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Nashawaty v. Winnipesaukee Flagship Corp.

United States District Court, D. New Hampshire

October 28, 2016

Frederick Nashawaty
v.
Winnipesaukee Flagship Corporation Opinion 2016 DNH 190

          Joseph Henry Driscoll, IV, Esq.

          Leslie H. Johnson, Esq.

          David S. Osman, Esq.

          Ellen Purcell, Esq.

          ORDER

          Joseph DiClerico, Jr. United States District Judge.

         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 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 ...


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