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Protostorm LLC v. Antonelli

United States District Court, E.D. New York

October 8, 2014

PROTOSTORM LLC, Plaintiffs,
v.
ANTONELLI, TERRY, STOUT & KRAUS, LLP, FREDERICK D. BAILEY, and CARL I. BRUNDIDGE Defendants.

MEMORANDUM & ORDER

PAMELA K. CHEN, District Judge.

Before the Court is Defendant Antonelli, Terry, Stout & Kraus, LLP's ("ATS&K") postverdict motion regarding apportionment of damages.

BACKGROUND

The Court assumes the parties familiarity with the extensive trial record in this case and the context in which this motion arises. Only background directly relevant to the resolution of the instant motion is set forth below.

After trial, the Jury found ATS&K and two of its former attorneys, both of whom were individual Defendants, Carl Brundidge ("Brundidge") and Frederick Bailey ("Bailey"), liable to Plaintiff Protostorm LLC ("Protostorm") for legal malpractice.[1] The Jury found that Protostorm proved by a preponderance of the evidence that it was entitled to $6.975 million in compensatory damages. (Dkt. 534, ECF p. 32, q. 9.) On the Verdict Sheet, the Jury was instructed to factually apportion the fault among the Defendants, as well as among Plaintiffs and non-party Dale Hogue based on Defendants' assertion of comparative negligence. The Jury apportioned the fault as follows:

• Plaintiff Protostorm LLC 4%
• Plaintiff Peter Faulisi 0%
• Defendant ATS&K 75%
• Defendant Frederick Bailey 6%
• Defendant Carl Brundidge 15%
• Defendant Alan Schiavelli 0%
• Dale Hogue 0%[2]

Separately, the Jury assessed $900, 000 in punitive damages to ATS&K, and $100, 000 in punitive damages to Brundidge. (Dkt. 534, ECF p. 32, q. 12.) It assessed no punitive damages to Bailey. ( Id. )

DISCUSSION

ATS&K, through its new counsel, [3] asserts that "the jury's apportionment of liability and damages (both compensatory and punitive) to Defendants Bailey and Brundidge should not and cannot be attributed to ATS&K." (Dkt. 550 ("ATS&K Br.") at 1.) ATS&K makes two arguments in support of its position, which it deems "procedural" and "substantive, " respectively. First, ATS&K argues that Protostorm cannot now object to the Jury Instructions and Verdict Sheet because Protostorm "proposed and agreed to the verdict sheet requiring the jury to allocate separate fault to each defendant individually." ( Id. at 2.) Second, ATS&K argues that legally, "[t]here is nothing inappropriate about an allocation of separate damages as to each defendant." ( Id. )

I. Procedural Propriety: The Jury Instructions, Verdict Sheet, and Objections Thereto

ATS&K's first argument is that it is "procedurally improper to now alter the very scheme that was submitted to the jury for adjudication as to the claims asserted." (ATS&K Br. at 2.) Specifically, ATS&K contends that the "case was tried to the jury based upon rulings and instructions as to what would be deemed liability of the firm as opposed to liability of the individuals.... Having tried and submitted the case to the jury in that respect, the allocation cannot now be shifted or ignored." ( Id. ) ATS&K then goes on to cite support for its position that because Protostorm did not object to the Jury Instructions or Verdict Sheet prior to jury deliberations, it waived any potential post-trial objections on the apportionment issue. ( Id. at 2-4.) This contention fails for several reasons.

First, ATS&K's argument rests on a fundamental misunderstanding of the way the case was tried. ATS&K never attempted to argue that the individual Defendants acted outside the scope of their duties or that they should otherwise be held individually liable. In fact, this was confirmed by ATS&K when Protostorm proposed a change to page 10 of the Jury Instructions, which would instruct the ...


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