UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Frederick Nashawaty

v. Civil No. 15-cv-118-JD Opinion No.

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.,

(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.,

(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,

(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,

(internal quotation marks omitted); see also Hutton v. Essex

Group, Inc.,

(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,

. 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.,

, 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,

. 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,

.

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,

. 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.,

(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,

; Lussier v. Runyon,

(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,

. 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,

, 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.

12