The opinion of the court was delivered by: David N. Hurd United States District Judge
MEMORANDUM DECISION and ORDER
Sheila Hackert and her son, John Hackert, (collectively, "plaintiff") filed this action asserting claims against First Alert, Inc. and BRK Brands, Inc. (collectively, "defendant" or "BRK") for conduct related to the manufacturing of smoke detectors which failed to alarm during a fire at their home. The fire resulted in the destruction of the house and the deaths of Sheila Hackert's husband, William P. Hackert, Jr. and daughter, Christine M. Hackert.
A jury trial was held from April 3, 2006, through April 21, 2006, in Utica, New York. After three days of deliberation, the jury determined that the design of defendant's ionization smoke detector was defective and that the defendant was negligent in failing to use ordinary care in the design, testing, marketing and sale of the alarm. The jury awarded economic damages on account of the deaths of William and Christine Hackert and also awards for their conscious pain and suffering in the amount of $3 million each. The jury found the plaintiffs comparatively negligent and allocated 35% of the fault to them. In addition, the jury awarded plaintiffs $500,000 in punitive damages.
Defendant moves pursuant to Fed. R. Civ. P. 50(b), 59(a) and 59(e) for post-trial relief seeking judgment as a matter of law or, in the alternative, a new trial and remittitur. Plaintiff opposes. Oral argument was heard on June 13, 2006, in Utica, New York. Decision was reserved.
Defendant moves for relief on numerous grounds. All but one of these arguments were considered pre-trial or at trial, have now been reconsidered post-trial, and are without merit. Only two arguments require discussion. Defendant's argument that the jury awards for conscious pain and suffering for both decedents are against the weight of the evidence will be addressed. In addition, it is necessary to clarify the nature and characterization of the testimony of Mr. Dennis Ware ("Ware").
A. Awards for Conscious Pain and Suffering
"[S]tate law rather than federal law controls the question whether a verdict was excessive in a case tried in the diversity jurisdiction of the federal court." Consorti v. Armstrong World Indus., 103 F.3d 2, 4 (2d Cir. 1995). New York law addresses the propriety of jury verdicts as follows:
In reviewing a money judgment in an action in which an itemized verdict is required by rule forty-one hundred eleven of this chapter in which it is contended that the award is excessive or inadequate and that a new trial should have been granted unless a stipulation is entered to a different award, the appellate division shall determine that an award is excessive or inadequate if it deviates materially from what would be reasonable compensation.
N.Y. C.P.L.R. 5501(c) (McKinney's 1995 & Supp. 2006). While the statute purportedly applies to the state appellate divisions, it has been held that a federal trial court exercising diversity jurisdiction should use that same standard. Id. (citing Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 437 (1996)).
"In applying this standard, a district court reviews the evidence presented at trial in support of the challenged damage award and compares the award to other New York cases in which evidence of similar injuries was presented." Presley v. United States Postal Serv., 317 F.3d 167, 173 (2d Cir. 2003) (citing Gasperini, 518 U.S. at 437-39). "In determining damages for conscious pain and suffering experienced in the interval between injury and death, when the interval is relatively short, the degree of consciousness, severity of pain, apprehension of impending death, along with duration, are all elements to be considered." Regan v. Long Island R. R. Co., 128 A.D.2d 511, 512 (N.Y. App. Div. 2d Dep't 1987) (quoting Juiditta v. Bethlehem Steel Corp., 75 A.D.2d 126 (N.Y. App. Div. 4th Dep't 1980).
The defendant argues that the $3 million award for conscious pain and suffering of each decedent is excessive because they suffered for relatively brief periods of time. Plaintiff's expert Dr. Donald Jason testified that William Hackert suffered approximately three minutes and Christine Hackert approximately six minutes before succumbing to the heat, smoke, and fire. However, the jury could reasonably have determined that the decedents suffered for longer periods of time. It does appear that Christine suffered twice as long as William.
Plaintiff has not cited case law demonstrating verdicts in the range of $3 million dollars, but reiterates the circumstances of William and Christine Hackert's deaths. The window air conditioner in William Hackert's room was displaced, which reasonably indicates an attempt to remove it to escape the fire and supports an inference that he had an apprehension of his own death. Dr. Jason also provided expert testimony, which could reasonably have been credited by the jury, as to what he likely experienced in succumbing to heat exposure. Christine Hackert's body was found at the window of her bedroom, demonstrating some awareness of her circumstances and supporting an inference that she also had an apprehension of her own death. The jury may also have credited the testimony of John Hackert who testified to hearing her screaming "Fire, fire, help."
Presuming that the jury credited testimony that the decedents were conscious and suffering for the alleged periods of time, the awards here must be reconsidered. Under New York case law, reasonable compensation for conscious pain and suffering of short durations is significantly lower than $3 million. See Givens v. Rochester City Sch. Dist., 294 A.D.2d 898, 899 (N.Y. App. Div. 4th Dep't 2002) ($1 million verdict reduced to $300,000 where decedent suffered less than one hour after sustaining a stab wound); Rodd v. Luxfer USA Ltd., 272 A.D.2d 535, 536 (N.Y. App. Div. 2d Dep't 2000) ($1 million verdict reduced to $300,000 where decedent suffered no more than 30 minutes after sustaining a chest wound due to an explosion); Glassman v. City of New York, 225 A.D.2d 658, 658 (N.Y. App. Div. 2d Dep't 1996) ($1.4 million award reduced to $500,000 where decedent suffered massive injuries but was only minimally conscious before death after being struck by a car); Torelli v. City of New York, 176 A.D.2d 119, 124 (N.Y. App. Div. 1st Dep't 1991) (court awarded $250,000 where decedent suffered between fifteen minutes and one hour from horrendous injuries after car collision); Walker v. New York City Transit Authority, 130 A.D.2d 442, 443 (N.Y. App. Div. 1st Dep't 1987) ($1 million award reduction to $600,000 affirmed where decedent suffered very briefly and his level of consciousness was unknown after he was struck by a train).
Even considering the jury's reasonable crediting of the evidence demonstrating conscious pain and suffering, in light of New York case law, the awards of $3 million each for conscious pain and suffering of William and Christine Hackert deviate materially from what would be reasonable compensation. Based upon the evidence at trial, defendant's motion for a new trial on the issue of those damages will be granted unless plaintiff consents to a remittitur of $1 million as to the conscious pain and suffering of William Hackert and $2 million as to the conscious pain and suffering of Christine Hackert. Considering the 35% comparative negligence allocation, this would result in a judgment of $650,000 for the conscious pain and suffering of William Hackert and $1.3 million for the conscious pain and suffering of Christine Hackert.
B. Testimony of Dennis Ware
Defendant asserts that it was error to permit Ware's expert testimony. Defendant objects to Ware's testimony on two grounds (1) that he was portrayed to the jury as an independent expert witness when he was actually retained by plaintiff, and (2) that he offered expert testimony as to the battery placement in the dining room detector during the time of the fire.
Ware was employed by Stauffer Investigative Services at the time of the Hackert fire and was hired by Allstate Insurance Company to conduct an origin and cause investigation. On direct examination it was pointed out to the jury that he was not employed by either party at the time of his investigation. (April 10, 2006, Trial Transcript of Morning Session ("A.M. Tr. __.") at 129-30.)*fn1 His testimony involved relating his observations of the fire scene on June 2, 2003, only two days after the fire. He explained his examination of the building, his interview with Sheila Hackert, and his observation of the artifacts found at the scene. He related that he found the dining room ...