                              UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF COLUMBIA




  WALDIMIR ADALBERTO CRUZ
  ROMERO,

                         Plaintiff,
                                                    Civil Action No. 11-1799 (ESH)
                         v.

  ITW FOOD EQUIPMENT GROUP LLC,

                         Defendant.



                                 MEMORANDUM OPINION

       Plaintiff Waldimir Adalberto Cruz Romero brought suit on September 26, 2011, against

ITW Food Equipment Group, Inc. Following a five-day trial, the jury returned a verdict in favor

of plaintiff for $2,977,997.00 in damages. Intending to file an appeal, defendant filed a motion

to stay execution of the judgment on June 19, 2015, and requested approval of a supersedeas

bond in the amount of $3,000,000.00 to cover the damages, costs, and post-judgment interest.

(See Def.’s Mot. to Stay, June 19, 2015 [ECF No. 154].) Plaintiff does not oppose the stay, but

rather, he argues that the bond must also include prejudgment interest. (See Pl.’s Resp. to Mot.

to Stay, June 23, 2015 [ECF No. 155].) Plaintiff also filed a motion to amend the judgment to

include prejudgment interest. (See Pl.’s Mot. to Amend, June 25, 2015 [ECF No. 163].)

Defendant opposes this motion. (See Def.’s Opp. to Mot. to Amend, July 7, 2015 [ECF No.

165].) For the following reasons, plaintiff’s motion to amend the judgment is denied, and

defendant’s motion to stay execution of the judgment is granted.
                                         BACKGROUND

         On July 13, 2009, plaintiff was operating a Hobart Model 4046 meat chopper

manufactured by defendant. The meat chopper was equipped with a guarded feed pan that rested

over the grinding mechanism to prevent injury to the operator’s limbs and an interlock device

that prevented the meat chopper from operating if the guarded feed pan had been removed. At

the time of his accident, plaintiff was using the meat chopper without the guarded feed pan and

he had bypassed the interlock by placing a bowl of chicken on the device. Plaintiff slipped while

feeding chicken into the meat chopper, resulting in the loss of his lower forearm. Plaintiff

brought this strict liability action claiming that defendant failed to provide an adequate warning. 1

The first trial in May 2014 ended in a hung jury.

         A second trial began on June 1, 2015, and on the second day of deliberations, the jury

returned a verdict in favor of plaintiff, finding that 1) defendant owed a duty to warn plaintiff of

the risks associated with using the meat chopper, 2) defendant failed to provide an adequate

warning, and 3) this failure to warn was a substantial factor in causing plaintiff’s injuries. (See

Verdict Form, June 9, 2015 [ECF No. 149].) The jury also found that plaintiff had not misused

the meat chopper, he had not assumed the risk in using the machine without its safety

mechanisms in place, and it was foreseeable that users of the meat chopper would not be

properly trained. (See id.) The jury awarded a judgment of $2,977,997.00, including

$193,154.00 in past medical expenses, $1,587,571.00 in future medical expenses, $97,272.00 in

past lost earnings, and $1,100,000.00 in pain and suffering. (See id.) On June 10, 2015, the

Clerk of Court entered judgment in plaintiff’s favor plus costs. Pursuant to 28 U.S.C. § 1961,




1
    For a more detailed account of the facts, see Mem. Op., Oct. 30, 2013 [ECF No. 43].
                                                  2
plaintiff was also awarded post-judgment interest from the date that judgment was entered. See

28 U.S.C. § 1961.

       Before the Court are defendant’s motion to stay execution of judgment, which seeks

approval of a $3,000,000.00 bond to satisfy the judgment, costs, and post-judgment interest

pending appeal (see Def.’s Mot. to Stay at 1), and plaintiff’s motion to amend the judgment to

include prejudgment interest, which would increase the judgment to $4,022,995.00. For the

following reasons, the Court denies plaintiff’s motion to amend the judgment and grants

defendant’s motion to stay.

                                            ANALYSIS

I.     STANDARD OF REVIEW

       Plaintiff timely filed his motion to alter or amend the judgment under Federal Rule of

Civil Procedure 59(e) to include prejudgment interest. See Winslow v. FERC, 587 F.3d 1133,

1135 (D.C. Cir. 2009) (citing Osterneck v. Ernst & Whinney, 489 U.S. 169, 175 (1989)). “A

federal court sitting in diversity must look to local law to determine whether prejudgment interest

is available.” Embassy of the Fed. Republic of Nigeria v. Ugquonye, 945 F.Supp. 2d 81, 86

(D.D.C. 2013) (citing Schneider v. Lockheed Aircraft Corp., 658 F.2d 835, 855 (D.C. Cir.

1981)). In the District of Colombia, interest on a judgment for damages in contract or tort is

governed by D.C. Code § 15-109, which provides:

       In an action to recover damages for breach of contract the judgment shall allow
       interest on the amount for which it is rendered from the date of the judgment only.
       This section does not preclude the jury, or the court, if the trial be by the court, from
       including interest as an element in the damages awarded, if necessary to fully
       compensate the plaintiff. In an action to recover damages for a wrong the judgment
       for the plaintiff shall bear interest.

D.C. Code § 15-109. The District of Colombia Court of Appeals has interpreted this statute as

“authorizing post-judgment interest in both tort and contract cases, but pre-judgment interest

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only in contract cases. . . . On the other hand, there is nothing in section 15-109 that prohibits an

award of pre-judgment interest.” Duggan v. Keto, 554 A.2d 1126, 1140 (D.C. 1989). The

Duggan court concluded that prejudgment interest in a tort action is neither authorized nor

prohibited by statute, but “pre-judgment interest may be included as part of the damages in an

action for conversion to the extent that it will make the injured party whole.” Id.

        Applying D.C. law, courts have determined that prejudgment interest is appropriate in

cases sounding in contract, see Embassy of the Fed. Republic of Nigeria, 945 F. Supp. 2d at 86

(“Where a plaintiff has been deprived of the use of money that has been withheld, prejudgment

interest ‘is an element of complete compensation for the loss of use of such money.’” (quoting

Riggs Nat’l Bank v. Dist. of Columbia, 581 A.2d 1229, 1253 (D.C. 1990)); unjust enrichment,

see Griffith v. Barnes, 560 F. Supp. 2d 29, 36 (D.D.C. 2008) (prejudgment interest was

appropriate on the amount of disgorgement because “‘[t]he purpose of awarding prejudgment

interest as part of the damages for breach of contract is to compensate the creditor for the loss of

the use of money over time.’”) (quoting Fed. Marketing Co. v. Virginia Impression Products

Co., Inc., 823 A.2d 513, 531 (D.C. 2003)); and conversion. See Duggan, 554 A.2d at 1140. By

contrast, the Court has not found, and the parties have not cited, any cases in which prejudgment

interest was awarded in a personal injury, product-liability action, 2 although it is recognized that

“the court has ample discretion to include prejudgment interest ‘as an element in the damages

awarded, if necessary to fully compensate the plaintiff.’” Fed. Marketing Co., 823 A.2d at 532

(quoting D.C. Code § 15-109). This decision is thus guided by equitable considerations. See




2
  The D.C. Circuit has noted that “[i]t remains unclear whether prejudgment interest is available
in a negligence action.” Williams Enterprises, Inc. v. Sherman R. Smoot Co., 938 F.2d 230, 238
(D.C. Cir. 1991). “[N]egligence and strict liability, in failure to warn cases, are functional
equivalents.” McNeil Pharm v. Hawkins, 686 A.2d 567, 578 (D.C. 1996).
                                                  4
Mwani v. Al Qaeda, No. 99-0125, 2014 WL 4749182, *13 (D.D.C. Sept. 25, 2014); Motion

Picture Ass’n of America, Inc. v. Oman, 868 F.2d 1154, 1157 (D.C. Cir. 1992).

II.      PREJUDGMENT INTEREST

         Plaintiff argues that he is entitled to prejudgment interest because 1) prejudgment interest

is available to prevailing plaintiffs in tort actions, 2) “delay damages” should be awarded absent

some justification for withholding such an award, and 3) the equities weigh in favor of awarding

plaintiff prejudgment interest to make him whole. (See Pl.’s Mem. in Supp. of Mot. to Amend,

June 25, 2015 [ECF No. 163-2] at 1-2.) Defendant counters that prejudgment interest is not

available for a personal-injury, product-liability action, but only in tort actions where “the

obligation to pay and the amount due had become certain, definite, and liquidated by a specific

date prior to judgment.” (See Def.’s Opp. to Mot. to Amend at 2 (quoting Maryland State Hwy.

Admin. V. Kim, 726 A.2d 238, 245 (Md. 1999)).) Defendant also argues that prejudgment

interest is not equivalent to delay damages and equities are not relevant in this analysis. (See id.

at 5.)

         The Court agrees with defendant that prejudgment interest has not usually been awarded

in a case such as this, and even if it were, the Court would not exercise its discretion to do so.

         The cases plaintiff cites in support of his argument that prejudgment interest is available

in a tort action involve torts in which the harm itself was an economic loss. For example,

Duggan, a case heavily relied upon by plaintiff, was a conversion case related to an estate

dispute. See 554 A.2d at 1126. The estate of the deceased was deprived of interest on several

bonds to which it was entitled because they were improperly removed from a safe-deposit box by

a relative. See id. at 1128. The court held that the estate should receive the benefit of all interest

that accrued on the bonds from the time of conversion “to the extent that it will make the injured



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party whole.” Id. at 1140. The harm the estate suffered was an economic loss, and it was

deprived of a definite amount of money that was certain from the moment the tort occurred.

Indisputably, the award of prejudgment interest was necessary to make the injured party whole.

        By contrast, plaintiff’s injury was not an economic loss; it was a physical injury to his

right limb. This injury may very well have led to a serious economic loss since plaintiff’s

employment prospects have been severely limited by his injury, 3 but the nature of his harm is

wholly different from that in Duggan. Unlike Duggan and the other cases cited by plaintiff,

defendant was not wrongfully in possession of something belonging to plaintiff. 4 See In re

Vitamins Antitrust Litig., 398 F. Supp. 2d 209, 241 (D.D.C. 2005) (“I cannot equate the situation

here with the ones encountered in the case law I surveyed in Athridge where one party can truly

be said to have held onto something that clearly belonged to someone else.”).


3
  In fact, the jury award itself is meant to ameliorate the losses plaintiff has incurred as a result of
the harm he suffered. See, e.g., George Hyman Const. Co., Inc. v. DiNicola, 514 A.2d 1180,
1183 (D.C. 1986) (“[E]ven if section 15-109 should be construed to permit prejudgment interest
in tort actions, such interest would be an ‘element in the damages awarded.’” (quoting D.C. Code
15-109)).
4
  Plaintiff also cites Ben-Rafael v. Islamic Republic of Iran to support his position that
prejudgment interest should be calculated from the date of the tortious act. (See Pl.’s Mem. in
Supp. of Mot. to Amend at 7.) In Ben-Rafael, plaintiffs brought intentional infliction of
emotional distress and wrongful death claims against the Islamic Republic of Iran under the
Foreign Sovereign Immunity Act for the 1992 terrorist bombing of the Israeli embassy in Buenos
Aires, Argentina. 540 F. Supp. 2d 39 (D.D.C. 2008). The Islamic Republic of Iran failed to
appear, and the Court entered a default judgment for the plaintiffs. See id. at 60. Noting that
awarding prejudgment interest was within its discretion, the Court concluded that prejudgment
interest was appropriate under the circumstances because “courts in this Circuit have awarded
prejudgment interest in cases where plaintiffs were delayed in recovering compensation for their
injuries—including, specifically, where such injuries were the result of targeted attacks
perpetrated by foreign defendants.” Id. (quoting Pugh v. Socialist People’s Libyan Arab
Jamahiriya, 530 F. Supp. 2d 216, 263 (D.D.C. 2008)). The default judgment was entered sixteen
years after the date of the bombing, and there was no guarantee that plaintiffs would be able to
recover the judgment awarded. By contrast, as discussed below, there is no evidence that
plaintiff has been delayed in recovering compensation for his injuries, especially given the fact
that he did not file this case until 2011.


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       Plaintiff responds that because prejudgment interest is allowed in some tort actions, “it

must follow that prejudgment interest is allowed in product liability actions – even if there is no

case expressly on this point (yet).” (Pl.’s Reply, June 24, 2015 [ECF No. 156] at 3.) This

argument fails to recognize that the purpose of such an award under Duggan is to make the

prevailing plaintiff whole. For example, in the case of conversion, disgorgement together with

interest calculated from the time the tort occurred may be necessary to make the plaintiff whole.

Whereas here, the jury was tasked with calculating an award that would make the plaintiff

whole. (See Jury Instructions, June 8, 2015 [ECF No. 142] at 28 (“If you find for plaintiff, then

you must award plaintiff a sum of money that will fairly and reasonably compensate him for all

the injuries, harms, and losses that he experienced that you find were proximately caused by

defendant.”).) Following this instruction, the jury determined that an award of $2,977,997.00

would be sufficient to make plaintiff whole.

       Even if prejudgment interest were available in a personal injury, product-liability action,

there is justification for withholding an award of “delay damages” in this case. See Fed.

Marketing Co., 823 A.2d at 532 (D.C. 2003) (prejudgment interest is usually unavailable in cases

involving unliquidated claims, but “[t]he court usually should award such ‘delay damages’ in

such cases ‘absent some justification for withholding such an award.’”) (quoting Gen. Motors

Corp. v. Devex Corp., 461 U.S. 648, 657 (1983)). Defendant had no obligation to pay the jury

award until final judgment was entered on June 10, 2015. See Athridge v. Iglesias, 382 F. Supp.

2d 42, 54 (D.D.C. 2005) (defendants “had no obligation to pay . . . until entry of final judgment

against them.”). Contrary to plaintiff’s position, defendant was not profiting from the use of

money it owed plaintiff between 2009 and 2015 because its responsibility to pay plaintiff did not

accrue until the verdict was rendered. See, e.g., id. at 52 (“Plaintiffs had no right to be paid $5.5



                                                  7
million – from the [defendants] – until there was a factual finding holding them liable for the

accident and the damages that the minor plaintiff sustained. Accordingly, the [defendants] were

not enjoying the use of money that they owed plaintiffs during the course of the litigation

because they did not owe the money until the . . . verdict against them was rendered.”). Thus,

assuming arguendo that prejudgment interest is available in this type of case, it would be unfair

to require defendant to pay interest for the intervening six years. See id. at 54.

       The equities also do not weigh in plaintiff’s favor. Plaintiff notes that “Defendant took

an unreasonable and obstinate stance with respect to settlement throughout the history of this

case, including but not limited to after the jury in the first trial deadlocked; and Defendant

intends to further prolong paying the debt it owes Plaintiff as evidenced by its stated intent to file

an appeal.” (Pl.’s Mem. in Supp. of Mot. to Amend at 6-7.) However, defendant was not

required to settle, nor is defendant responsible for the delayed entry of final judgment caused by

the mistrial. There is no evidence that defendant has acted in bad faith in its approach to

settlement discussions nor in its defense against plaintiff’s claim. Plaintiff will also not be

prejudiced by defendant’s pursuit of an appeal because he is entitled to post-judgment interest

pursuant to 28 U.S.C. § 1961. Thus, even if prejudgment interest were available in this case, the

Court would not exercise its discretion to add prejudgment interest to the jury’s verdict.

III.   STAY OF EXECUTION OF JUDGMENT

       In his response to defendant’s motion to stay execution of the judgment, plaintiff stated

that he would not oppose a stay if defendant “posts a supersedeas bond sufficient to satisfy its

entire financial responsibility to Plaintiff.” (Pl.’s Resp. to Mot. to Stay.) Because the Court

declines to award prejudgment interest, defendant’s proposal of a $3,000,000.00 bond is




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approved. The $3,000,000 bond is sufficient to cover defendant’s entire obligation. Thus,

plaintiff’s sole objection to the stay is satisfied.

                                            CONCLUSION

        For the foregoing reasons, plaintiff’s motion to amend the judgment is denied and

defendant’s motion to stay execution of the judgment pending disposition of post-trial motion

and appeal is granted.



                                                           /s/ Ellen Segal Huvelle
                                                           ELLEN SEGAL HUVELLE
                                                           United States District Judge


Date: August 6, 2015




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