KENNETH L. BRAYMAN, KERRIE BRAYMAN, Individually v. 99 West, Inc.

[NOT FOR PUBLICATION - NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 00-2520
KENNETH L. BRAYMAN, KERRIE BRAYMAN,
Individually and as PPA for JONATHAN BRAYMAN,
JACQUELINE BRAYMAN, LAWRENCE BRAYMAN, and MADELINE BRAYMAN,
Plaintiffs, Appellees,
v.
99 WEST, INC.,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Marianne B. Bowler, U.S. Magistrate Judge]
Before
Boudin, Chief Judge,
Torruella and Selya, Circuit Judges.
James L. Frederick with whom Frederick & Associates was on
brief for appellant.
Robert C. Zaffrann with whom Robert V. Costello and
Schneider Reilly LLP were on brief for appellees.

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January 10, 2002
Per Curiam. This is an appeal from a jury verdict
awarding the plaintiff, Dr. Kenneth Brayman, $25,000 in damages
for an injury to his throat sustained when he began to swallow
and was injured by a piece of glass in food served to him at 99
West's restaurant. 99 West raises two issues on appeal, both of
which require little discussion.
99 West first claims that the trial court abused its
discretion by allowing Dr. Brayman to give expert testimony (on
his own behalf) opining that the throat injury he sustained at
the restaurant later caused deep vein thrombosis (DVT) and a
pulmonary embolism. This claim of error is moot because the
jury's special verdict specifically rejected Dr. Brayman's
testimony as to causation of the DVT and embolism and awarded no
damages for those injuries. Since the jury ruled in favor of 99
West on that claim, the challenged expert testimony had no
adverse effect and the suggestion that it prejudiced 99 West is
without foundation.
99 West next alleges that the trial court abused its
discretion in denying 99 West's motion for a remittitur on the
ground that the $25,000 damage award was excessive. The denial

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was not error. The piece of glass caused Dr. Brayman to suffer
a laceration to his soft palate and puncture wound in his
tonsil. Dr. Brayman testified to the pain and suffering caused
by this injury. Furthermore, his pain and suffering were not
limited to the time of the initial injury; the wound became
infected and caused continuing pain nearly two months later. In
fact, a CT scan taken seven weeks after the incident still
showed that pieces of glass were embedded in Brayman's tonsillar
region.
Affirmed.

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