clinical neurologist, testified about the relationship between
Legionnaires' Disease and such symptoms. He stated that studies
indicate that about one-third of the patients who survive
Legionnaires' Disease suffer from acute or chronic
encephalopathy, that is, disease of the brain. (Tr. 3384-86,
3402, 3404). Dr. Dickoff acknowledged that the etiology of this
relationship is a matter of uncertainty. Some physicians believe
that the injury is caused directly by toxins released by the
Legionella bacteria, while others surmise that it results from
an autoimmune reaction to these microorganisms. (Tr. 3391,
3401). In addition, a pneumonia like Legionnaires' Disease can
cause hypoxia — reduced blood oxygen — and consequent brain
damage, though hypoxia was not documented in Mr. Silivanch's
case. (Tr. 3391-92). However, debate concerning the precise
biological mechanism at play does not undercut the general
agreement in the scientific community concerning the causal
connection between Legionnaires' Disease and encephalopathy.
And, based on his examination of Mr. Silivanch, his review of
the plaintiffs medical records, and his familiarity with the
scientific literature, Dr. Dickoff concluded that Mr.
Silivanch's brain injury and cognitive deficits were caused by
Legionnaires' Disease. (Tr. 3387-90).
Nevertheless, the Essef Defendants argue that this evidence
was insufficient to prove causation. First, they contend that
the plaintiffs' experts were obligated to follow a protocol of
differential diagnosis, that is, ruling out other possible
causes of Mr. Silivanch's brain injury and ruling in
Legionnaires' Disease. While a useful analytical tool,
differential diagnosis is not a legal prerequisite for proving
causation. In this case, there was nothing in Mr. Silivanch's
medical history or records that suggested a potential
alternative cause for his injury, nor have the defendants
suggested such a factor.
Next, the Essef Defendants contend that causation is not
proven unless Mr. Silivanch can demonstrate that contracting
Legionnaires' Disease doubled the likelihood that he would
exhibit cognitive deficits. But the Second Circuit has
specifically rejected such a mechanical approach to causation.
See In re Joint Eastern & Southern District Asbestos
Litigation, 52 F.3d 1124, 1128, 1134 (2d Cir. 1995).
The Essef Defendants also argue that the plaintiffs improperly
relied on case reports to prove causation. But such data are
plainly relevant to an expert's opinion as to whether a given
risk factor is generally associated with an injury. See Kennedy
v. Collagen Corp., 161 F.3d 1226, 1228 (9th Cir. 1998);
Jennings v. Baxter Healthcare Corp., 331 Or. 285, 303-09,
14 P.3d 596, 606-09 (2000); State v. Smith, 262 N.J. Super. 487,
521, 621 A.2d 493, 511 (App.Div. 1993).
Finally, the Essef Defendants again complain that the
plaintiffs rely on the false principle of post hoc, ergo
propter hoc. Again, however, there was evidence of causation
beyond merely a temporal proximity between Mr. Silivanch's
contracting Legionnaire's Disease and his exhibiting symptoms of
2. Medical Expenses
The Essef Defendants challenge the awards of past and future
medical expenses to Mr. Silivanch. As to past expenses, they
argue that the plaintiffs failed to establish that the charges
of the service providers were customary and reasonable and that
the plaintiffs improperly relied on hearsay testimony. Neither
argument is persuasive. Dr. Eric London, a psychiatrist,
testified to the reasonableness of the medical expenses incurred
Silivanch as a result of his brain injury.*fn10 (Tr.
3232-33). Although this evidence was limited, the defendants
offered nothing to contradict it, and the jury was entitled to
give it credence. Dr. London also testified to the charges
imposed for services performed by others. (Tr. 3232-33).
However, the Essef Defendants did not raise a hearsay objection
at trial, nor did they dispute the accuracy of Dr. London's
testimony. Accordingly, they have waived any objection to this
The Essef Defendants further argue that there was no adequate
evidentiary basis for the jury's award of future medical
expenses. However, there was testimony regarding the psychiatric
and rehabilitative services that Mr. Silivanch received up to
the date of trial. There was also substantial evidence that he
was unlikely to improve over time. (Tr. 3028, 3233).
Nevertheless, the Essef Defendants argue that because this
testimony came, at least in part, from Dr. Beth Caton, a
neuropsychologist who did not treat the plaintiff, it is
insufficient. However, there is no requirement that evidence
supporting future medical expenses must come only from a
treating physician. See Moulton v. Rival Co., 116 F.3d 22, 27
(1st Cir. 1997) (jury entitled to credit testimony of
rehabilitation expert regarding future expenses over that of
treating physician). Accordingly, the jury's verdict was fully
supported by the evidence.
3. Future Earnings
Next, the Essef Defendants attack the jury's award for loss of
future earnings. They argue that there was insufficient proof
that Mr. Silivanch is unemployable, and they assert that the
pension and social security payments that he will receive should
be deducted from the award.
There was ample evidence, however, of Mr. Silivanch's
inability to work. Daniel Zietchick, a clinical social worker
who treated the plaintiff, testified that not only was Mr.
Silivanch terminated from his prior job, but, because of his
loss of mental function, he was unable to pursue other work.
(Tr. 2820-22). Similarly, Marie Barry, the plaintiffs
rehabilitation counselor, testified that although the goal of
the therapy she provided had initially been to prepare the
plaintiff to return to work, she ultimately concluded that he
could not maintain competitive employment and that his status in
that respect was unlikely to improve. (Tr. 3087-90). Finally,
Dr. Caton, the neuropsychologist, also testified that Mr.
Silivanch was incapable of working. (Tr. 3024). The jury could
fairly credit this evidence over that offered by the defendants.
Whether the jury should have deducted pension and social
security benefits turns on the collateral source rule. The
collateral source doctrine generally precludes benefits received
from third-parties from being considered in determining the
amount of damages. See Turnbull v. USAir, Inc., 133 F.3d 184,
186 (2d Cir. 1998). It is fully applicable in admiralty cases
such as this. See A/H Battery Associates v. Gulf Craft, Inc.,
No. 93 CIV 1915, 1998 WL 252105, at *1 (S.D.N.Y. May 18, 1998);
Stanley v. Bertram-Trojan, Inc., 868 F. Supp. 541, 543
(S.D.N.Y. 1994). Furthermore, both pension and social security
benefits are considered collateral source payments. See Clausen
v. Sea-3, Inc., 21 F.3d 1181, 1192-93 (1st Cir. 1994)
(disability benefits and social security); In re Adventure
Bound Sports, Inc., 858 F. Supp. 1192,
1208-09 (S.D.Ga. 1994) (social security); Olsen v. City of New
York, No. 83 CIV. 0462, 1984 WL 1033, at *2 (S.D.N.Y. Oct. 18,
1984) (pension). Therefore, the jury in this case properly
declined to deduct such payments from its award for the loss of
4. Pain and Suffering
Finally, the Essef Defendants argue that the jury's award of
$900,000 to Mr. Silivanch for pain and suffering was excessive
and merits an order of remittitur. A court can order remittitur
requiring a plaintiff to choose between a reduced damage award
and a new trial in two circumstances:
(1) where the court can identify an error that caused
the jury to include in the verdict a quantifiable
amount that should be stricken, . . . and (2) more
generally, where the 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,
Shu-Tao Lin v. McDonnell Douglas Corp., 742 F.2d 45, 49 (2d
Cir. 1984) (citations omitted). The Essef Defendants have not
identified any specific quantifiable error in the jury's award
of damages for pain and suffering, and I find none. Thus, the
verdict can be set aside only if it is "so high as to shock the
judicial conscience and constitute a denial of justice." Kirsch
v. Fleet Street, Ltd., 148 F.3d 149, 165 (2d Cir. 1998)
(citations and quotations omitted).
In support of their claim of excessiveness, the Essef
Defendants point to two segments of the plaintiffs testimony:
where he stated that, for the most part, he had no memory of his
hospitalization, and where, according to the defendants, he
acknowledged finding pleasure in daily activities. This
evidence, however, hardly minimizes Mr. Silivanch's suffering.
First, he had no memory of pain or discomfort at the hospital
precisely because his brain injury disrupted his mental
processes. He does recall having vivid hallucinations while he
was hospitalized, and in his state of delirium he pulled
intravenous tubes from his arm and left the hospital against
medical advice. (Tr. 3186-89). Even though a plaintiff does not
have a specific memory of pain, he may be compensated for his
suffering based on objective evidence. See Stratis v. Eastern
Air Lines, Inc., 682 F.2d 406, 414-15 (2d Cir. 1982).
Moreover, "a more flexible definition of pain and suffering
must be used" where a plaintiff has suffered brain damage.
Hoskie v. United States, 666 F.2d 1353, 1358 (10th Cir. 1981).
"[T]he compensable pain and suffering from injuries to the brain
extends far beyond that suffered at the time the initial injury
occurs." Id. It includes the loss of capacity for mental
development and the daily frustrations of loss of mental
Nevertheless, the Essef Defendants contend that the impact on
Mr. Silivanch's life has been minimal as evinced by his
statement that "I can sit and watch the grass grow and it
wouldn't bother me." (Tr. 3190). However, the defendants have
seriously mischaracterized the plaintiffs testimony by plucking
a single sentence from his description of his current state of
mind. When his attorney asked him if events are still confused
in his mind as they were when he was in the hospital, Mr.
Some of it, and some of it is not. It's just — it's
that my time span is completely gone, time is gone.
It's weird, the whole thing is weird. My time is —
it's like — I can explain it, but I can't. Joyce
can't understand, she can't understand the time, and
a minute to me is an — an hour is like a minute. I
can sit and watch the grass grow and it wouldn't
bother me. It wouldn't bother me at all. I say that,
I don't even know where I'm going now.
(Tr. 3189-90). As is clear from this passage, the plaintiff was
struggling to describe his disorientation with respect to time,
not stating that he enjoyed day-to-day activities.