66 F.3d 427 (2nd Cir. 1995), 1133, Gasperini v. Center for Humanities, Inc.

Docket Nº:1133, Docket 94-7753(L).
Citation:66 F.3d 427
Party Name:William GASPERINI, Plaintiff-Appellee, v. The CENTER FOR HUMANITIES, INC., doing business as Guidance Associates, Defendant-Appellant.
Case Date:September 12, 1995
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 427

66 F.3d 427 (2nd Cir. 1995)

William GASPERINI, Plaintiff-Appellee,


The CENTER FOR HUMANITIES, INC., doing business as Guidance

Associates, Defendant-Appellant.

No. 1133, Docket 94-7753(L).

United States Court of Appeals, Second Circuit

September 12, 1995

Argued March 8, 1995.

Francis A. Montbach, New York City (Bigham Englar Jones & Houston, New York City, on the brief), for appellant Center for Humanities, Inc.

Samuel A. Abady, New York City (Jonathan S. Abady and David N. Mair, Rubin, Kalnick, Bailin, Ortoli & Abady, P.C., New York City, on the brief), for appellee William Gasperini.

Before: MAHONEY, WALKER, and CALABRESI, Circuit Judges.

CALABRESI, Circuit Judge:

Although we usually think of photography as creating a permanent record, its permanence is tenuous at best. This is particularly so in the case of slide transparencies, the medium in which most professional photographers work. Duplication of the original transparency is difficult and necessarily involves a significant loss of quality. As a result, commercially viable prints can in most cases only be made from the original transparency. And once an original slide transparency is lost, the ability to make commercially usable prints is also lost, leaving behind only those prints that had already been made. This reality lends a certain urgency to transactions involving the use of original transparencies.

Page 428

In this case, plaintiff-appellee William Gasperini, a journalist, provided some three hundred slides to the defendant-appellant Center for the Humanities ("the Center"), slides which the Center subsequently lost. The Center conceded liability for the lost transparencies, and a jury trial on the issue of damages was held before the United States District Court for the Southern District of New York (Brieant, J.). The jury returned an award of damages for Gasperini in the amount of $450,000. Because we conclude that this award is excessive under New York law (the applicable law in this diversity case), a new trial will be required unless Gasperini agrees to a remittitur and accepts an award of $100,000.


William Gasperini is a well-regarded journalist for CBS News and the Christian Science Monitor. Since he began his journalism career in 1984 in Central America, Gasperini has earned his living primarily in the radio and print media, although, on occasion, he has also sold photographs. Gasperini's earnings from photography, by his estimation, total just over $10,000 for the period from 1984 through 1993.

In 1990, Gasperini entered into a contract with the Center, under which Gasperini agreed to supply the Center with original color transparencies that he took in Central America between 1984 and 1990. Gasperini delivered 300 transparencies to the Center; he claimed that his mother produced an additional ten transparencies at a later date. The Center used the transparencies in the preparation of an educational videotape titled Conflict in Central America. Gasperini was to be paid a royalty of fifteen percent of the cash receipts from the sale of the videotape. It was understood that the Center would return the original transparencies to Gasperini when work on the videotape was completed. But when the time came, and despite an extensive search, the Center could not locate the transparencies.

Gasperini brought this diversity action in the District Court for the Southern District of New York. The Center admitted liability, and the issue of damages was tried to a jury in June 1994. At the trial, Gasperini presented evidence, largely through expert witness Jane Kinne, that an "industry standard" within the photographic publishing community valued lost transparencies at $1,500 each. Following a three-day trial, the jury returned a verdict awarding Gasperini damages of $450,000, which, according to the jury foreman, represented $1,500 each for 300 transparencies. The Center moved for a new trial pursuant to Rule 59 of the Federal Rules of Civil Procedure. The district court denied the motion without comment, and this appeal followed.



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