        09-0146-cv
        House v. Kent Worldwide


                        UNITED STATES COURT OF APPEALS
                            FOR THE SECOND CIRCUIT

                                  SUMMARY ORDER

     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION
     TO SUMMARY ORDERS FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS
     GOVERNED BY THIS COURT’S LOCAL RULE 32.1 AND FEDERAL RULE OF
     APPELLATE PROCEDURE 32.1.     IN A BRIEF OR OTHER PAPER IN WHICH A
     LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION
     APPEARS, AT LEAST ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX
     OR BE ACCOMPANIED BY THE NOTATION: (SUMMARY ORDER). A PARTY CITING
     A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER TOGETHER WITH
     THE PAPER IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT
     REPRESENTED BY COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN
     ELECTRONIC DATABASE WHICH IS PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF
     FEE (SUCH AS THE DATABASE AVAILABLE AT HTTP://WWW.CA2.USCOURTS.GOV/).
     IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE ORDER ON
     SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE
     AND THE DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.

 1           At a stated term of the United     States Court of Appeals
 2      for the Second Circuit, held at the     Daniel Patrick Moynihan
 3      United States Courthouse, 500 Pearl     Street, in the City of
 4      New York, on the 4 th day of January,    two thousand ten.
 5
 6      PRESENT: ROBERT D. SACK,
 7               RICHARD C. WESLEY,
 8                        Circuit Judges,
 9               JOHN F. KEENAN,
10                        District Judge. *
11
12
13      ________________________________________________
14
15      Walter House and Debra House,
16


               *
               The Honorable John F. Keenan, of the United States
          District Court for the Southern District of New York,
          sitting by designation.
 1                 Plaintiff-Third-Party-Plaintiff-Appellants,
 2
 3            v.                              09-0146-cv
 4
 5   Kent Worldwide Machine Works, Inc., Kent Worldwide Machine
 6   Works, Worldwide Processing of Ohio, Inc., Worldwide Process
 7   Technologies,   Worldwide  Converting   Co.  and   Worldwide
 8   Converting Machinery,
 9
10                 Defendant-Third-Party-Defendant-Appellees.
11   ________________________________________________
12
13   APPEARING FOR PLAINTIFFS-APPELLANTS:     M ICHAEL H. Z HU
14                                            (Brian J. Isaac,
15                                            on the brief)
16                                            Pollack, Pollack,
17                                            Isaac & De Cicco,
18                                            New York, NY
19
20   APPEARING FOR DEFENDANTS-APPELLEES:      NONE
21
22
23   Appeal from the United States District Court for the
24   Southern District of New York (Berman, J.).
25
26        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
27   AND DECREED that the judgment of said District Court be and
28   hereby is VACATED and REMANDED:
29
30       Appellants Walter House and Debra House (the “Houses”)

31   appeal from an order of the United States District Court for

32   the Southern District of New York (Berman, J.) denying their

33   objections to the Report and Recommendation of Magistrate

34   Judge Kevin Nathaniel Fox awarding only damages for past

35   lost earnings and declining to award damages for past and

36   future pain and suffering, loss of consortium, past and

37   future medical expenses, future lost earnings, and

                                  2
1    attorneys’ fees.     We assume the parties' familiarity with

2    the underlying facts, the procedural history of the case,

3    and the issues on appeal.

4        Because Kent Worldwide defaulted, the Houses’ pleaded

5    allegations are accepted as true, except those related to

6    damages, and the Houses are entitled to all reasonable

7    inferences from the evidence they presented.         See Au Bon

8    Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir. 1981).

9    Under Rule 55(b)(2) of the Federal Rules of Civil Procedure,

10   damages in a default judgment may be determined by the court

11   through a hearing.     F ED. R. C IV. P. 55(b)(2).   We have

12   previously held that a hearing is not necessary when the

13   district court relies “upon detailed affidavits and

14   documentary evidence, supplemented by the District Judge’s

15   personal knowledge of the record” to calculate a damage

16   award.   Tamarin v. Adam Caterers, Inc., 13 F.3d 51, 54 (2d

17   Cir. 1993) (quoting Fustok v. ContiCommodity Services, Inc.,

18   873 F.2d 38, 40 (2d Cir. 1989)).       Even in the absence of a

19   hearing, however, the district court cannot simply rely on

20   the plaintiff’s statement of damages; there must be a basis

21   upon which the court may establish damages with reasonable

22   certainty.   Transatlantic Marine Claims Agency, Inc. v. Ace


                                       3
1    Shipping Corp., 109 F.3d 105, 111 (2d Cir. 1997).

2    Magistrate judges and district courts have interpreted this

3    to mean that, even when the defendant defaults and is not

4    present to object, damages must be based on admissible

5    evidence.    See, e.g., Cesario v. BNI Construction, Inc., No.

6    07 Civ. 8545, 2008 WL 5210209, at *2 (S.D.N.Y. Dec. 15,

7    2008); Ermenegildo Zenga Corp. v. 56 th Street Menswear,

8    Inc., No. 06 Civ. 7827, 2008 WL 4449533, at *3 (S.D.N.Y.

9    Oct. 2, 2008); Smith v. Islamic Emirate of Afghanistan, 262

10   F. Supp. 2d 217, 224 (S.D.N.Y. 2003).

11        The Federal Rules of Evidence require that documents be

12   authenticated before they can be admitted into evidence.

13   F ED. R. E VID. 901(a).   The failure of counsel to adhere to

14   this simple directive to provide affidavits asserting that

15   the documents were what they purported to be is inexcusable.

16   However, the evidence that was authenticated was sufficient

17   to justify damages in this case.

18        Gissinger v. Yung is informative on this point.      Nos.

19   CV-04-0534, CV-04-5406, 2007 WL 2228153, at *1 (E.D.N.Y.

20   July 31, 2007).     In Gissinger, the magistrate judge held an

21   inquest for damages in a personal injury case.      Id.   The

22   magistrate judge, faced with a “haphazardly assembled


                                       4
1    compendium” of medical documents, declined to consider the

2    records that were not authenticated.   Id. at *5.    He did,

3    however, consider the affidavit of one of plaintiff’s

4    physicians as sufficient to authenticate at least the

5    records kept by that physician’s office.   Id. at *4.     Using

6    only those authenticated records and the affidavits of the

7    plaintiff and his physician, the magistrate judge looked to

8    New York law for comparable awards and ultimately granted

9    past and future pain and suffering damages.   Id. at *6-8.

10       In the case before us, however, the magistrate judge

11   and the district court seemed to determine sufficiency of

12   the evidence with regard to damages by comparing that

13   evidence that might have been relevant but was inadmissible

14   because of the failure to authenticate with the evidence

15   that was admissible.   The sufficiency of the evidence is not

16   based on its quantity in comparison to evidence rendered

17   inadmissible by attorney error but rather an assessment of

18   its quality and relevance to the issue at hand.     The

19   evidence available in this case was sufficient as a matter

20   of law to allow the magistrate judge to make an award of

21   damages.

22       Dr. Asprinio’s affidavit detailed Walter House’s


                                   5
1    harrowing medical odyssey.     The day of the accident, Walter

2    presented to the hospital with injuries including “a near

3    amputation of both lower extremities; bilateral open

4    fractures of the tibia and fibula; a dislocated left knee;

5    head trauma...abrasions to the left lateral ribs; mid

6    abdominal tenderness and distention; [and] an abrasion over

7    [his vertebrae].”     As Dr. Asprinio affirmed, Walter went

8    through numerous medical procedures, including removal of

9    his spleen and pancreas, blood transfusions, insertion of a

10   catheter and a nasogastric tube, skin grafts, and

11   irrigations.   He endured multiple surgeries over months of

12   hospitalization.    Eventually, after a “foul odor” emanating

13   from Walter’s cast portended an infection, he “underwent a

14   below the knee amputation.”

15       In his affidavit, Walter House affirmed Dr. Asprinio’s

16   account.   Walter reported he had “at least 17 major

17   surgeries and more than 20 other invasive and non-invasive

18   procedures that...included a below the knee amputation of

19   the left leg and multiple surgeries to [the] right leg.”        He

20   had his spleen and part of his pancreas removed and

21   developed diabetes.     He now suffers “constant pain to both

22   legs” and is “self conscious about his injuries.”      Since the



                                     6
1    accident, Walter has “experienced anxiety, sleep

2    disturbance, feelings of depression, fatigue, become short

3    tempered...[and] verbally abusive to family members.”

4    Relations between Walter and Debra “have diminished due to

5    [their] alter[ed] roles and [his] lack of initiation.”

6    Walter affirmed that he can no longer work, and Debra must

7    now care for the entire family.

8        Debra House’s affidavit detailed her new role in the

9    family as the head of the household, working “a full time

10   outside job to supply the household with income” while also

11   serving as the “caretaker of [her] husband and sons.”     Debra

12   described Walter before the accident as “energetic,

13   meticulous and motivated.”     Since the accident, Walter is

14   “incapable of following through on simple household tasks

15   and has sometimes become fatigued, irritable and verbally

16   abusive” to the family.   Their “social life has been

17   affected due to his self consciousness about his injuries”

18   and their “marriage has been affected due to altered roles

19   and his lack of initiation.”

20       For the magistrate judge and the district court to find

21   such evidence insufficient to find damages for pain and

22   suffering and loss of consortium was error.     Loss of



                                     7
1    consortium and pain and suffering damages attempt to

2    compensate a nonpecuniary loss, through an accepted fiction

3    that such damages will somehow provide solace to the

4    injured.     McDougald v. Garber, 73 N.Y.2d 246, 254 (N.Y.

5    1989).     The amount for such damages "does not lend itself to

6    neat mathematical calculation."     Caprara v. Chrysler, 52

7    N.Y.2d 114, 127 (N.Y. 1981); see also Oliveri v. Delta S.S.

8    Lines, Inc., 849 F.2d 742, 749 (2d Cir. 1988).

9        Under New York law, loss of consortium is not a claim

10   for only lost household services, but is instead a more

11   intangible yet more significant injury to the partner who

12   suffers the loss of the relationship as it existed before

13   the injury.     See Zavaglia v. Sarah Neuman Center for

14   Healthcare and Rehabilitation, 883 N.Y.S.2d 889, 893 (N.Y.

15   Sup. Ct. 2009).     The affidavits in the record detail some of

16   the changes in the House marriage and the stressors on Debra

17   House since the accident.     The information before the

18   district court was similar to information found sufficient

19   to support loss of consortium damage awards in New York

20   courts.     See, e.g., DeLeonibus v. Scognamillo, 656 N.Y.S.2d

21   275, 276 (2nd Dep't 1997); see also Doviak v. Lowe's Home

22   Centers, Inc., 880 N.Y.S.2d 766, 772 (3rd Dep't 2009).


                                     8
1        There was also sufficient evidence to award damages for

2    future pain and suffering.     Future pain and suffering

3    damages are calculated in part through reference to

4    actuarial tables to determine the projected life span of the

5    plaintiff.   See, e.g., Bermeo v. Atakent, 241 A.D.2d 235,

6    239 (1st Dep’t 1998).    As part of their submissions in the

7    damages phase, the Houses provided the National Vital

8    Statistics Reports’ “Life table for white males: United

9    States, 2003,” Vol. 54, No. 14, published on April 19, 2006,

10   which the magistrate judge properly concluded was a self-

11   authenticating document under Federal Rule of Evidence 901.

12   The magistrate judge, however, rejected this evidence as

13   unreliable because there existed an updated version of the

14   life expectancy tables showing data for 2004 that was

15   published on December 28, 2007, which the magistrate judge

16   contended was “available at the time of the plaintiffs’

17   [July 2, 2008] application.”     But at the time of their July

18   2, 2008 application, the plaintiffs simply resubmitted the

19   original application they had presented to the district

20   court on December 26, 2007, two days before the revised

21   tables were published.

22       Whether the plaintiffs knew or should have known of the



                                     9
1    existence of the updated tables, it is unreasonable to

2    conclude that the estimated life expectancy for healthy

3    white males under age 40 in the United States would change

4    so materially between 2006 and 2007 that the 2006 tables

5    could provide no credible basis on which to estimate Walter

6    House’s remaining life expectancy.   See Earl v. Bouchard

7    Transportation Co., 735 F. Supp. 1167, 1175-76 (E.D.N.Y.

8    1990), aff’d in part, rev’d in part on other grounds, 917

9    F.2d 1320 (2d Cir. 1990).   Indeed, a review of the two

10   tables reveals that the degree of difference between the

11   2006 and 2007 life expectancy estimates applicable to Walter

12   House consisted of a negligible 0.3-0.4 increase.     The 2006

13   tables should be used as a reasonable benchmark from which

14   the district court can depart either upwardly or downwardly

15   as it sees fit to account for any perceived statistical

16   outdatedness and with a view toward the general increasing

17   life expectancy in the United States.     See Espana v. United

18   States, 616 F.2d 41, 44 (2d Cir. 1980).     In short, there was

19   sufficient evidence in the record for the district court to

20   calculate future pain and suffering damages.

21       While future pain and suffering depends on actuarial

22   tables, past pain and suffering does not.     See, e.g., Reed


                                   10
1    v. City of New York, 757 N.Y.S.2d 244, 247-49 (1st Dep't

2    2003).   The magistrate judge seemed to think Walter’s

3    medical expenses were a necessary predicate for the pain and

4    suffering award but New York courts have awarded past pain

5    and suffering damages based on the medical procedures

6    endured and nature of the injury suffered.   See, e.g., Bondi

7    v. Bambrick, 764 N.Y.S.2d 674, 675 (1st Dep't 2003); Hixson

8    v. Cotton-Hanlon, Inc., 875 N.Y.S.2d 361, 362 (4th Dep't

9    2009); Nunez v. Levy, 862 N.Y.S.2d 816, 816 (N.Y. Sup. Ct.

10   2008).   The affidavit of Dr. David Asprinio, plus Walter

11   House’s affidavit, were sufficient to support past pain and

12   suffering damages.




                                   11
1        For the foregoing reasons, the order of the district

2    court is VACATED and we REMAND for proceedings not

3    inconsistent with this order.

 4
 5                                        FOR THE COURT:
 6                                        Catherine O’Hagan Wolfe,
 7                                        Clerk
 8
 9
10                                        By:_______________________




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