Bielunas v. F/V Misty Dawn, Inc

Opinion

United States Court of Appeals For the First Circuit

No. 09-2048

WOJCIECH BIELUNAS,

Plaintiff, Appellee,

v.

F/V MISTY DAWN, INC.,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Joseph L. Tauro, U.S. District Judge]

Before

Boudin, Gajarsa* and Thompson, Circuit Judges.

Joseph A. Regan, with whom John David Blaisdell and Regan & Kelley LLP were on brief, for appellant. Joseph S. Stacey, with whom James P. Jacobsen and Beard Stacey & Jacobsen LLP were on brief, for appellee.

October 8, 2010

* Of the Federal Circuit, sitting by designation. THOMPSON, Circuit Judge. This case – according to Wojciech

Bielunas – is about life-altering pain. Working as a commercial

fisherman aboard the F/V SEA WATCHER I, Bielunas had his right foot

crushed in a ghastly accident. An orthopedic surgeon said it

looked like someone had taken a sledgehammer to Bielunas's foot.

His livelihood lost, Bielunas later sued the vessel's owner, F/V

Misty Dawn, Inc., charging Jones Act negligence,1 ship

unseaworthiness, and a right to maintenance and cure.2 A jury

returned a verdict in Bielunas's favor, and the district judge

entered judgment against Misty Dawn for $2,307,690. In this arena,

Misty Dawn criticizes the district judge for admitting certain

evidence and denying a motion for new trial or remittitur.

Detecting no hint of reversible error, we affirm the judgment

below.

Background

We present the facts in the light most flattering to the

jury's verdict. See, e.g., Whitfield v. Melendez-Rivera, 431 F.3d

1, 3 (1st Cir. 2005). Bielunas emigrated from Poland to the United

States with his family in 1995, eventually settling in rural

1 46 U.S.C. § 30104. 2 A venerable remedy created to protect seamen from the dangers of living and laboring at sea, maintenance and cure "refers to the provision of, or payment for, food and lodging ('maintenance') as well as any necessary health-care expenses ('cure') incurred during the period of recovery from an injury or malady." LeBlanc v. B.G.T. Corp., 992 F.2d 394, 396-97 (1st Cir. 1993).

-2- Pennsylvania. He had worked on fishing boats before leaving

Poland, and he became a commercial fisherman here. From 2005

through 2006, Bielunas worked for Misty Dawn, a Massachusetts

corporation, on its vessel, the SEA WATCHER.

Safety was hardly the watchword for Misty Dawn's conduct. The

company made no real effort to ensure that its employees complied

with accepted safety standards. Misty Dawn had some safety

guidelines, but they were not posted anywhere on the SEA WATCHER.

Instead, the company relied on word-of-mouth, with ownership

passing safety concerns to the captain who then passed them on to

the crew. But there is some dispute whether ownership ever did

this.

To make the venture as profitable as possible, Misty Dawn

stored clam cages on the walkways. With the walkways blocked, crew

members looking to traverse the ship had to sidle along a thin,

unguarded ledge overlooking a nine-foot drop into the cargo hold or

amble over a conveyor belt. But the conveyor belt was not a

realistic option because the belt was quite slippery and the system

lacked adequate handrails, so the crew (including the captain)

opted to shimmy along the hatch ledge. Apparently no one told them

not to do this.

That brings us to the accident. Asked to help close the hatch

that covered the cargo hold, Bielunas had to indicate to another

crew member when the cover was in the proper position – a wire

-3- cable attached to a hydraulically-powered machine would haul the

hatch forward along the ledge. Ideally, one would perform this job

by standing on the designated walkways. But because they were

blocked, Bielunas rode atop the closing hatch cover – that is how

he and others had done it before, and no one had ever told him to

do it differently. Unfortunately, he lost his balance, stepped

onto the ledge to keep from falling into the cargo hold, and got

his right foot caught between the cover and a protruding piece of

metal. "Stop, stop," Bielunas yelled, hoping to get the attention

of the seaman operating the hydraulically-powered machine.

Bielunas could feel steel pressing into him, crushing his foot.

Flesh and muscle were stripped off the bone, leaving a gaping hole.

Blood was everywhere.

The Coast Guard airlifted Bielunas to a hospital on Cape Cod,

where a doctor performed a series of emergency surgeries. The

doctor noticed that about half of the bone material was dead. He

removed the dead matter and a significant amount of dead muscle and

tissue, too, but he could not close the wound. Eventually, after

nearly two months, doctors sealed the opening, but Bielunas's foot

is still disfigured, and the damage is severe, permanent, and

degenerative. As if this were not enough, Bielunas walks with a

pronounced limp, and his altered gait triggered back and knee

problems.

Bielunas will never be able to return to any form of hard

-4- work. His poor English skills make it highly unlikely that he will

ever be able to do office or clerical work. Because this work is

the only kind of employment that a person with his new physical

disability would be capable of performing, Bielunas will likely

never be able to work again – he can even cross-off pizza delivery

and security guard from any list of potential jobs because his

mangled foot affects his driving and ability to patrol a site, too.

Bielunas's total medical and economic damages approximated

$762,000. In his opening statement, Bielunas's lawyer pushed for

a $2,500,000 damages award, which he upped to $3,328,767 in his

closing. The jury returned a $2,775,000 verdict against Misty Dawn

but also found Bielunas 15% comparatively negligent. Factoring in

the 15% figure and an agreed-upon set-off between the parties, the

district judge entered a $2,307,690 judgment in Bielunas's favor.

Misty Dawn moved for a new trial or a remittitur, which the

district denied in an unexplained order.

With this background in place, we turn to the issues presented

on appeal, highlighting further facts when needed to put Misty

Dawn's claims into proper perspective.

Evidentiary Issues

Misty Dawn contends that the district judge erred in admitting

plaintiff's exhibit 32 and Lawson Bronson's expert testimony.

Neither claim has traction.

Plaintiff's exhibit 32

-5- The protested exhibit is a staged photo (apparently taken by

a defense expert) of a deckhand holding a wire and sidling along a

nine-inch hatch ledge, as the SEA WATCHER's crew frequently would.

Misty Dawn argues here, as it did below, that the exhibit is

irrelevant because Bielunas was injured while standing on the

moving hatch cover – not while traveling along the hatch ledge

holding a wire. This argument is easily disposed of.

A relevancy-based argument is usually a tough sell. The

definition of relevance is quite expansive: relevant evidence is

"evidence having any tendency to make the existence of any fact

that is of consequence" more or less probable. See Fed. R. Evid.

401 (emphasis added). To be relevant, the evidence need not

definitively resolve a key issue in the case, see, e.g., United

States v. Rivera Calderón, 578 F.3d 78, 96-97 (1st Cir. 2009),

cert. denied, 130 S. Ct. 1107 (2010) – it need only move the

inquiry forward to some degree, see 2 Jack B. Weinstein & Margaret

A. Berger, Weinstein's Federal Evidence § 401.04[2][b] (Joseph M.

McLaughlin ed., 2d ed. 2010). Because this is a quintessential

judgment call, see Morales Feliciano v. Rullán, 378 F.3d 42, 57

(1st Cir. 2004), we give trial judges considerable leeway in

deciding whether the contested evidence satisfies this not-too-

difficult-to-meet standard, reversing only on a showing of abuse of

discretion, see, e.g., United States v. Sepulveda, 15 F.3d 1161,

1194 (1st Cir. 1993).

-6- Relevancy is not assessed in a vacuum – it is gauged "in light

of the underlying substantive law," see Roy v. The Austin Co., 194

F.3d 840, 843 (7th Cir. 1999), here, Jones Act negligence and ship

unseaworthiness. A Jones Act shipowner must see "to the safety of

the crew." Koehler v. Presque-Isle Transp. Co., 141 F.2d 490, 491

(2d Cir. 1944) (Frank, J.). A crew member's burden of proving

causation is "featherweight," meaning liability exists if the

shipowner's "negligence contributed even in the slightest" to the

injury. Ferrara v. A. & V. Fishing, Inc., 99 F.3d 449, 453 (1st

Cir. 1996) (quotation marks omitted). Also, a shipowner must keep

the ship – its decks, passageways, equipment, etc. – in a seaworthy

condition and must use safe work methods, too. See id. And a

shipowner is responsible for unseaworthiness-induced injuries even

if not negligent. See id.

If a picture speaks a thousand words, this one spoke plenty,

giving context so the jury could better understand the parties'

actions. Again, the photo showed a seaman inching his way along a

tiny hatch ledge with no guardrails while lugging a wire – an

unacceptable practice, Bielunas's expert said, which Misty Dawn

turned a blind eye to and which highlighted Misty Dawn's cavalier

attitude toward safety. The photo also showed a ship with blocked

walkways, which further bolstered Bielunas's theory that Misty Dawn

failed to provide a safe deck for work on the high seas. Misty

Dawn talked a good game about how crew safety was a top concern,

-7- but the photo suggested otherwise. Seen in this light, then, the

photo tended to make Misty Dawn's negligence and the ship's

unseaworthiness more probable, see generally DeGioia v. United

States Lines Co., 304 F.2d 421, 423 (2d Cir. 1962) (holding that a

cluttered deck constitutes Jones Act negligence and vessel

unseaworthiness); Bonnewell v. United States, 170 F.2d 411, 412-13

(4th Cir. 1948) (same) – which is all the liberal relevancy

standard requires, see, e.g., Iacobucci v. Boulter, 193 F.3d 14, 20

(1st Cir. 1999). Consequently, the district judge did not abuse

his broad discretion in admitting plaintiff's exhibit 32.

Bronson's testimony

Also sailing wide of the mark is Misty Dawn's claim that the

district judge stumbled in admitting Bronson's testimony about the

means of traversing the deck, the danger of obstructing the

walkways, and other safety problems on the SEA WATCHER. Misty Dawn

calls this testimony irrelevant and says its admission affected the

verdict (Misty Dawn does not contest Bronson's expert credentials)

– which means we apply the abuse-of-discretion standard. See,

e.g., Pagés-Ramírez v. Ramírez-González, 605 F.3d 109, 115-16 (1st

Cir. 2010). Again, that standard is hard to satisfy, and Misty

Dawn cannot satisfy it here.

Bronson's testimony – discussing the meaning and significance

of the staged photo, the dangers posed by the open hatch covers and

the missing conveyor belt handrails, etc. – went to matters of

-8- consequence: did Misty Dawn provide Bielunas with a safe work

place, and was the SEA WATCHER seaworthy? Misty Dawn protests that

Bielunas was not hurt while sidling along the hatch ledge (a Misty

Dawn-accepted practice that Bronson condemned), that only one cover

was open when tragedy struck, and that the missing handrails played

no part in the mishap (ignoring that Misty Dawn had faulted

Bielunas for not standing on the conveyor belt during the hatch-

closing episode, a ridiculously unsafe suggestion, Bronson said,

given the lack of handrails). But this evidence gave the jury a

proper frame of reference for assessing the parties' competing

claims, so it is relevant. See Faigin v. Kelly, 184 F.3d 67, 81

(1st Cir. 1999). Misty Dawn could and did fight tooth and nail to

undermine the evidence's meaning. But once relevancy is found,

complaints of the sort Misty Dawn pursues go to the weight, not the

admissibility, of Bronson's testimony. See, e.g., United States v.

Schultz, 333 F.3d 393, 416 (2d Cir. 2003); United States v. Diaz,

878 F.2d 608, 615 (2d Cir. 1989). The upshot of all this is that

we do not see anything close to an abuse of discretion here.3

3 Because there was no error, we need not consider Misty Dawn's grumble that the admission of Bronson's testimony affected the trial's outcome, see Fed. R. Evid. 103 – a complaint that turns in part on Misty Dawn's claim that Bielunas's counsel weaved Bronson's "irrelevant" testimony into his closing argument. Misty Dawn's brief focuses on the evidentiary issue (which falters, given how easily Bronson's testimony clears the low relevancy hurdle) and makes no attempt to construct a reasoned argument that Bielunas's counsel's closing constituted misconduct, so our work on this is done. See, e.g., McCullen v. Coakley, 571 F.3d 167, 182 & n.3 (1st Cir. 2009) (deeming waived arguments hinted at but not developed

-9- The New Trial/Remittitur Issues

In its post-trial motion, Misty Dawn blasted Bielunas's

counsel for suggesting a damage award in his opening statement

($2,500,000) and closing argument ($3,328,767), saying counsel's

comments unfairly influenced the jury and entitled it to a new

trial. Misty Dawn also contended that the jury's ultimate award

($2,775,000, constituting roughly $2,000,000 in non-economic

damages, which is the crux of the matter) was simply too large to

stand. The district judge denied the motion without comment, so we

have two choices: remand for clarification or address the issue

head-on "if a reasonable basis supporting the order is made

manifest on the record." United States v. Podolsky, 158 F.3d 12,

16 (1st Cir. 1998); see also generally Presley v. United States

Postal Serv., 317 F.3d 167, 173 (2d Cir. 2003) (noting that

"[w]hile a written explanation of a district court's basis for

denying [a new-trial motion] is certainly preferable as an aid to

appellate review, a separate written opinion is not necessarily

required when a district court" rebuffs the motion). We choose

option two in this instance.

Suggesting specific damage amount

Misty Dawn did not object to the specific-damage-award

comments in Bielunas's counsel's opening statement and closing

and addressed to a particular theory), cert. denied, 130 S. Ct. 1881 (2010).

-10- summation. Rather, it first surfaced this issue in its new-trial

motion. That is still an unpreserved challenge, however, so our

review is limited to a search for plain error. United States v.

Brandao, 539 F.3d 44, 57 (1st Cir. 2008); accord Springer v. Henry,

435 F.3d 268, 283 (3d Cir. 2006).

Plain error is one hard test to meet, particularly in civil

litigation. See Smith v. Kmart Corp., 177 F.3d 19, 26 (1st Cir.

1999). Plain error is (1) error which (2) is so clear that a trial

judge should act even without an objection and which (3) affects

the appellant's substantial rights – on top of that, even if the

appellant makes this required showing, we need not intervene unless

the error also (4) seriously impugns the "fairness, integrity, or

public reputation of judicial proceedings." United States v. Roy,

506 F.3d 28, 30 (1st Cir. 2007) (quotation marks omitted); see also

Smith, 177 F.3d at 25; Nat’l Union Fire Ins. Co. of Pittsburgh, PA

v. West Lake Acad., 548 F.3d 8, 22 (1st Cir. 2008). Consequently,

Misty Dawn faces a steep climb nearing 90 degrees – ultimately,

that slope is insurmountable.

Misty Dawn cites no First Circuit cases banning lawyers from

suggesting a damage number to the jury. Instead it says that

federal courts tend to let counsel make unit-of-time arguments

during summation (e.g., a lawyer tells the jury plaintiff's pain is

worth X dollars per day, month, or year and then multiplies it by

plaintiff's life expectancy to get a lump-sum figure). Bielunas's

-11- lawyer did just that, proposing a number and discussing a process

through which the jury could reach it.4

Some courts permit unit-of-time arguments, some leave the

matter to the trial judge's discretion, and some ban the practice

outright – though most courts, particularly federal courts, seem to

fall into the first two camps. See generally Mileski v. Long

Island R.R. Co., 499 F.2d 1169, 1173 n.2, n.3, n.4 (2d Cir. 1974)

(collecting federal and state cases); Giant Food Inc. v.

Satterfield, 603 A.2d 877, 879-80 (Md. Ct. Spec. App. 1992) (same).

Not this Court, however. We forbid counsel from asking jurors to

consider the amount of a party's ad damnum in crafting a damage

award, see Davis v. Browning-Ferris Indus., Inc., 898 F.2d 836,

837-38 (1st Cir. 1990); see also Wilson v. Bradlees of New England,

Inc., 250 F.3d 10, 23 n.25 (1st Cir. 2001) – and we have cited

4 Here is a sampling of what Bielunas's counsel said (again, without drawing any objection): Past and future physical pain and suffering: Noting that there are 365 days in a year, counsel suggested $282,000 for "past physical pain and suffering" – $200,000 for the first year (given the immediate "horror" of the calamity), $50,000 for the second year, and $32,000 for the third. Bielunas is "55 years old," counsel added, and is expected to live another 25 years, so "you should award him $800,000 for future physical pain and suffering because he's going to live with that [pain] every day." Past and future mental anguish: "I think the mental anguish of this thing is conservatively $20,000 a year," counsel said. "That's $20,000 a year for the last three years" and "for the rest of his life," counsel added, which comes to $560,000. Past and future disability and inconvenience: Bielunas's "past disability is permanent," counsel argued. "And I submit to you that $33,000 a year" is a good number to cover "the impairment and the inconvenience," which comes to $924,000.

-12- approvingly a case outside this circuit for the point that lawyers

cannot state in summation the number they think jurors should award

for pain and suffering. See Davis, 898 F.2d at 837 (highlighting

Waldorf v. Shuta, 896 F.2d 723 (3d Cir. 1990)). Building on this

foundation, we held in an unpublished opinion that Davis precludes

counsel from requesting a pain-and-suffering dollar amount in

closing. Kimberly F. v. Mary Hitchcock Mem. Hosp. & Hitchcock

Clinics, Inc., No. 93-1438, 1993 WL 498026, at *9-10 (1st Cir. Dec.

3, 1993) (unpublished). Consistent with the Davis line of cases,

district judges in this circuit have stopped lawyers from doing

just that. See Wilson, 250 F.3d at 23 n.25; see also generally

Budet-Correa v. United Parcel Serv., 322 F.Supp.2d 139, 141-42

(D.P.R. 2004) (discussing and applying Davis and the like).

Consequently, measured by our precedents we conclude that the

district judge here made a mistake, and that the mistake is obvious

enough. But, again, plain error requires more: the mistake must

also be prejudicial in a sense that there is a reasonable

probability (not just a theoretical possibility) that it affected

the result, and the result must be unjust, too. See United States

v. Marcus, 130 S. Ct. 2159, 2164 (2010); see also United States v.

Padilla, 415 F.3d 211, 225 (1st Cir. 2005) (Boudin, C.J.,

concurring) (en banc). This is where Misty Dawn gets tripped up.

For starters, we are not convinced that this was a game-

changing error. Cf. United States v. Taylor, 54 F.3d 967, 972 (1st

-13- Cir. 1995) (stressing that the plain-error doctrine focuses on

"blockbuster[]" errors) (quotation marks omitted). We question

whether Misty Dawn can show that it is reasonably probable – as

opposed to merely possible – that the jury would have fixed a

different damage figure absent the unit-of-time breakdown. That

the jury found Bielunas 15% comparatively negligent as opposed to

the 5% his lawyer had argued for suggests that the jury did not

blindly adopt counsel's analysis. But we need not dwell on this

issue. See Johnson v. United States, 520 U.S. 461, 469 (1997)

(skipping over the third component of the plain-error test and

deciding the case on the fourth prong). Assuming for argument's

sake that the breakdown affected the outcome of the case, we see no

injustice here: given that Bielunas will live out his life in

pain, deprived of his livelihood (details we delve more deeply into

below), we cannot say that the award is intolerable.

If more were needed – and we doubt that it is – the judge in

his charge made clear that the lawyers' statements and arguments

were not evidence and that the verdict must be reached on the

evidence alone. Misty Dawn's counsel did not object or request any

instruction on the unit-of-time issue. After deliberating for a

bit, the jury asked the judge if Bielunas's lawyer could go over

the "suggested award amounts" and the "reasoning" used to reach

them. Misty Dawn's attorney asked the judge to remind the jurors

that arguments were not evidence in the case and that they are "to

-14- decide" the matter "on their own." The judge agreed and told the

jury:

I presume that you are referring to the plaintiff's counsel's argument to you where it was all laid out. I am not going to have him do that again nor should he have to do it again. What I want you to do is to use your collective memories as to what he said and what reasoning . . . he offered for the conclusions that he suggested to you. And have in mind . . . what I told you before, that statements of counsel . . . are not the evidence in the case. You are supposed to remember what the evidence was. What counsel was endeavoring to do was to remind you of what the evidence was and put his interpretation before you so you could consider it. So that is the answer to that. You are to try to remember the evidence yourself.

Misty Dawn's lawyer did not object or ask the judge to say anything

else, and we think the judge's instructions help undercut any

plain-error claim. See United States v. Robinson, 473 F.3d 387,

398 (1st Cir. 2007).

Plain error is not an "appellant-friendly" standard, United

States v. Vazquez-Molina, 389 F.3d 54, 57 (1st Cir. 2004), vacated

on other grounds 544 U.S. 946 (2005), and rightfully so: it keeps

parties from rolling the dice on a favorable verdict and then

raising problems on appeal that could have been easily fixed with

a timely objection below. See, e.g., United States v. Jacquillon,

469 F.2d 380, 386 (5th Cir. 1972) (Wisdom, J.). Ultimately, that

standard – which is exceedingly tough to meet – cannot be met here.

The damage amount

As a parting shot, Misty Dawn calls the jury's non-economic

-15- damage award (over $2,000,000) unreasonably high and faults the

district judge for not ordering a remittitur. We see things

differently.

Converting legal damages into a monetary award is the jury's

job – consequently, only rarely and in extraordinary circumstances

will we veto the jury's decision. Casillas-Díaz v. Palau, 463 F.3d

77, 82-83 (1st Cir. 2006). That is particularly true when the

district judge, who saw and heard the evidence play out, refuses to

trim the award. Id. at 83. Stepping lightly, we review that

ruling for abuse of discretion, reversing only if the defendant

carries the weighty burden of proving that the contested award is

"grossly excessive, inordinate, shocking to the conscience of the

court, or so high that it would be a denial of justice to permit it

to stand." Id. (quotation marks omitted). This means that we will

not jettison a damage award simply because we think it too

generous, see Whitfield, 431 F.3d at 15-16, but will reverse "only

if it is shown to exceed any rational appraisal or estimate of the

damages that could be based upon the evidence before the jury."

Casillas-Díaz, 463 F.3d at 83 (quotation marks omitted).

There is no mathematical formula for determining the monetary

equivalent of non-economic injuries. See, e.g., Limone v. United

States, 579 F.3d 79, 105 (1st Cir. 2009). But the district judge

told the jurors, without objection, that they could consider any

physical, mental, or emotional pain Bielunas has suffered, is

-16- suffering, and will suffer because of his wounds. Damages must be

reasonable and not based on hunches, the judge stressed, but "no

evidence of value" is needed for the intangible injuries: in

translating a decision into dollars, "you are not determining value

but you should award an amount that you feel will fully and fairly

compensate" Bielunas for his past, present, and future mental

distress and physical pain. The issue, then, is inescapably "fact-

bound," see Casillas-Díaz, 463 F.3d at 83, and the facts, measured

under the legal criteria outlined above, support the district

judge's decision not to pare down the award.

Bielunas suffered unimaginable pain on the SEA WATCHER, and

pain clings to him still. A multi-ton hatch cover crushed his

foot, pulverizing a bone, fracturing others in multiple places, and

leaving the whole thing a bloodied mess. The doctors could not

close the wound for the longest time, and they will never make him

fully better – actually, things will only get worse. And the

injury has exacted quite a toll, causing him to lose many of the

things that made his life worth living. No more working on a

fishing boat – in fact, no more meaningful employment at all. No

more taking long hikes with friends and family. No more doing

certain chores around the house. No more helping neighbors with

home-improvement projects. All of this has left him feeling

powerless, lost, and depressed. He worries about his future, he

lashes out at others, and his marriage has suffered, too. Taking

-17- everything into account, we cannot say that the jury's award is

unconnected to the evidence, conscience-shocking, or so lavish that

it would offend common notions of justice if it stands – so no

remittitur is needed.

Misty Dawn makes much of the fact that Bielunas does not take

pain medication and had fractured the heel on the same foot years

before, an injury that Misty Dawn's expert suggested caused many of

the same problems that Bielunas complains about now. None of this

changes our view of the case, however. Again, Bielunas explained

in exquisite detail how much pain he had after the hatch cover tore

a hole in his foot and how much pain he has now – constant, he

said, even though he avoids pain pills, and the medical evidence

backs up his chronic-pain claim. As to the heel issue, Bielunas

never missed a day of work because of that injury, a fact that

pours cold water on the expert testimony that Misty Dawn points to

– testimony that the jury could, and evidently did, disbelieve in

any event. Cf. Primus v. Galgano, 329 F.3d 236, 245 (1st Cir.

2003).

Citing to Anthony v. G.M.D. Airline Serv., Inc., 17 F.3d 490

(1st Cir. 1994), and Laaperi v. Sears, Roebuck & Co., 787 F.2d 726

(1st Cir. 1986), Misty Dawn also argues that because we rejected

jury awards there, we should do so here. But these cases offer no

aid. For one thing, they are 16 and 24 years old, respectively,

which in this context makes them "not particularly helpful" for

-18- comparison purposes, see Whitfield, 431 F.3d at 16 (saying so with

respect to a 16-year-old precedent). For another thing, they are

easily distinguishable from this case. Anthony found a $566,765

pain-and-suffering award unconscionable because the plaintiff's

injury – which was neither painful (relatively speaking) nor

permanent – did not "render[] him unable to perform any particular

functions or engage in any particular activities [or] otherwise

interfere[] with his professional, recreational, or personal life."

Anthony, 17 F.3d at 491, 494-95. Laaperi considered a $750,000

damage award conscience-shocking because the plaintiff suffered

"relatively minor injuries, involving no continuing disability"

(other than "a non-disabling permanent scar on her lower back,

there was no evidence of any medical problems whatsoever within a

month and a half" after the incident). Laaperi, 787 F.2d at 734-

36. Anthony and Laaperi look nothing like this case, given the

huge toll Bielunas's injury has taken on his body and mind.

Misty Dawn also highlights a boatload of non-First Circuit

cases where lower courts deemed certain damage awards excessive.

Measured against these cases, Misty Dawn says, the objected-to

portion of Bielunas's damage award is legally unsustainable. Not

so: simply "showing that the damage award is generous in comparison

to other (hand-picked) cases is insufficient to warrant relief."

Correa v. Hospital San Francisco, 69 F.3d 1184, 1198 (1st Cir.

1995) (citing Havinga v. Crowley Towing & Transp. Co., 24 F.3d

-19- 1480, 1488-89 (1st Cir. 1994) (not necessary to compare cases

involving dissimilar traumas, dates and locations of trials, and

evidence presented)); accord Whitfield, 431 F.3d at 16 (stressing

that we will not reject a damage award "merely because the amount

of the award is somewhat out of line with other cases of a similar

nature") (quotation marks omitted). Ultimately, we see no

compelling reason to override the jury's judgment here.5

Conclusion

For the reasons arrayed above, we reject Misty Dawn's appeal

and affirm the judgment below in all respects. Each side shall

bear its own costs.

So Ordered.

5 The parties also spar over whether Bielunas's counsel told Misty Dawn's lawyer in a phone call that the award's size "shocked" both him and his client. That makes not one whit of difference: what counts is whether the award shocks our conscience (it does not), not whether it shocks counsel's or his client's.

-20-