House v. Kent Worldwide MacHine Works, Inc. , 359 F. App'x 206 ( 2010 )

09-0146-cv
House v. Kent Worldwide
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION
TO SUMMARY ORDERS FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS
GOVERNED BY THIS COURT’S LOCAL RULE 32.1 AND FEDERAL RULE OF
APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A
LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION
APPEARS, AT LEAST ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX
OR BE ACCOMPANIED BY THE NOTATION: (SUMMARY ORDER). A PARTY CITING
A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER TOGETHER WITH
THE PAPER IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT
REPRESENTED BY COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN
ELECTRONIC DATABASE WHICH IS PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF
FEE (SUCH AS THE DATABASE AVAILABLE AT HTTP://WWW.CA2.USCOURTS.GOV/).
IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE ORDER ON
SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE
AND THE DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 4 th day of January, two thousand ten.
5
6 PRESENT: ROBERT D. SACK,
7 RICHARD C. WESLEY,
8 Circuit Judges,
9 JOHN F. KEENAN,
10 District Judge. *
11
12
13 ________________________________________________
14
15 Walter House and Debra House,
16
*
The Honorable John F. Keenan, of the United States
District Court for the Southern District of New York,
sitting by designation.
1 Plaintiff-Third-Party-Plaintiff-Appellants,
2
3 v. 09-0146-cv
4
5 Kent Worldwide Machine Works, Inc., Kent Worldwide Machine
6 Works, Worldwide Processing of Ohio, Inc., Worldwide Process
7 Technologies, Worldwide Converting Co. and Worldwide
8 Converting Machinery,
9
10 Defendant-Third-Party-Defendant-Appellees.
11 ________________________________________________
12
13 APPEARING FOR PLAINTIFFS-APPELLANTS: M ICHAEL H. Z HU
14 (Brian J. Isaac,
15 on the brief)
16 Pollack, Pollack,
17 Isaac & De Cicco,
18 New York, NY
19
20 APPEARING FOR DEFENDANTS-APPELLEES: NONE
21
22
23 Appeal from the United States District Court for the
24 Southern District of New York (Berman, J.).
25
26 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
27 AND DECREED that the judgment of said District Court be and
28 hereby is VACATED and REMANDED:
29
30 Appellants Walter House and Debra House (the “Houses”)
31 appeal from an order of the United States District Court for
32 the Southern District of New York (Berman, J.) denying their
33 objections to the Report and Recommendation of Magistrate
34 Judge Kevin Nathaniel Fox awarding only damages for past
35 lost earnings and declining to award damages for past and
36 future pain and suffering, loss of consortium, past and
37 future medical expenses, future lost earnings, and
2
1 attorneys’ fees. We assume the parties' familiarity with
2 the underlying facts, the procedural history of the case,
3 and the issues on appeal.
4 Because Kent Worldwide defaulted, the Houses’ pleaded
5 allegations are accepted as true, except those related to
6 damages, and the Houses are entitled to all reasonable
7 inferences from the evidence they presented. See Au Bon
8 Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir. 1981).
9 Under Rule 55(b)(2) of the Federal Rules of Civil Procedure,
10 damages in a default judgment may be determined by the court
11 through a hearing. F ED. R. C IV. P. 55(b)(2). We have
12 previously held that a hearing is not necessary when the
13 district court relies “upon detailed affidavits and
14 documentary evidence, supplemented by the District Judge’s
15 personal knowledge of the record” to calculate a damage
16 award. Tamarin v. Adam Caterers, Inc., 13 F.3d 51, 54 (2d
17 Cir. 1993) (quoting Fustok v. ContiCommodity Services, Inc.,
18 873 F.2d 38, 40 (2d Cir. 1989)). Even in the absence of a
19 hearing, however, the district court cannot simply rely on
20 the plaintiff’s statement of damages; there must be a basis
21 upon which the court may establish damages with reasonable
22 certainty. Transatlantic Marine Claims Agency, Inc. v. Ace
3
1 Shipping Corp., 109 F.3d 105, 111 (2d Cir. 1997).
2 Magistrate judges and district courts have interpreted this
3 to mean that, even when the defendant defaults and is not
4 present to object, damages must be based on admissible
5 evidence. See, e.g., Cesario v. BNI Construction, Inc., No.
6 07 Civ. 8545, 2008 WL 5210209, at *2 (S.D.N.Y. Dec. 15,
7 2008); Ermenegildo Zenga Corp. v. 56 th Street Menswear,
8 Inc., No. 06 Civ. 7827, 2008 WL 4449533, at *3 (S.D.N.Y.
9 Oct. 2, 2008); Smith v. Islamic Emirate of Afghanistan, 262
10 F. Supp. 2d 217, 224 (S.D.N.Y. 2003).
11 The Federal Rules of Evidence require that documents be
12 authenticated before they can be admitted into evidence.
13 F ED. R. E VID. 901(a). The failure of counsel to adhere to
14 this simple directive to provide affidavits asserting that
15 the documents were what they purported to be is inexcusable.
16 However, the evidence that was authenticated was sufficient
17 to justify damages in this case.
18 Gissinger v. Yung is informative on this point. Nos.
19 CV-04-0534, CV-04-5406, 2007 WL 2228153, at *1 (E.D.N.Y.
20 July 31, 2007). In Gissinger, the magistrate judge held an
21 inquest for damages in a personal injury case. Id. The
22 magistrate judge, faced with a “haphazardly assembled
4
1 compendium” of medical documents, declined to consider the
2 records that were not authenticated. Id. at *5. He did,
3 however, consider the affidavit of one of plaintiff’s
4 physicians as sufficient to authenticate at least the
5 records kept by that physician’s office. Id. at *4. Using
6 only those authenticated records and the affidavits of the
7 plaintiff and his physician, the magistrate judge looked to
8 New York law for comparable awards and ultimately granted
9 past and future pain and suffering damages. Id. at *6-8.
10 In the case before us, however, the magistrate judge
11 and the district court seemed to determine sufficiency of
12 the evidence with regard to damages by comparing that
13 evidence that might have been relevant but was inadmissible
14 because of the failure to authenticate with the evidence
15 that was admissible. The sufficiency of the evidence is not
16 based on its quantity in comparison to evidence rendered
17 inadmissible by attorney error but rather an assessment of
18 its quality and relevance to the issue at hand. The
19 evidence available in this case was sufficient as a matter
20 of law to allow the magistrate judge to make an award of
21 damages.
22 Dr. Asprinio’s affidavit detailed Walter House’s
5
1 harrowing medical odyssey. The day of the accident, Walter
2 presented to the hospital with injuries including “a near
3 amputation of both lower extremities; bilateral open
4 fractures of the tibia and fibula; a dislocated left knee;
5 head trauma...abrasions to the left lateral ribs; mid
6 abdominal tenderness and distention; [and] an abrasion over
7 [his vertebrae].” As Dr. Asprinio affirmed, Walter went
8 through numerous medical procedures, including removal of
9 his spleen and pancreas, blood transfusions, insertion of a
10 catheter and a nasogastric tube, skin grafts, and
11 irrigations. He endured multiple surgeries over months of
12 hospitalization. Eventually, after a “foul odor” emanating
13 from Walter’s cast portended an infection, he “underwent a
14 below the knee amputation.”
15 In his affidavit, Walter House affirmed Dr. Asprinio’s
16 account. Walter reported he had “at least 17 major
17 surgeries and more than 20 other invasive and non-invasive
18 procedures that...included a below the knee amputation of
19 the left leg and multiple surgeries to [the] right leg.” He
20 had his spleen and part of his pancreas removed and
21 developed diabetes. He now suffers “constant pain to both
22 legs” and is “self conscious about his injuries.” Since the
6
1 accident, Walter has “experienced anxiety, sleep
2 disturbance, feelings of depression, fatigue, become short
3 tempered...[and] verbally abusive to family members.”
4 Relations between Walter and Debra “have diminished due to
5 [their] alter[ed] roles and [his] lack of initiation.”
6 Walter affirmed that he can no longer work, and Debra must
7 now care for the entire family.
8 Debra House’s affidavit detailed her new role in the
9 family as the head of the household, working “a full time
10 outside job to supply the household with income” while also
11 serving as the “caretaker of [her] husband and sons.” Debra
12 described Walter before the accident as “energetic,
13 meticulous and motivated.” Since the accident, Walter is
14 “incapable of following through on simple household tasks
15 and has sometimes become fatigued, irritable and verbally
16 abusive” to the family. Their “social life has been
17 affected due to his self consciousness about his injuries”
18 and their “marriage has been affected due to altered roles
19 and his lack of initiation.”
20 For the magistrate judge and the district court to find
21 such evidence insufficient to find damages for pain and
22 suffering and loss of consortium was error. Loss of
7
1 consortium and pain and suffering damages attempt to
2 compensate a nonpecuniary loss, through an accepted fiction
3 that such damages will somehow provide solace to the
4 injured. McDougald v. Garber, 73 N.Y.2d 246, 254 (N.Y.
5 1989). The amount for such damages "does not lend itself to
6 neat mathematical calculation." Caprara v. Chrysler, 52
7 N.Y.2d 114, 127 (N.Y. 1981); see also Oliveri v. Delta S.S.
8 Lines, Inc., 849 F.2d 742, 749 (2d Cir. 1988).
9 Under New York law, loss of consortium is not a claim
10 for only lost household services, but is instead a more
11 intangible yet more significant injury to the partner who
12 suffers the loss of the relationship as it existed before
13 the injury. See Zavaglia v. Sarah Neuman Center for
14 Healthcare and Rehabilitation, 883 N.Y.S.2d 889, 893 (N.Y.
15 Sup. Ct. 2009). The affidavits in the record detail some of
16 the changes in the House marriage and the stressors on Debra
17 House since the accident. The information before the
18 district court was similar to information found sufficient
19 to support loss of consortium damage awards in New York
20 courts. See, e.g., DeLeonibus v. Scognamillo, 656 N.Y.S.2d
21 275, 276 (2nd Dep't 1997); see also Doviak v. Lowe's Home
22 Centers, Inc., 880 N.Y.S.2d 766, 772 (3rd Dep't 2009).
8
1 There was also sufficient evidence to award damages for
2 future pain and suffering. Future pain and suffering
3 damages are calculated in part through reference to
4 actuarial tables to determine the projected life span of the
5 plaintiff. See, e.g., Bermeo v. Atakent, 241 A.D.2d 235,
6 239 (1st Dep’t 1998). As part of their submissions in the
7 damages phase, the Houses provided the National Vital
8 Statistics Reports’ “Life table for white males: United
9 States, 2003,” Vol. 54, No. 14, published on April 19, 2006,
10 which the magistrate judge properly concluded was a self-
11 authenticating document under Federal Rule of Evidence 901.
12 The magistrate judge, however, rejected this evidence as
13 unreliable because there existed an updated version of the
14 life expectancy tables showing data for 2004 that was
15 published on December 28, 2007, which the magistrate judge
16 contended was “available at the time of the plaintiffs’
17 [July 2, 2008] application.” But at the time of their July
18 2, 2008 application, the plaintiffs simply resubmitted the
19 original application they had presented to the district
20 court on December 26, 2007, two days before the revised
21 tables were published.
22 Whether the plaintiffs knew or should have known of the
9
1 existence of the updated tables, it is unreasonable to
2 conclude that the estimated life expectancy for healthy
3 white males under age 40 in the United States would change
4 so materially between 2006 and 2007 that the 2006 tables
5 could provide no credible basis on which to estimate Walter
6 House’s remaining life expectancy. See Earl v. Bouchard
7 Transportation Co., 735 F. Supp. 1167, 1175-76 (E.D.N.Y.
8 1990), aff’d in part, rev’d in part on other grounds, 917
9 F.2d 1320 (2d Cir. 1990). Indeed, a review of the two
10 tables reveals that the degree of difference between the
11 2006 and 2007 life expectancy estimates applicable to Walter
12 House consisted of a negligible 0.3-0.4 increase. The 2006
13 tables should be used as a reasonable benchmark from which
14 the district court can depart either upwardly or downwardly
15 as it sees fit to account for any perceived statistical
16 outdatedness and with a view toward the general increasing
17 life expectancy in the United States. See Espana v. United
18 States, 616 F.2d 41, 44 (2d Cir. 1980). In short, there was
19 sufficient evidence in the record for the district court to
20 calculate future pain and suffering damages.
21 While future pain and suffering depends on actuarial
22 tables, past pain and suffering does not. See, e.g., Reed
10
1 v. City of New York, 757 N.Y.S.2d 244, 247-49 (1st Dep't
2 2003). The magistrate judge seemed to think Walter’s
3 medical expenses were a necessary predicate for the pain and
4 suffering award but New York courts have awarded past pain
5 and suffering damages based on the medical procedures
6 endured and nature of the injury suffered. See, e.g., Bondi
7 v. Bambrick, 764 N.Y.S.2d 674, 675 (1st Dep't 2003); Hixson
8 v. Cotton-Hanlon, Inc., 875 N.Y.S.2d 361, 362 (4th Dep't
9 2009); Nunez v. Levy, 862 N.Y.S.2d 816, 816 (N.Y. Sup. Ct.
10 2008). The affidavit of Dr. David Asprinio, plus Walter
11 House’s affidavit, were sufficient to support past pain and
12 suffering damages.
11
1 For the foregoing reasons, the order of the district
2 court is VACATED and we REMAND for proceedings not
3 inconsistent with this order.
4
5 FOR THE COURT:
6 Catherine O’Hagan Wolfe,
7 Clerk
8
9
10 By:_______________________
12