UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Frederick Nashawaty
v. Civil No. 15-cv-118-JD Opinion No. 2016 DNH 190 Winnipesaukee Flagship Corporation
O R D E R
Winnipesaukee Flagship Corporation (“WFC”) moved to exclude
from evidence at trial a damages chart prepared by Frederick
Nashawaty’s counsel and all mention of future pay damages.
Nashawaty objected. In response to discussion during the final
pretrial conference, the court allowed Nashawaty to file an
additional memorandum on the issue of providing evidence to
support a front pay damages award without expert testimony.
Nashawaty filed the memorandum, and WFC filed a response.
In addition, Nashawaty moved to supplement the memorandum
with an expert report and disclosed two expert witnesses,
suggesting those witnesses might be called at trial. WFC
objected to the motion to supplement and moved to strike or
exclude the new expert witnesses. The court held a hearing on
the damages chart, experts, and front pay damages. A. Damages Chart
WFC objects to the “Damages Chart” listed as exhibit 48 in
Nashawaty’s final pretrial statement. Counsel assumed that
exhibit 48 was the same chart that had been produced to counsel
on September 29, 2016, the day the final pretrial statements
were filed. WFC contends that the chart should be excluded
because it was not disclosed as required by Federal Rule of
Evidence 26(a)(1)(A)(iii), because the data reported in the
chart is incorrect, because the chart does not account for the
duty to mitigate damages, and because the claim for front pay
damages is too speculative without supporting expert testimony.
In response, Nashawaty states that as part of his initial
disclosures under Rule 26(a) he provided his tax forms to WFC
and a list of damages for purposes of settlement only. It is
far from clear whether that disclosure meets the requirements of
Rule 26(a)(1)(A)(iii). On the other hand, WFC apparently never
asked for additional disclosures about damages and did not move
to compel additional disclosures.
Nashawaty also submitted two damages charts with his
response to show his claims for back pay and front pay. The
back pay chart shows his lost earnings based on the salary he
was receiving when he resigned and, alternatively, based on the
salary that Richard Orzechowski received during that time. In
2 each year $5,000 is added for the amount of unemployment
benefits Nashawaty would have received during the winter months
when WFC was closed. He states that he “has a sound basis for
his damages numbers, and any alleged errors may be taken up at
trial by examination of witnesses.”
A chart may be used to provide a summary of voluminous
evidence that cannot be presented conveniently in court. Fed.
R. Evid. 1006. Nashawaty does not rely on Rule 1006 or suggest
that the evidence of his lost salary and benefits is voluminous.
A previously created chart may be offered into evidence
following Nashawaty’s testimony. The admissibility of the chart
will depend on whether or not the chart accurately reflects
Nashawaty’s testimony.
Alternatively, as Nashawaty suggests, counsel or Nashawaty
may be permitted to write the figures on a board or on easel
paper as Nashawaty testifies. The admissibility of a “chalk”
created in this manner will ultimately depend on the evidence
and testimony surrounding its creation and its accuracy.
No chart may be introduced or referred to during opening
statement.
B. Front Pay Damages
When reinstatement is impossible or impracticable, front
pay damages compensate a terminated employee for salary and
3 benefits that will be lost after the date of the judgment.1
Johnson v. Spencer Press of Me., Inc., 364 F.3d 368, 380 (1st
Cir. 2004). Front pay damages cannot be based entirely on
speculation and should not provide more to the plaintiff than
compensation for what will be lost. Travers v. Flight Servs. &
Sys., Inc., 808 F.3d 525, 544 (1st Cir. 2015). Nevertheless,
“[i]n the last analysis a front pay calculation is a prediction
of a series of future events.” Trainor v. HEI Hospitality, LLC,
699 F.3d 19, 31 (1st Cir. 2012). “Finally, front-pay damages,
as an award for future damages, must be reduced to present value
to account for the difference in the value of money in the
future and the value of money today.” Travers, 808 F.3d at 544
(internal quotation marks omitted); see also Hutton v. Essex
Group, Inc., 885 F. Supp. 331, 334 (D.N.H. 1994).
A plaintiff may be able to support a claim for front pay
over a short term with his own testimony about his employment
intentions. See Trainor, 699 F.3d at 31. Front pay damages are
intended to be temporary, to compensate the plaintiff during the
time it likely to take to find a comparable job. McPadden v.
Wal-Mart Stores East, L.P., 2016 WL 4991488, at *4 (D.N.H. Sept.
16, 2016). When a plaintiff seeks a longer term of front pay,
1 At the hearing, counsel agreed that reinstatement is not available, making future pay the appropriate remedy.
4 however, more evidence and detail will be needed to support both
the amount of damages and the calculation to discount the amount
to present value. See Travers, 808 F.3d at 545. While an
expert witness is not necessary in every case, a claim for long-
term front pay damages that is not supported by expert testimony
is likely to be too speculative to survive. Id.; Hutton, 885 F.
Supp. at 335.
In this case, Nashawaty seeks front pay from the date of
the judgment until 2029, a period of thirteen years. Nashawaty
did not disclose an expert witness within the discovery deadline
to support his claim for front pay. WFC moved to exclude his
claim for front pay on the ground that the claim is too
speculative to be allowed, particularly in the absence of expert
testimony. In response to WFC’s motion to exclude his front pay
claim, Nashawaty argued that an expert was not necessary and, in
the alternative, that the court could make the determination of
the length of time for the front pay award.
Nashawaty then filed a supplemental memorandum, as allowed
by the court, to show what proof would be offered at trial to
support the front pay claim. In the memorandum, Nashawaty
explained that he would testify about his plans to work into his
seventies and would testify about and provide evidence of the
salary and benefits he would have received if he had continued
5 to work at WFC. Nashawaty also suggested that a shorter period
of time, until his eligibility for Social Security benefits at
sixty-six or until he turned seventy, would be easier for the
front pay calculation.
Nashawaty continued to argue that the jury could do the
calculations necessary for a front pay award and provided
examples of appropriate discount rates. In the alternative,
however, Nashawaty proposed that if the jury found that he was
entitled to front pay and determined the number of years he
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Frederick Nashawaty
v. Civil No. 15-cv-118-JD Opinion No. 2016 DNH 190 Winnipesaukee Flagship Corporation
O R D E R
Winnipesaukee Flagship Corporation (“WFC”) moved to exclude
from evidence at trial a damages chart prepared by Frederick
Nashawaty’s counsel and all mention of future pay damages.
Nashawaty objected. In response to discussion during the final
pretrial conference, the court allowed Nashawaty to file an
additional memorandum on the issue of providing evidence to
support a front pay damages award without expert testimony.
Nashawaty filed the memorandum, and WFC filed a response.
In addition, Nashawaty moved to supplement the memorandum
with an expert report and disclosed two expert witnesses,
suggesting those witnesses might be called at trial. WFC
objected to the motion to supplement and moved to strike or
exclude the new expert witnesses. The court held a hearing on
the damages chart, experts, and front pay damages. A. Damages Chart
WFC objects to the “Damages Chart” listed as exhibit 48 in
Nashawaty’s final pretrial statement. Counsel assumed that
exhibit 48 was the same chart that had been produced to counsel
on September 29, 2016, the day the final pretrial statements
were filed. WFC contends that the chart should be excluded
because it was not disclosed as required by Federal Rule of
Evidence 26(a)(1)(A)(iii), because the data reported in the
chart is incorrect, because the chart does not account for the
duty to mitigate damages, and because the claim for front pay
damages is too speculative without supporting expert testimony.
In response, Nashawaty states that as part of his initial
disclosures under Rule 26(a) he provided his tax forms to WFC
and a list of damages for purposes of settlement only. It is
far from clear whether that disclosure meets the requirements of
Rule 26(a)(1)(A)(iii). On the other hand, WFC apparently never
asked for additional disclosures about damages and did not move
to compel additional disclosures.
Nashawaty also submitted two damages charts with his
response to show his claims for back pay and front pay. The
back pay chart shows his lost earnings based on the salary he
was receiving when he resigned and, alternatively, based on the
salary that Richard Orzechowski received during that time. In
2 each year $5,000 is added for the amount of unemployment
benefits Nashawaty would have received during the winter months
when WFC was closed. He states that he “has a sound basis for
his damages numbers, and any alleged errors may be taken up at
trial by examination of witnesses.”
A chart may be used to provide a summary of voluminous
evidence that cannot be presented conveniently in court. Fed.
R. Evid. 1006. Nashawaty does not rely on Rule 1006 or suggest
that the evidence of his lost salary and benefits is voluminous.
A previously created chart may be offered into evidence
following Nashawaty’s testimony. The admissibility of the chart
will depend on whether or not the chart accurately reflects
Nashawaty’s testimony.
Alternatively, as Nashawaty suggests, counsel or Nashawaty
may be permitted to write the figures on a board or on easel
paper as Nashawaty testifies. The admissibility of a “chalk”
created in this manner will ultimately depend on the evidence
and testimony surrounding its creation and its accuracy.
No chart may be introduced or referred to during opening
statement.
B. Front Pay Damages
When reinstatement is impossible or impracticable, front
pay damages compensate a terminated employee for salary and
3 benefits that will be lost after the date of the judgment.1
Johnson v. Spencer Press of Me., Inc., 364 F.3d 368, 380 (1st
Cir. 2004). Front pay damages cannot be based entirely on
speculation and should not provide more to the plaintiff than
compensation for what will be lost. Travers v. Flight Servs. &
Sys., Inc., 808 F.3d 525, 544 (1st Cir. 2015). Nevertheless,
“[i]n the last analysis a front pay calculation is a prediction
of a series of future events.” Trainor v. HEI Hospitality, LLC,
699 F.3d 19, 31 (1st Cir. 2012). “Finally, front-pay damages,
as an award for future damages, must be reduced to present value
to account for the difference in the value of money in the
future and the value of money today.” Travers, 808 F.3d at 544
(internal quotation marks omitted); see also Hutton v. Essex
Group, Inc., 885 F. Supp. 331, 334 (D.N.H. 1994).
A plaintiff may be able to support a claim for front pay
over a short term with his own testimony about his employment
intentions. See Trainor, 699 F.3d at 31. Front pay damages are
intended to be temporary, to compensate the plaintiff during the
time it likely to take to find a comparable job. McPadden v.
Wal-Mart Stores East, L.P., 2016 WL 4991488, at *4 (D.N.H. Sept.
16, 2016). When a plaintiff seeks a longer term of front pay,
1 At the hearing, counsel agreed that reinstatement is not available, making future pay the appropriate remedy.
4 however, more evidence and detail will be needed to support both
the amount of damages and the calculation to discount the amount
to present value. See Travers, 808 F.3d at 545. While an
expert witness is not necessary in every case, a claim for long-
term front pay damages that is not supported by expert testimony
is likely to be too speculative to survive. Id.; Hutton, 885 F.
Supp. at 335.
In this case, Nashawaty seeks front pay from the date of
the judgment until 2029, a period of thirteen years. Nashawaty
did not disclose an expert witness within the discovery deadline
to support his claim for front pay. WFC moved to exclude his
claim for front pay on the ground that the claim is too
speculative to be allowed, particularly in the absence of expert
testimony. In response to WFC’s motion to exclude his front pay
claim, Nashawaty argued that an expert was not necessary and, in
the alternative, that the court could make the determination of
the length of time for the front pay award.
Nashawaty then filed a supplemental memorandum, as allowed
by the court, to show what proof would be offered at trial to
support the front pay claim. In the memorandum, Nashawaty
explained that he would testify about his plans to work into his
seventies and would testify about and provide evidence of the
salary and benefits he would have received if he had continued
5 to work at WFC. Nashawaty also suggested that a shorter period
of time, until his eligibility for Social Security benefits at
sixty-six or until he turned seventy, would be easier for the
front pay calculation.
Nashawaty continued to argue that the jury could do the
calculations necessary for a front pay award and provided
examples of appropriate discount rates. In the alternative,
however, Nashawaty proposed that if the jury found that he was
entitled to front pay and determined the number of years he
would have earned salary and benefits, the court could hold a
post-verdict hearing on the issue of discounting the award to
present value. Based on information presented by the parties,
Nashawaty proposed, the court could take judicial notice of the
interest rate and inflation rate in order to discount the award
to present value.
After the deadline, Nashawaty moved for leave to file a
supplement to his memorandum. He represented that he had found
experts to support his front pay claim and submitted their
report. The report in is the form of a letter from John M.
Dellipriscoli, Economist, and Lawrence D. Copp, Director and
Senior Economist, who work for Economic & Policy Resources.
Nashawaty also included Dellipriscoli and Copp on his witness
list.
6 WFC filed a response to Nashawaty’s supplemental
memorandum, reasserting that Nashawaty lacks the evidence to
support a front pay award. WFC contends that Nashawaty’s own
testimony is insufficient to support an award of front pay and
that expert testimony is necessary to provide information about
how long Nashawaty might have worked and the discount rate. WFC
also faults Nashawaty for failing to address his duty to
mitigate damages. In addition, WFC objects to Nashawaty’s
attempt to add two expert witnesses at this stage of the
litigation and moves to exclude the expert witnesses from
testifying.
1. New Experts
Nashawaty did not disclose Dellipriscoli or Copp as expert
witnesses within the time allowed in the discovery plan. He
also has not moved to reopen discovery, to amend the discovery
plan, or shown that his failure to disclose the new experts is
substantially justified or harmless. WFC objects to the late
disclosure and asks the court to preclude the experts from
testifying.
Trial is scheduled to begin next week, which would have to
be rescheduled if Nashawaty were allowed to proceed with the
newly disclosed expert witnesses. Therefore, neither
Dellipriscoli nor Copp, nor any other undisclosed expert, will
7 be allowed to testify at trial or for any other purpose,
including post-trial proceedings, and the information in their
letter is not admissible. Fed. R. Civ. P. 37(c)(1).
2. Front Pay Damages Procedure
WFC moves to exclude Nashawaty’s claim for front pay
damages on the ground that he lacks evidence to support the
claim. In particular, WFC contends that Nashawaty must have
expert testimony to support the claim and to provide the means
for reducing any award to present value. Nashawaty argues that
expert testimony is not required and that he can support the
claim with his own testimony and other evidence.
Nashawaty’s proffer of the evidence he will provide to
support his claim for front pay damages shows that there is
enough to maintain the claim for trial. See Travers, 808 F.3d
at 546. With respect to the issue of mitigation, as long as
Nashawaty has made some effort to find a new job, the burden is
on WFC to prove to the jury that he has not mitigated his
damages.2 Quint v. A.E. Staley Mfg. Co., 172 F.3d 1, 16 (1st
Cir. 1999). Discounting any award of front pay damages to
2 In his supplemental memorandum, Nashawaty represented that “he has made approximately 700 contacts” in an effort to find a new job.
8 present value, however, requires additional information that
will not be presented to the jury.
Generally, an award of front pay is an equitable remedy
that is “entrusted to the district court’s discretion.”
Johnson, 364 F.3d at 380; Lussier v. Runyon, 50 F.3d 1103, 1108
(1st Cir. 1995). In some cases, however, the parties and the
court may treat front pay as an element of damages that is
submitted to the jury. Trainor, 699 F.3d at 31, n.3. In other
cases, the court may submit the question of front pay damages to
the jury for an advisory verdict, which the court may or may not
accept. See McPadden, 2016 WL 4991488, at *4-*5.
In this case, the following procedure will be used to
determine whether front pay damages will be awarded.
Nashawaty will be allowed to present his claim for front
pay damages to the jury for an advisory verdict. If the jury
finds in favor of Nashawaty on the ADEA claim, the jury then
will be asked to provide an advisory verdict of how many years
Nashawaty would have continued to work at WFC, if any, and the
amount of front pay damages, if any, without discounting.
The court, however, will make the final decision on whether
front pay damages will be awarded and the amount of those
damages, if any. The court will make that decision after
9 considering the advisory verdict and after the parties have had
an opportunity to be heard on the front pay issues.
After the verdict, Nashawaty will file a memorandum in
support of an award of front pay damages, addressing both the
grounds for awarding front pay damages and the process for
reducing an award to present value. With respect to present
value, Nashawaty will explain the process he asks the court to
use to reduce an award to present value, will include the
relevant information for that determination, and will provide
the reasons that support taking judicial notice of that
information. WFC will then file its response in which it may
challenge the sufficiency of the evidence of front pay damages
and the method and rates used for discounting to present value.
A hearing will be held on the front pay damages issue.
Following the hearing, the court will decide whether there is
sufficient evidence to support an award of front pay damages.
If front pay damages are to be awarded, they will be reduced by
the court to present value.
Conclusion
For the foregoing reasons, the defendant’s motion to
exclude a damages chart and any reference to front pay damages
(document no. 54) is denied.
10 The plaintiff’s motion to supplement (document no. 75) is
denied.
The defendant’s motion to exclude (document no. 79) is
granted.
A damages chart may be allowed as described in this order
but only if the necessary evidentiary prerequisite is met at
trial. No damages chart may be shown or referenced during
opening statements.
The jury will provide an advisory verdict as to whether Mr.
Nashawaty is entitled to front pay damages and, if so, the
number of years he would have worked and the amount of front pay
damages.
After the verdict, the parties will brief the issues
pertaining to front pay damages and the court will hold a
hearing. The court will then decide whether to award front pay
damages and calculate the amount of the award.
The court will set a schedule for post-trial briefing and a
hearing, if necessary, after the jury’s verdict.
SO ORDERED.
__________________________ Joseph DiClerico, Jr. United States District Judge
October 28, 2016 cc: Joseph Henry Driscoll, IV, Esq. Leslie H. Johnson, Esq.
11 David S. Osman, Esq. Ellen Purcell, Esq.