Bielunas v. F/V Misty Dawn, Inc.

United States Court of Appeals
For the First Circuit
No. 09-2048
WOJCIECH BIELUNAS,
Plaintiff, Appellee,
v.
F/V MISTY DAWN, INC.,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge]
Before
Boudin, Gajarsa* and Thompson,
Circuit Judges.
Joseph A. Regan, with whom John David Blaisdell and Regan &
Kelley LLP were on brief, for appellant.
Joseph S. Stacey, with whom James P. Jacobsen and Beard Stacey
& Jacobsen LLP were on brief, for appellee.
October 8, 2010
*
Of the Federal Circuit, sitting by designation.
THOMPSON, Circuit Judge. This case – according to Wojciech
Bielunas – is about life-altering pain. Working as a commercial
fisherman aboard the F/V SEA WATCHER I, Bielunas had his right foot
crushed in a ghastly accident. An orthopedic surgeon said it
looked like someone had taken a sledgehammer to Bielunas's foot.
His livelihood lost, Bielunas later sued the vessel's owner, F/V
Misty Dawn, Inc., charging Jones Act negligence,1 ship
unseaworthiness, and a right to maintenance and cure.2 A jury
returned a verdict in Bielunas's favor, and the district judge
entered judgment against Misty Dawn for $2,307,690. In this arena,
Misty Dawn criticizes the district judge for admitting certain
evidence and denying a motion for new trial or remittitur.
Detecting no hint of reversible error, we affirm the judgment
below.
Background
We present the facts in the light most flattering to the
jury's verdict. See, e.g., Whitfield v. Melendez-Rivera, 431 F.3d
1, 3 (1st Cir. 2005). Bielunas emigrated from Poland to the United
States with his family in 1995, eventually settling in rural
Pennsylvania. He had worked on fishing boats before leaving
1
46 U.S.C. § 30104.
2
A venerable remedy created to protect seamen from the
dangers of living and laboring at sea, maintenance and cure "refers
to the provision of, or payment for, food and lodging
('maintenance') as well as any necessary health-care expenses
('cure') incurred during the period of recovery from an injury or
malady." LeBlanc v. B.G.T. Corp., 992 F.2d 394, 396-97 (1st Cir.
1993).
Poland, and he became a commercial fisherman here. From 2005
through 2006, Bielunas worked for Misty Dawn, a Massachusetts
corporation, on its vessel, the SEA WATCHER.
Safety was hardly the watchword for Misty Dawn's conduct. The
company made no real effort to ensure that its employees complied
with accepted safety standards. Misty Dawn had some safety
guidelines, but they were not posted anywhere on the SEA WATCHER.
Instead, the company relied on word-of-mouth, with ownership
passing safety concerns to the captain who then passed them on to
the crew. But there is some dispute whether ownership ever did
this.
To make the venture as profitable as possible, Misty Dawn
stored clam cages on the walkways. With the walkways blocked, crew
members looking to traverse the ship had to sidle along a thin,
unguarded ledge overlooking a nine-foot drop into the cargo hold or
amble over a conveyor belt. But the conveyor belt was not a
realistic option because the belt was quite slippery and the system
lacked adequate handrails, so the crew (including the captain)
opted to shimmy along the hatch ledge. Apparently no one told them
not to do this.
That brings us to the accident. Asked to help close the hatch
that covered the cargo hold, Bielunas had to indicate to another
crew member when the cover was in the proper position – a wire
cable attached to a hydraulically-powered machine would haul the
hatch forward along the ledge. Ideally, one would perform this job
by standing on the designated walkways. But because they were
blocked, Bielunas rode atop the closing hatch cover – that is how
he and others had done it before, and no one had ever told him to
do it differently. Unfortunately, he lost his balance, stepped
onto the ledge to keep from falling into the cargo hold, and got
his right foot caught between the cover and a protruding piece of
metal. "Stop, stop," Bielunas yelled, hoping to get the attention
of the seaman operating the hydraulically-powered machine.
Bielunas could feel steel pressing into him, crushing his foot.
Flesh and muscle were stripped off the bone, leaving a gaping hole.
Blood was everywhere.
The Coast Guard airlifted Bielunas to a hospital on Cape Cod,
where a doctor performed a series of emergency surgeries. The
doctor noticed that about half of the bone material was dead. He
removed the dead matter and a significant amount of dead muscle and
tissue, too, but he could not close the wound. Eventually, after
nearly two months, doctors sealed the opening, but Bielunas's foot
is still disfigured, and the damage is severe, permanent, and
degenerative. As if this were not enough, Bielunas walks with a
pronounced limp, and his altered gait triggered back and knee
problems.
Bielunas will never be able to return to any form of hard
work. His poor English skills make it highly unlikely that he will
ever be able to do office or clerical work. Because this work is
the only kind of employment that a person with his new physical
disability would be capable of performing, Bielunas will likely
never be able to work again – he can even cross-off pizza delivery
and security guard from any list of potential jobs because his
mangled foot affects his driving and ability to patrol a site, too.
Bielunas's total medical and economic damages approximated
$762,000. In his opening statement, Bielunas's lawyer pushed for
a $2,500,000 damages award, which he upped to $3,328,767 in his
closing. The jury returned a $2,775,000 verdict against Misty Dawn
but also found Bielunas 15% comparatively negligent. Factoring in
the 15% figure and an agreed-upon set-off between the parties, the
district judge entered a $2,307,690 judgment in Bielunas's favor.
Misty Dawn moved for a new trial or a remittitur, which the
district denied in an unexplained order.
With this background in place, we turn to the issues presented
on appeal, highlighting further facts when needed to put Misty
Dawn's claims into proper perspective.
Evidentiary Issues
Misty Dawn contends that the district judge erred in admitting
plaintiff's exhibit 32 and Lawson Bronson's expert testimony.
Neither claim has traction.
Plaintiff's exhibit 32
The protested exhibit is a staged photo (apparently taken by
a defense expert) of a deckhand holding a wire and sidling along a
nine-inch hatch ledge, as the SEA WATCHER's crew frequently would.
Misty Dawn argues here, as it did below, that the exhibit is
irrelevant because Bielunas was injured while standing on the
moving hatch cover – not while traveling along the hatch ledge
holding a wire. This argument is easily disposed of.
A relevancy-based argument is usually a tough sell. The
definition of relevance is quite expansive: relevant evidence is
"evidence having any tendency to make the existence of any fact
that is of consequence" more or less probable. See Fed. R. Evid.
401 (emphasis added). To be relevant, the evidence need not
definitively resolve a key issue in the case, see, e.g., United
States v. Rivera Calderón, 578 F.3d 78, 96-97 (1st Cir. 2009),
cert. denied, 130 S. Ct. 1107 (2010) – it need only move the
inquiry forward to some degree, see 2 Jack B. Weinstein & Margaret
A. Berger, Weinstein's Federal Evidence § 401.04[2][b] (Joseph M.
McLaughlin ed., 2d ed. 2010). Because this is a quintessential
judgment call, see Morales Feliciano v. Rullán, 378 F.3d 42, 57
(1st Cir. 2004), we give trial judges considerable leeway in
deciding whether the contested evidence satisfies this not-too-
difficult-to-meet standard, reversing only on a showing of abuse of
discretion, see, e.g., United States v. Sepulveda, 15 F.3d 1161,
1194 (1st Cir. 1993).
Relevancy is not assessed in a vacuum – it is gauged "in light
of the underlying substantive law," see Roy v. The Austin Co., 194
F.3d 840, 843 (7th Cir. 1999), here, Jones Act negligence and ship
unseaworthiness. A Jones Act shipowner must see "to the safety of
the crew." Koehler v. Presque-Isle Transp. Co., 141 F.2d 490, 491
(2d Cir. 1944) (Frank, J.). A crew member's burden of proving
causation is "featherweight," meaning liability exists if the
shipowner's "negligence contributed even in the slightest" to the
injury. Ferrara v. A. & V. Fishing, Inc., 99 F.3d 449, 453 (1st
Cir. 1996) (quotation marks omitted). Also, a shipowner must keep
the ship – its decks, passageways, equipment, etc. – in a seaworthy
condition and must use safe work methods, too. See id. And a
shipowner is responsible for unseaworthiness-induced injuries even
if not negligent. See id.If a picture speaks a thousand words, this one spoke plenty,
giving context so the jury could better understand the parties'
actions. Again, the photo showed a seaman inching his way along a
tiny hatch ledge with no guardrails while lugging a wire – an
unacceptable practice, Bielunas's expert said, which Misty Dawn
turned a blind eye to and which highlighted Misty Dawn's cavalier
attitude toward safety. The photo also showed a ship with blocked
walkways, which further bolstered Bielunas's theory that Misty Dawn
failed to provide a safe deck for work on the high seas. Misty
Dawn talked a good game about how crew safety was a top concern,
but the photo suggested otherwise. Seen in this light, then, the
photo tended to make Misty Dawn's negligence and the ship's
unseaworthiness more probable, see generally DeGioia v. United
States Lines Co., 304 F.2d 421, 423 (2d Cir. 1962) (holding that a
cluttered deck constitutes Jones Act negligence and vessel
unseaworthiness); Bonnewell v. United States, 170 F.2d 411, 412-13
(4th Cir. 1948) (same) – which is all the liberal relevancy
standard requires, see, e.g., Iacobucci v. Boulter, 193 F.3d 14, 20
(1st Cir. 1999). Consequently, the district judge did not abuse
his broad discretion in admitting plaintiff's exhibit 32.
Bronson's testimony
Also sailing wide of the mark is Misty Dawn's claim that the
district judge stumbled in admitting Bronson's testimony about the
means of traversing the deck, the danger of obstructing the
walkways, and other safety problems on the SEA WATCHER. Misty Dawn
calls this testimony irrelevant and says its admission affected the
verdict (Misty Dawn does not contest Bronson's expert credentials)
– which means we apply the abuse-of-discretion standard. See,
e.g., Pagés-Ramírez v. Ramírez-González, 605 F.3d 109, 115-16 (1st
Cir. 2010). Again, that standard is hard to satisfy, and Misty
Dawn cannot satisfy it here.
Bronson's testimony – discussing the meaning and significance
of the staged photo, the dangers posed by the open hatch covers and
the missing conveyor belt handrails, etc. – went to matters of
consequence: did Misty Dawn provide Bielunas with a safe work
place, and was the SEA WATCHER seaworthy? Misty Dawn protests that
Bielunas was not hurt while sidling along the hatch ledge (a Misty
Dawn-accepted practice that Bronson condemned), that only one cover
was open when tragedy struck, and that the missing handrails played
no part in the mishap (ignoring that Misty Dawn had faulted
Bielunas for not standing on the conveyor belt during the hatch-
closing episode, a ridiculously unsafe suggestion, Bronson said,
given the lack of handrails). But this evidence gave the jury a
proper frame of reference for assessing the parties' competing
claims, so it is relevant. See Faigin v. Kelly, 184 F.3d 67, 81
(1st Cir. 1999). Misty Dawn could and did fight tooth and nail to
undermine the evidence's meaning. But once relevancy is found,
complaints of the sort Misty Dawn pursues go to the weight, not the
admissibility, of Bronson's testimony. See, e.g., United States v.
Schultz, 333 F.3d 393, 416 (2d Cir. 2003); United States v. Diaz,
878 F.2d 608, 615 (2d Cir. 1989). The upshot of all this is that
we do not see anything close to an abuse of discretion here.3
The New Trial/Remittitur Issues
In its post-trial motion, Misty Dawn blasted Bielunas's
counsel for suggesting a damage award in his opening statement
($2,500,000) and closing argument ($3,328,767), saying counsel's
comments unfairly influenced the jury and entitled it to a new
trial. Misty Dawn also contended that the jury's ultimate award
($2,775,000, constituting roughly $2,000,000 in non-economic
3
Because there was no error, we need not consider Misty
Dawn's grumble that the admission of Bronson's testimony affected
the trial's outcome, see Fed. R. Evid. 103 – a complaint that turns
in part on Misty Dawn's claim that Bielunas's counsel weaved
Bronson's "irrelevant" testimony into his closing argument. Misty
Dawn's brief focuses on the evidentiary issue (which falters, given
how easily Bronson's testimony clears the low relevancy hurdle) and
makes no attempt to construct a reasoned argument that Bielunas's
counsel's closing constituted misconduct, so our work on this is
done. See, e.g., McCullen v. Coakley, 571 F.3d 167, 182 & n.3 (1st
Cir. 2009) (deeming waived arguments hinted at but not developed
and addressed to a particular theory), cert. denied, 130 S. Ct.
1881 (2010).
damages, which is the crux of the matter) was simply too large to
stand. The district judge denied the motion without comment, so we
have two choices: remand for clarification or address the issue
head-on "if a reasonable basis supporting the order is made
manifest on the record." United States v. Podolsky, 158 F.3d 12,
16 (1st Cir. 1998); see also generally Presley v. United States
Postal Serv., 317 F.3d 167, 173 (2d Cir. 2003) (noting that
"[w]hile a written explanation of a district court's basis for
denying [a new-trial motion] is certainly preferable as an aid to
appellate review, a separate written opinion is not necessarily
required when a district court" rebuffs the motion). We choose
option two in this instance.
Suggesting specific damage amount
Misty Dawn did not object to the specific-damage-award
comments in Bielunas's counsel's opening statement and closing
summation. Rather, it first surfaced this issue in its new-trial
motion. That is still an unpreserved challenge, however, so our
review is limited to a search for plain error. United States v.
Brandao, 539 F.3d 44, 57 (1st Cir. 2008); accord Springer v. Henry,
435 F.3d 268, 283 (3d Cir. 2006).
Plain error is one hard test to meet, particularly in civil
litigation. See Smith v. Kmart Corp., 177 F.3d 19, 26 (1st Cir.
1999). Plain error is (1) error which (2) is so clear that a trial
judge should act even without an objection and which (3) affects
the appellant's substantial rights – on top of that, even if the
appellant makes this required showing, we need not intervene unless
the error also (4) seriously impugns the "fairness, integrity, or
public reputation of judicial proceedings." United States v. Roy,
506 F.3d 28, 30 (1st Cir. 2007) (quotation marks omitted); see also
Smith, 177 F.3d at 25; Nat’l Union Fire Ins. Co. of Pittsburgh, PA
v. West Lake Acad., 548 F.3d 8, 22 (1st Cir. 2008). Consequently,
Misty Dawn faces a steep climb nearing 90 degrees – ultimately,
that slope is insurmountable.
Misty Dawn cites no First Circuit cases banning lawyers from
suggesting a damage number to the jury. Instead it says that
federal courts tend to let counsel make unit-of-time arguments
during summation (e.g., a lawyer tells the jury plaintiff's pain is
worth X dollars per day, month, or year and then multiplies it by
plaintiff's life expectancy to get a lump-sum figure). Bielunas's
lawyer did just that, proposing a number and discussing a process
through which the jury could reach it.4
4
Here is a sampling of what Bielunas's counsel said (again,
without drawing any objection):
Past and future physical pain and suffering: Noting that
there are 365 days in a year, counsel suggested $282,000 for "past
physical pain and suffering" – $200,000 for the first year (given
the immediate "horror" of the calamity), $50,000 for the second
year, and $32,000 for the third. Bielunas is "55 years old,"
counsel added, and is expected to live another 25 years, so "you
should award him $800,000 for future physical pain and suffering
because he's going to live with that [pain] every day."
Past and future mental anguish: "I think the mental anguish
of this thing is conservatively $20,000 a year," counsel said.
"That's $20,000 a year for the last three years" and "for the rest
of his life," counsel added, which comes to $560,000.
Past and future disability and inconvenience: Bielunas's
"past disability is permanent," counsel argued. "And I submit to
you that $33,000 a year" is a good number to cover "the impairment
Some courts permit unit-of-time arguments, some leave the
matter to the trial judge's discretion, and some ban the practice
outright – though most courts, particularly federal courts, seem to
fall into the first two camps. See generally Mileski v. Long
Island R.R. Co., 499 F.2d 1169, 1173 n.2, n.3, n.4 (2d Cir. 1974)
(collecting federal and state cases); Giant Food Inc. v.
Satterfield, 603 A.2d 877, 879-80 (Md. Ct. Spec. App. 1992) (same).
Not this Court, however. We forbid counsel from asking jurors to
consider the amount of a party's ad damnum in crafting a damage
award, see Davis v. Browning-Ferris Indus., Inc., 898 F.2d 836,
837-38 (1st Cir. 1990); see also Wilson v. Bradlees of New England,
Inc., 250 F.3d 10, 23 n.25 (1st Cir. 2001) – and we have cited
approvingly a case outside this circuit for the point that lawyers
cannot state in summation the number they think jurors should award
for pain and suffering. See Davis, 898 F.2d at 837 (highlighting
Waldorf v. Shuta, 896 F.2d 723 (3d Cir. 1990)). Building on this
foundation, we held in an unpublished opinion that Davis precludes
counsel from requesting a pain-and-suffering dollar amount in
closing. Kimberly F. v. Mary Hitchcock Mem. Hosp. & Hitchcock
Clinics, Inc., No. 93-1438, 1993 WL 498026, at *9-10 (1st Cir. Dec.
3, 1993) (unpublished). Consistent with the Davis line of cases,
district judges in this circuit have stopped lawyers from doing
just that. See Wilson, 250 F.3d at 23 n.25; see also generally
Budet-Correa v. United Parcel Serv., 322 F.Supp.2d 139, 141-42
and the inconvenience," which comes to $924,000.
(D.P.R. 2004) (discussing and applying Davis and the like).
Consequently, measured by our precedents we conclude that the
district judge here made a mistake, and that the mistake is obvious
enough. But, again, plain error requires more: the mistake must
also be prejudicial in a sense that there is a reasonable
probability (not just a theoretical possibility) that it affected
the result, and the result must be unjust, too. See United States
v. Marcus, 130 S. Ct. 2159, 2164 (2010); see also United States v.
Padilla, 415 F.3d 211, 225 (1st Cir. 2005) (Boudin, C.J.,
concurring) (en banc). This is where Misty Dawn gets tripped up.
For starters, we are not convinced that this was a game-
changing error. Cf. United States v. Taylor, 54 F.3d 967, 972 (1st
Cir. 1995) (stressing that the plain-error doctrine focuses on
"blockbuster[]" errors) (quotation marks omitted). We question
whether Misty Dawn can show that it is reasonably probable – as
opposed to merely possible – that the jury would have fixed a
different damage figure absent the unit-of-time breakdown. That
the jury found Bielunas 15% comparatively negligent as opposed to
the 5% his lawyer had argued for suggests that the jury did not
blindly adopt counsel's analysis. But we need not dwell on this
issue. See Johnson v. United States, 520 U.S. 461, 469 (1997)
(skipping over the third component of the plain-error test and
deciding the case on the fourth prong). Assuming for argument's
sake that the breakdown affected the outcome of the case, we see no
injustice here: given that Bielunas will live out his life in
pain, deprived of his livelihood (details we delve more deeply into
below), we cannot say that the award is intolerable.
If more were needed – and we doubt that it is – the judge in
his charge made clear that the lawyers' statements and arguments
were not evidence and that the verdict must be reached on the
evidence alone. Misty Dawn's counsel did not object or request any
instruction on the unit-of-time issue. After deliberating for a
bit, the jury asked the judge if Bielunas's lawyer could go over
the "suggested award amounts" and the "reasoning" used to reach
them. Misty Dawn's attorney asked the judge to remind the jurors
that arguments were not evidence in the case and that they are "to
decide" the matter "on their own." The judge agreed and told the
jury:
I presume that you are referring to the plaintiff's
counsel's argument to you where it was all laid out. I
am not going to have him do that again nor should he have
to do it again.
What I want you to do is to use your collective
memories as to what he said and what reasoning . . . he
offered for the conclusions that he suggested to you.
And have in mind . . . what I told you before, that
statements of counsel . . . are not the evidence in the
case. You are supposed to remember what the evidence
was.
What counsel was endeavoring to do was to remind you
of what the evidence was and put his interpretation
before you so you could consider it. So that is the
answer to that. You are to try to remember the evidence
yourself.
Misty Dawn's lawyer did not object or ask the judge to say anything
else, and we think the judge's instructions help undercut any
plain-error claim. See United States v. Robinson, 473 F.3d 387,
398 (1st Cir. 2007).
Plain error is not an "appellant-friendly" standard, United
States v. Vazquez-Molina, 389 F.3d 54, 57 (1st Cir. 2004), vacated
on other grounds 544 U.S. 946 (2005), and rightfully so: it keeps
parties from rolling the dice on a favorable verdict and then
raising problems on appeal that could have been easily fixed with
a timely objection below. See, e.g., United States v. Jacquillon,
469 F.2d 380, 386 (5th Cir. 1972) (Wisdom, J.). Ultimately, that
standard – which is exceedingly tough to meet – cannot be met here.
The damage amount
As a parting shot, Misty Dawn calls the jury's non-economic
damage award (over $2,000,000) unreasonably high and faults the
district judge for not ordering a remittitur. We see things
differently.
Converting legal damages into a monetary award is the jury's
job – consequently, only rarely and in extraordinary circumstances
will we veto the jury's decision. Casillas-Díaz v. Palau, 463 F.3d
77, 82-83 (1st Cir. 2006). That is particularly true when the
district judge, who saw and heard the evidence play out, refuses to
trim the award. Id. at 83. Stepping lightly, we review that
ruling for abuse of discretion, reversing only if the defendant
carries the weighty burden of proving that the contested award is
"grossly excessive, inordinate, shocking to the conscience of the
court, or so high that it would be a denial of justice to permit it
to stand." Id. (quotation marks omitted). This means that we will
not jettison a damage award simply because we think it too
generous, see Whitfield, 431 F.3d at 15-16, but will reverse "only
if it is shown to exceed any rational appraisal or estimate of the
damages that could be based upon the evidence before the jury."
Casillas-Díaz, 463 F.3d at 83 (quotation marks omitted).
There is no mathematical formula for determining the monetary
equivalent of non-economic injuries. See, e.g., Limone v. United
States, 579 F.3d 79, 105 (1st Cir. 2009). But the district judge
told the jurors, without objection, that they could consider any
physical, mental, or emotional pain Bielunas has suffered, is
suffering, and will suffer because of his wounds. Damages must be
reasonable and not based on hunches, the judge stressed, but "no
evidence of value" is needed for the intangible injuries: in
translating a decision into dollars, "you are not determining value
but you should award an amount that you feel will fully and fairly
compensate" Bielunas for his past, present, and future mental
distress and physical pain. The issue, then, is inescapably "fact-
bound," see Casillas-Díaz, 463 F.3d at 83, and the facts, measured
under the legal criteria outlined above, support the district
judge's decision not to pare down the award.
Bielunas suffered unimaginable pain on the SEA WATCHER, and
pain clings to him still. A multi-ton hatch cover crushed his
foot, pulverizing a bone, fracturing others in multiple places, and
leaving the whole thing a bloodied mess. The doctors could not
close the wound for the longest time, and they will never make him
fully better – actually, things will only get worse. And the
injury has exacted quite a toll, causing him to lose many of the
things that made his life worth living. No more working on a
fishing boat – in fact, no more meaningful employment at all. No
more taking long hikes with friends and family. No more doing
certain chores around the house. No more helping neighbors with
home-improvement projects. All of this has left him feeling
powerless, lost, and depressed. He worries about his future, he
lashes out at others, and his marriage has suffered, too. Taking
everything into account, we cannot say that the jury's award is
unconnected to the evidence, conscience-shocking, or so lavish that
it would offend common notions of justice if it stands – so no
remittitur is needed.
Misty Dawn makes much of the fact that Bielunas does not take
pain medication and had fractured the heel on the same foot years
before, an injury that Misty Dawn's expert suggested caused many of
the same problems that Bielunas complains about now. None of this
changes our view of the case, however. Again, Bielunas explained
in exquisite detail how much pain he had after the hatch cover tore
a hole in his foot and how much pain he has now – constant, he
said, even though he avoids pain pills, and the medical evidence
backs up his chronic-pain claim. As to the heel issue, Bielunas
never missed a day of work because of that injury, a fact that
pours cold water on the expert testimony that Misty Dawn points to
– testimony that the jury could, and evidently did, disbelieve in
any event. Cf. Primus v. Galgano, 329 F.3d 236, 245 (1st Cir.
2003).
Citing to Anthony v. G.M.D. Airline Serv., Inc., 17 F.3d 490(1st Cir. 1994), and Laaperi v. Sears, Roebuck & Co., 787 F.2d 726(1st Cir. 1986), Misty Dawn also argues that because we rejected
jury awards there, we should do so here. But these cases offer no
aid. For one thing, they are 16 and 24 years old, respectively,
which in this context makes them "not particularly helpful" for
comparison purposes, see Whitfield, 431 F.3d at 16 (saying so with
respect to a 16-year-old precedent). For another thing, they are
easily distinguishable from this case. Anthony found a $566,765
pain-and-suffering award unconscionable because the plaintiff's
injury – which was neither painful (relatively speaking) nor
permanent – did not "render[] him unable to perform any particular
functions or engage in any particular activities [or] otherwise
interfere[] with his professional, recreational, or personal life."
Anthony, 17 F.3d at 491, 494-95. Laaperi considered a $750,000
damage award conscience-shocking because the plaintiff suffered
"relatively minor injuries, involving no continuing disability"
(other than "a non-disabling permanent scar on her lower back,
there was no evidence of any medical problems whatsoever within a
month and a half" after the incident). Laaperi, 787 F.2d at 734-
36. Anthony and Laaperi look nothing like this case, given the
huge toll Bielunas's injury has taken on his body and mind.
Misty Dawn also highlights a boatload of non-First Circuit
cases where lower courts deemed certain damage awards excessive.
Measured against these cases, Misty Dawn says, the objected-to
portion of Bielunas's damage award is legally unsustainable. Not
so: simply "showing that the damage award is generous in comparison
to other (hand-picked) cases is insufficient to warrant relief."
Correa v. Hospital San Francisco, 69 F.3d 1184, 1198 (1st Cir.
1995) (citing Havinga v. Crowley Towing & Transp. Co., 24 F.3d
1480, 1488-89 (1st Cir. 1994) (not necessary to compare cases
involving dissimilar traumas, dates and locations of trials, and
evidence presented)); accord Whitfield, 431 F.3d at 16 (stressing
that we will not reject a damage award "merely because the amount
of the award is somewhat out of line with other cases of a similar
nature") (quotation marks omitted). Ultimately, we see no
compelling reason to override the jury's judgment here.5
Conclusion
For the reasons arrayed above, we reject Misty Dawn's appeal
and affirm the judgment below in all respects. Each side shall
bear its own costs.
So Ordered.
5
The parties also spar over whether Bielunas's counsel told
Misty Dawn's lawyer in a phone call that the award's size "shocked"
both him and his client. That makes not one whit of difference:
what counts is whether the award shocks our conscience (it does
not), not whether it shocks counsel's or his client's.