Escobar v. Seatrain Lines, Inc.
| Decision Date | 28 February 1990 |
| Citation | 150 Misc.2d 381,566 N.Y.S.2d 813 |
| Parties | Mrs. Nery ESCOBAR, as legal representative of herself, individually, and on Behalf of two infants, Sergio Escobar, Jr., and Gilda Morejon, as next of kin of Sergio E. Escobar, Deceased, Plaintiff, v. SEATRAIN LINES, INC., Defendant. |
| Court | New York Supreme Court |
Kenneth Heller, New York City, for plaintiff.
Bigham, Englar, Jones & Houston by Joseph Donat and John Shields, New York City, for defendant.
In this action for the wrongful death of a longshoreman who was killed while attempting to extricate crushed and damaged containers on the container ship TransIndiana, a ship owned by defendant and docked at defendant's pier, defendant moves after a second trial to set aside the jury verdict and have judgment entered in its favor, or alternatively to grant a new trial or a substantial reduction of the jury's award.
The case was originally tried before a jury which found that the defendant was negligent in failing to halt the operations when they were known to be dangerous, but nevertheless found the decedent in proceeding to carry out the task he was assigned to do to have been 70% negligent. The total damages awarded were $260,700. On a post-trial motion, this court held that there could not have been contributory negligence as a matter of law, and that the amounts awarded by the jury were shockingly inadequate. This decision was unanimously affirmed by the Appellate Division (146 A.D.2d 973, 537 N.Y.S.2d 941), and the negligence of defendant having been determined, the case was remanded for a new trial solely on the issue of damages. On the second trial, a new jury found the damages to be $2,500,000 for lost wages past and future; lost Social Security benefits of $500,000; $2,000,000 to the widow for loss of society, and $250,000 each to decedent's son and daughter for loss of nurture and care.
Defendant takes strong issue with the testimony of the economists which was presented to support plaintiff's claim for loss of earnings. Plaintiff presented two economists. The first, Mr. Eugene Spector, Research Director for the National Maritime Union, had testified about loss of earnings on the first trial, but died before the second trial. His testimony was read into the record. On the basis of decedent's past work record and the successive collective bargaining agreements which fixed the hourly rate for longshoremen in the Port of New York, Spector calculated that the wages lost by decedent from the date of his death to the date of the first trial in September, 1986 was $571,684. Mr. Spector, based on calculations as to the average annual increase in wages, projected that decedent would have earned an additional $677,674 in wages, overtime, and fringe benefits to age 65 and $356,670 more to age 70, plus a loss of $234,000 in Social Security benefits, for a total of $1,840,028.
To counter that testimony, defendant had offered the testimony of its own economist, Prof. Patrick Gaughan, that given the declining employment opportunities for longshoremen in the Port of New York, it was unlikely that decedent could have continued with increased earnings until the date of his retirement. He calculated that decedent would have been restricted to collecting his Guaranteed Annual Income after 1981, and that therefore the total loss of earnings would have been $822,621 (excluding 25% fringe benefits and Social Security benefits).
Accordingly, on the second trial, plaintiff offered the testimony of Juan Fernandez, a fellow worker of the decedent, to show that employment opportunities for a person of Escobar's status and experience were not limited to collecting the Guaranteed Annual Income, and that he could, indeed, have continued increasing his earnings, as Fernandez did. It was explained that Fernandez had become a longshoreman at virtually the same time as Escobar, and that they had worked side by side over the years. They were both rated as "G" men. Their seniority status was virtually identical. Indeed, Fernandez was described as the virtual "clone" of Escobar. When the Seatrain operation closed down, Fernandez was not left unemployed, as defendant contended Escobar would have been, but moved on to other and better jobs at other piers, and was currently making more than twice the Guaranteed Annual Income (GAI). Defendant attempted to show that Fernandez also worked as a straddle crane operator, and that there was no comparability to what Escobar had done. Plaintiff argued Escobar could have done the same thing, and that the wage differential was not substantial. The arguments pro and con were left for assessment by the jury. This testimony was not offered to support the argument that the earnings of Escobar would have precisely replicated the earnings of his workmate, Fernandez, but rather to rebut defendant's contention that due to shrinkage of the port's labor force, there was nothing left for Escobar but unemployment and the GAI.
Based on this testimony, plaintiff presented the calculations of Dr. Edmund Mantell, Chairman of the Graduate School of Economics and Finance at Pace University, who testified that decedent, but for his death, could have made an additional $4,016,400 in earnings past and future, and in social security benefits. While defendant has objected strenuously to the extrapolations of Dr. Mantell, the validity of his calculations was a question argued to the jury. The jury did not adopt his testimony, for it awarded $2,010,000 in total lost earnings, more in line with the projections of Mr. Spector, who calculated total lost earnings of $1,840,028. The jury considered defendant's contentions that decedent would have been limited only to the guaranteed annual wage in view of the shrinking economic prospects, but it is apparent that it rejected that scenario, as it was entitled to do.
The jury's calculations obviously were predicated on their finding that at the time of the accident decedent was in excellent health and had extraordinary prospects for longevity. An autopsy disclosed that his arteries were free of atherosclerosis and that his cardio-vascular condition was comparable to that of a 20 year old. His subcutaneous fat was one fifth of normal, another factor contributing to longevity. Dr. Michael Baden, former chief medical examiner for New York City, testified that decedent would be grouped within the top 5% of persons his age in terms of life expectancy. His father died at age 89 and his mother was still alive at age 86. Dr. Lawrence Bress, a specialist in geriatric medicine testified that based on genetic inheritance, decedent's cardiovascular condition, heart, liver and organs in excellent condition, he could be expected to outlive his parents. Life expectancy tables tell us what may be anticipated in a large group of people of a given age. However, a jury is always told that this is merely a guide, and based on the particular circumstances of the case before them, they may find a life expectancy lower or greater than average. Based on the testimony here, the jury obviously found that but for the accident decedent's life expectancy would fall into the highest percentiles.
The following table shows the calculations of each economics expert, and the jury's findings.
Earnings Loss Spector Mantell Gaughan Jury
Death to trial 571,684 673,331 346,570 600,000
Trial to Age 70 1,034,344 2,330,975 476,051 1,900,000
Loss of Soc.Sec. 234,000 1,012,044 """""" 500,000
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TOTAL $1,840,028 $4,016,400 $822,621 $3,000,000
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The arguments put forward by defendant as to the relative merits of the projections of the various economists are most appropriately addressed to consideration by the jury. Of course, all economic projections of future wage loss, since they deal with an unknowable tomorrow, are speculative to some degree, but we permit them nevertheless, not as substitutes for crystal ball gazing or tea-leaf reading, but as reasonable predictions based upon and extrapolated from known past records and events. That the opinions of different experts may differ markedly is one of the basic postulates of trial practice.
The projections as to lost earnings made by plaintiff's original economist, Spector, had already taken the discounted value of decedent's lost earnings into account. His figures were based on the proposition that wage increases (391% over the past 20 years) and the going interest rate would tend to offset each...
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