C. Plaintiffs' Cross Motion to Amend Punitive Damages Clause
Plaintiff seeks to amend the punitive damages clause of the complaint against defendant from $ 10 million to $ 30 million.
Federal Rule of Civil Procedure 15(a) states that once a pleading has been served upon the court and the opposing party, the party may only amend its pleading "by leave of the Court or by written consent of the adverse party." Id. When written consent of the adverse party is not secured, and leave of the Court is sought, "[it] shall be freely given when justice so requires." Id. Reasons for a proper denial of leave to amend include undue delay, bad faith, futility of the amendment, and resulting prejudice to the opposing party. Foman v. Davis, 371 U.S. 178, 182, 9 L. Ed. 2d 222, 83 S. Ct. 227 (1962); State Teachers Retirement Bd. v. Fluor Corp., 654 F.2d 843, 856 (2d Cir. 1981). Absent such a showing, leave to amend should be granted in the court's discretion. Tokio Marine & Fire Ins. Co. v. Employers Ins. of Wausau, 786 F.2d 101, 103 (2d Cir. 1986). Leave to amend was proper where "the amended claim was obviously one of the objects of discovery and related closely to the original claim . . . ." State Teachers Retirement Bd., 654 F.2d at 856.
In the cross motion, plaintiff claims he has discovered new information about defendant's conduct which would entitle him to a higher punitive damage award. Plaintiff claims that the deposition of Mr. Kevin O'Neil ("O'Neil"), an employee of GM quality assurance division, has established that defendant not only knew about the defective shoulder belt retractors for at least one year prior to the recall being instituted, but in addition, even after the recall had begun, the Pesces received tardy notice, about three weeks after Mrs. Pesce had her near fatal collision.
None of the factors discussed in Foman are present. First, there has been no undue delay in plaintiff's motion for this amendment. The deposition of O'Neil took place during the week of January 8, 1996, after the original and amended complaints had been filed and served. Stipulation to the amendment was sought, and was denied by the defendant. Second, there have not been repeated failures to cure deficiencies in this case pertaining to the punitive damages clause. Third, there is no latent futility of the amendment proposed. It is within the realm of possibility that a jury could find that GM was either wanton and reckless, or willful in withholding notice to consumers about defective safety systems in their vehicles for at least one year, and that a jury might desire to punish and/or deter such conduct through an award of punitive damages in excess of the amount originally sought by plaintiff. Fourth, it does not appear that plaintiff has sought the amendment due to bad faith, nor has the defendant at any time stated that plaintiff was acting in bad faith.
Finally, the court finds that the defendant would not be unduly prejudiced by the amendment. Purely monetary increase of exemplary, or punitive damages, is not in itself considered prejudicial to the nonmoving party. Loomis v. Civetta Corinno Constr. Corp., 54 N.Y.2d 18, 20, 444 N.Y.S.2d 571, 429 N.E.2d 90 (1981); Zieziula v. Loblaws, Inc., 91 A.D.2d 1198, 1199, 459 N.Y.S.2d 336 (4th Dep't 1983). "Prejudice, of course, is not found in the mere exposure of the defendant to greater liability. Instead there must be some indication that the defendant has been hindered in the preparation of [its] case or has been prevented from taking some measure in support of his position." Loomis, 54 N.Y.2d at 23.
It is clear that no prejudice exists to defendant beyond exposure to greater liability. GM has been aware of plaintiff's claim for $ 10 million in punitive damages since the inception of this litigation. Further, defendant has failed to specify why it would sustain any undue prejudice from the increased punitive damages claim. Accordingly, leave to amend the complaint is granted.
Therefore, it is
1. Defendant's motion for summary judgement is DENIED;
2. Defendant's motion to preclude any evidence suggesting the removal of the seat belt assembly from the Pesce vehicle by GM is GRANTED;
3. Defendant's motion to preclude evidence pertaining to the shoulder belt retractor and "D" ring is DENIED;
4. Defendant's motion to preclude evidence of the recall and recall letter pertaining to the Pesce vehicle is DENIED; and
5. Plaintiff's cross motion to amend the punitive damages clause of the complaint from $ 10 million to $ 30 million is GRANTED.
IT IS SO ORDERED.
David N. Hurd
UNITED STATES MAGISTRATE JUDGE
Dated: August 12, 1996
Utica, New York