Opinion
ED CV 17-1065 DSF (ASx)
2022-08-26
Atef BANDARY, Plaintiff, v. DELTA AIR LINES, INC., Defendant.
Atef Bandary, Cathedral City, CA, Pro Se. Eric M. Schiffer, Schiffer and Buus APC, Costa Mesa, CA, Hee J. Kim, Obagi Law Group PC, Los Angeles, CA, Zein E. Obagi, Jr., Obagi Law Group, PC, Redondo Beach, CA, for Plaintiff. David R. Carpenter, Sidley Austin LLP, Los Angeles, CA, Richard G. Grotch, Jetstream Legal APC, Half Moon Bay, CA, Timothy J. Ryan, The Ryan Law Group, Sacramento, CA, Jonathan F. Cohn, Pro Hac Vice, Joshua J. Fougere, Pro Hac Vice, Sidley Austin LLP, Washington, DC, for Defendant.
Atef Bandary, Cathedral City, CA, Pro Se. Eric M. Schiffer, Schiffer and Buus APC, Costa Mesa, CA, Hee J. Kim, Obagi Law Group PC, Los Angeles, CA, Zein E. Obagi, Jr., Obagi Law Group, PC, Redondo Beach, CA, for Plaintiff. David R. Carpenter, Sidley Austin LLP, Los Angeles, CA, Richard G. Grotch, Jetstream Legal APC, Half Moon Bay, CA, Timothy J. Ryan, The Ryan Law Group, Sacramento, CA, Jonathan F. Cohn, Pro Hac Vice, Joshua J. Fougere, Pro Hac Vice, Sidley Austin LLP, Washington, DC, for Defendant. Order GRANTING Defendant's Motion for New Trial on Damages or, in the Alternative, Remittitur (dkt. 342); DENYING as Moot Defendant's Motion to Approve a Bond and for Stay of Execution of Judgment (dkt. 344) Dale S. Fischer, United States District Judge
Defendant Delta Air Lines, Inc. moves for a new trial on damages, and in the alternative, remittitur. Dkt. 343 (Mot.). Plaintiff Atef Bandary opposes. Dkt. 364 (Opp'n). Delta also moves to approve a bond and to stay execution of the judgment. Dkt. 344. The Court deems these matters appropriate for decision without oral argument. See Fed. R. Civ. P. 78; Local Rule 7-15. For the reasons stated below, Delta's motion for a new trial is GRANTED. Delta's motion to approve a bond is DENIED as moot.
I. BACKGROUND
Bandary sued Delta under Article 17 of the Montreal Convention for bodily injury and emotional distress allegedly suffered on a flight between Atlanta, Georgia and Salt Lake City, Utah. Following a four-day trial, the jury returned its verdict on October 15, 2021.
On the flight, after Delta flight attendants told Bandary to return to his seat after repeatedly getting out of it to use the bathroom, Bandary screamed at them and was "physically aggressive." Dkt. 327 (Day 2 Tr. (a.m.)) 99:10-11; dkt. 336 (Day 2 Tr. (p.m.)) 183:24-25. Bandary and flight attendant Joy Rodemoyer were "in each others' face[s]" and were both pointing at each other. Day 2 Tr. (a.m.) 52:11-15. The altercation escalated quickly. Flight Attendant Lucy Cook testified that she could not believe the situation had escalated so quickly and to the point that "tuff cuffs" were needed to restrain Bandary. Id. 53:6-7, 55:15-20. Cook also testified that she believed that Rodemoyer did not need "to get directly involved with Mr. Bandary." Day 2 Tr. (p.m.) 194:20-25.
Bandary testified that he was injured when he was handcuffed," initially because the cuffs were too tight and were cut off with scissors, and later because of the pain on his shoulders and neck that resulted from being handcuffed behind his back. Dkt. 318 (Day 1 Tr.) 39:23-40:1, 46:7-15, 50:18-22, 51:3-5. Bandary also presented an ambulance bill incurred when the pilot ordered an ambulance to take Bandary off the aircraft, and a photograph of his hands showing a bandage and blood on his wrist. See id. 43:4-46:15. Rodemoyer testified that she was involved in putting the tuff cuffs on Bandary the first time, but that she told Special Agent Nicholas Vahe to cut them off because they were too tight. Day 2 Tr. (a.m.) 114:7-115:17. Special Agent Vahe testified he was the one who put the second pair of cuffs on Bandary. Day 2 Tr. (p.m.) 228:13-16.
Bandary testified that on the flight, he was racially profiled and called a terrorist, and this has caused him ongoing emotional distress. Day 1 Tr. 58:1-6. Dr. Martin Williams testified that Bandary had PTSD, which was retriggered by being handcuffed because it had "similarities" to previous events experienced by Bandary, including "an arrest he reported in Kuwait, where he states he was tortured" and an incident in which Iraqi soldiers in Kuwait "were threatening Mr. Bandary with weapons, wanted bribes, searched his car, took what they wanted." Day 2 Tr. (a.m.) 65:18-66:3. Bandary experienced "[t]remendous fear, lasting anxiety, lasting depression, in the short-term, hypervigilance meaning being very, very aware and on guard for a period of time of it happening immediately again" and "[d]epression and hopelessness." Id. 73:1-10. Williams testified that Bandary would need to be prescribed various forms of therapy and medication for five years. Id. 73:11-74:8, 74:9-13.
After all evidence was presented, the Court instructed the jury that a bodily injury under Article 17 of the Montreal Convention must be caused by an "accident," which is "an unexpected or unusual event or happening that is external to the passenger and not the passenger's own internal reaction to the usual, normal, and expected operation of the aircraft." Dkt. 328 (Day 3 Tr.) 8:9-18. The jury instructions did not define "bodily injury." Id. 8:9-9:20. The Court also explained:
If you do not find that in engaging Special Agent Vahe's assistance, Delta made a voluntary disclosure of any suspicious transaction relevant to a possible violation of law or regulation relating to a threat to aircraft or passenger safety, or terrorism, then you must decide whether Mr. Bandary has proved that he sustained a bodily injury that was caused by the conduct of Delta Air Lines at any time during the flight, and if so, whether Mr. Bandary sustained emotional distress
that was caused by the bodily injury.Id. 9:11-20.
In its initial verdict, the jury attributed $12,000 in damages to injuries suffered by Bandary before Special Agent Vahe's arrival at the back of the airplane and awarded Bandary a total of $1.5 million, consisting of $500,000 for bodily injury and $1,000,000 for emotional distress caused by bodily injury. Dkt. 300 (First Verdict Form).
After receiving the verdict, the parties discussed problems with the First Verdict Form, and agreed that a corrected verdict form should be provided to the jury. Dkt. 325 (Order re Mistrial) at 2. After the error was fixed, the corrected verdict form was provided. Id.
After deliberating again for approximately forty minutes, the jury returned another verdict, this time answering "no" to the question of whether Delta made a voluntary disclosure of a suspicious transaction, and therefore did not award an amount of damages for Bandary's injuries prior to Vahe's arrival at the back of the airplane. Dkt. 302 (Second Verdict Form) at 2. The jury also awarded $2.5 million in damages for Bandary's bodily injuries and $6 million for emotional distress caused by those bodily injuries. Id. at 3. The jury attributed 15 percent of Bandary's damages to his own negligence or wrongful act or omission. Id. at 4.
Because of the differences between the First Verdict Form and the Second Verdict Form, the Court ordered the parties to brief whether the Court should grant a mistrial or whether judgment should be entered on one of the verdict forms. Dkt. 290. After briefing on this issue, the Court entered judgment on the Second Verdict Form. Order re Mistrial at 11.
II. LEGAL STANDARD
A court may grant a new trial under Federal Rule of Civil Procedure Rule 59 "for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of the United States." Fed. R. Civ. P. 59(a). These reasons, include, but are not limited to, claims "that the verdict is against the weight of the evidence, that the damages are excessive, or that, for other reasons, the trial was not fair to the party moving." Molski v. M.J. Cable, Inc., 481 F.3d 724, 729 (9th Cir. 2007) (citation and quotation marks omitted). A new trial is appropriate where "the verdict is contrary to the clear weight of the evidence, is based upon false or perjurious evidence, or to prevent a miscarriage of justice." Id. (citation and quotation marks omitted). On a motion for new trial, "the district court has 'the duty . . . to weigh the evidence as the court saw it, and to set aside the verdict of the jury, even though supported by substantial evidence, where, in [the court's] conscientious opinion, the verdict is contrary to the clear weight of the evidence.' " Id. (citation and quotation marks omitted). "However, a district court may not grant a new trial simply because it would have arrived at a different verdict." Silver Sage Partners, Ltd. v. City of Desert Hot Springs, 251 F.3d 814, 819 (9th Cir. 2001).
With respect to damages, if the Court determines that damages are excessive, the Court "may grant defendant's motion for a new trial or deny the motion conditional upon the prevailing party accepting a remittitur. The prevailing party is given the option of either submitting to a new trial or of accepting a reduced amount of damage which the court considers justified." Fenner v. Dependable Trucking Co., Inc., 716 F.2d 598, 603 (9th Cir. 1983). "A remittitur must reflect 'the maximum amount sustainable by the proof.' " Oracle Corp. v. SAP AG, 765 F.3d 1081, 1094 (9th Cir. 2014) (citing D & S Redi-Mix v. Sierra Redi-Mix & Contracting Co., 692 F.2d 1245, 1249 (9th Cir. 1982)). "If the prevailing party does not consent to the reduced amount, a new trial must be granted." Fenner, 716 F.2d at 603. "If the prevailing party accepts the remittitur, judgment must be entered in the lesser amount." Id.
III. DISCUSSION
Bandary's claim arose under Article 17 of the Montreal Convention, which makes an air carrier liable for death or bodily injury where an "accident" caused the death or bodily injury "on board the aircraft or in the course of any of the operations of embarking or disembarking." Montreal Convention, Article 17. An "accident" under the Montreal Convention is an "unexpected or unusual event or happening that is external to the passenger" and not "the passenger's own internal reaction to the usual, normal, and expected operation of the aircraft." Olympic Airways v. Husain, 540 U.S. 644, 646, 124 S.Ct. 1221, 157 L.Ed.2d 1146 (2004) (quoting Air France v. Saks, 470 U.S. 392, 405-406, 105 S.Ct. 1338, 84 L.Ed.2d 289 (1985)). Under the Montreal Convention, Bandary could recover damages for bodily injury and emotional distress or mental injuries that were caused by the bodily injury. Dkt. 214 at 3 (interpreting Article 17 of the Montreal Convention). A plaintiff cannot recover for purely emotional or mental harm. Id. at 1 (citing Carey v. United Airlines, 255 F.3d 1044, 1051 (9th Cir. 2001) (interpreting analogous provision of Warsaw Convention)).
Delta argues the jury's damages award - $2.5 million for bodily injury and $6 million for emotional distress - is "patently excessive and against the clear weight of the evidence." Mot. at 10.
A. Excessive Bodily Injury Damages
First, Delta argues the bodily injury damages awarded to Bandary by the jury are excessive given Bandary's de minimis bodily injuries. Mot. at 10. At trial, Bandary contended his bodily injuries consisted of blood on his wrists caused by the tuff cuffs, Day 1 Tr. 39:23-40:1, 46:7-15, and pain on his shoulders and neck caused by being handcuffed behind his back, id. 50:18-22, 51:3-5. Bandary also testified that he fell down when he was being handcuffed, id. 35:5-9, but he did not specify whether he had been injured as a result. Bandary further testified that he felt stomach pain caused by diarrhea, id. 50:21-25, but he did not testify that the diarrhea or resulting stomach pain were caused by Delta's actions. Bandary did not present evidence of medical treatment caused by those alleged injuries other than an ambulance bill that he incurred when the pilot of the plane ordered an ambulance to take Bandary off the aircraft and a photograph of his hands depicting a bandage and blood on Bandary's wrist. See id. 43:4-46:15.
Delta cites several cases in which courts remitted damages awards. Mot. at 12-13. Bandary argues Delta's citation to other cases involving awards of damages for bodily injuries is inappropriate and irrelevant because those damages awards are not binding on this Court, and because damages awards by juries inherently involve a weighing of facts specific to the case before the jury. Opp'n at 8 (citing Hendrickson v. Cooper, 589 F. 3d 887, 892-93 (7th Cir. 2009); Dolenz v. United States, 443 F. 3d 1320, 1321-23 (10th Cir. 2006)). Bandary cites no binding authority, and the Court has not identified any, preventing the Court from considering other damages awards in analogous cases. Nevertheless, the Court finds none of Delta's cited authority is persuasive because none involves factual circumstances remotely similar to the case at hand. See Mot. at 12-13 (citing Cervantes v. Cnty. of Los Angeles, No. CV 12-09889 DDP (MRWx), 2015 WL 5163031, at *1 (C.D. Cal. Sept. 3, 2015) (excessive force during arrest); Bigler-Engler v. Breg, Inc., 7 Cal. App. 5th 276, 213 Cal.Rptr.3d 82 (2017) (tort case against medical device manufacturer); Bailey v. Andrews, 811 F.2d 366 (7th Cir. 1987) (Section 1983 case involving injuries and emotional distress incurred as a result of arrest); Morales v. City of New York, No. 99 CIV. 10004 (DLC), 2001 WL 8594, at *1 (S.D.N.Y. Jan. 2, 2001) (same); Jimenez v. Reno, No. CV 99-3455-PJW, 2007 WL 4862128, at *1 (C.D. Cal. July 13, 2007) (claim for excessive use of force against pre-trial detainee); Hesterberg v. United States, 71 F. Supp. 3d 1018 (N.D. Cal. 2014) (claims against National Park Service for battery and negligence and under Federal Tort Claims Act for conduct by park rangers)).
The Court agrees with Delta, however, that the jury's $2.5 million award for bodily injury is contrary to the clear weight of the evidence. The only bodily injury Bandary testified to is a cut on his wrist and ongoing muscle pain in his neck and shoulders, and while he was not required to demonstrate evidence of medical visits to treat these injuries, his failure to do so suggests the injuries were not severe.
B. Lack of Proximate Cause
Next, Delta argues the damages award for mental or emotional distress "should be eliminated or reduced significantly or the Court should order a new trial" because Bandary's mental and emotional injuries were not proximately caused by his bodily injuries. Mot. at 13, 19-20. As stated above, Bandary's mental and emotional damages must flow from his bodily injuries. Some of the emotional distress about which Bandary testified was unrelated to the bodily injuries he incurred as a result of the events underlying this action, though it was related to his overall experience on the plane. For example, Bandary testified that he was racially profiled and called a terrorist, and this has caused him great emotional distress that has continued since the events on the airplane. Day 1 Tr. 58:1-6.
However, Williams testified that Bandary "met the criteria for a PTSD event" and that his PTSD was retriggered by being handcuffed because it had "similarities" to previous events experienced by Bandary. Day 2 Tr. (a.m.) 65:18-66:3. Williams testified that as a result of the retriggering of Bandary's PTSD, Bandary experienced "[t]remendous fear, lasting anxiety, lasting depression, in the short-term, hypervigilance meaning being very, very aware and on guard for a period of time of it happening immediately again" and "[d]epression and hopelessness." Id. 73:1-10. Williams explained that in order to recover from these PTSD symptoms, Bandary would need to be prescribed psychotherapy three times a week, and potentially would require an intensive outpatient program (IOP) for five days a week. Id. 73:11-74:8. Williams estimated Bandary would need "five years of treatment of some combination of IOP and intensive psychotherapy, and in addition, medication support like the medications I knew him to be taking when I saw him." Id. 74:9-13.
In light of this testimony, it was not against the weight of the evidence for the jury to find Bandary suffered some mental or emotional distress caused by whatever bodily injuries he had suffered. However, the Court finds the $6 million emotional damages award was grossly excessive. While Williams testified Bandary would need a course of treatment lasting several years, he did not testify as to what that treatment would cost. See 74:15-75:13 (sustaining objection to question to Williams about cost of treatment because it was outside scope of expert report and testimony). In closing arguments, Bandary's counsel stated that while the jury was not presented with a cost estimate for Bandary's therapy, he was "completely comfortable" asking the jury to award Bandary $50 million in emotional damages. Day 3 Tr. 41:25-42:11. Based on this same limited information and the same testimony from Bandary, the jury's initial verdict awarded Bandary $1 million in emotional distress damages, but its second verdict awarded him $6 million in emotional distress damages.
Emotional distress is "essentially subjective." Carey v. Piphus, 435 U.S. 247, 264 n.20, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978); see also Kerman v. City of New York, 374 F.3d 93, 133 (2d Cir. 2004) (noting that placing a value on a plaintiff's injury is "necessarily a subjective exercise" that "is the province of the jury, subject to the court's power to set aside a verdict that is excessive" and remanding for new trial). Here, there is no way to calculate the precise value of the emotional damages Bandary suffered. See J.N. v. Hendrickson, No. 2-14-cv-02428-DDP (PLAx), 2017 WL 2539390, at *6, 8 (C.D. Cal. June 12, 2017) (while "neither Plaintiff's nor Defendant's counsel provided the jury much guidance on how to appropriately value the harms incurred by Plaintiff" in Section 1983 case, court remitted $5 million damages award to $3 million). However, the jury's finding that Bandary is entitled to emotional damages is necessarily tethered to its findings regarding bodily injury, and because the Court finds the bodily injury damages are excessive and contrary to the weight of the evidence, the Court is "left with the definite and firm conviction that a mistake has been committed" as to the emotional damages award as well. See Landes Const. Co. v. Royal Bank of Canada, 833 F.2d 1365, 1372 (9th Cir. 1987) (citing 11 C. Wright & A. Miller, Federal Practice and Procedure § 2806, at 48-49 (1973)). Because there is no way for the Court to ascertain the value of Bandary's alleged emotional distress, the Court finds remittitur is not appropriate and a new trial is warranted.
"In general, the court has discretion to reopen liability if a new trial on damages alone would work injustice." Wharf v. Burlington N. R. Co., 60 F.3d 631, 638 (9th Cir. 1995) (citing Gasoline Prods. Co. v. Champlin Refining Co., 283 U.S. 494, 51 S.Ct. 513, 75 L.Ed. 1188 (1931) ("Where the practice permits a partial new trial, it may not properly be resorted to unless it clearly appears that the issue to be retried is so distinct and separable from the others that a trial of it alone may be had without injustice.")). Here, the issue of damages is dependent on the jury's finding of liability, including the percentage of responsibility allocated to Bandary, so a new trial only on the issue damages would be both unworkable and unjust. The Court therefore does not reach the issues of the jury's findings relating to Vahe or the jury's 15 percent allocation of liability to Bandary.
IV. CONCLUSION
Delta's motion for a new trial is GRANTED. The judgment is vacated. Because Delta's motion for a stay of execution of the judgment is conditional on the Court's denial of its motion for a new trial or remittitur, the motion for stay is DENIED as moot.
The parties are ordered to meet and confer and propose new dates for a pretrial conference (a Monday that is not a holiday) and trial (a Tuesday approximately four weeks later that is not a holiday).
The Court also orders the parties to participate in another mediation. The Court urges the parties to schedule a mediation with Magistrate Judge Louise La-Mothe by contacting Debbie Johnston at 805-433-5434 unless they agree to participate in private mediation.
IT IS SO ORDERED.