choices he made in the process of retrieving the windsurfer, the accident occurred and Koerner was injured.
Koerner also acted negligently by failing to drop anchor as he approached the shore. Again, this resulted, at least in part, from his being distracted by the windsurfer in tow. Dropping anchor is a frequently used and commonsensical practice to keep the boat at a safe distance from the shore. Koerner's only explanation of his failure to take this precautionary measure was that it did not occur to him to use either the anchor or buoys to secure the Boston Whaler while retrieving the windsurfer.
Moreover, Koerner was negligent in ignoring the standard towing procedure as he approached the beach. Koerner acknowledged that he knew the standard procedure for retrieving stray windsurfers, that the procedure was "kind of self-evidence," Trial Tr. at 98, and that detailed instruction regarding the procedure was given during a meeting of the waterfront workers and supervisors attended by Koerner. In fact, Koerner testified that he had successfully executed approximately 400 retrievals prior to the accident, and he admitted at trial that, in the course of events leading up to the accident on October 14, 1987, he ignored this standard procedure with which he was quite familiar. Despite his familiarity with these procedures, Koerner made a conscious decision to "let the boat ground and then deal with the grounding of the boat later." Trial Tr. at 117. Therefore, in light of the procedures he had followed in the past, Koerner admitted that he erred in maneuvering the Boston Whaler immediately prior to the accident. In surf and shallow water, standing up to lift the motor, thereby raising the center of gravity of the Boston Whaler, was also negligent.
The trial record indicates that Koerner knew the proper retrieval procedures, that he ignored them on October 14, 1987, and that several decisions he made directly contributed to the accident and his injury. If he had followed the procedures and kept the boat at a safe distance from the shore, or if he had transferred the windsurfer to the pier after having him board the Boston Whaler, the accident would not have happened. Therefore, the jury finding of no contributory negligence was clearly erroneous and against the weight of the evidence. Club Med is entitled to a new trial on the issue of negligence, and its Rule 59 motion is granted.
B. Club Med Is Entitled To A New Trial On Damages
The jury awarded Koerner $ 2,500,000 in damages for his past actual physical and mental pain and suffering, and $ 2,500,000 in future damages for his physical and mental pain and suffering. Koerner did not claim future damages for lost earnings. In light of the evidence presented at trial, this award is so excessive that it is "shocking to the 'judicial conscience,'" Donovan v. Penn Shipping Co., 536 F.2d 536, 539 (2d Cir. 1976), aff'd per curiam, 429 U.S. 648 (1977), and considerations of justice and fairness dictate that it be set aside and that Club Med is entitled to a new trial on the issue of damages.
1. The Standard For Assessing The Appropriateness Of A Jury's Award
A motion for a new trial should be granted when a jury's award of damages, in light of the evidence, is so unreasonable that it would be unconscionable to allow it to stand. It is well settled that a judgment in the Second Circuit cannot be upheld when the damages awarded are so excessive that "they shock the judicial conscience and constitute a denial of justice." Ismail v. Cohen, 899 F.2d 183, 186 (2d Cir. 1990); accord Earl v. Bouchard Transp. Co., 917 F.2d 1320, 1327 (2d Cir. 1990); O'Neill v. Krzeminski, 839 F.2d 9, 13 (2d Cir. 1988); Martell v. Boardwalk Enter., Inc., 748 F.2d 740, 752 (2d Cir. 1984); Zarcone v. Perry, 572 F.2d 52, 56 (2d Cir. 1978); United States ex rel. Larkins v. Oswald, 510 F.2d 583, 589 (2d Cir. 1975).
The Second Circuit has indicated that, in determining whether an award is excessive, the court should undertake a comparative evaluation of jury awards because:
Jury verdicts and judicial opinions approving or disapproving them, when considered over a period of time, provided some indication of the consensus of opinion of jurors and courts as to the proper relation between the character of the injury and the amount of compensation to be awarded.
Martell, 748 F.2d at 750 (citation and quotation marks omitted).
Awards in comparable cases may be used as a point of reference by which to measure the appropriateness of a challenged award, see Raucci v. Town of Rotterdam, 902 F.2d 1050, 1058 (2d Cir. 1990); Matthews v. CTI Container Transp. Int'l, Inc., 871 F.2d 270, 278 (2d Cir. 1989); Slade v. Whitco Corp., 810 F. Supp. 396, 399-400 (N.D.N.Y. 1993), and in evaluating whether the award in a particular case is "shocking to the judicial conscience," a court should consider verdicts in the jurisdiction whose substantive law is applicable, see Raucci, 902 F.2d at 1058.
2. Applying The Standard To The Jury's Award
In assessing the reasonableness of the jury's award of $ 5,000,000, Club Med suggests that this Court should look to awards in comparable actions that have been decided under the law of Turks and Caicos. While the parties agreed that the law of Turks and Caicos was controlling in this action, the Court declines this invitation and finds it more appropriate to look to the awards of juries in the State of New York to accurately assess the reasonableness of this award. A review of jury awards in this State for injuries similar to those sustained by Koerner establishes that the damages Koerner was awarded were grossly excessive to the point of shocking the judicial conscience of this Court.
Club Med has conducted an exhaustive survey of damages awarded by New York juries in actions involving comparable hand injuries. A review of 23 verdicts fitting the injury profile reveals an award range from $ 30,000 to $ 800,000, with only two of the verdicts exceeding $ 500,000.
In addition to these verdicts, New York courts have found unreasonably excessive awards to plaintiffs suffering hand injuries which are substantially less than the $ 5,000,000 awarded to Koerner: $ 1,500,000 for degloving of skin on and compound fracture of arm and deep crushing of muscles, see Flynn v. Manhattan & Bronx Surface Transit Operating Auth., 94 A.D.2d 617, 462 N.Y.S.2d 17 (1st Dep't 1983), aff'd, 61 N.Y.2d 769, 473 N.Y.S.2d 154, 461 N.E.2d 291 (1984); $ 1,200,000 for severely fractured elbow causing permanent impairment of arm, see Berry v. Jewish Bd. of Family & Children's Serv., 173 A.D.2d 670, 570 N.Y.S.2d 586 (2d Dep't 1991); $ 1,250,000 for hand blown completely off by explosive warning device used in employer's railroad yard, see Prata v. National R.R. Passenger Corp., 70 A.D.2d 114, 420 N.Y.S.2d 276 (1st Dep't 1979); $ 800,000 for permanent impairment of hand and leg, see Osborne v. Miller, 38 A.D.2d 298, 328 N.Y.S.2d 769 (1st Dep't 1972).
Finally, the following summary constitutes a representative sampling of jury verdicts in which the amount awarded was no more than $ 500,000 for past and future pain and suffering for injuries substantially more significant than those suffered by Koerner, to wit, actions arising from the amputation or complete impairment of fingers and hands: $ 420,000 for traumatic amputation of hand, see Brown v. State of New York, 184 A.D.2d 126, 592 N.Y.S.2d 533 (4th Dep't 1992); $ 400,000 for an injury leaving the plaintiff's arm withered and useless, see Terry v. State of New York, 79 A.D.2d 1069, 435 N.Y.S.2d 389 (3d Dep't 1981); $ 250,000 for traumatic amputation of infant plaintiff's arm, see Figueroa v. New York City Transit Auth., 152 Misc. 2d 948, 579 N.Y.S.2d 831 (Sup. Ct. Kings County 1991); $ 100,000 for amputated thumbs, see Saleh v. State of New York, 140 A.D.2d 966, 529 N.Y.S.2d 641 (4th Dep't 1988); $ 62,000 for crushed hand and amputated fingers, see Ferry v. Luther Mfg. Co., 56 A.D.2d 703, 392 N.Y.S.2d 521 (4th Dep't 1977); $ 300,000 for a traumatic amputation of fingers, see Yeasi v. Seaboard Folding Box Co., No. 18835/86 (Sup. Ct. Kings County Apr. 1991) (LRP Pub. No. 73605); $ 275,000 for crushed hand and amputated fingers, see Leising v. Leemar Bldg. Co., No. H-91254 (Sup. Ct. Erie County June 1990) (LPR Pub. No. 62473); $ 390,000 for amputation of fingers, see Young v. Conrail, No. 22546-81 (Sup. Ct. N.Y. County 1987) (reported in ATLA Abstracts); $ 135,000 for amputated fingers, see Rivera v. State of New York, No. 63361 (Rochester County Ct. of Cl. Sept. 27, 1985) (reported in ATLA Abstracts).
In light of these verdicts, the award of $ 5,000,000 to Koerner for the injuries he sustained as a result of the accident on October 14, 1987 shocks the judicial conscience of this Court and must be set aside. Therefore, Club Med is entitled to a new trial on the issue of damages, and its Rule 59 motion is granted.
III. Club Med Is Entitled To A New Trial. Unless Koerner Agrees To A Remittitur Of The Damages Awarded
Club Med is entitled to a new trial on the issues of negligence and damages, unless Koerner agrees to a remittitur of the damages award that is calculated upon an appropriate discount rate and an appropriate factor for Koerner's contributory negligence.
A. The Legal Standard For Remittitur
Remittitur is employed when a damage award "is intrinsically excessive in the sense of being greater than the amount a reasonable jury could have awarded, although the surplus cannot be ascribed to a particular, quantifiable error." Shu-Tao Lin v. McDonnell Douglas Corp., 742 F.2d 45, 49 (2d Cir. 1984). Thus, in an action in which the jury award is "shocking to the judicial conscience," remittitur is appropriate. This procedure gives the plaintiff the choice of submitting to a new trial on the identified issues or accepting a reduced amount of damages set by the court. See Earl v. Bouchard Transp. Co., 917 F.2d 1320, 1328-29 (2d Cir. 1990); Ismail, 899 F.2d at 186; Shu-Tao Lin, 742 F.2d at 49.
A New York district court sitting in diversity may look to other jury awards condoned or remitted by the courts of New York State to determine the appropriate amount of the remittitur. See Martell, 748 F.2d at 750; see also Adrat v. Mt. Sinai Hospital, 110 A.D.2d 599, 488 N.Y.S.2d 613 (1st Dep't 1985); Heyer v. New York, 109 A.D.2d 662, 487 N.Y.S.2d 537 (1st Dep't 1985); Thornton v. Montefiore Hosp., 99 A.D.2d 1024, 473 N.Y.S.2d 758 (1st Dep't 1984); Griffith v. City of New York, 99 A.D.2d 692, 471 N.Y.S.2d 537 (1st Dep't 1984).
B. Applying The Standards To The Jury's Verdict
The matter at hand falls into that category of cases in which "a properly instructed jury hearing properly admitted evidence nevertheless [made] an excessive award." Shu-Tao Lin, 742 F.2d at 50. In light of the previous finding that the $ 5,000,000 award to Koerner was excessive, Club Med's motion for remittitur is an appropriate alternative to a new trial. The verdicts discussed above are useful in assisting the Court to determine an appropriate damages award, particularly the second set of verdicts discussed above which were held to be excessive by the respective courts. In those decisions, the courts gave the plaintiffs the choice of accepting a remittitur of the damages awarded or a new trial. See Flynn, 94 A.D.2d at 617, 462 N.Y.S.2d at 17 ($ 1,500,000 reduced to $ 850,000); Berry, 173 A.D.2d at 670, 570 N.Y.S.2d at 586 ($ 1,200,000 reduced to $ 100,000); Prata, 70 A.D.2d at 114, 420 N.Y.S.2d at 276 ($ 1,250,000 reduced to $ 700,000); Osborne, 38 A.D.2d at 298, 328 N.Y.S.2d at 769 ($ 800,000 reduced to $ 300,000).
When Koerner's injuries of 40% permanent partial disability to his right dominant hand, 10% permanent partial disability to his whole body as a consequence of the skin graft, and the psychological trauma of his disfigurement are considered within the context of the various jury verdicts discussed above, this Court finds that an award of $ 200,000 for past damages and $ 200,000 for future damages is appropriate. The future damages portion of the award must be discounted to present value. See Oliveri v. Delta S.S. Lines, Inc., 849 F.2d 742, 745-46 (2d Cir. 1988). When appropriately reduced by a discount rate of 2%, see McCrann v. United States Lines, Inc., 803 F.2d 771, 775 (2d Cir. 1986); Doca v. Marina Mercante Nicaraguense, S.A., 634 F.2d 30, 40 (2d Cir. 1980), cert. denied sub nom. Pittston Stevedoring Corp. v. Doca, 451 U.S. 971, 68 L. Ed. 2d 351, 101 S. Ct. 2049 (1981), and calculated on the assumption of a payout in annual installments over the remaining 45.3 years of Koerner's expected life span, the award for future damages is $ 131,067. Thus the appropriate damages award is $ 331,067.
This damages award must be adjusted further to reflect this Court's finding that, on the trial record, Koerner was contributorily negligent in the amount of 25%. Thus the total damages amount to be awarded on Club Med's motion for remittitur is $ 248,300.25, which is based on a contributory negligence factor of 25%.
III. Koerner's Rule 15(b) Motion Is Denied
In light of the disposition of Club Med's present motions, Koerner's motion for leave to increase the ad damnum clause of the complaint is unwarranted and is denied.
For the reasons set forth below, Club Med's Rule 50(b) motion is denied, its Rule 59 motion is granted, and Koerner's Rule 15(b) motion is denied. Unless Koerner agrees to a remittitur of the damages awarded and accepts a total damages award in the amount of $ 248,300.25, Club Med is entitled to a new trial on all issues.
It is so ordered.
New York, N. Y.
September 21, 1993
ROBERT W. SWEET