Commercial Litigation and Arbitration

Recalculation of Damages after Plaintiffs Cannot Explain Charts at Their Depositions Insufficient to Warrant § 1927 or Inherent Power Sanctions

From Gortat v. Capala Bros., Inc., 2008 U.S. Dist. LEXIS 102500 (E.D.N.Y. Dec. 18, 2008):

Although it is somewhat disconcerting that plaintiffs' damages were recalculated after plaintiffs were deposed, this in itself hardly constitutes misconduct warranting sanctions. In wage and hour violation cases, a plaintiff's calculation of the damages he claims is typically based on an amalgam of sources, including but not limited to plaintiff's memory and any records he might have, defendant's records, and various statutory provisions, such as those allowing for the recovery of liquidated damages. The calculations can be somewhat complex. The plaintiffs in this case are laborers, and did not prepare the damages charts themselves; rather, the charts produced prior to the depositions were prepared by a paralegal working with plaintiffs' counsel, and the most recently produced charts were prepared by an accounting expert. It is therefore not surprising that plaintiffs were unable to answer detailed questions about the calculations in the charts at their depositions despite having verified them as accurate.

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