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
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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
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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.”
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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
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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.
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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.
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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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