10-0309-cv
Sinkov v. AmeriCor
                       UNITED STATES COURT OF APPEALS
                           FOR THE SECOND CIRCUIT

                                   SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.

      At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the 13th day of April, two thousand eleven.

PRESENT: CHESTER J. STRAUB,
         ROBERT D. SACK,
         GERARD E. LYNCH,
                         Circuit Judges.

–––––––––––––––––––––––––––––––––––––––––––––

DONNY A. SINKOV, as Administrator of the ESTATE
OF SPENCER E. SINKOV, deceased, DONNY A.
SINKOV, and HARA SINKOV,
                Plaintiffs-Appellees,

                      v.                                                 No. 10-0309-cv

AMERICOR, INC.,
                                            Defendant-Appellant,

DONALD B. SMITH, individually and in his official
capacity as Sheriff of Putnam County, JOSEPH F.
VASATURO, individually, LOUIS G. LAPOLLA,
individually, THE COUNTY OF PUTNAM,
                     Defendants.*

–––––––––––––––––––––––––––––––––––––––––––––

FOR APPELLANT:               Timothy P. Coon (Bernice E. Margolis, on the brief), Wilson

         *
        The Clerk of Court is respectfully instructed to amend the official caption in this case
to conform to the listing of the parties above.
                            Elser Moskowitz Edelman & Dicker LLP, White Plains, NY.

FOR APPELLEES:              Kim Berg, Gould & Berg LLP, White Plains, NY.

       Appeal from the United States District Court for the Southern District of New York

(Paul E. Davison, Magistrate Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       Defendant-appellant AmeriCor, Inc. (“AmeriCor”) appeals from a judgment of the

district court, entered pursuant to a jury verdict in favor of the plaintiffs, the parents and

estate of decedent Spencer Sinkov, holding AmeriCor partially liable for deliberate

indifference, negligence, and wrongful death, and awarding $750,000 in damages, $274,320

in attorneys’ fees, and $11,302.20 in costs. The jury apportioned AmeriCor’s liability at 35

percent, reducing its responsibility for the damages award to $264,950. The district court

further reduced this award to $257,000 to reflect the amount paid by non-appellant

defendants, who settled earlier in the litigation. The court declined to reduce or apportion

the attorneys’ fees or costs, holding AmeriCor responsible for the total amounts.

       On appeal, Americor argues (1) that plaintiffs’ evidence was insufficient to support

a finding that “AmeriCor was aware of Sinkov’s medical condition so as to be found

deliberately indifferent to a serious medical need of Sinkov”; (2) that the jury’s

apportionment of AmeriCor’s liability was against the weight of the evidence; (3) that

plaintiffs’ expert witness, Dr. Gary Crakes, should not have been permitted to testify about

Sinkov’s loss of earning capacity because his testimony was (i) purely speculative and (ii)



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irrelevant since Sinkov’s estate was not entitled to recover for loss of earning capacity; (4)

that the jury’s $300,000 award for conscious pain and suffering was unsupported by the

evidence; and (5) that the district court should have apportioned attorneys’ fees according

to liability.

I.    AmeriCor’s Knowledge of Sinkov’s Suicide Risk

        We review a district court’s denial of a claim of evidentiary insufficiency de novo,

“consider[ing] the evidence in the light most favorable to the non-moving party and giv[ing]

that party the benefit of all reasonable inferences from the evidence that the jury might have

drawn in that party’s favor.” Diesel v. Town of Lewisboro, 232 F.3d 92, 103 (2d Cir. 2000).

We will reverse the district court’s decision “[o]nly if there is such a complete absence of

evidence supporting the verdict that the jury’s findings could only have been the result of

sheer surmise and conjecture, or such an overwhelming amount of evidence in favor of the

movant that reasonable and fair minded men could not arrive at a verdict against [the moving

party].” Id., quoting LeBlanc-Sternberg v. Fletcher, 67 F.3d 412, 429 (2d Cir. 1995) (internal

quotation marks omitted; alternation in original).

        AmeriCor contends that plaintiffs’ evidence failed to demonstrate that it had actual

knowledge of Sinkov’s risk of suicide, as required by Caiozzo v. Koreman, 581 F.3d 63 (2d

Cir. 2009). But plaintiffs presented ample evidence to support the jury’s verdict and to

satisfy Caiozzo’s requirements. The jury heard evidence that AmeriCor knew of New York’s

minimum standards for detainees who present signs that they are at risk of suicide; that

Sinkov answered “Yes” to ten questions on the suicide screening form at intake, more than


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the number required to trigger constant monitoring; and that one of AmeriCor’s nurses signed

the first page of the packet that contained Sinkov’s suicide screening form, in a box that

signified that the nurse had received the intake packet and reread all of it. That was evidence

of what AmeriCor actually knew about Sinkov’s risk of suicide, and not, as AmeriCor claims,

merely evidence of what the company should have known. Taken together, that evidence

was sufficient “to support a conclusion by a reasonable juror” that AmeriCor “was actually

aware” of Sinkov’s risk of suicide and was deliberately indifferent to that risk. Caiozzo, 581

F.3d at 72.

       Furthermore, the district court’s instructions to the jury accurately mirrored the

requirements set out in Caiozzo. The instructions made clear that, in order to prove

deliberate indifference, “plaintiffs must demonstrate by a preponderance of the evidence that

the defendant knew of and disregarded an excessive risk to inmate health or safety.” The

jury was specifically advised that evidence “that a reasonable person would have known or

that the defendant should have known of the serious medical needs or the risk to Spencer

Sinkov’s safety” was insufficient to prove deliberate indifference.

       AmeriCor argues that, under Caiozzo, actual awareness of an inmate’s medical

condition may not be proved “by inference.” AmeriCor fundamentally misreads Caiozzo.

In that case, we held that “an injured state pretrial detainee, to establish a violation of his

Fourteenth Amendment due process rights, must prove, inter alia, that the government-

employed defendant disregarded a risk of harm to the plaintiff of which the defendant was

aware,” and that evidence “that [a defendant] should have been aware that [the detainee] was



                                              4
in immediate danger” was insufficient. Caiozzo, 581 F.3d at 71 (emphasis in original).

Nothing in Caiozzo prohibits juries from reviewing all the evidence and drawing an inference

of actual knowledge from circumstantial evidence. See Farmer v. Brennan, 511 U.S. 825,

842 (1994).

       Accordingly, AmeriCor’s claim that the verdict was not supported by sufficient

evidence is without merit.

II.   The Jury’s Apportionment of Liability

       The jury held AmeriCor responsible for 35 percent of plaintiffs’ damages,

apportioning 65 percent of the liability to Suffolk County and its employees. AmeriCor

contends that the jury’s apportionment was against the weight of the evidence, and that “a

new trial must be ordered with respect to this issue.”

       “[L]iability is apportioned by assessing the damage inflicted by each [joint

tortfeasor],” and apportionment is therefore “an issue of fact for the jury.” Schipani v.

McLeod, 541 F.3d 158, 163 (2d Cir. 2008) (internal quotation marks and citations omitted).

Plaintiffs presented substantial evidence of AmeriCor’s blameworthiness, and we see no

reason to disturb the jury’s allocation of liability. See Kreppein v. Celotex Corp., 969 F.2d

1424, 1427 (2d Cir. 1992).

       The jury heard evidence that AmeriCor contracted with the County to provide medical

care to detainees; that its employees worked in the jail 24 hours per day, every day; that

AmeriCor employees played an integral role in jail operations, including in the detainee-

intake process, the review of intake forms, and the monitoring and referral of detainees for



                                             5
mental-health services; that AmeriCor knew of New York’s minimum standards for

supervision of pretrial detainees; and that an AmeriCor nurse was aware that Sinkov had

presented as a suicide risk and failed to order protective measures. The jury’s assignment

of a relatively modest share of liability to AmeriCor was entirely reasonable.

III. Expert Witness Testimony on Loss of Earning Capacity

       AmeriCor argues that expert testimony about Spencer Sinkov’s loss of earning

capacity was impermissibly speculative, and was in any event irrelevant since neither

Sinkov’s estate nor his parents were “entitled to recover lost earnings as there was no

survivor who relied on [him] for financial support.” We find no reason to disturb the district

court’s admission of the evidence.

       Trial courts have “great latitude in deciding whether to admit or exclude expert

testimony.” United States v. Onumonu, 967 F.2d 782, 786 (2d Cir. 1992). Their decisions

“[are] to be sustained unless manifestly erroneous.” Salem v. United States Lines Co., 370

U.S. 31, 35 (1962); see also Fed. R. Evid. 702. “Whether a witness called to testify to any

matter of opinion has such qualifications and knowledge as to make his testimony admissible

is a preliminary question for the judge presiding at the trial, and his decision of it is

conclusive, unless clearly shown to be erroneous as a matter of law.” Stillwell & Bierce

Mfg. Co. v. Phelps, 130 U.S. 520, 527 (1889).

       We have held that “[w]here lost future earnings are at issue, an expert’s testimony

should be excluded as speculative if it is based on unrealistic assumptions regarding the

plaintiff’s future employment prospects.” Boucher v. U.S. Suzuki Motor Corp., 73 F.3d 18,


                                              6
21 (2d Cir. 1996). However, “other contentions that the assumptions are unfounded go to

the weight, not the admissibility, of the testimony.” Id. (internal quotation marks omitted).

       Estimates of a deceased person’s future earning capacity are inherently speculative

to some degree. Cf. Tyler v. Bethlehem Steel Corp., 958 F.2d 1176, 1189 (2d Cir. 1992).

However, it is within the district court’s discretion to determine “whether the expert acted

reasonably in making assumptions of fact upon which he would base his testimony.” Shatkin

v. McDonnell Douglas Corp., 727 F.2d 202, 208 (2d Cir. 1984), citing Fed. R. Evid. 703.

Here, we agree with the district court that Dr. Crakes’s testimony was not based on

unrealistic assumptions regarding Sinkov’s future employment prospects.

       Dr. Crakes provided the jury with three alternative calculations of Sinkov’s loss of

earning potential, based on the earning capacities of (1) a secondary school teacher working

until age 65; (2) a typical man who holds an associate’s degree, from age 22 to age 65; and

(3) a typical man who holds a bachelor’s degree, from age 25 to age 65. Particularly in light

of the educational credits Sinkov had already earned towards his associate’s degree before

his death, as well as Sinkov’s stated intention to become a teacher, Dr. Crakes’s appraisals

of loss of earning potential were rooted in the evidence. AmeriCor had every opportunity

to argue to the jury that Sinkov’s use of drugs undercut the likelihood that he would

accomplish these ambitions. And its argument apparently carried weight, as the jury

dramatically discounted the expert’s projections, awarding plaintiffs $450,000 in damages

on the deliberate indifference claim, 28 percent of Dr. Crake’s lowest earnings projection.

The possibility that Sinkov would straighten himself out, complete his education, and

                                             7
become a productive member of society was hardly so unlikely as to preclude the jury from

considering it.1

       Accordingly, AmeriCor’s speculativeness argument is one for the jury, as it “go[es]

to the weight, not the admissibility,” of Dr. Crakes’s testimony. Tyler, 958 F.2d at 1188. It

was for the jury to consider how long Sinkov might have worked, in what jobs, and at what

salary. The trial court was well within its discretion in concluding that Dr. Crakes’s

testimony could assist the jury in performing its factfinding role.

       AmeriCor also argues that Dr. Crake’s testimony was irrelevant, contending that

Sinkov’s estate was legally barred from recovering damages for loss of earning capacity.

The argument ignores the significant distinction between state and federal law.

       AmeriCor correctly points out that under New York law, post-death lost-earnings

damages are not recoverable in wrongful death cases where a decedent leaves behind no

dependents and no persons who reasonably expect to receive future support from him. See

Freier v. Westinghouse Elec. Corp., 303 F.3d 176, 199-200 (2d Cir. 2002); Zelizo v. Ullah,

769 N.Y.S.2d 255, 273 (1st Dep’t 2003). Had the district court admitted Dr. Crakes’s

earnings testimony as bearing on plaintiffs’ state law claims, we would agree that his

testimony was irrelevant and should have been excluded. But that is not what the district

court did. The record makes clear that Dr. Crakes’s testimony regarding loss of earning


       1
         Indeed, it is not even clear that the jury intended to award any damages specifically
for loss of earning capacity: the court instructed that the jury could award damages under
§ 1983 not only for pecuniary losses, but also for “intangible damages such as mental
anguish, pain, suffering and the loss of Spencer’s enjoyment of life.”

                                              8
capacity was introduced only for, and was explicitly limited to, the estate’s 42 U.S.C. § 1983

claim.

         The New York authority on which AmeriCor relies does not address the extent of

damages permitted in an action for violation of constitutional rights. We have long

recognized that when state law damages limitations conflict with the purposes of § 1983, we

need not defer to those limitations. We have concluded in the past, for example, that New

York’s survival statute was inconsistent with § 1983 because (at the time) the New York

statute “prevent[ed] the survival of claims for punitive damages after the death of the

plaintiff’s decedent.” McFadden v. Sanchez, 710 F.2d 907, 911 (2d Cir. 1983). In

McFadden, we stated that

               we have no doubt that limitations in a state survival statute have
               no application to a [§] 1983 suit brought to redress a denial of
               right that caused the decedent’s death. To whatever extent
               [§] 1988 makes state law applicable to [§] 1983 actions, it does
               not require deference to a survival statute that would bar or limit
               the remedies available under [§] 1983 for unconstitutional
               conduct that causes death.

Id. (internal citation omitted). Several federal courts that have addressed the issue have

applied similar logic to allow damages for loss of earning capacity in actions for

constitutional violations.2 This Court, however, has not had occasion to address the issue.

         We decline to do so here. AmeriCor has not directly addressed, beyond a few



         2
        See, e.g., Andrews v. Neer, 253 F.3d 1052, 1063-64 (8th Cir. 2001); Berry v. City
of Muskogee, 900 F.2d 1489, 1507 (10th Cir. 1990); Sparks v. Susquehanna Cnty., No. 3:05
Civ. 2274, 2009 WL 1598125, at *3 (M.D. Pa. 2009).

                                               9
conclusory assertions, the appropriate standard for damages under § 1983, focusing instead

on the undisputed point that New York law does not allow for such damages – an argument

that is at best oblique to the federal question. “Issues not sufficiently argued in the briefs are

considered waived and normally will not be addressed on appeal.” Norton v. Sam’s Club,

145 F.3d 114, 117 (2d Cir. 1998). We decline to address a substantial and potentially far-

reaching issue without adequate briefing.

IV. Damages for Conscious Pain and Suffering

       AmeriCor challenges the $300,000 damages award for conscious pain and suffering,

arguing (1) that there was no evidence to support submission to the jury of a claim for

conscious pain and suffering and (2) that the award was excessive. Both challenges are

unavailing.

       In order to be “entitled to an instruction on a claim,” a party need only show “that

there is some evidence supporting the theory behind the instruction so that a question of fact

may be presented to the jury.” Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994).

Plaintiffs made such a showing here. The record contains evidence from which a jury could

have inferred that Sinkov experienced conscious pain and suffering, and plaintiffs were

therefore entitled to an instruction on this claim.

       That evidence includes the New York State Commission of Correction’s final report

on Sinkov’s death, which was received in evidence at trial without objection from AmeriCor.

The report noted that a guard “found inmate Sinkov hanging from the cell bars by his

sweatshirt. Sinkov had tied the shirt at the top of the front cell bars and sat down. He was

                                               10
found facing the back of the cell with one foot on the floor and one foot on the bunk.” The

jury also heard testimony that, when Sinkov was cut down from the bars, he hit his head on

the edge of a table, and that a nurse administered CPR on him for ten to fifteen minutes

before he was pronounced dead. The jury was entitled to rely on common sense and

common experience to conclude that an amateur, improvised hanging is likely to produce a

painful death by asphyxiation, and reasonably could have concluded that Sinkov struggled

and suffered in the period between when he placed his homemade noose around his neck and

when he lost consciousness. Even assuming arguendo that other evidence in the record might

have suggested that Sinkov did not experience conscious pain and suffering, “it would be an

undue invasion of the jury’s historic function for [us] to weigh the conflicting evidence,

judge the credibility of the witnesses and arrive at a conclusion opposite from the one

reached by the jury.” Lavender v. Kurn, 327 U.S. 645, 652-53 (1946).

       AmeriCor also argues that the $300,000 damages award for Sinkov’s conscious pain

and suffering was excessive. We will set aside a jury’s award as excessive only if it “is so

high as to shock the judicial conscience and constitute a denial of justice,” O’Neill v.

Krzeminski, 839 F.2d 9, 13 (2d Cir. 1988), quoting Zarcone v. Perry, 572 F.2d 52, 56 (2d

Cir. 1978). “That we personally would have awarded a lesser sum or, if we had been the trial

judge, have set the verdict aside, is insufficient.” Batchkowsky v. Penn Central Co., 525

F.2d 1121, 1124 (2d Cir. 1975). To set aside the award, we must conclude that the trial judge

abused his or her discretion in permitting the verdict to stand. Id.

       In determining whether a compensatory award is so large as to shock the judicial

                                             11
conscience, we look to other awards in similar cases. See Ismail v. Cohen, 899 F.2d 183, 186

(2d Cir. 1990); Attridge v. Cencorp Div. of Dover Techs. Int’l, Inc., 836 F.2d 113, 117-18

(2d Cir. 1987). However, “our task is not to balance the number of high and low awards and

reject the verdict in the instant case if the number of lower awards is greater. Rather, we

inquire whether the . . . verdict is within reasonable range.” Ismail, 899 F.2d at at 187. “This

inherently imprecise calculation depends on careful analysis of the facts in each case.”

Attridge, 836 F.2d at 117.

       Here, based on the facts of the present case and on a review of pain and suffering

awards in other cases, we are satisfied that the jury’s $300,000 award for Sinkov’s conscious

pain and suffering was not excessive. See Gonzalez v. N.Y.C. Hous. Auth., 555 N.Y.S.2d

107, 108 (1st Dep’t 1990) (“Asphyxiation by gagging, whether it occurred within minutes

or within an hour of the initial assault, is a particularly slow and terrifying way to die and,

under the circumstances, we do not find the [$350,000] award for conscious pain and

suffering . . . to be excessive.”); Rodd v. Luxfer USA Ltd., 709 N.Y.S.2d 93, 94 (2d Dep’t

2000) ($300,000 award for pain and suffering where decedent “suffered severe and massive

injuries” from any exploding oxygen tank, but the “period of consciousness was limited in

duration”); Filipinas v. Action Auto Leasing, 851 N.Y.S.2d 550, 550 (1st Dep’t 2008)

($750,000 award where decedent was struck in the head by a van’s side mirror, and sustained

serious head injuries, but “was heavily medicated and/or sedated” within an hour of the

accident). The district court was within its discretion in denying AmeriCor’s motion for a

new trial on the basis of excessiveness.

                                              12
V. Apportionment of Attorneys’ Fees

       Finally, AmeriCor argues that the district court erred by failing to apportion attorneys’

fees in the same manner as the jury apportioned liability. We review a district court’s ruling

concerning fee allocation for abuse of discretion. Rein v. Socialist People’s Libyan Arab

Jamahiriya, 568 F.3d 345, 350 (2d Cir. 2009). A district court may “hold the responsible

parties jointly and severally liable for the fee award,” so long as the court “make[s] every

effort to achieve the most fair and sensible solution that is possible.” Koster v. Perales, 903

F.2d 131, 139 (2d Cir. 1990). “Although apportionment may in some cases be a more

equitable resolution, there is no rule in this circuit that requires it whenever possible.” Id.

       Here, the district court did not abuse its discretion in concluding that allocation of the

attorneys’ fees was unnecessary. As the court noted, in this case “the action . . . of several

defendants produce[d] a single indivisible injury,” and therefore AmeriCor could properly

be held jointly and severally liable for plaintiffs’ fees. In addition, AmeriCor was the only

defendant that chose not to settle – a decision that increased plaintiffs’ fees. Finally, if

AmeriCor had been from the outset the only defendant named in the suit, and the non-

appellant defendants had never been involved, plaintiffs’ attorneys’ fees would likely have

been similar to what they turned out to be, since plaintiffs’ claims against AmeriCor

overlapped substantially with the claims against the other defendants, and since AmeriCor

in such a case would surely have attempted to cast blame on the County officers, as it did

here, resulting in similar discovery about their actions.



                                              13
                                   CONCLUSION

      We have considered AmeriCor’s other arguments and find them to be without merit.

For the foregoing reasons, the judgment of the district court is AFFIRMED.

                                        FOR THE COURT:
                                        Catherine O’Hagan Wolfe, Clerk of Court




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