Escobar v. Seatrain Lines, Inc.

• Decision Date: 22 August 1991
• Parties: Mrs. Nery ESCOBAR, individually and on behalf of two infants, Sergio Escobar, Jr., and Gilda Morejon as next of kin of Sergio E. Escobar, deceased, Plaintiff-Respondent, v. SEATRAIN LINES, INC., Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 498

573 N.Y.S.2d 498

175 A.D.2d 741

Mrs. Nery ESCOBAR, individually and on behalf of two

infants, Sergio Escobar, Jr., and Gilda Morejon as

next of kin of Sergio E. Escobar, deceased, Plaintiff-Respondent, v. SEATRAIN LINES, INC., Defendant-Appellant.

Supreme Court, Appellate Division,

First Department.

Aug. 22, 1991.

Before MURPHY, P.J., and CARRO, WALLACH, KUPFERMAN and SMITH, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, New York County (Edward Greenfield, J.), entered March 29, 1990, after a jury trial, in favor of plaintiff in the amount of $8,436,798.25, including interest and costs, unanimously reversed, on the law and on the facts, and a new trial before a different justice is ordered on the issue of damages, without costs. Appeals from the orders entered on or about July 18, 1986, April 27, 1988, February 28, 1990 and March 27, 1990, are dismissed as subsumed in the judgment without costs. Motion No. 2291/1991 to strike a portion of plaintiff's brief is unanimously denied.

This action arises from the death of a longshoreman engaged in maritime employment on board a vessel, on navigable waters, and so is governed by the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 901 et seq. (the Longshoremen's Act) and Federal maritime law (Tibak v. City of N.Y., 154 A.D.2d 313, 546 N.Y.S.2d 602, app. den. 75 N.Y.2d 705, 552 N.Y.S.2d 927, 552 N.E.2d 175; Stuto v. Coastal Dry Dock & Repair Corp., 153 A.D.2d 937, 545 N.Y.S.2d 743, lv. to app. dism., 75 N.Y.2d 865, 552 N.Y.S.2d 930, 552 N.E.2d 178). After a trial held in 1986, a jury found defendant liable, awarded damages of $869,000, but found decedent 70% negligent, resulting in an award of $260,700.

On January 26, 1989, we affirmed without opinion the trial court's order dismissing defendant's contributory negligence defense and setting aside the verdict as inadequate, and ordered a new trial on damages only (146 A.D.2d 973, 537 N.Y.S.2d 941). Upon re-trial in May 1989 a jury awarded plaintiff $600,000 for past pecuniary loss, $2,400,000 for future pecuniary loss (which included $500,000 lost Social Security benefits), $2,000,000 for loss of society, and $250,000 to each of the decedent's two children for loss of nurture and care, which was reduced to $75,000 each by the trial court(150 Misc.2d 381, 566 N.Y.S.2d 813). For reasons that follow, we are constrained to reverse the judgment entered in the amount of $5,150,000, plus interest of $3,285,953.25, plus costs and disbursements of $845, for a total of $8,436,798.25, and order a new trial on damages.

Ordinarily, establishing a decedent's future earnings, had he lived, is based upon the decedent's actual earnings history. Here, however, plaintiff was apparently discouraged by what the decedent's earning history would have yielded because the decedent, aged 47 at the time of his death in 1977, had never earned more than $26,588 in any one year, and in the five years preceding his death had earned $17,930 in average yearly salary. The trial court permitted plaintiff to equate decedent's earnings to those of one Juan Fernandez, who was not only qualified as an ordinary longshoreman, or "hold man" (as was the decedent), but also a straddle carrier and crane operator, and who had average yearly earnings of $38,981 in the four years after 1977. In the contract year closest to decedent's death, Fernandez had earned $41,311, which is 55% more than decedent's highest annual salary of $26,588. This fatally tainted the jury's verdict which awarded $600,000 in lost wages from February 1977 through May 1989 (averaging $48,980 annually), and $1,900,000 from May 1989 to decedent's projected retirement at 70 years of age (averaging $172,727 annually).

The award was grossly excessive, and was apparently accomplished through the testimony of plaintiff's economic expert, Dr. Edmund Mantell. (Plaintiff also read excerpts from the testimony of the late Eugene Spector, plaintiff's other economist at the first trial.) We observe that Dr. Mantell's testimony as an expert witness was cited by the Second Circuit Court of Appeals, which held, in reversing a judgment for pecuniary loss of a decedent's wife and children, that "[t]he most prejudicial of [the errors occurring in the course of the trial] was allowing the jury to consider as evidence Dr. Mantell's lengthy, extravagant, and non-probative projections of Dr. Lin's future income." (Shu-Tao Lin v. McDonnell Douglas Corp., 742 F.2d 45, 49 [2nd Cir.1984]. Just nine months before that, the Second Circuit found Dr. Mantell's proposed testimony to be "highly suspect" and "riddled with errors," and affirmed the determination of the District Court to exclude his testimony after it had noted "a number of assumptions and assertions made by Dr. Mantell that were so unrealistic and contradictory as to suggest bad faith." (Shatkin v. McDonnell Douglas Corp., 727 F.2d 202, 208 [2nd Cir.1984].

In the case now before us, Dr. Mantell projected that decedent would earn an average of $56,111 per year through 1989, and $145,686 per year until the year 2005 when decedent would have been 75 years of age. Dr. Mantell's testimony was improperly founded upon comparison of the earnings and work history of Mr. Fernandez, whose qualifications and earnings history were substantially different from the decedent's. Dr. Mantell's $4,016,400 projection of decedent's survivors' total economic loss was in our view highly speculative, and denied the defendant a fair trial.

If we were not reversing on the grounds of Dr. Mantell's testimony, we would nevertheless have reversed on the basis of plaintiff's counsel's personal attacks on the defendant's trial attorney, and prejudicial appeals to the jury's passion and sympathy through the introduction of irrelevant evidence. (See, Berkowitz v. Marriott Corp., 163 A.D.2d 52, 558 N.Y.S.2d 511). Several examples from plaintiff's attorney's summation are illustrative of the type of prejudicial statements made by plaintiff's counsel that warrant reversal in this case:

Forget [defense counsel], forget his face. [Counsel] is only a facade, that behind that facade is the real Seatrain, the real Seatrain, the one that killed Sergio Escobar, and the one who has done everything you've heard of from the witnesses in this courtroom for many years. That's the real Seatrain.

I want you to put aside that nice, friendly, affable gentleman because that's not the contest. The decision is is Seatrain responsible and for how much. So forget the Madison Avenue seller.

Now, for example, in the orient they have professional criers, professional mourners that come to every funeral and cry and apologize and feel sorry. [Counsel] is a professional mourner here that was sent here by Seatrain so you will forget the real face of Seatrain. The real face of the company that did this. [Counsel] is the facade.

Now, the purpose of his nice, friendly, gentle affable presence is to make you forget. I want you to remember. I also want you to remember that he wouldn't allow any of us to tell you how Sergio died.

* * * * * *

[ Counsel] is the master of the half-truth, the inuendo [sic], what might be, what may be, what possibly could be, everything that's intended to raise the specter of doubt in your mind as to the realities that they killed him and its their obligation to pay.

After addressing similar conduct, the Appellate Division, Fourth Department stated, in words particularly applicable to counsel's conduct herein: "It is time that the bar should realize that when counsel in a close...