Only the Westlaw Citation Is Currently Available s2 (2024)

Saladino v. Stewart & Stevenson Services, Inc., Slip Copy (2011)
© 2011 Thomson Reuters. No claim to original U.S. Government Works. / XXX
Saladino v. Stewart & Stevenson Services, Inc., Slip Copy (2011)

2011 WL 284476

Only the Westlaw citation is currently available.

United States District Court,

E.D. New York.

Vito SALADINO and Annmarie Saladino, Plaintiffs,


STEWART & STEVENSON SERVICES, INC., Stewart & Stevenson Technical Services, Inc. and Stewart & Stevenson Tug, Defendants.

Stewart & Stevenson Services, Inc., Stewart & Stevenson Technical Services, Inc. and Stewart & Stevenson Tug, Third-Party Plaintiffs,


American Airlines, Inc., Third-Party Defendant.

No. 01-CV-7644 (SLT)(JMA).Jan. 26, 2011.

Attorneys and Law Firms

Kevin B. McAndrew, McAndrew Conboy & Prisco, Woodbury, NY, for Plaintiffs.

Timothy I. Duffy, Mark Kenneth Silver, Coughlin Duffy, LLP, Morristown, NJ, Defendants.

David Scott Rutherford, Rutherford & Christie, LLP, New York, NY, Marc J. Citrin, John A. Ortiz, Shaub, Ahmuty, Citrin & Spratt, L.L.P., New York, NY, Timothy Robert Capowski, Shaub, Ahmuty, Citrin & Spratt, Lake Success, NY, for Third-Party Defendant.



TOWNES, District Judge.

*1 Plaintiffs Vito and AnnMarie Saladino brought this diversity action against defendants Stewart & Stevenson Services, Inc., Stewart & Stevenson Technical Services, Inc., and Stewart & Stevenson Tug, LLC (collectively, “S & S”) to recover for injuries Mr. Saladino sustained on January 17, 1999, when the unsecured hood of a baggage tractor struck him in the head, rendering him a quadriplegic. S & S impleded third party defendant American Airlines, Inc. (“AA”), who was Mr. Saladino’s employer at the time of the incident, alleging that AA’s negligence was a contributing cause of Mr. Saladino’s injuries. Following the damages phase of the trial, a jury awarded Mr. Saladino (1) $5 million for past pain and suffering; (2) $10 million for future pain and suffering; (3) $4,908,108.20 for past health care expenses; (4) $18 million for future health care expenses; (5) $532,309 for lost earnings; (6) $1 million for loss of future earnings; and Mrs. Saladino (7) $750,000 for loss of consortium.

S & S and AA have moved, pursuant to Federal Rule of Civil Procedure 59, for an order granting a new trial on damages unless Plaintiffs accept a remittitur as to certain jury findings. Specifically, AA contests the awards for (1) pain and suffering; (2) future medical expenses; and (3) loss of consortium. AA also claims that a new trial is warranted due to allegedly improper summation comments by Plaintiffs’ counsel. S & S contests only the pain and suffering awards. For the reasons that follow, Defendants’ motions for a new trial are denied on all grounds.


On January 17, 1999, Mr. Saladino and another AA employee, Daniel Snow, were assigned to unload luggage from an arriving flight at John F. Kennedy International Airport. Mr. Snow drove the baggage tractor with Mr. Saladino riding in the passenger seat. Although the baggage tractor no longer displayed an “out of service” tag, several components related to securing the hood remained missing or non-functional. After they unloaded the baggage, the two men drove away to clock-out for the end of their shift, unaware that a nearby aircraft was conducting an engine test. As they passed it, jet wash from the engine caused the baggage tractor’s hood to lift up and strike Mr. Saladino’s head. When Mr. Snow awoke, he found Mr. Saladino unconscious and unresponsive. Due to his severe injuries, Mr. Saladino is now a quadriplegic.

On November 16, 2001, Mr. and Mrs. Saladino filed a complaint against S & S alleging various theories of liability for Mr. Saldino’s injuries and a derivative claim for loss of consortium. On March 14, 2002, S & S filed a third party complaint against AA for indemnification and/or contribution. This Court bifurcated the liability and damages phases of the trial, and the first phase was tried before a jury in November 2008. Although the jury found Mr. Saladino in part negligent, it did not find him to be a substantial factor in the accident. The jury assigned 30 percent of the fault to S & S and 70 percent to AA.

*2 On July 26, 2010, after the subsequent damages trial, the jury awarded, inter alia, Mr. Saladino $15 million for past and future pain and suffering and $18 million for future health care expenses, as well as $750,000 to Mrs. Saladino for loss of consortium. Defendants claim that parts of the award deviate materially from reasonable compensation and move this Court to grant a new trial unless Plaintiffs stipulate to a substantial reduction. As noted, AA also moves for a new trial based upon allegedly improper summation comments by Plaintiffs’ counsel.


A. Damages Awards Claims

Rule 59 provides that a court “may, on motion, grant a new trial on all or some of the issues ... for any reason for which a new trial has heretofore been granted in an action at law in federal court.” Fed.R.Civ.P. 59(a)(1)(A). The Second Circuit has held that when a trial court finds a jury award excessive, it has the discretion, “pursuant to the practice of remittitur, [to] condition the denial of a motion for a new trial on the plaintiff’s acceptance of a reduced amount in damages.” Dwyer v. Deutsche Lufthansa, AG, 686 F.Supp.2d 216, 218 (E.D.N.Y.2010) (citing Kirsch v. Fleet Street, Ltd., 148 F.3d 149, 165 (2d Cir.1998)). Although the practice of remittitur minimizes judicial interference in the jury’s domain, “[a] trial court must be careful not to disturb a jury’s award unless it is excessive, because calculation of damages is the province of the jury, and damages need not be proved with mathematical certainty.” Okraynets v. Met. Transp. Auth., 555 F.Supp.2d 420, 434 (S.D.N.Y.2008).

To determine whether the verdict is excessive, and therefore appropriate for remittitur, a trial court sitting in diversity must apply the substantive State law. Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 437 n. 22, 116 S.Ct. 2211, 135 L.Ed.2d 659 (1996) (“Whether damages are excessive for the claim-in-suit must be governed by some law. And there is no candidate for that governance other than the law that gives rise to the claim for reliefhere, the law of New York.”). In this case, the relevant New York statute provides:

In reviewing a money judgment ... 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) (emphasis added). A reviewing court must therefore look to comparable verdicts in similar New York cases to evaluate the reasonableness of a jury award. Dwyer, 686 F.Supp.2d at 219. Indeed, the exercise “is not optional but a legislative mandate” and courts “cannot ... attempt to use the rationale of deference to a jury verdict in resolving that issue when we are supposed to compare analogous verdicts.” Donlon v. City of New York, 284 A.D.2d 13, 16, 727 N.Y.S.2d 94 (1st Dep’t 2001).1 For the reasons below, this Court concludes that the damages awarded in this case do not warrant remittitur.

1. Pain and Suffering Damages

*3 Both federal and state courts have long acknowledged that, in contrast to economic damages, awards for pain and suffering “do not lend themselves as easily to computation,” In re Joint Eastern and Southern Dist. Asbestos Litig., 9 F.Supp.2d 307, 311 (S.D.N.Y.1998), and a precise measure is simply “impossible,” Braun v. Ahmed, 127 A.D.2d 418, 424, 515 N.Y.S.2d 473 (2nd Dep’t 1987). In truth, “[a] ssigning dollar amounts to pain and suffering is an inherently subjective determination.” Marcoux, 290 F.Supp.2d at 478.

a. Life Before and After the Accident

Mr. Saladino was born on August 22, 1962, in Brooklyn New York. (Tr. 59). He spent his teenage years working in his father’s deli, and later opened his own produce and garment businesses. (Tr. 59, 61). In 1987, at the age of 25, he married AnnMarie and the couple had two daughters. (Tr. 62, 64). During this period, Mr. Saladino left his own businesses and took a position as a fleet service clerk at American Airlines, allowing him to spend more time with his family. (Tr. 61-62, 64). On a typical day, he worked an early shift, picked up his older daughter from school, helped with homework, cooked dinner, and prepared the girls for bed while Mrs. Saladino worked as a receptionist for a medical practice during the evening. (Tr. 65-66). Mr. Saladino often took his daughters to the park and the family went on excursions to pick pumpkins, strawberries, and apples, as well as to amusem*nt parks, (Tr. 66-67). He also kept a garden in the backyard, where his daughters helped him plant vegetables. (Tr. 67). Before the children were born, Mr. and Mrs. Saladino traveled to the Caribbean, Niagara Falls, Mystic, the Jersey Shore, and Long Island. (Tr. 67). They took the children to Disneyworld and to the beach in the summertime. (Tr. 67).

Mr. Saladino has no memory of January 17, 1999, the day he was injured. (Tr. 68). He awoke in a hospital bed, “scared,” tubes running from his body and feeling completely “numb. I had no feeling nowhere.... I felt my head and that was it.” (Tr. 68-69). The last event he remembered was his sister-in-law’s wedding, which took place in November 1998. (Tr. 68). At Jamaica hospital, doctors surgically fused his spine with bone from his hip and screwed a “halo” brace to his skull which he wore for three months to prevent his head from moving. (Tr. 69, 73). He then spent four months at a rehabilitation center “to learn how to live as a quadriplegic.” (Tr. 70). During this period, Mr. Saladino experienced multiple complications, including high fevers, allergic reactions to antibiotics, as well pressure ulcers on his lower back and ankles, which required extensive surgery and necessitated more hospitalization. (Tr. 70-72). He also suffered from constant urinary tract infections. (Tr. 74). He has feeling only above his collar bone and at the top of his shoulders, and was able move his shoulders and biceps. (Tr. 74). He cannot open or close his fingers, has no movement in his wrists, and operates his electric wheelchair by leaning on a joystick. (Tr. 76). There has been no improvement for Mr. Saladino; the range of motion in his neck has actually decreased. (Tr. 75).

*4 Mrs. Saladino describes her husband as a “wonderful” father, who used to help with all aspects of childcare. (Tr. 380). He also was handy enough to do many of the repairs on their home. (Tr. 382). After the accident, the family had to relocate for six months while the house was altered to accommodate Mr. Saladino’s disabilities. (Tr. 387). In the meantime, Mrs. Saladino was trained at the rehabilitation center to care for her husband, including the routines for catheterization and manual stool evacuation, and how to move him around. (Tr. 387). Mrs, Saladino left work for more than two years, first to be with her husband at the hospital, and then to care for him at home. (Tr. 388). As soon as their younger daughter started first grade, she returned to work part-time. (Tr. 388).

When Mr. Saladino arrived home, he was quiet and devastated. (Tr. 389). The injuries deeply affected the marriage. The family had support in the house 24-hours a day, but Mrs. Saladino testified that it was “hard to have a family life if there’s always somebody ... there watching you.” (Tr. 390). During the first year, Mr. Saladino felt “humiliated” having nurses attend to the intimate parts of his care, so his wife performed all the catheterizations and bowel routines. (Tr. 391). During attempts to socialize out of the house, Mr. Saladino sometimes had accidents with his catheter. (Tr. 391). The man “that was able to everything ... all of a sudden [was] limited to nothing almost.” (Tr. 392). Mrs. Saladino managed all household chores, childcare responsibilities, and work outside the home. (Tr. 392-93). The couple’s intimate physical relations were non-existent. (Tr. 393). Ultimately, they came to the decision that Mr. Saladino should leave the house because they were “arguing a lot and it started affecting the children, ... [who] started pulling away from him a little bit.” (Tr. 394). Mr. Saladino decided that “since [his] kids have lived ... their whole life in the house,” he would move out so “there wouldn’t have to be so much adversity between us.” (Tr, 176). He continues to maintain contact with his family, calling every day, seeing the children during the week, and attending birthdays, graduations, and recitals when possible. (Tr. 176-77). But the marriage is over. Mr. and Mrs. Saladino permanently separated in 2008. (Tr. 395).

b. Mr. Saladino’s Daily Routine

Mr. Saladino currently has 16 hours of nurse care and eight hours of health aid care per day. (Tr. 180). He wakes up at approximately 6 a.m. with the night aid turning him to his back and moving his limbs through a range of motions for at least an hour. (Tr. 171). At 8 a.m., Mr. Saladino’s first nurse arrives, takes his vital signs, changes his catheter, bathes him in the bed, and feeds him breakfast. (Tr. 172). To maintain his level of health, Mr. Saladino has changed his die t significantly; he drinks a gallon of water a day and has accomplished the difficult goal of losing weight, controlling his diabetes, which developed as a result of his injuries. (Tr. 183, 279).

Only the Westlaw Citation Is Currently Available s2 (2024)
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