United States District Court, D. New Hampshire
Henry Driscoll, IV, Esq.
H. Johnson, Esq.
S. Osman, Esq.
DiClerico, Jr. United States District Judge.
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
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.
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.
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.
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
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.
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