Opinion
98 Civ. 4625 (JFK)
October 17, 2002
Sheldon Tabak, TABAK MELLUSI, New York, New York; Counsel for Plaintiff
Jeanne-Marie Downey, BETANCOURT, VAN HEMMEN GRECO New York, New York; Counsel for Defendants
MEMORANDUM OPINION AND ORDER
Defendants move to amend the judgment pursuant to Federal Rule of Civil Procedure 59(e) to reduce the future components of the jury's award to present value. On May 14, 2001, the jury found in favor of plaintiff on all counts. Post-trial motions were decided on March 15, 2002, which in part vacated the award for future maintenance and required additional submissions on the proper amount of past maintenance. A decision was rendered on the past maintenance amount on August 14, 2002. Final judgment was entered on August 21, 2002. Thereafter the Court received correspondence from defense counsel regarding the issue of discounting the award to present value. The Court found that there was no need to further discount the award and recommended that judgment be entered. Defendants now move to amend the judgment to discount the future components of the award.
During trial, the Court stated "I have put in — although the plaintiff didn't request it, the defense did and I think I have to put it — I have the book over here, this discounting to present value. I must say every time I give that to the jury, I end up with lots of questions about discounting." (Tr. 1241). Plaintiff's counsel then informed the Court that the plaintiff wanted the Court to reduce to present value the future components of any jury award. (Tr. 1241). The Court instructed plaintiff to discuss this matter with defendants during the lunch recess. (Tr. 1242) What happened during and after this recess is disputed by the parties.
"Tr." refers to the page number of the trial transcript.
Defendant claims that the Court agreed it would handle the reduction to present value of any future jury awards, but admits that this conversation is not in the trial record. See Att'y Certification of Jeanne-Marie Downey, ¶ 7, n. 1. Plaintiff claims that no agreement was reached to allow discounting for future damages and that it was left to the Court to give the jury charge. See Shisha Opp'n Aff. at 2.
Defendants' proposed charge on the issue of discounting was used almost verbatim by the Court. The relevant portion of the Court's charge stated:
[if] you find . . . that the evidence in the case establishes either: (1) a reasonable likelihood of future medical expenses, or (2) a reasonable likelihood of loss of future earnings, then it becomes your duty to ascertain the present worth in dollars of such future damage, since the award of future damages necessarily requires that payment be made now for a loss that will not actually be sustained until some future date. It is self-evident that a given sum of money in hand now is worth more than a like sum of money payable in the future in installments and over an extended period. A given sum of money now in hand may be invested and earn interest. Thus, if you make an award for future earnings, you must reduce each annual installment to its present value. This process is referred to as "discounting to present value."
Defendants argue that the charges were "not sufficient to enable the jury to actually conduct the reduction." See Defs.' Mem. at 2. However, no discounting rate was offered in any submission, including defendants' proposed special interrogatories and charge. Similarly, no objection was made to the charge or the special verdict which did not include a proposed rate or other instructions on discounting. The post-trial motions raised several issues related to the amount and propriety of the jury's award, with no mention of the need to discount the future components.
Rule 59 is not a means for relitigating old issues, presenting the case under new theories, or otherwise taking a "second bite at the apple."Sequa Corp. v. GBJ Corp., 156 F.3d 136, 144 (2d Cir. 1998) (citing United States v. Local 1804-1, 831 F. Supp. 167, 169 (S.D.N.Y. 1993), aff'd sub nom. United States v. Carson, 52 F.3d 1173 (2d Cir. 1995); Wallace v. Brown, 485 F. Supp. 77, 78 (S.D.N.Y. 1979)). Defendants did not object to the failure to charge on a proper discount rate and method, and have finally raised the after the post-trial motions and supplemental issues related thereto have been decided. Defense counsel argues that her failure to raise the issue previously was based on her belief that the Court would do the reduction after the verdict was finalized. See Defs.' Supplemental Att'y Certification ¶ 5. Regardless of the merits of this belief, defendants had several opportunities to raise the matter of discounting and did not. Defendants' failure to raise this issue previously buttresses plaintiff's claim that defendants seek a second bite at the proverbial apple.
Conclusion
The Court addressed discounting of future damage awards in its in jury charge, and having now had two opportunities to amend the judgment, declines to do so. Defendants' motion is denied.