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July 29, 1997


The opinion of the court was delivered by: BRIEANT

 Brieant, J.

 Before this Court for decision in this diversity case controlled by New York law is Defendant's renewed motion pursuant to Rule 59 F.R.Civ.P. for a new trial unless Plaintiff consents to a remittitur in an amount to be fixed by this Court. Defendant asserts that the jury verdict of $ 450,000.00 was excessive.

 The case involves the loss by Defendant of 310 original photographs in the form of slide transparencies. These photographs were taken by Mr. Gasperini in Central America, while employed as a print journalist, and had been submitted to The Center for Humanities in 1990 for the purpose of having the Center select those most useful to be included in its videotape production entitled "Conflict in Central America: An Historical Commentary." Mr. Gasperini, during seven years in Central America, took over 5,000 slides depicting active war zones, political leaders, and scenes from daily life. Many of these were taken at risk of his life. He selected 300 slides for The Center, and his mother turned over ten additional slides in the Fall of 1991. Accordingly, the 310 slides which are lost represent an editorial selection out of some 5,000 slides, chosen primarily for their relationship to the topics covered by the video. Mr. Gasperini also wrote material for the video. Out of this number of 310 preselected slides, the Center chose and used 110 transparencies for its video. The video survives and was in evidence at the trial. The remaining slides are missing and therefore not available for first-hand consideration or examination by the trier of fact to determine their market value, although secondary evidence concerning these missing slides was in the possession of our trial jury.

 The Supreme Court decision in this case represents an extension of Erie doctrine, or more likely a reversion by the Supreme Court to prior Erie doctrine since abandoned, of which Guaranty Trust Co. v. York, 326 U.S. 99, 89 L. Ed. 2079, 65 S. Ct. 1464 (1945) is the outstanding example. The Supreme Court in Guaranty Trust and again in Gasperini seems to have endorsed the outcome-determinative test to determine whether a disputed point of law is procedural, and therefore governed by the Federal Rules of Civil Procedure and case law developed thereunder, or substantive so as to be governed by state law. This case also involves the interplay of the Seventh Amendment to the United States Constitution with procedural rules in New York and other states, where the Seventh Amendment is not applicable, and jurors are held in lower esteem than is the federal tradition.

 The Supreme Court held essentially that in reviewing a jury verdict for inadequacy or excessiveness, the court in a diversity case must use the same standard used by the state court. Prior to 1986, state and federal courts in New York generally, "invoked the same judge-made formulation in responding to excessiveness attacks on jury verdicts: courts would not disturb an award unless the amount was so exorbitant that it 'shocked the conscience of the court.'" ( Gasperini at 116 S. Ct. at 2217)

 In 1986, as the Supreme Court pointed out, New York codified a standard for judicial review of the size of jury awards. Although this legislation, found in New York C.P.L.R. § 5501(c) appears on its terms to apply only to a decision by the Appellate Division of the New York Supreme Court, and then only in the case of a judgment "in which an itemized verdict is required", the New York courts, including the trial courts, have adapted the new language to apply to all motions for additur and remittitur whether or not the verdict is itemized, and in the trial courts as well as on appeal. *fn1" As is pointed out by Professor David D. Siegel in his commentary published as part of McKinney's Consolidated Laws of New York Annotated at § C5501:8 et seq., the trial court in making a ruling "merely grants a motion for a new trial made by the aggrieved party on the ground of the inadequacy or excessiveness of the verdict 'unless' the defendant agrees to pay a higher sum (additur) or the plaintiff agrees to accept a lower sum (remittitur) than the verdict."

 The Supreme Court in Gasperini noted (fn. 3 at 135 L. Ed. 2d 659, 116 S. Ct. at 2217), "the legislature sought, particularly, to curtail medical and dental malpractice and to contain 'already high malpractice premiums'", Legislative Findings and Declaration, Ch. 266, 1986 N.Y. Laws 470 (McKinney).

 One would think that a verdict that "deviates materially from what would be reasonable compensation" would also "shock the conscience" of a judge reviewing a verdict. However, as the Supreme Court noted in Gasperini id. at 2218, the New York state court opinions confirm that § 5501(c)'s "deviates materially standard calls for closer surveillance than shocks the conscience oversight. (citations omitted)" See also 7 J.Weinstein, H. Korn & A. Miller, New York Civil Practice, P 5501.21, p. 55-64: "under [§ 5501(c)'s new standard, the reviewing court is given greater power to review the size of a jury award than had heretofore been afforded." Although the New York statute gives the appellate court the power and obligation to review verdicts under this new consciousness raising standard, it is now settled law that trial courts in New York first conduct the 'materially deviates" inquiry and apply the statute to requests for remittitur and additur with the same force as the appellate division, the only court authorized by the statute to do so.

 In a post-Gasperini case, our Court of Appeals in Pescatore v. Pan American World Airways, Inc., 97 F.3d 1, 18 (2d Cir. 1996) contrasted the federal question standard that an award is excessive if it shocks the judicial conscience, with Ohio law in which the standard is "damages awarded are so high that to permit the award to stand would be a denial of substantial justice" and held that the Ohio standard for excessiveness is "generally similar to the federal standard." We think that the situation as to Ohio is the same as in New York, but recognize that the Supreme Court of the United States has held otherwise.

 Few New York cases have actually applied Section 5501 and there is little authority as to how this should be done. Most such cases involve personal injury awards for pain and suffering. We are cautioned that we should not look at awards in other cases "for stare decisis purposes, since each requires sui genesis determination." Levine v. East Ramapo Cent. Sch. Dist., 192 A.D.2d 1025, 597 N.Y.S.2d 239 (3d Dept. 1993), cited with approval at New York Juris. Damages § 133. Also, "great deference" must be accorded to the jury's interpretation and review should be done sparingly. See, e.g. Fares v. Fox, 198 A.D.2d 396, 603 N.Y.S.2d 892 (2d Dept. 1993), Rubin v. Aaron, 191 A.D.2d 547, 594 N.Y.S.2d 797, 799 (2d Dept. 1993); Preston v. Young, 657 N.Y.S.2d 499, 502 (3d Dept. 1997); Santalucia v. County of Broome, 228 A.D.2d 895, 644 N.Y.S.2d 408, 410 (3d Dept. 1996); Daversa v. PTC Properties, 165 Misc. 2d 345, 632 N.Y.S.2d 740 (1st Dept. 1995).

 The Gasperini decision in the Supreme Court, as noted earlier, does no more than change the standard for when a remittitur should be ordered. It does not tell us how to go about computing the amount of the remittitur. This Court concludes that a mere averaging of other cases involving other awards for the loss of other photographs would not be an appropriate way to fix the amount of the remittitur. Rather, this court should follow existing Second Circuit precedent in fixing the amount. This requires us to "reduce the verdict only to the maximum that would be upheld by the trial court as not excessive." Earl v. Bouchard Transp. Co., 917 F.2d 1320, 1328 (2d Cir. 1990). This is the least intrusive standard. Our Court of Appeals held in Earl :

"Some courts have employed the least intrusive standard, holding that the remitted amount should reduce the verdict only to the maximum that would be upheld by the trial court as not excessive.
* * *
The benefits of this standard are significant. Compared to the alternatives, it is the most faithful to the jury's verdict. Moreover, the plaintiff is unlikely under this standard to opt for a second trial. Once the remittitur is calculated, the plaintiff becomes fully informed of the maximum award that the district court would permit any jury to return in that particular case."

 See also, Niemann v. Whalen, 928 F. Supp. 296, 299 (S.D.N.Y. 1996); In re: Joint Eastern and Southern District Asbestos Litigation, 827 F. Supp. 1014, 1059 (S.D.N.Y. 1993), Mendoza v. City of Rome, 872 F. Supp. 1110, 1126 (N.D.N.Y. 1994).

 In fixing the amount of the remittitur in this case, we should consider what our trial jury considered, namely the actual facts of this case, rather than prior lost photograph cases essentially involving professional libraries which make photographs available without any editorial commitment on the part of the photographer, or any preselection except by topic.

 As appeared at the trial, such libraries have, by terms of their printed forms of receipts, provided for a liquidated sum for lost photographs, generally pegged at $ 1,500.00 per lost slide, wholly without regard to the quality or significance of the particular photograph lost, or whether it is a unique depiction contrasted with a commonplace picture of forests and waterfalls. Mr. Gasperini's collection included both unique scenes and the commonplace. While this particular transaction did not incorporate the agreed customary $ 1,500.00 payment, and therefore that amount is not binding on either party to this litigation, the practice of commercial people dealing with slides, of fixing the value of a lost slide by agreement at $ 1,500.00, is some evidence of the value of slides generally. Reasonable persons chose as a regular matter to incorporate such a valuation in their bailments recognizing how difficult it is to prove the value of a work of art, especially a photograph which cannot be examined by the jury or replicated.

 The measure of Plaintiff's damages in this case is the market value of the slides at the time they were lost. This value is reflected in what a willing buyer under no compulsion would pay to a willing seller, each fully informed in the matter. The market value of the photographs also is affected by the potential for licensing single uses of the product during the life of the copyright, which is fifty years plus the lifetime of the author.

 Mr. Gasperini had an unusual background of training and experience as a print journalist who took photographs mostly as a side interest. On occasion, Mr. Gasperini's photographs were used commercially by his employer and others, and, although photography was not his main business, he did have a record of earning money from his photographs. The evidence at trial was uncontradicted that Mr. Gasperini, upon the completion of his tour of duty as a journalist, plans to retire and write one or more books about his life experiences. These books would center around the use of his photographs.

 In addition to employment with the Christian Science Monitor, Mr. Gasperini has worked with CBS News and has been employed by United Press International, The Canadian Broadcasting Corporation, Reuters News Service, The Oakland Tribune, and The Kansas City Star. He is fluent in Portuguese, French, Russian and Spanish, as well as English, and has served in his profession all over the world. His photographs have been used in newspapers and magazines, and some of his work has been ...

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