Opinion
98 Civ. 4625 (JFK)
March 15, 2002
For Plaintiff: TABAK MELLUSI New York, New York 10013 Of Counsel: Sheldon Tabak
For Defendants: BETANCOURT VAN HEMMEN New York, New York. Of Counsel: Jeanne-Marie Downey; FREEHILL, HOGAN MAHAR, L.L.P. New York, N Y. Of Counsel: John J. Walsh
OPINION AND ORDER
Before the Court are defendants' post-trial motions seeking judgment as a matter of law, pursuant to Fed.R.Civ.P. 50(b), or in the alternative, a new trial pursuant to Fed.R.Civ.P. 59. Defendants move for judgment as a matter of law on the awards for future maintenance and cure award and future medical. expenses, and move for a new trial on evidentiary grounds and on other damage issues. For the reasons set forth below, defendants' motions are granted in part and denied in part.
Background
Plaintiff Tannous L. Bachir ("Bachir") was an employee of Transoceanic Cable Ship Company and a member of the crew of the C.S. Long Lines as chief cook from February 10, 1998 to May 6, 1998. Plaintiff was working as a chief cook on May 5, 1998. On that date, while he assisted in the stowage of the ship's stores, as the ship was docked at Charleston, S.C., plaintiff tripped over pipes and fell. The accident occurred at approximately 2:30 p.m. He reported to work the following morning but left early complaining of back pain. Plaintiff received treatment at a local hospital in Charleston, where he was diagnosed with severe lumbar pain.
Plaintiff departed the vessel not-fit-for-duty on May 6, 1998. On May 20, 1998, plaintiff consulted Dr. Harold S. Goldberg, a chiropractor. Dr. Goldberg diagnosed plaintiff with contusion and sprain of the lumbar and sacroiliac spine, and bursitis of the right hip, right plantar fascilitis and left intercostal myocitis. In September 1999, Dr. Goldberg referred plaintiff to Dr. Gerald Klingon who diagnosed plaintiff with a herniated disc. Plaintiff also consulted with a neuropsychiatrist, Dr. Azariah Eshkenazi, who diagnosed him with Post Traumatic Stress Disorder ("PTSD").
Plaintiff received maintenance payments of $8.00 per day through August 14, 1998, pursuant to the agreement between his union, the Seafarers International Union, and Defendant. Defendant stopped paying maintenance on August 14 based on the findings of its orthopedic surgeon, Dr. Leonard Harrison, who, on July 14, 1998 found plaintiff not fit for duty for 30 days.
This action was tried to a jury. On May 14, 2001, the jury rendered a verdict in this case for plaintiff, awarding him $2,016,586.00 in damages and $907,928.00 for maintenance and cure. Defendants contest these portions of the jury award: $250,000.00 for past pain and suffering; $1,000,000.00 for future pain and suffering; $225,000.00 for future medical expenses; and a future maintenance award of $897,200.00. The future maintenance award was calculated based on the jury's finding that the Collective Bargaining Agreement ("CBA") rate of $8.00 for daily maintenance was inadequate and that plaintiff was entitled to $80.00 per day for maintenance. The jury found that plaintiff will reach maximum cure on October 1, 2018, and awarded him maintenance until that date.
Discussion
Where parties move jointly under Rules 50(b) and 59(a), the court must rule separately on each motion. Accordingly, defendants' motions will be discussed separately. Katt v. City of New York, 151 F. Supp.2d 313, 327-28 (S.D.N.Y. 2001).
A. Judgment as a Matter of Law
Under Fed.R.Civ.P. 50(b), in deciding a motion for judgment as a matter of law ("JMOL"), a court must consider the evidence in the light most favorable to the non-moving party, here the plaintiff, and give that party the benefit of all reasonable inferences from the evidence that the jury might have drawn in that party's favor. Morales v. the City of New York, No. 99 Civ. 10004, 2001 WL 8594, at *3 (S.D.N.Y. Jan. 2, 2001). The court cannot assess the weight of conflicting evidence, pass on the credibility of witnesses, or substitute its judgment for that of the jury. Id. The motion may be granted only if there is such a complete absence of evidence supporting the verdict that the jury's findings could only have been the result of surmise or conjecture. Id.
Defendants base their JMOL motion on the awards for future maintenance and future medical expenses. Defendants argue that the future maintenance award violates the law and is not supported by the evidence. In addition, defendants argue that the maintenance award should be limited to the CBA rate of $8.00 per day. Defendants argue that the evidence was insufficient to support a maintenance award at the rate of $80.00 per day until 2018. Defendants also contend that the evidence did not support the award for future medical expenses.
1. Maintenance and Cure
The ancient right to cure in maritime law represents a shipowner's obligation to provide medical care to seamen who fall ill or become injured while they are in service to a vessel. Calo v. Ocean Ships, Inc., 57 F.3d 159, 162 (2d Cir. 1995). This duty arises from the contract of employment and does not rest upon negligence or culpability on the part of the owner or master. Calmar S.S. Corp. v. Taylor, 303 U.S. 525, 528 (1938). This obligation attaches provided that a sailor's injury or illness is not the result of his or her own gross misconduct. Calo, 57 F.3d at 162. The right to cure continues until the seaman fully recovers or until he is so far cured as possible. Id.; Vaughan v. Atkinson, 369 U.S. 527, 531 (1962); Farrell v. United States, 336 U.S. 511, 518 (1949).
The maintenance paid is comparable to that to which the seaman is entitled while at sea. The shipowner's liability for maintenance and cure is not to be narrowly confined and "when there are ambiguities or doubts, they are resolved in favor of the seaman." Calmar, 303 U.S. at 532; Warren v. United States, 340 U.S. 523 (1951); Aguilar v. Standard Oil Co., 318 U.S. 724, 730 (1943); Durfor v. K-Sea Transp. Corp., No. 00 Civ. 6782, 2001 WL 856612, at *3 (S.D.N.Y. July 30, 2001); Samaroo v. Chandris, Inc., 1992 WL 183789, at *5 (S.D.N.Y. July 20, 1992). Admiralty courts have been liberal in interpreting the duty of maintenance and cure. Durfor, 2001 WL 856612, at *3; Samaroo, 1992 WL 183789, at *5.
a. Future Maintenance Award
The jury awarded plaintiff $897,200.00 in future maintenance to be paid until October 1, 2018. Awards of small amounts to cover future maintenance and cure "of a kind and for a period definitely ascertained or ascertainable" have been made. Calmar, 303 U.S. at 530-31. The obligation to pay maintenance and cure "does not hold a ship to permanent liability for a pension, neither does it give a lump-sum payment to offset disability based on some conception of expectancy of life." Dixon v. Mar. Overseas Corp., 490 F. Supp. 1191, 1192 (S.D.N.Y. 1980) (quotingFarrell, 336 U.S. at 519); see also Salem v. U.S. Line Co., 370 U.S. 31, 38 (1962) (finding that the evidence did not support an award for three years of future maintenance). The award of a lump sum in anticipation of the continuing need of maintenance and cure for life or for an indefinite period lacks support in judicial precedent. Calmar, 303 U.S. at 530. The relief is limited in nature and the duty of maintenance and cure does not extend beyond the point of the seaman reaching maximum cure. Calmar, 303 U.S. at 530-31; Rogers v. N.J. Barging Corp., 567 F. Supp. 822, 828 (S.D.N.Y. 1983).
The shipowner's obligation continues until the seaman reaches "maximum cure" — the point at which the seaman has recovered from the injury, the condition stabilizes or it cannot be improved further.McMillan v. Tug Jane A. Bouchard, 885 F. Supp. 452, 459 (E.D.N.Y. 1995);Farrell, 336 U.S. at 511; In re Complaint of Hygrade Operators, Inc., No. 99 Civ. 3851, 2001 WL 225028, at *8 (S.D.N.Y. Mar. 6, 2001). InKeiser v. American President Lines, Ltd., 384 F. Supp. 554 (S.D.N.Y. 1974), the court rejected plaintiff's demand for six months' future maintenance based on his physician's estimate that he would reach maximum cure in three to six months. Id. at 555. Defendant admitted it would take plaintiff at least three months to recover and plaintiff had not established a longer period; therefore, the court awarded future maintenance for only three months. A period any longer would be based on speculation. Id.; see also Calio, 57 F.3d at 163 (vacating the jury's cure award of $31,000.00 as too speculative). Even a seaman who is permanently disabled is not. entitled to maintenance for the rest of his life. See Smith v. Del. Bay Launch Serv., Inc., 972 F. Supp. 836, 848 (D. Del. 1997)
The seaman bears the burden of establishing that he is eligible for maintenance and cure. The shipowner bears the burden of proving that maximum cure has been reached. McMillan, 885 F. Supp. at 459. The shipowner is liable for maintenance and cure as long as the seaman's condition is susceptible to curative, not palliative, treatment. Id. at 461. A "declaration" that a seaman has reached a state of maximum cure must take the form of a medical diagnosis made by the physicians charged with the care and treatment of the injured seaman. Gilliken v. United States, 764 F. Supp. 261, 268 (E.D.N.Y. 1991). Determining whether and at what point such a "declaration" has been made is a question of fact to be resolved by the jury. Id.; Samaroo, 1992 WL 183789, at *5.
Defendants argue that the jury had no evidence on which to base their "declaration" that plaintiff has not reached maximum cure. Plaintiff presented three medical experts who testified that plaintiff had not reached maximum cure. Dr. Goldberg testified that plaintiff has a chronic permanent condition from which he will not recover. (Tr. 562-63). Plaintiff requires continuing treatment, and will take antipsychotic, pain, and muscle spasm medication for the rest of his life. (Tr. 562, 563, 69-70). Plaintiff's condition has made him partially disabled. (Tr. 570). Dr. Klingon testified that as of October 6, 1998, his prognosis was "very guarded" for rehabilitation, particularly if plaintiff did not have surgery. (Tr. 467). Dr. Eshkenazi testified that he was hopeful that surgery could alleviate the pain from the compression of nerves in plaintiff's back, and that with surgery and continued psychiatric treatment, plaintiff could hope for recovery. (Tr. 382).
"Tr." refers to the page number of the trial transcript.
Defendants bear the burden of proving maximum cure has been reached. Defendants offered expert testimony on plaintiff's physical and psychological condition. Dr. Finkel, a neurologist, examined plaintiff on April 7, 1999, and believed plaintiff had essentially recovered from his mild lumbar spasm. (Tr. 758-59). Dr. Flynn-Campbell testified that she believed plaintiff is not suffering from PTSD. (Tr. 857-58). Because the burden was on defendants on this issue and the determination was to be made by the jury, this Court will not disturb the jury's finding that plaintiff has not reached maximum cure.
However, the jury's lump sum award cannot be sustained. Although plaintiff has not reached maximum cure, the court may not award a lump sum for future maintenance and cure. Smith, 972 F. Supp. at 849. The jury found that plaintiff will reach maximum cure on October 1, 2018 and granted him a future maintenance award of $897,200.00. This date and amount are not supported by the evidence. The Court charged the jury that plaintiff had a work life expectancy of 19.1 years, which from the date of the accident in 1998 ends in 2017. The jury's award seems to reflect their apparent conclusion that plaintiff would be in substantial pain and suffering for at least the rest of his working life. Plaintiff's doctors did not provide a date on which maximum cure would be reached; however, they were hopeful that surgery would assist plaintiff's rehabilitation. Defendants' obligation to pay maintenance and cure continues until such time as plaintiff recovers or when it is determined that medical treatments will no longer improve his condition. Based on the testimony, plaintiff could reach maximum cure upon having the recommended surgery. Therefore, an award extending until 2018 is not justified.
The future maintenance award is vacated. Plaintiff is not precluded from pursuing additional cure in the future should he undergo further medical or surgical treatment of a curative nature. Calmar, 303 U.S. at 532; Calo, 57 F.3d at 163. He may institute another action against defendants to recover the costs of such medical care.
b. Past Maintenance Award
Plaintiff is entitled to an adjusted past maintenance award for the period from May 6, 1998 until August 14, 1998, the date on which he was declared fit for duty. The jury awarded plaintiff past maintenance of $10,728.00 based on a rate of $80.00 per day. However, this rate is not supported by the evidence.
This Court ruled on November 24, 1998, that plaintiff was not bound by the $8.00 daily maintenance rate specified in the CBA. This Court found that a CBA is not binding if the maintenance amount provided is inadequate. See Bachir v. Transoceanic Cable Ship Co., No. 98 Civ. 4625, 1998 WL 831035 (S.D.N.Y. Nov. 24, 1998); see also Gilliken, 764 F. Supp. at 261 (finding that plaintiff was not bound to the CBA established $8.00 maintenance rate). Defendants again argue that the Court should enforce maintenance rate set forth in the CBA. The Court is not persuaded by the recent case law provided by defendants from the Fifth and Eleventh Circuits upholding the CBA established rates. The Court adheres to its earlier ruling on this issue. In 2002, an $8.00 daily maintenance award maintains no one.
To enable the court to determine the appropriate past maintenance award, the plaintiff must provide the court with an evidentiary basis for the award. Gilliken, 764 F. Supp. at 267. Plaintiff's burden is "feather light" and may be satisfied by the seaman's own testimony concerning his actual expenditures or concerning the reasonable cost of food and lodging in his area. Id.; McMillan, 885 F. Supp. at 463. The burden then shifts to defendant to submit rebuttal evidence showing these expenditures to be unreasonable or excessive. Durfor, 2001 WL 856612, at *4.
Plaintiff presented evidence of his costs: a mortgage payment of $1700 per month, utilities payments of $300 per month, and food expenses of $10 per day. (Tr. 176-77). Plaintiff's housing costs total $2000 per month, or $65.75 per day, and with food, his costs total $75.75 per day. Defendants argue that plaintiff can only recover his individual costs and not those of his family members. Maintenance payments are intended only to compensate the individual seaman, not members of his family. See Durfor, 2001 WL 856612, at *5. The seaman is nevertheless entitled to those expenses he actually incurs, to the extent they are reasonable. Plaintiff lives with his wife and two children. Defendants argue that plaintiff presented no evidence that he paid the entire mortgage and without proving so he is not entitled to the full amount. Therefore, defendants contend plaintiff is only entitled to $26.44 per day for housing and food, reflecting a one-fourth share of the housing costs.
To determine the amount of past maintenance, a court may seek submission of the most probative evidence available. See Gilliken, 764 F. Supp. at 268. Accordingly, the Court reserves decision on the amount of past maintenance due to plaintiff and orders that within thirty (30) days, plaintiff shall submit an affidavit or other evidence establishing actual expenses for food and lodging, and his responsibilities for providing for his family, as well as evidence of his wife's earnings and contributions to the family's expenses. Defendants are given fifteen (15) days to respond. Until the correct maintenance rate is determined, plaintiff's past maintenance award based on the $8.00 rate stands. When a new rate is calculated, the past maintenance award will be adjusted accordingly.
2. Future Medical Expenses
The jury awarded plaintiff $225,0000 in future medical expenses. Defendants argue that plaintiff offered no evidence on which the jury could determine the amount of future medical costs. Plaintiff argues that the amount was proven through trial testimony. Dr. Goldberg testified that plaintiff's continued treatment would require several visits each year. Dr. Goldberg charges $125.00 per visit. (Tr. 564). Based on this rate, for six visits per year, with plaintiff's life expectancy of 35 years, plaintiff's bills for Dr. Goldberg would be at least $26,250.00. Dr. Eshkenazi charges $120.00 per visit. (Tr. 397). Before trial, plaintiff saw Dr. Eshkenazi 28 times over 2 years. (Tr. 380). Using 14 visits per year as a base for 35 years, plaintiff's payments to Dr. Eshkenazi total at least $58,800. Payment to these doctors total $85,050.00 at a minimum. This base figure does not include recommended surgery and possible hospital stay, or the costs for the lifetime pain and antipsychotic medication plaintiff will take. The Court finds that the jury had sufficient evidence on which to base its award.
Additionally, defendants raise the idea that plaintiff's receipt of Social Security payments relieves them of their burden. Plaintiff argues that under Federal Rule of Civil Procedure 8(c), receipt of a collateral source payment is an affirmative defense, and because it was not raised until this post-trial submission, it has been waived. Defendants argue that receipt of a collateral source payment is not an affirmative defense under Rule 8(c).
The collateral source doctrine generally precludes benefits received from third-parties from being considered in determining the amount of damages. Silivanch v. Celebrity Cruises, Inc., 171 F. Supp.2d 241, 265 (S.D.N.Y. 2001). It applies to admiralty cases. Id.; A/H Battery Assoc. v. Gulf Craft, Inc., No. 93 Civ. 1915, 1998 WL 252105, at *1 (S.D.N.Y. May 18, 1998); Stanley v. Bertram-Trojan, Inc., 868 F. Supp. 541, 543 (S.D.N.Y. 1994). Social security benefits are considered collateral source payments. Silivanch, 171 F. Supp.2d at 266; see also Clausen v. Sea-3, Inc., 21 F.3d 1181, 1192-93 (1st Cir. 1994) (disability benefits and social security); In re Adventure Bound Sports, Inc., 858 F. Supp. 1192, 1208-09 (S.D. Ga. 1994) (social security); Olsen v. City of New York, No. 83 Civ. 0462, 1984 WL 1033, at *2 (S.D.N.Y. Oct. 18, 1984) (pension). The jury was charged on the collateral source doctrine and instructed not to consider plaintiff's possible other sources of income, including social security. Therefore, plaintiff's receipt of social security payments for future medical expenses was properly excluded by the jury in reaching its award.
The Second Circuit has held that Rule 8(c) "is intended to notify a party of the existence of certain issues, and its mandatory language has impelled us to conclude that a party's failure to plead an affirmative defense bars its invocation at later stages of the litigation." Design Options, Inc. v. Bellespointe1 Inc., 940 F. Supp. 86, 91 (S.D.N.Y. 1996);Doubleday Co., Inc. v. Curtis, 763 F.2d 495, 503 (2d Cir.), cert. dismissed, 474 U.S. 912 (1985) (citing Satchell v. Dilworth, 745 F.2d 781, 784 (2d Cir. 1984)). For example, an unpleaded affirmative defense raised for the first time in a motion for summary judgment has been held to have been waived under Rule 8(c). See MCI Telecomm. Corp. v. Amen-Tel, Inc., 852 F. Supp. 659 (N.D.Ill. 1994). Similarly, an affirmative defense submitted after trial has begun has been deemed waived. Traveller's Int'l AG v. TWA, 41 F.3d 1570, 1580 (2d Cir. 1994). An affirmative defense raised for the first time in a post-trial submission is precluded. The award for future medical expenses is upheld.
B. Motion for a New Trial
Under Federal Rule of Civil Procedure 59, a motion for a new trial ordinarily should not be granted unless the court is convinced that the jury has reached a seriously erroneous result or that the verdict is a miscarriage of justice. Morales, 2001 WL 8594, at *3; Katt, 151 F. Supp. 2d at 353. Unlike when ruling on a motion for JMOL, in deciding a motion for new trial, the court is not required to consider the evidence in the light most favorable to the non-movant, but rather the court may weigh conflicting evidence and decide whether a seriously erroneous result has been reached by the jury. Song v. Ives Labs., 957 F.2d 1041, 1047 (2d Cir. 1992); DiStefano v. Long Island Railroad Co., No. 96 Civ. 5487, 1999 WL 1704784, at *4 (E.D.N.Y. Dec. 21, 1999). Nonetheless, when the motion is based on a witness's testimony, the Second Circuit admonishes courts not to "disturb lightly a jury's credibility determinations." Giles v. Rhodes, 171 F. Supp.2d 220, 226 (S.D.N.Y. 2001); see DLC Mgmt. Corp. v. Town of Hyde Park, 163 F.3d 124, 133-34 (2d Cir. 1998); Metromedia Co. v. Fugazy, 983 F.2d 350, 363 (2d Cir. 1992) ("Where the resolution of issues depended on assessment of the credibility of the witnesses, it is proper for the court to refrain from setting aside the verdict and granting a new trial.")
Defendants bear the burden of demonstrating their entitlement to a new trial. Giles, 171 F. Supp.2d at 225. Defendants move for a new trial on three grounds.
1. Dr. Eshkenazi's Testimony
Defendants argue that the court did not follow Federal Rule of Evidence 702 when Dr. Eshkenazi's testimony was admitted. Dr. Eshkenazi diagnosed plaintiff with PTSD. Defendants argue that Dr. Eshkenazi's testimony was not consistent with the requirements for PTSD of the DSM-IV, a publication of the American Psychiatric Association, which requires the patient to have experienced a life threatening event with attendant feelings of horror or helplessness, later flashbacks and consequent social withdrawal. Defendants claim that the jury's large award was not supported by the physiological evidence regarding plaintiff's injuries and could only be the product of excessive emotion based on this PTSD diagnosis.
a. Federal Rule of Evidence 702
Defendants moved in limine to exclude Dr. Eshkenazi's testimony. Both sides briefed the issue to the Court. On November 21, 2000, the Court denied the motion and permitted Dr. Eshkenazi to testify. The Court found that its "gatekeeper" role did not require excluding his testimony and to do so would be error. Defendants argue that decision was an abuse of discretion that was not harmless error, and that a new trial is required.
Rule 702 of the Federal Rules of Evidence governs the admissibility of expert testimony and provides that:
"If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education, may testify thereto in the form of an opinion or otherwise."
The rule requires that the court: (1) ensure that the witness is properly qualified as an expert on matters that are scientific, technical or specialized in nature; and (2) determine that the expert's testimony will assist the trier of fact to understand the evidence or determine a fact in issue. Katt, 151 F. Supp.2d at 352. Even if expert testimony is deemed admissible, however, it is still subject to exclusion under Federal Rule of Evidence 403 if its probative value is substantially outweighed by the danger of unfair prejudice to the moving party. Id. at 353. Matters of exclusion or inclusion of evidence pursuant to Rule 403 are left to the broad discretion of the district court. Id. at 354. A new trial based upon evidentiary rulings will be granted only if it can be said that the ruling was "manifestly erroneous and an abuse of discretion." Id.
Dr. Eshkenazi was properly qualified as an expert. Dr. Eshkenazi is an experienced psychiatrist who has been practicing for nearly thirty years. Dr. Eshkenazi is a Diplomat of the American Board of Psychiatry and Neurology and is an Assistant Professor of Psychiatry at the Mount Sinai School of Medicine. He is the Chief of Psychiatry at North Shore Hospital in Forest Hills and is in the private practice of psychiatry. He was therefore properly qualified to testify. As to the second prerequisite of Rule 702, plaintiff claimed that he suffered psychologically from the consequences of not being able to work and support his family after the fall and sought damages on that basis. Plaintiff's mental state was put in issue. Psychiatric testimony was necessary for the jury to fulfill its fact finding role. The second prong of the test has been satisfied.
b. Diagnosis of PTSD
Dr. Eshkenazi diagnosed plaintiff with PTSD. Defendants argue that plaintiff's accident and subsequent emotional problems do not meet the requirements of PTSD under the DSM-IV definition.
Defendants had a full opportunity to challenge Dr. Eshkenazi's testimony and diagnosis on cross-examination. Dr. Eshkenazi stated that he considers the DSM-IV a good guideline for evaluating patients. (Tr. 397, 399). The DSM-IV definition of PTSD requires that a traumatic event occur. Dr. Eshkenazi described trauma as an injury. He testified that plaintiff's fall was the required traumatic event, and explained that each person's reaction to trauma can be completely different. (Tr. 400). After defense counsel read examples of traumatic events from the DSM-IV including sexual assault and kidnaping, Dr. Eshkenazi maintained his view that plaintiff's fall satisfied the traumatic event criteria. (Tr. 402-03, 404). The second prong of the DSM-IV definition requires a response of intense fear, helplessness or horror. Dr. Eshkenazi testified that plaintiff suffered helplessness and defense counsel repeatedly challenged this diagnosis. (Tr. 405, 408). Avoidance of the stimuli associated with the event, including an inability to talk about the event, is another symptom. Plaintiff is unable to go on a ship, the situs of the trauma. (Tr. 409). Dr. Eshkenazi testified that plaintiff had difficulty and became emotional during their discussions about the event. (Tr. 410-11).
Defense counsel also cross-examined Dr. Eshkenazi on the possibility of an alternative diagnosis of major depression disorder. (Tr. 414-16). Dr. Eshkenazi testified that he chose PTSD over depression as his diagnosis because it was a more accurate description of plaintiff's symptoms, particularly because they were triggered by the traumatic event of the accident. (Tr. 416).
Defense counsel made repeated attempts to discredit Dr. Eshkenazi and undermine his diagnosis. (Tr. 421). Defendants also offered the testimony of Dr. Flynn-Campbell who concluded that plaintiff was not suffering from PTSD. (Tr. 857-58). She testified that plaintiff displayed exaggerated and extreme forms of symptoms that were more emotionally than physically based, and claims that the tests she conducted showed the plaintiff's pain to be "much more emotional than objective pain." (Tr. 843, 846). She claims that plaintiff was largely motivated by his desire to obtain a monetary award.
It is the jury's task to weigh and assess the credibility of experts.Katt, 151 F. Supp.2d at 352; In re Joint E S Dist. Asbestos Lit., 52 F.3d 1124, 1135 (2d Cir. 1995) ("Trial courts should not abrogate the jury's role in evaluating the evidence and the credibility of expert witnesses by simply choosing sides in the battle of the experts") (internal quotation marks and alterations omitted). A challenge will fail where it goes to the expert's weight and credibility, not the admissibility of his testimony. Katt, 151 F. Supp.2d at 357. Any shortcoming of a witness's actual testimony in a particular area is a subject for cross-examination, not a ground for exclusion under rule 702. Id.
Defendants' challenge to the weight and credibility of Dr. Eshkenazi's testimony fails. The jury heard and weighed the direct and cross-examination testimony of both experts. The jury evaluated their credibility and apparently credited the plaintiff's expert testimony over that offered by the defendants. Having reviewed Dr. Eshkenazi's testimony, the court finds that it is not a miscarriage of justice to deny a motion for a new trial. Therefore, defendants' motion for a new trial on the basis of the admission of Dr. Eshkenazi's testimony is denied.
2. Physiological Medical Evidence
Defendants argue that the physiological medical evidence offered by Dr. Klingon and Dr. Goldberg was incompetent. First, they contend that Dr. Klingon's testimony was sheer speculation. Second, defendants argue that Dr. Goldberg's findings were unreliable because they were based on Dr. Klingon's speculative findings. Additionally, Dr. Goldberg relied on the MRI conducted by Dr. Lichi, a mammographer who found a herniated disc at L5-S1 with no neural encroachment, which report defendants claim is inherently contradictory.
Defendants also challenge their ability to attack Dr. Goldberg's truthfulness. This area was the subject of a pretrial ruling on April 12, 2001. Defendants argue that the exclusion of evidence of Dr. Goldberg's untruthfulness, including that regarding the earlier loss of his license, and lack of qualifications requires a new trial. Further, defendants argue that cross-examination of Dr. Goldberg concerning prior bad acts was permissible under Federal Rules of Evidence 608(b) and 404 (b)
a. Medical Testimony
Again, as with Dr. Eshkenazi, defendants challenge the weight and credibility of expert testimony. As stated above, defendants had full opportunity to cross-examine these witnesses and offered their own witnesses to contradict the testimony provided by plaintiff's witnesses. Trial courts should not abrogate the jury's role in evaluating the evidence and the credibility of expert witnesses by choosing sides. This Court declines to do so. Defendants' motion on this ground is denied.
b. Cross-examination of Dr. Goldbera
In its April 12, 2001 opinion, this Court ruled that defendant Transoceanic had not shown any basis for admitting Dr. Robert Berg's reputation testimony concerning Dr. Goldberg. Dr. Berg had co-authored a Workers Compensation Board ("WCB") report denying Dr. Goldberg's application for reinstatement of his privileges. Under Federal Rule of Evidence 608(a), the "credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation," as long as the evidence refers to the witness' truthfulness. This Court found that the WCB report which Berg co-authored examined incidents of fraud committed between 1978 and 1981. The ruling was that knowledge of acts committed 20 years ago is not a basis for character testimony regarding credibility. Therefore Berg's testimony would amount to nothing more than an attempt to impeach a witness' credibility by the introduction of extrinsic evidence of specific bad acts, something expressly forbidden by Federal Rule of Evidence 608(b).
Defendants also argue that Dr. Goldberg's resignation of his license when facing charges of medical fraud reflects on his credentials. This court previously ruled that Federal Rule of Evidence 608(b) permits cross-examination of a witness regarding specific instances of conduct which concern truthfulness or untruthfulness, subject to the trial court's discretion. The remoteness of the alleged bad acts is a factor for the trial court to consider. See Sango v. New York, 83 Civ. 5177, 1989 WL 86995, at *19 (E.D.N.Y. July 25, 1989); see also United States v. Vereen, 99 Cr. 279, 2000 WL 490740 (D. Conn. Mar. 2, 2000) (noting that courts often exclude cross-examination regarding incidents which occurred more than ten years prior); Anwar v. United States, 648 F. Supp. 820, 829 n. 12 (N.D.N.Y. 1986) (same). This Court found that acts committed twenty years ago are too remote, and precluded any cross-examination of Goldberg regarding the fraudulent conduct described in the WCB report. This Court adheres to its earlier ruling on this matter. Defendants' motion on this ground is denied.
3. Pain and Suffering Award
Defendants argue that the jury's award for pain and suffering was excessive. The jury awarded plaintiff $250,000 for past pain and suffering, and $1,000,000 for future pain and suffering. Defendants argue that the award is not supported by the testimony presented and is not comparable to awards in cases involving similar injuries.
Under the deferential federal standard, a court may overturn a jury award only if it "shocks the conscience" of the court. DiStefano, 1999 WL 1704784, at *5; Bick v. City of New York, et al., No. 95 Civ. 8781, 1998 WL 190283, at *21 (S.D.N.Y. Apr. 21, 1998). While it is within the jury's function to calculate damages, there is an upper limit which is a question of law, not fact. Morales, 2001 WL 8594, at *4. Although juries have a great deal of discretion in awarding damages for pain and suffering, a court may not sustain an award that it deems so excessive as to suggest that it was motivated by "passion or prejudice" rather than a reasoned assessment of the evidence of injury presented at trial. Ramirez v. New York City Off-Track Betting Corp., 112 F.3d 38, 40 (2d Cir. 1997); Bick, 1998 WL 190283, at *20. In reviewing claims that the jury awarded excessive damages, the court views the evidence and draws all inferences in favor of the non-movant, here the plaintiff, and accords substantial deference to the jury's determination of factual issues.Scala v. Moore McCormack Lines, Inc., 985 F.2d 680, 683 (2d Cir. 1993).
If a court finds that a verdict is excessive, it may order a new trial on all the issues, or solely on the issue of damages. Tingley Systems, Inc. v. Norse Systems, Inc., 49 F.3d 93, 96 (2d Cir. 1995). The court may also remit the award to the maximum amount that would not be excessive.Id. Under the practice of remittitur, the court may condition a denial of a motion for a new trial on the plaintiff's acceptance of damages in a reduced amount. Earl v. Bouchard Transp. Co., 917 F.2d 1320, 1327 (2d Cir. 1990); Fowler v. New York Transit Auth., No. 96 Civ. 6796, 2001 WL 83228, at *10 (S.D.N.Y. Jan. 31, 2001)
In determining whether a particular award is excessive, courts have reviewed awards in other cases involving similar injuries, "bearing in mind that any given judgment depends on a unique set of facts and circumstances." Scala, 985 F.2d at 684; Nairn v. Nat'l R.R. Passenger Corp., 837 F.2d 565, 568 (2d Cir. 1988). A court should determine whether the award is in a reasonable range. The court cannot simply balance the high and low awards and reject the current verdict if the number of lower awards is greater. Morales, 2001 WL 8594, at *3; Katt, 151 F. Supp.2d at 369.
A review of cases involving injuries similar to plaintiff's provides a range of awards for pain and suffering of approximately $225,000 to $2,000,0000.00. See Scala, 985 F.2d at 682-84 (reducing the jury award by one-half to $750,000 to plaintiff who suffered knee injuries, was bedridden and depressed, and had a herniated disk in his back leaving him with chronic back pain); Blakesley v. State of New York, 734 N.Y.S.2d 800, 801-02 (N.Y.App.Div. 2001) (reducing award from $954,000 to $200,000 for plaintiff mainly suffering from mild to moderate PTSD after a work related accident); Barrowman v. Niagra Mohawk Power Corp., 675 N.Y.S.2d 734, 737 (N.Y.App.Div. 1998) (upholding $3,000,000 award to plaintiff with herniated and ruptured discs from a fall at work leaving him with neck and back pain for the rest of his life and unable to return to gainful employment); Gonzalez v. Rosenberg, 669 N.Y.S.2d 216, 216 (N Y App. Div. 1998) (award of $750,000 to plaintiff who had a herniated disc, underwent two unsuccessful surgeries, was recommended for a third, had "considerable pain and debilitation); Poole v. Consol. Rail Corp., 662 N.Y.S.2d 905, 905-06 (N.Y.App.Div. 1997) (award of $2,000,000 to decedent who fell from a wooden ladder and sustained a herniated disk, nerve root compression, radiculopathy and sexual impotence); Leonard v. Unisys Corp., 656 N.Y.S.2d 495, 498 (N.Y.App. Div. 1997) (award of $1,016,000 for back injury sustained when decedent's chair broke leaving her greatly debilitated and requiring painkillers and surgery); Walsh v. State of New York, 648 N.Y.S.2d 816, 817 (N.Y.App. Div. 1996) (award of $1,750,000 to electrician who fell while working which and suffered permanent nerve damage and significant loss of function in his back and lower extremities, limb disfigurement and ongoing pain); Lamot v. Gondek, 558 N.Y.S.2d 284, 286 (N.Y.App.Div. 1990) (award of $244,000 where plaintiff experienced "permanent and chronic back pain, coupled with severe and debilitating restrictions on plaintiff's activities")
According substantial deference to the jury's findings, the Court finds that the award for past and future pain and suffering is not so excessive as to shock the judicial conscience. While the award is on the higher end of the range, the Court finds that the jury's verdict was not against the weight of the evidence and does not warrant granting a new trial. Defendants' motion for a new trial on this ground is denied.
Conclusion
For the reasons stated above, defendants' motion for judgment as a matter of law is granted in part and denied in part. The future maintenance award is vacated. The Court orders plaintiff within thirty (30) days to submit an affidavit with supporting data establishing his expenses for food and lodging, and his responsibilities for providing for his family, as well as proof of his wife's earnings and contributions to the family's expenses. Defendants are given fifteen (15) days to respond. The award for future medical expenses is upheld. Defendants' motion for new trial is denied in all respects.
SO ORDERED.