Launders v. Steinberg

¶1While we are all in agreement that defendant-appellant perpetrated a heinous crime when he killed six-year-old Lisa, Justice McGuire is correct in finding, with regard to the inquest court’s award of damages for pain and suffering, to the extent alleged in the fifth and sixth causes of action, resulting from injuries Lisa endured as a battered child, that plaintiff-respondent Michele Launders in her capacity as administratrix of Lisa’s estate, has not met her burden of showing that appellant’s liability for uncharged prior acts of abuse was “necessarily determined” in the earlier criminal prosecution against him.

¶2The most serious crime for which appellant was charged was murder in the second degree, arising out of his striking of Lisa on the evening of November 1, 1987. The prosecution’s theory for the lesser charge of manslaughter in the first degree was that appellant “with intent to cause serious physical injury to Lisa, injured her and then failed to obtain medical assistance for her, causing her death” (People v Steinberg, 170 AD2d 50, 62-63 [1991], affd 79 NY2d 673 [1992]). His conviction for that crime “necessarily determined” for collateral estoppel purposes that, on the night in question, appellant violently struck the child several times in the head and essentially left her to die. However, the same cannot be said for the earlier instances of abuse and neglect allowed by the trial court as background material and to counter any potential defense that appellant’s act was an isolated incident or mere accident. Absent a conviction for such alleged abuse and neglect, appellant had no basis to ap*71peal the use of such evidence other than to question the propriety of its introduction at trial with regard to his manslaughter conviction. Indeed, as a criminal defendant in that earlier proceeding he was under no obligation to refute or contradict such testimony or, constitutionally, to mount any defense.

¶3Accordingly, the grant of summary judgment on the fifth and sixth causes of action insofar as it imposed liability on defendant for the alleged injuries endured by Lisa as a battered child and the award of damages for her conscious pain and suffering resulting from such injuries should be reversed and vacated and the matter remanded for trial of both the issues of liability and damages.

¶4Moreover, although the noted forensic pathologist Michael Baden testified at the inquest on damages that Lisa would not necessarily have lost consciousness immediately after appellant struck her in the head shortly after 6:00 p.m. on November 1, 1987 and was of the opinion that Lisa “lost consciousness 8 to 10 hours later,” the sole basis for such opinion and the inquest court’s finding that Lisa vomited throughout the night for a period of 8 to 10 hours before she became comatose between the hours of 4:00 and 6:00 a.m. were statements made by appellant and Hedda Nussbaum when Lisa was taken by ambulance to the pediatric emergency room at St. Vincent’s Hospital. Subsequently, however, at the criminal trial, which is the only basis for the collateral estoppel sought to be applied here, Ms. Nussbaum, appearing as a witness for the prosecution, testified that those and similar statements made to the police were a “cover story” (170 AD2d at 60). Ms. Nussbaum, the sole eyewitness to the events of that evening, also testified at the criminal trial that Lisa was unconscious when appellant carried her limp body into the bathroom moments after 6:00 p.m. and laid her on the floor. Thus, although Dr. Baden’s opinion was unrefuted at the inquest on damages, the underlying basis for his opinion is certainly questionable.

¶5Where it is contended on appeal that an award of money damages is excessive, CPLR. 5501 (c) requires this Court to determine whether such award “deviates materially from what would be reasonable compensation.” Ordinarily, when dealing with an excessive jury verdict, we direct a new trial unless the plaintiff stipulates to accept a lower amount. Where, however, as here, an excessive verdict is rendered by the court after a bench trial, such procedure is not required and this Court may *72render the judgment it finds warranted by the facts (Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983]). Thus, notwithstanding the inherent difficulty and subjectivity involved, once liability has been determined we, in our oversight role as gatekeepers, must dispassionately review the damages awarded and, in the case of an excessive verdict, reduce such award to an amount we deem to be reasonable.

¶6Although at this point nothing, let alone a sum of money, can bring Lisa back or relieve her suffering, we nevertheless must determine what would be just compensation for her injuries. Neither plaintiff nor the other members of this Court point to a truly comparable award in this or any other state to guide and enlighten us, and reliance upon case precedent alone is virtually impossible, given the different injuries and circumstances in each case (see Po Yee So v Wing Tat Realty, 259 AD2d 373, 374 [1999]). Nevertheless, although no one can measure another person’s pain and we can only imagine the extent of Lisa’s suffering, assuming that Lisa was conscious from shortly after 6:00 p.m. until she was brought to the hospital the next morning and taking into consideration the “tormented” hours before her death, the award of $5 million for past pain and suffering deviates materially from what would be reasonable compensation under these circumstances and should be reduced to $2 million, which amount should be subject to the setoff previously ordered by the inquest court of the amount settled for with the municipal defendants.

¶7Finally, given the foregoing award of compensatory damages, appellant’s total lack of remorse, and the heinous nature of his assault and battery and negligence, which are the sole remaining causes of action under consideration on this appeal, an additional award of $2 million in punitive damages is appropriate and the verdict should be reduced accordingly.

¶8I respectfully disagree with the majority in three respects. First, the October 10, 1989 order awarding summary judgment against appellant on the fifth, sixth and seventh causes of action on the basis of collateral estoppel was erroneous in part. That is, although appellant’s earlier criminal conviction for manslaughter in the first degree conclusively established that appellant had caused the death of Lisa Steinberg by acts of commission and omission on November 1 and 2, 1987, the jury’s verdict did not reflect any necessary finding that appellant was responsible for *73assaulting or abusing Lisa on earlier occasions. The prosecution offered evidence at appellant’s criminal trial that he had abused Lisa on earlier occasions and it well may be that the jury credited the testimony relating to those acts of abuse. But as is clear from the record on appellant’s appeal from the judgment of conviction (People v Steinberg, 170 AD2d 50 [1991], affd 79 NY2d 673 [1992])—in particular, the trial court’s charge to the jury—appellant was not charged with those prior acts of abuse and thus the jury could not possibly have found that he committed them. Respondent did not meet and could not have met her burden of showing that appellant’s liability for those acts of abuse was "necessarily determined” in the earlier action (see Ryan v New York Tel. Co., 62 NY2d 494, 500-501 [1984]; see also D’Arata v New York Cent. Mut Fire Ins. Co., 76 NY2d 659, 667 [1990] ["Generally, for a ques ion to have been actually litigated so as to satisfy the identity requirement, it must have been properly raised by the pleadings or otherwise placed in issue and actually determined in the prior proceeding” (internal quotation marks and citations omitted)]). Accordingly, the award of summary judgment was erroneous to this extent, the award of $5 million for Lisa’s pain and suffering as a battered child should be vacated, and plaintiffs claims based on defendant’s conduct prior to November 1, 1987 should be remanded for further proceedings on the issue of liability.

¶9The majority appears to be of the view that because the jury necessarily determined that appellant had committed the acts of abuse on November 1 and 2, 1987 that caused Lisa’s death, the jury necessarily also found that appellant had committed prior acts of abuse. The latter finding, of course, does not follow from the former finding. The majority, moreover, does not dispute that the jury in appellant’s criminal trial was not asked to determine whether appellant committed the prior acts of abuse. Rather, the late Judge Rothwax instructed the jury that in order to find appellant guilty of the manslaughter charge it was required to find beyond a reasonable doubt that on or about November 2, 1987, by acts of commission and omission, appellant caused Lisa’s death. The jury was never instructed that it was required to find, before convicting appellant of the manslaughter charge, that appellant had committed the prior acts of abuse. For this basic reason, appellant should not have been collaterally estopped from contesting his liability for the prior acts of abuse (Buechel v Bain, 97 NY2d 295, 303-304 [2001], cert denied 535 US 1096 [2002]).

¶10Indisputably—and respondent certainly never contended otherwise in her motion for summary judgment on collateral *74estoppel grounds—the criminal jury was not asked to determine whether appellant committed the prior acts of abuse and was not instructed that it could find appellant guilty of the manslaughter charge only if it found he had committed the prior acts of abuse. Accordingly, it is indisputable that in convicting appellant of the manslaughter charge the jury (or some jurors) could have entertained a reasonable doubt about whether he had committed the prior acts of abuse. Indeed, it also is indisputable that the jury (or some jurors) could have come to any one of a number of conclusions—or could have reached no conclusion at all—about whether appellant had committed the prior acts of abuse. Only if the word “necessarily” is redefined to mean “probably” can it be said that the criminal trial “necessarily determined” that appellant committed the prior acts of abuse.

¶11Another flaw in the majority’s approach is apparent when its application to future cases is considered. Whenever evidence of an uncharged crime is received in a criminal case the jury may or may not find it persuasive. But in the absence of special verdicts, which are “generally disfavored in criminal trials” (People v Ribowsky, 77 NY2d 284, 290 [1991]), there is no way of knowing with anything approaching reasonable certainty whether the jury credited that evidence or concluded (beyond a reasonable doubt or by a less exacting standard) that the defendant committed the uncharged act or acts. Presumably, the majority would not conclude that whenever the jury returns a guilty verdict the defendant is collaterally estopped from litigating the issue of whether he committed the uncharged act or acts. The majority, however, does not provide any guidance on the critical question of when the defendant will be collaterally estopped, except to the extent that its opinion suggests that the question turns on ad hoc evaluations by the courts in the subsequent civil proceedings of the strength of the uncharged-crimes evidence. To the extent such evaluations are meant to be decisive, the majority thus invites future litigation about the strength of the uncharged-crimes evidence. In other words, whether a party is estopped in a subsequent proceeding from relitigating an issue turns on that party’s ability to relitigate that very issue.1

¶12Contrary to the majority’s writing, nothing in Justice Sullivan’s opinion for this Court affirming appellant’s conviction *75suggests that this Court believed—let alone gratuitously concluded—that the jury had decided that appellant had committed the uncharged acts of abuse in convicting appellant of manslaughter. To be sure, the Court stated that “[t]he evidence established that [appellant] had abused Lisa on previous occasions” (170 AD2d at 66). This appraisal of the strength of the evidence of prior acts of abuse, however, was not essential to the Court’s resolution of the appeal and, in any event, cannot ground the majority’s collateral estoppel holding. No matter how powerful that evidence was, the jury was not asked to determine whether appellant committed the prior acts of abuse.

¶13The majority is correct in stating that the issue of appellant’s responsibility for the prior acts of abuse “was most certainly ‘raised [and] litigated’ in the criminal action.” Solely on that basis, however, appellant could not properly be precluded in the civil proceedings from contesting his liability for those acts. Rather, appellant was free to contest his liability unless he had a full and fair opportunity to contest the issue of his liability for those acts in the criminal proceedings and that issue “necessarily [was] decided in the prior action” (Buechel v Bain, 97 NY2d at 303-304).

¶14I also disagree with the majority’s determination to uphold the award of $5 million for the pain and suffering Lisa endured in the 8 to 10 hours before she lost consciousness from the blow or blows inflicted by appellant. In reviewing this award of compensatory damages, it is important to bear in mind that the outrageousness of appellant’s conduct is not a relevant factor. As the United States Supreme Court has stated:

“Although compensatory damages and punitive damages are typically awarded at the same time by the same decisionmaker, they serve distinct purposes. The former are intended to redress the concrete loss that the plaintiff has suffered by reason of the defendant’s wrongful conduct. See Restatement (Second) of Torts § 903, pp. 453-454 (1979); Pacific Mut. Life Ins. Co. v Haslip, 499 U.S. 1, 54 (1991) (O’Connor, J., dissenting). The latter, *76which have been described as ‘quasi-criminal,’ id., at 19, operate as ‘private fines’ intended to punish the defendant and to deter future wrongdoing. A jury’s assessment of the extent of a plaintiffs injury is essentially a factual determination, whereas its imposition of punitive damages is an expression of its moral condemnation” (Cooper Industries, Inc. v Leatherman Tool Group, Inc., 532 US 424, 432 [2001].)

¶15Accordingly, in determining the amount of damages to award a plaintiff for past pain and suffering, the only relevant inquiry is what amount is necessary to “justly and fairly compensate” plaintiff (Tate v Colabello, 58 NY2d 84, 88 [1983]), irrespective of the nature of the causal factor in the infliction of the pain and suffering.

¶16As plaintiffs expert testified, Lisa unquestionably would have suffered “severe headache,” with pain of increasing severity, during the 8-to-10-hour period. Moreover, she would have been “very uncomfortable” as a result of vomiting and a feeling at some point of being unable to catch her breath. Nonetheless, neither plaintiff nor the majority has cited any precedent in which a comparable award has been upheld. While “personal injury awards, especially those for pain and suffering, are subjective opinions which are formulated without the availability, or guidance, of precise mathematical quantification” (Reed v City of New York, 304 AD2d 1, 7 [2003], lv denied 100 NY2d 503 [2003]), we are obligated “to determine what awards have been previously approved on appellate review and decide whether the instant award falls within those boundaries” (Donlon v City of New York, 284 AD2d 13, 18 [2001]). Although a multi-million dollar award undoubtedly is warranted, the award before us does not fall within the boundaries set by case law (see Ramirez v City of New York, 279 AD2d 563 [2001]; Regis v City of New York, 269 AD2d 515 [2000]; Siler v 146 Montague Assoc., 228 AD2d 33 [1997], appeal dismissed 90 NY2d 927 [1997]; Julmis v City of New York, 194 AD2d 522 [1993]; Gonzalez v New York City Hous. Auth., 161 AD2d 358 [1990], affd 77 NY2d 663 [1991]; DeLong v County of Erie, 89 AD2d 376 [1982], affd 60 NY2d 296 [1983]; cf. Ramlakhan v Mangru, 253 AD2d 806 [1998]).2

¶17*77Finally, although I also would uphold a multi-million dollar punitive damages award, the erroneous collateral estoppel determination requires vacatur of the punitive damages award. When reviewing an award for punitive damages, a court must consider, among other things, the degree of reprehensibility of defendant’s conduct (BMW of North America, Inc. v Gore, 517 US 559, 575 [1996] [“the most important indicium of the reasonableness of a punitive damages award is the degree of reprehensibility of the defendant’s conduct”]). The degree of reprehensibility turns on several factors, including whether the tortious conduct involved repeated actions or was an isolated incident (see State Farm Mut. Automobile Ins. Co. v Campbell, 538 US 408, 419 [2003]). Since the award of punitive damages is based to some unascertainable extent on the erroneous determination that defendant was collaterally estopped from contesting his liability for the prior acts of abuse, meaningful review of the award is not possible. Accordingly, I would vacate the award of punitive damages and remand for further proceedings on the issues of liability and damages.

¶18Mazzarelli, J.E, and Saxe, J., concur with Catterson, J.; Andrias and McGuire, JJ., each concur in part and dissent in part in separate opinions.

¶19Judgment, Supreme Court, New York County, entered June 10, 2004, affirmed, without costs.