it equally
does not justify an award of close to $1 million, as reflected in
the jury verdict. Moreover, this is particularly true since, for
reasons already discussed, plaintiff will be entitled to a very
substantial award for anticipated lost income, thus relieving at
least some of the strands of circumstances that would contribute to
future emotional distress -- notably, his loss of independence from

57

“Emotional distress awards within the Second Circuit can
generally be grouped into three categories of claims: gardenvariety, significant and egregious.” Olsen v. Cnty. of Nassau,
615 F. Supp. 2d 35, 46 (E.D.N.Y. 2009) (internal quotations
omitted). Accord Stampf, 761 F.3d at 206-07; MacMillan, 873 F.
Supp. 2d at 560. Garden variety claims “generally merit $30,000
to $125,000 awards,” MacMillan, 873 F. Supp. 2d at 561 (citing
cases including, inter alia, Lore v. City of Syracuse, 670 F.3d
127, 177 (2d Cir. 2012)), while “courts in this Circuit . . .
have routinely found that awards ranging from $100,000 to
$500,000 are not excessive for significant emotional distress
damages.” Thorsen, 722 F. Supp. 2d at 293. “Egregious” injuries
presumably may justify substantially greater sums. See, e.g.,
Turley, 774 F.3d at 163; Olson, 615, F. Supp. 2d at 47.
82

his parents and anxiety about his financial status generally.

Under these circumstances, we conclude that the limit of a
defensible award for future non-economic damages is, as defendant
suggests, a total of $200,000.00. This figure reflects, in part,
the fact that plaintiff did not exhibit obvious emotional distress.
Nonetheless, given his testimony and the length of time over which
his physical disability and its impact on his life may affect him,
we find that he has made a case for which a jury could have
reasonably

discerned

something

more

than

garden-variety

non-

economic injury -- which defendant itself seems to acknowledge by
proposing the $200,000 figure in its motion. (See Deft’s Mem. 16).

In arriving at this figure, we emphasize, as the Second
Circuit has noted, that “[a]wards for mental and emotional distress
are inherently speculative. There is no objective way to assign any
particular dollar value to distress.” Turley, 774 F.3d at 162.
Attempting to discern a clear pattern from other cases in which the
key circumstances driving a decision by a jury or judge -- whether
obvious or subtle -- are likely to differ in a host of ways, only
adds to the impressionistic nature of the Rule 59 process in this
regard.

Moreover,

we

note

that

some

individuals,

because

of

personality, may appear more outwardly emotionally stable, even as
83

they suffer internally and perhaps stoically, a circumstance that
may tend to limit their recoverable damages. To some extent that
may be a factor in this case, in which plaintiff never evinced a
great

deal

of

observable

distress,

although

his

objective

circumstances in all likelihood generated more emotion (even if
suppressed) than was indicated by outward appearances. All of that
said, our best judgment is that the pattern of decisions on
emotional distress awards in a variety of settings dictates the
limitations on recovery that we have described for this category of
damages.

CONCLUSION

For the reasons stated, defendant’s motion for a new trial is
granted in part and denied in part. We direct that a new trial on
damages be conducted unless plaintiff agrees to entry of a judgment
for (1) $189,122.64 in past economic damages, (2) $1.5 million in
future economic damages, (3) $100,000.00 in past non-economic
damages, and (4) $200,000.00 in future non-economic damages. If
plaintiff chooses to accept the foregoing terms for a judgement, he
is to submit a form of judgment within two weeks. If he chooses not
to do so, he is to advise the court accordingly within two weeks.

84

Dated: New York, New York
April 30, 2015

MICHAEL H. DOLINGER
UNITED STATES MAGISTRATE JUDGE

Copies of the foregoing Memorandum and Order have been sent to:
Marc Twyman Wietzke, Esq.
Flynn & Wietzke, P.C.
1205 Franklin Avenue
Garden City, NY 11530
William G. Ballaine, Esq.
Landman Corsi Ballaine & Ford PC
120 Broadway, 27th Floor
New York, NY 10271
William J. Blumenschein, Esq.
Long Island Railroad Company
Law Department - 1143
93-02 Sutphin Blvd. Jamaica Station
Jamaica, NY 11435

85