Justice Powell

delivered the opinion of the Court.

This case requires us to decide whether 42 U. S. C. § 1983 authorizes an award of compensatory damages based on the factfinder’s assessment of the value or importance of a substantive constitutional right.

M

Respondent Edward Stachura is a tenured teacher in the Memphis, Michigan, public schools. When the events that led to this case occurred, respondent taught seventh-grade life science, using a textbook that had been approved by the School Board. The textbook included a chapter on human reproduction. During the 1978-1979 school year, respondent spent six weeks on this chapter. As part of their instruction, students were shown pictures of respondent’s wife dur*301ing her pregnancy. Respondent also showed the students two films concerning human growth and sexuality. These films were provided by the County Health Department, and the Principal of respondent’s school had approved their use. Both films had been shown in past school years without incident.

After the showing of the pictures and the films, a number of parents complained to school officials about respondent’s teaching methods. These complaints, which appear to have been based largely on inaccurate rumors about the allegedly sexually explicit nature of the pictures and films, were discussed at an open School Board meeting held on April 23, 1979. Following the advice of the School Superintendent, respondent did not attend the meeting, during which a number of parents expressed the view that respondent should not be allowed to teach in the Memphis school system.1 The day after the meeting, respondent was suspended with pay. The School Board later confirmed the suspension, and notified respondent that an “administration evaluation” of his teaching methods was underway. No such evaluation was ever made. Respondent was reinstated the next fall, after filing this lawsuit.

Respondent sued the School District, the Board of Education, various Board members and school administrators, and two parents who had participated in the April 23 School Board meeting. The complaint alleged that respondent’s suspension deprived him of both liberty and property without due process of law and violated his First Amendment right to *302academic freedom. Respondent sought compensatory and punitive damages under 42 U. S. C. § 1983 for these constitutional violations.

At the close of trial on these claims, the District Court instructed the jury as to the law governing the asserted bases for liability. Turning to damages, the court instructed the jury that on finding liability it should award a sufficient amount to compensate respondent for the injury caused by petitioners’ unlawful actions:

“You should consider in this regard any lost earnings; loss of earning capacity; out-of-pocket expenses; and any mental anguish or emotional distress that you find the Plaintiff to have suffered as a result of conduct by the Defendants depriving him of his civil rights.” App. 94.

In addition to this instruction on the standard elements of compensatory damages, the court explained that punitive damages could be awarded, and described the standards governing punitive awards.2 Finally, at respondent’s request and over petitioners’ objection, the court charged that damages also could be awarded based on the value or importance of the constitutional rights that were violated:

“If you find that the Plaintiff has been deprived of a Constitutional right, you may award damages to compensate him for the deprivation. Damages for this type of injury are more difficult to measure than damages for a physical injury or injury to one’s property. There are no medical bills or other expenses by which you can judge how much compensation is appropriate. In one sense, no monetary value we place upon Constitutional rights can measure their importance in our society or compensate a citizen adequately for their deprivation. However, just because these rights are not capable of *303precise evaluation does not mean that an appropriate monetary amount should not be awarded.

“The precise value you place upon any Constitutional right which you find was denied to Plaintiff is within your discretion. You may wish to consider the importance of the right in our system of government, the role which this right has played in the history of our republic, [and] the significance of the right in the context of the activities which the Plaintiff was engaged in at the time of the violation of the right.” Id., at 96.

The jury found petitioners liable,3 and awarded a total of $275,000 in compensatory damages and $46,000 in punitive damages.4 The District Court entered judgment notwithstanding the verdict as to one of the defendants, reducing the total award to $266,750 in compensatory damages and $36,000 in punitive damages.

In an opinion devoted primarily to liability issues, the Court of Appeals for the Sixth Circuit affirmed, holding that respondent’s suspension had violated both procedural due process and the First Amendment. Stachura v. Truszkowski, 763 F. 2d 211 (1985). Responding to petitioners’ contention that the District Court improperly authorized damages based solely on the value of constitutional rights, the court noted only that “there was ample proof of actual injury to plaintiff Stachura both in his effective discharge . . . and by the damage to his reputation and to his professional career as a teacher. Contrary to the situation in Carey v. Piphus, 435 U. S. 247 (1978) . . . , there was proof from which the jury *304could have found, as it did, actual and important damages.” Id., at 214.

We granted certiorari limited to the question whether the Court of Appeals erred in affirming the damages award in the light of the District Court’s instructions that authorized not only compensatory and punitive damages, but also damages for the deprivation of “any constitutional right.”5 474 U. S. 918 (1985). We reverse, and remand for a new trial limited to the issue of compensatory damages.

l — H

Petitioners challenge the jury instructions authorizing damages for violation of constitutional rights on the ground that those instructions permitted the jury to award damages based on its own unguided estimation of the value of such rights.6 Respondent disagrees with this characterization of *305the jury instructions, contending that the compensatory damages instructions taken as a whole focused solely on respondent’s injury and not on the abstract value of the rights he asserted.

We believe petitioners more accurately characterize the instructions. The damages instructions were divided into three distinct segments: (i) compensatory damages for harm to respondent, (ii) punitive damages, and (iii) additional “compensat[ory]” damages for violations of constitutional rights. No sensible juror could read the third of these segments to modify the first.7 On the contrary, the damages instructions plainly authorized — in addition to punitive damages — two distinct types of “compensatory” damages: one based on respondent’s actual injury according to ordinary tort law standards, and another based on the “value” of certain rights. We therefore consider whether the latter category of damages was properly before the jury.

HH I — I h-H

A

We have repeatedly noted that 42 U. S. C. § 19838 creates “‘a species of tort liability’ in favor of persons who are deprived of ‘rights, privileges, or immunities secured’ to them *306by the Constitution.” Carey v. Piphus, 435 U. S. 247, 253 (1978), quoting Imbler v. Pachtman, 424 U. S. 409, 417 (1976). See also Smith v. Wade, 461 U. S. 30, 34 (1983); Newport v. Fact Concerts, Inc., 453 U. S. 247, 258-259 (1981). Accordingly, when § 1983 plaintiffs seek damages for violations of constitutional rights, the level of damages is ordinarily determined according to principles derived from the common law of torts. See Smith v. Wade, supra, at 34; Carey v. Piphus, supra, at 257-258; cf. Monroe v. Pape, 365 U. S. 167, 196, and n. 5 (1961) (Harlan, J., concurring).

Punitive damages aside,9 damages in tort cases are designed to provide “compensation for the injury caused to plaintiff by defendant’s breach of duty.” 2 F. Harper, F. James, & O. Gray, Law of Torts §25.1, p. 490 (2d ed. 1986) (emphasis in original), quoted in Carey v. Piphus, supra, at 255. See also Bivens v. Six Unknown Federal Narcotics Agents, 403 U. S. 388, 395, 397 (1971); id., at 408-409 (Har*307lan, J., concurring in judgment). To that end, compensatory-damages may include not only out-of-pocket loss and other monetary harms, but also such injuries as “impairment of reputation . . . , personal humiliation, and mental anguish and suffering.” Gertz v. Robert Welch, Inc., 418 U. S. 323, 350 (1974). See also Carey v. Piphus, supra, at 264 (mental and emotional distress constitute compensable injury in § 1983 cases). Deterrence is also an important purpose of this system, but it operates through the mechanisrn of damages that are compensatory — damages grounded in determinations of plaintiffs’ actual losses. E. g., 4 Harper, James, & Gray, supra, § 25.3 (discussing need for certainty in damages determinations); D. Dobbs, Law of Remedies § 3.1, pp. 135-136 (1973). Congress adopted this common-law system of recovery when it established liability for “constitutional torts.”10 Consequently, “the basic purpose” of § 1983 damages is “to compensate persons for injuries that are caused by the deprivation of constitutional rights.” Carey v. Piphus, 435 U. S., at 254 (emphasis added). See also id., at 257 (“damages awards under § 1983 should be governed by the principle of compensation”).

Carey v. Piphus represents a straightforward application of these principles. Carey involved a suit by a high school student suspended for smoking marijuana; the student claimed that he was denied procedural due process because he was suspended without an opportunity to respond to the charges against him. The Court of Appeals for the Seventh Circuit held that even if the suspension was justified, the student could recover substantial compensatory damages simply because of the insufficient procedures used to suspend him from school. We reversed, and held that the student could recover compensatory damages only if he proved actual injury caused by the denial of his constitutional rights. Id., at 264. We noted: “Rights, constitutional and otherwise, do *308not exist in a vacuum. Their purpose is to protect persons from injuries to particular interests . . . Id., at 254. Where no injury was present, no “compensatory” damages could be awarded.

The instructions at issue here cannot be squared with Carey, or with the principles of tort damages on which Carey and § 1983 are grounded. The jurors in this case were told that, in determining how much was necessary to “compensate [respondent] for the deprivation” of his constitutional rights, they should place a money value on the “rights” themselves by considering such factors as the particular right’s “importance ... in our system of government,” its role in American history, and its “significance ... in the context of the activities” in which respondent was engaged. App. 96. These factors focus, not on compensation for provable injury, but on the jury’s subjective perception of the importance of constitutional rights as an abstract matter. Carey establishes that such an approach is impermissible. The constitutional right transgressed in Carey — the right to due process of law — is central to our system of ordered liberty. See In re Gault, 387 U. S. 1, 20-21 (1967). We nevertheless held that no compensatory damages could be awarded for violation of that right absent proof of actual injury. Carey, 435 U. S., at 264. Carey thus makes clear that the abstract value of a constitutional right may not form the basis for § 1983 damages.11

*309Respondent nevertheless argues that Carey does not control here, because in this case a substantive constitutional right — respondent’s First Amendment right to academic freedom12 — was infringed. The argument misperceives our analysis in Carey. That case does not establish a two-tiered system of constitutional rights, with substantive rights afforded greater protection than “mere” procedural safeguards. We did acknowledge in Carey that “the elements and prerequisites for recovery of damages” might vary depending on the interests protected by the constitutional right at issue. Id., at 264-265. But we emphasized that, whatever the constitutional basis for § 1983 liability, such damages must always be designed “to compensate injuries caused by the [constitutional] deprivation.” Id., at 265 (emphasis added).13 See also Hobson v. Wilson, 237 U. S. App. D. C. 219, 277-279, 737 F. 2d 1, 59-61 (1984), cert. denied, 470 U. S. 1084 (1985); cf. Smith v. Wade, 461 U. S. 30 (1983). That conclusion simply leaves no room for noncompensatory *310damages measured by the jury’s perception of the abstract “importance” of a constitutional right.

Nor do we find such damages necessary to vindicate the constitutional rights that § 1983 protects. See n. 11, supra. Section 1983 presupposes that damages that compensate for actual harm ordinarily suffice to deter constitutional violations. Carey, supra, at 256-257 (“To the extent that Congress intended that awards under §1983 should deter the deprivation of constitutional rights, there is no evidence that it meant to establish a deterrent more formidable than that inherent in the award of compensatory damages”). Moreover, damages based on the “value” of constitutional rights are an unwieldy tool for ensuring compliance with the Constitution. History and tradition do not afford any sound guidance concerning the precise value that juries should place on constitutional protections. Accordingly, were such damages available, juries would be free to award arbitrary amounts without any evidentiary basis, or to use their unbounded discretion to punish unpopular defendants. Cf. Gertz, 418 U. S., at 350. Such damages would be too uncertain to be of any great value to plaintiffs, and would inject caprice into determinations of damages in §1983 cases. We therefore hold that damages based on the abstract “value” or “importance” of constitutional rights are not a permissible element of compensatory damages in such cases.

B

Respondent further argues that the challenged instructions authorized a form of “presumed” damages — a remedy that is both compensatory in nature and traditionally part of the range of tort law remedies. Alternatively, respondent argues that the erroneous instructions were at worst harmless error.

Neither argument has merit. Presumed damages are a substitute for ordinary compensatory damages, not a supplement for an award that fully compensates the alleged injury. When a plaintiff seeks compensation for an injury that is *311likely to have occurred but difficult to establish, some form of presumed damages may possibly be appropriate. See Carey, 435 U. S., at 262; cf. Dun & Bradstreet, Inc. v. Greenmoss Builders, 472 U. S. 749, 760-761 (1985) (opinion of Powell, J.); Gertz v. Robert Welch, Inc., supra, at 349. In those circumstances, presumed damages may roughly approximate the harm that the plaintiff suffered and thereby compensate for harms that may be impossible to measure. As we earlier explained, the instructions at issue in this case did not serve this purpose, but instead called on the jury to measure damages based on a subjective evaluation of the importance of particular constitutional values. Since such damages are wholly divorced from any compensatory purpose, they cannot be justified as presumed damages.14 *312Moreover, no rough substitute for compensatory damages was required in this case, since the jury was fully authorized to compensate respondent for both monetary and nonmone-tary harms caused by petitioners’ conduct.

Nor can we find that the erroneous instructions were harmless. See 28 U. S. C. § 2111; McDonough Power Equipment, Inc. v. Greenwood, 464 U. S. 548 (1984). When damages instructions are faulty and the verdict does not reveal the means by which the jury calculated damages, “[the] error in the charge is difficult, if not impossible, to correct without retrial, in light of the jury’s general verdict.” Newport v. Fact Concerts, Inc., 453 U. S., at 256, n. 12. The jury was authorized to award three categories of damages: (i) compensatory damages for injury to respondent, (ii) punitive damages, and (iii) damages based on the jury’s perception of the “importance” of two provisions of the Constitution. The submission of the third of these categories was error. Although the verdict specified an amount for punitive damages, it did not specify how much of the remaining damages was designed to compensate respondent for his injury and how much reflected the jury’s estimation of the value of the constitutional rights that were infringed. The effect of the erroneous instruction is therefore unknowable, although probably significant: the jury awarded respondent a very substantial amount of damages, none of which could have derived from any monetary loss.15 It is likely, although not certain, that a *313major part of these damages was intended to “compensate” respondent for the abstract “value” of his due process and First Amendment rights. For these reasons, the case must be remanded for a new trial on compensatory damages.

> hH

The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Justice Brennan and Justice Stevens join the opinion of the Court and also join Justice Marshall’s opinion concurring in the judgment.

Justice Marshall,

with whom Justice Brennan, Justice Blackmun, and Justice Stevens join, concurring in the judgment.

I agree with the Court that this case must be remanded for a new trial on damages. Certain portions of the Court’s opinion, however, can be read to suggest that damages in § 1983 cases are necessarily limited to “out-of-pocket loss,” “other monetary harms,” and “such injuries as ‘impairment of reputation . . . , personal humiliation, and mental anguish and suffering.’” See ante, at 307. I do not understand the Court so to hold, and I write separately to emphasize that the violation of a constitutional right, in proper cases, may itself constitute a compensable injury.

The appropriate starting point of any analysis in this area is this Court’s opinion in Carey v. Piphus, 435 U. S. 247 (1978). In Carey, we recognized that “the basic purpose of a § 1983 damages award should be to compensate persons for injuries caused by the deprivation of constitutional rights.” Id., at 254; see ante, at 306-307. We explained, however, that application of that principle to concrete cases was not a *314simple matter. 435 U. S., at 257. “It is not clear,” we stated, “that common-law tort rules of damages will provide a complete solution to the damages issue in every § 1983 case.” Id., at 258. Rather, “the rules governing compensation for injuries caused by the deprivation of constitutional rights should be tailored to the interests protected by the particular right in question — just as the common-law rules of damages themselves were defined by the interests protected in various branches of tort law.” Id., at 259.

Applying those principles, we held in Carey that substantial damages should not be awarded where a plaintiff has been denied procedural due process but has made no further showing of compensable damage. We repeated, however, that “the elements and prerequisites for recovery of damages appropriate to compensate injuries caused by the deprivation of one constitutional right are not necessarily appropriate to compensate injuries caused by the deprivation of another.” Id., at 264-265. We referred to cases that support the award of substantial damages simply upon a showing that a plaintiff was wrongfully deprived of the right to vote, without requiring any further demonstration of damages. Id., at 264-265, n. 22.

Following Carey, the Courts of Appeals have recognized that invasions of constitutional rights sometimes cause injuries that cannot be redressed by a wooden application of common-law damages rules.* In Hobson v. Wilson, 237 U. S. App. D. C. 219, 275-281, 737 F. 2d 1, 57-63 (1984), cert. denied, 470 U. S. 1084 (1985), which the Court cites, ante, at 309, and n. 13, plaintiffs claimed that defendant Federal Bureau of Investigation agents had invaded their First *315Amendment rights to assemble for peaceable political protest, to associate with others to engage in political expression, and to speak on public issues free of unreasonable government interference. The District Court found that the defendants had succeeded in diverting plaintiffs from, and impeding them in, their protest activities. The Court of Appeals for the District of Columbia Circuit held that that injury to a First Amendment-protected interest could itself constitute compensable injury wholly apart from any “emotional distress, humiliation and personal indignity, emotional pain, embarassment, fear, anxiety and anguish” suffered by plaintiffs. 237 U. S. App. D. C., at 280, 737 F. 2d, at 62 (footnotes omitted). The court warned, however, that that injury could be compensated with substantial damages only to the extent that it was “reasonably quantifiable”; damages should not be based on “the so-called inherent value of the rights violated.” Ibid.

I believe that the Hobson court correctly stated the law. When a plaintiff is deprived, for example, of the opportunity to engage in a demonstration to express his political views, “[i]t is facile to suggest that no damage is done.” Dellums v. Powell, 184 U. S. App. D. C. 275, 303, 566 F. 2d 167, 195 (1977). Loss of such an opportunity constitutes loss of First Amendment rights “ fin their most pristine and classic form.’ ” Ibid., quoting Edwards v. South Carolina, 372 U. S. 229, 235 (1963). There is no reason why such an injury should not be compensable in damages. At the same time, however, the award must be proportional to the actual loss sustained.

The instructions given the jury in this case were improper because they did not require the jury to focus on the loss actually sustained by respondent. Rather, they invited the jury to base its award on speculation about “the importance of the right in our system of government” and “the role which this right has played in the history of our republic,” guided only by the admonition that “[i]n one sense, no monetary value we place on Constitutional rights can measure their im*316portance in our society or compensate a citizen adequately for their deprivation.” App. 96. These instructions invited the jury to speculate on matters wholly detached from the real injury occasioned respondent by the deprivation of the right. Further, the instructions might have led the jury to grant respondent damages based on the “abstract value” of the right to procedural due process — a course directly barred by our decision in Carey.

The Court therefore properly remands for a new trial on damages. I do not understand the Court, however, to hold that deprivations of constitutional rights can never themselves constitute compensable injuries. Such a rule would be inconsistent with the logic of Carey, and would defeat the purpose of § 1983 by denying compensation for genuine injuries caused by the deprivation of constitutional rights.

OPINION

SENTER, Chief Judge.

This wrongful death case presents some of the most difficult questions which this court has ever been asked to resolve. The case arose from an automobile accident which the defendant admits resulted from her negligence in attempting to pass another vehicle in dense fog. The plaintiff’s wife was severely injured as a result of the collision and died approximately two hours after the accident. The problem arises because the plaintiff and his wife, both adherents to the Jehovah’s Witness faith, refused on religious grounds to allow the doctors who were treating Mrs. Munn to administer a blood transfusion which the defendant contends would have saved her life.

The defendant seeks summary judgment to the effect that if the jury should find, for whatever reason, that she is not liable for damages for Mrs. Munn’s death, then the plaintiff is not entitled to recover for any prospective harm beyond the point of Mrs. Munn’s death. Because the answer to this question depends, at least in part, upon the legal doctrine which is to be applied to *527the facts of this case, the court will begin by attempting to resolve that issue.

The defendant has raised three theories which she insists apply under the facts of this case to bar, at least in part, the plaintiffs recovery. These are contributory negligence, assumption of the risk, and the doctrine of avoidable consequences. Only the latter of these clearly applies to the facts of this case.

The doctrine of avoidable consequences, sometimes referred to as the duty of the plaintiff to mitigate damages, “functions as a negative rule, denying an injured person recovery of damages for any reasonably avoidable consequences of the injury.” 2 M. Minzer, J. Nates, C. Kimball, D. Axelrod & R. Goldstein, Damages in Tort Actions § 16.00 (1989). The basic rule is that the plaintiff may not recover from the defendant for injuries which flow from the defendant’s wrongful conduct but which could have been avoided by the plaintiff’s availing herself of reasonable measures to limit the harm. Simply stated, once the injury has occurred, the plaintiff may not stand idly by and allow her damages to accumulate when she could take reasonable steps to minimize them.

The doctrine of avoidable consequences comes into play only after the defendant has committed the wrongful act, but at a time when the plaintiff still has an opportunity to avoid the consequences in whole or in part____ The doctrine is often referred to as the plaintiff’s duty to mitigate damages, but such reference lacks legal precision and can lead to confusion with other concepts in the law of damages. The doctrine of avoidable consequences should not be confused with the doctrine of contributory negligence. The latter focuses on issues of proximate causation of, and ultimate liability for, an accident, whereas the former focuses only on measurement of damages resulting from the injury-producing event.

Id.

The distinction noted above makes it clear that the present case is not one where the doctrine of contributory negligence should be applied. There has been no allegation that any action or inaction of Mrs. Munn was causally related to the accident which resulted in her injuries. The decision not to accept a blood transfusion was made after the defendant’s wrongful conduct had already resulted in severe injury to Mrs. Munn. However, that decision may have resulted in an avoidable aggravation of the injury. This distinction between the doctrines of avoidable consequences and contributory negligence based on when the allegedly unreasonable conduct of the plaintiff occurred is widely recognized.

Generally, the consequences of contributory negligence and avoidable consequences occur — if at all — at different times. Contributory negligence occurs either before or at the time of the wrongful act or omission of the defendant. On the other hand, the avoidable consequences generally arise after the wrongful act of the defendant.

22 Am.Jur.2d § 497 (Revised ed. 1988). The distinction has been noted by the Mississippi Supreme Court. See Yazoo & M.V.R. Co. v. Fields, 188 Miss. 725, 195 So. 489, 490 (1940).

The other theory raised by the defendant is that by refusing the transfusion, Mrs. Munn assumed the risk of her own death. The doctrine of assumption of the risk provides that a plaintiff who voluntarily assumes a risk of harm arising from the negligent or reckless conduct of the defendant cannot recover for such harm. Restatement (Second) of Torts § 496A. At first glance, this doctrine appears to be applicable to the facts of this case. However, a closer study of the doctrine suggests that it may not be applicable. As stated by the Mississippi Supreme Court,

Broadly speaking: “... [Assumption,of the risk means that the plaintiff, in advance, has given his consent to relieve the defendant of an obligation of conduct toward him, and to take his chances of injury from a known risk arising from what the defendant is to do or leave undone.”

Shurley v. Hoskins, 271 So.2d 439, 443 (Miss.1973) (quoting Prosser, Handbook of *528the Law of Torts, § 68 p. 440 (4th ed. 1971)). (Emphasis added.)

As this passage makes clear, the risk that is being assumed is the known risk that the defendant does not intend to act, or has already failed to act, in accordance with a duty imposed on him by law. “The result is that the defendant is relieved of all legal duty to the plaintiff; and being under no duty, he cannot be charged with negligence.” Prosser, § 440. In the instant case, by assuming the risk that she would die if she did not agree to a blood transfusion, Mrs. Munn did not relieve the defendant of any duty because the defendant had no duty in relation to the transfusion.

Both parties have directed the court’s attention to Shorter v. Drury, 103 Wash.2d 645, 695 P.2d 116 (1985). In that case, the plaintiff's wife had entered the hospital for Dr. Drury to perform a dilation and curettage procedure. Prior to the surgery, the Shorters discussed the procedure chosen with Dr. Drury, who explained that there could be complications including the loss of blood. The Shorters then told Dr. Drury that they were Jehovah’s Witnesses and that their religious beliefs would not permit Mrs. Shorter to accept a blood transfusion. For this reason, Dr. Drury had the Shorters sign a document expressly refusing to permit him to administer a blood transfusion and releasing him from any liability for failing to give her a transfusion should the need arise. During the performance of the D & C, Dr. Drury severely perforated Mrs. Shorter’s uterus causing serious blood loss. Other surgeons then took over. They informed both of the Shorters that Mrs. Shorter would almost surely die if she continued to refuse to allow a transfusion. The Shorters remained steadfast in their refusal, and Mrs. Shorter bled to death. Mr. Shorter then filed a wrongful death action against Dr. Drury. Following trial, the jury found Dr. Drury liable for malpractice, but reduced the damages by 75 percent due to the fact that the Shorters had voluntarily assumed the risk of Mrs. Shorter’s bleeding to death.1

Although the court applied the doctrine of assumption of the risk in Shorter, that case is clearly distinguishable from the case at bar. In Shorter, the defendant was the doctor who performed the surgical procedure. Dr. Drury owed Mrs. Shorter a duty to use the knowledge, skills, and abilities of an average physician in performing the D & C. This duty would have included the obligation to administer a blood transfusion to keep his patient from bleeding to death if the need arose. When the Shorters signed the refusal form, they expressly assumed the risk of any harm which might result from Dr. Drury’s failure to fulfill this duty and thereby relieved the doctor of that duty. In the present case, although it may be said that the Munns assumed the risk of any harm which might result from the refusal of the transfusion, that refusal enured to the benefit of the doctors performing the surgery who had a duty in relation to the transfusion, not to the benefit of Ms. Algee who had no duty in regard to the transfusion from which she could be released.

In an earlier motion for summary judgment, the plaintiff raised two issues in relation to the defense based on the doctrine of avoidable consequences which were not addressed by the court in its order denying the motion. Those issues need to be addressed prior to trial and both are relevant to the issue currently before the court. First, the plaintiff contends that the eggshell or thin skull rule should be applied in this case. The “rule” is actually an exception to the more general rule that a defendant is liable only for those consequences which were the reasonably foreseeable re-*529suits of an anticipated action. As stated by Prosser, a “defendant is held liable when his negligence operates upon a concealed physical condition, such as pregnancy, or a latent disease, or susceptibility to disease, to produce consequences which he could not reasonably anticipate.” Prosser, Handbook of the Law of Torts § 43, p. 261 (4th ed. 1971) (emphasis added). The statement of the rule in the Restatement is much the same:

The negligent actor is subject to liability for harm to another although a physical condition of the other which is neither known nor should be known to the actor makes the injury greater than that which the actor as a reasonable man should have foreseen as a probable result of his conduct.

Restatement (2d) Torts § 461. (Emphasis added.) See also 22 Am.Jur.2d § 281 (1988) (defendant liable “even if a particular injury may have been aggravated by ... the peculiar physical condition of the injured person.”).

Every authority which this court can find which states the “eggshell skull rule” speaks only of physical conditions which pre-exist the injury for which compensation is sought and lead to unforeseeably severe results. The religious beliefs of the plaintiff simply are not covered by this rule.

The plaintiff also presses a first amendment argument. This argument is not fleshed out and relies entirely on cases where a state attempted to force a Jehovah’s Witness to accept a blood transfusion. There is a clear distinction, however, between the overt attempt by a state actor to force an individual to take some action which her religion forbids her to take and the application of a universally applied tort doctrine which leaves the person “free to make [her] choice between the practice of [her] religion and the acceptance of treatment that may be contrary thereto.” Martin v. Industrial Accident Commission, 147 Cal.App.2d 137, 304 P.2d 828, 831 (1956) (upholding denial of worker’s comp, death benefits where death was found to be result of refusal of transfusion on religious grounds). An individual has a right under the first amendment to hold religious beliefs and live by them, but that does not mean that anyone who commits a tort against that individual must suffer the consequences of decisions made by the victim based upon those religious beliefs.

It has been argued that persons who refuse medical treatment on religious grounds should be exempted on first amendment grounds from the operation of the doctrine of avoidable consequences. Comment, Medical Care, Freedom of Religion, and Mitigation of Damages, 87 Yale L.J. 1466 (1978). The author contends that the application of this facially neutral doctrine to a tort victim who refuses medical treatment for religious reasons is a denial of a state benefit on religious grounds. The argument is basically that putting the tort victim to the choice of acting in violation of his religious beliefs or losing the right conferred by state law to obtain complete recovery for all harm which results from the wrongful conduct of another places an undue burden on the victim’s free exercise rights. Cited in support of this argument are Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963), and Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972). Sherbert involved the denial of state unemployment benefits to a woman who refused on religious grounds to accept a job which required her to work on Saturday. The Court held that this was an impermissible burden on her free exercise rights. In Yoder, the Court held that a state mandatory school attendance law violated the free exercise rights of people of the Amish faith. Each of these cases involves direct state action. If an exception to the doctrine of avoidable consequences is made for those who refuse medical treatment on religious grounds, payment for the harm which could have been avoided will come from the pockets of the tortfeasor, not from the coffers of the state. To adopt an absolute rule which required one citizen to pay damages for the consequences of another’s exercising her religious freedom would favor an establishment of religion in a way which seems constitutionally unsup*530portable. Additionally, the doctrine of avoidable consequences does not automatically bar the plaintiff from recovering the losses sustained after the refusal of medical treatment; it bars recovery of those losses only when the refusal is found to be unreasonable under all of the circumstances known to. the tort victim at the time of the refusal. In what has come to be considered as the leading case on this point, the Connecticutt Supreme Court upheld the lower court’s decision to submit the question of the objective reasonableness of the plaintiff’s refusal of medical treatment to the jury with the instruction that the jurors were to consider the fact that the refusal was based on religious belief as one of the circumstances. Lange v. Hoyt, 114 Conn. 590, 159 A. 575 (1932). See also Christiansen v. Hollings, 44 Cal.App.2d 332, 112 P.2d 723 (1941). The author of the comment also takes exception to this procedure, arguing that the jury is, in effect, being asked to pass upon the reasonableness of the plaintiff’s religious belief. This indeed presents a problem. However, neither of the parties have adequately addressed this issue, so the court will delay any attempt to resolve it until the parties may be heard at the jury instruction conference after the evidence is in.

The court holds that the doctrine of avoidable consequences is the appropriate standard to be applied in this case and that its application does not violate the first amendment.

Application of the Doctrine of Avoidable Consequences in a Wrongful Death Case

As stated earlier, the doctrine of avoidable consequences prevents the plaintiff from recovering for that part of her injury which could have been avoided by taking reasonable steps after the injury occurred.2 How does this rule operate when the harm which the defendant contends was avoidable is death?

Neither party has presented the court with a single authority on this point, nor has exhaustive research turned up a single case where any court has addressed the issues presented by this case. Simply stated, the question is: if the jury should find that the refusal of the blood transfusion was unreasonable and that Mrs. Munn would have lived had she taken the transfusion, then what damages may the plaintiff recover.

The defendant’s argument is that if the jury makes this dual finding, then there is no wrongful death and the plaintiff’s cause of action is under the survival statute. From a purely technical standpoint, this is a compelling argument. At common law, “if a tortfeasor killed a man, neither the victim’s losses before his death nor the losses to his survivors caused by his death were compensable.” Dobbs, Handbook on the Law of Remedies, § 8.2, p. 552 (1973). Because the statutes which have been passed to abrogate this rule are in derogation of the common law, they must be strictly construed. Durham v. Durham, 227 Miss. 76, 85 So.2d 807, 809 (1956). If recovery is not expressly provided for in either the wrongful death or survival statute, then there can be no recovery for the losses suffered by either the survivors or the estate. Given this backdrop, if Mrs. Dunn’s refusal to accept the transfusion is seen as cutting off the defendant’s liability for her death, then the plaintiff must fall back on the Mississippi Survival Statute, Miss.Code Ann. § 91-7-233 (1972). See Berryhill v. Nichols, 171 Miss. 769, 158 So. 470 (1935) (where death was not proximately caused by wrongful act of defendant, any recovery for decedent’s pain and suffering between commission of tort and death must be had, if at all, under survival statute).

Section 91-7-233 provides:

Executors, administrators, and temporary administrators may commence and prosecute any personal action whatever, *531at law or in equity, which the testator or intestate might have commenced and prosecuted.

Mrs. Munn could clearly have commenced an action against Ms. Algee to recover for the injuries she sustained as a result of Ms. Algee’s wrongful conduct. Included in her recovery, if any, would have been prospective relief for the future effects of the injuries which were received in the accident, such as lost income, future pain and suffering, and future medical expenses. However, in the usual survival action, the calculation of these damages is based, not upon a mortality table, but upon the actual date of the tort victim’s death. In survival actions, “damages must of course be based upon the known period of life, and no recovery may be had for any prospective loss of earnings, expenses, or suffering based upon any probable life expectancy of the deceased, such as would be appropriate if the deceased were prosecuting the case in his lifetime.” McCormick, Damages, 337-38 (1935). This rule clearly applies where the death results from an intervening cause which is deemed sufficient to break the causal connection between the tort and the death; but it is not so clear that it applies in this case.

In the usual personal injury case, in addition to the action under the survival statute, the plaintiff, as the husband of the decedent, would have a claim for his own losses which were caused by the injury to his wife — i.e., loss of services, loss of consortium, etc. This claim could be brought “at common law without the aid of statute.” Berryhill, 158 So. at 471 (citing Natchez, Jackson and Columbus Railroad Co. v. Cook, 63 Miss. 38 (1885)). However, once again, recovery could be had only for the losses incurred by the plaintiff during the time period between the commission of the tort and the death of Mrs. Munn, if the damages resulting from the death are not attributable to the defendant.

The plaintiff counters with the argument that a straightforward application of the doctrine of avoidable consequences would allow him, both on his own behalf and on behalf of the decedent’s estate, to recover damages for any harm which could not have been avoided by allowing the transfusion. A perfunctory reading of the rule, as generally stated, supports this argument. Generally, it is said that the plaintiff may recover for the harm which resulted from the defendant’s wrongful act and which could not have been avoided by the plaintiff’s acting reasonably after the injury has occurred. The plaintiff alleges that his wife suffered severe physical injury, including a broken pelvis, broken ribs, a punctured and collapsed lung, and a severed artery, which would have resulted in long term disability, pain and suffering, and future medical expenses if she had survived. These consequences could not have been avoided by allowing the transfusion and, therefore, should be recoverable. On a purely emotional level, this argument is appealing; however, any attempt to ground such a holding on legal principles is thwarted by the stark reality that these consequences were never actually suffered by the plaintiff’s decedent. This court can find no authority for allowing recovery of purely hypothetical losses.

The argument for recovery of damages for injuries to Mr. Munn which were actually suffered as a result of the death, at least to the extent that they would have occurred even if the plaintiff had taken the transfusion and survived, does not share this infirmity. Clearly, given the extent of the decedent’s injuries, if she had lived, there would have been some loss of consortium and services to her husband and quite possibly lost earnings which under this argument ought now to be recoverable by her estate. There are serious problems with allowing recovery of damages for these elements of the loss. Whether the problem is addressed in terms of proximate cause3 or simply in terms of a public policy *532against allowing recovery from this defendant for consequences which the plaintiff could have avoided matters little. The doctrine of avoidable consequences operates to relieve the defendant of any legal obligation to pay damages for harm which the victim of her wrongful act could have avoided. The damages which the plaintiff seeks to recover did not occur as a result of the personal injuries suffered by the decedent but as a result of Mrs. Munn’s death — a death for which the defendant has no legal obligation to pay damages if the jury should find that the death was avoidable and that the refusal of the transfusion was unreasonable.

CONCLUSION

The court holds that the doctrine of avoidable consequences is the appropriate standard to be applied in this case and that its application does not violate the plaintiffs first amendment rights. The court further holds that this question should be submitted to the jury through an appropriate instruction telling the jurors that they may consider the fact that it was based on religious belief. The court also holds that the plaintiff may not recover for purely hypothetical injuries which never occurred because of her death if the jury should find that the refusal of the transfusion was unreasonable and that the decedent would have survived had she taken the transfusion; nor may he recover for the harm actually suffered which resulted from his wife’s death even though it would have been suffered to some extent even if she had taken the transfusion and lived.

ORDER GRANTING DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT

This matter is before the court for consideration of the defendant’s motion for partial summary judgment. In this motion, the defendant asks the court to rule that in the event the jury should find that the plaintiff’s decedent acted unreasonably in refusing a blood transfusion and that her death would have been avoided if she had accepted the transfusion, then the plaintiff is not entitled to recover damages for any loss which would have occurred had the decedent accepted the transfusion and lived. For reasons fully set forth in an accompanying opinion, the court finds that the motion is well taken.

Therefore, IT IS ORDERED:

That the defendant’s motion for partial summary judgment is granted.

Thompson, Chief Justice.

The subject matter of this case is near and dear to the heart of many a Georgian in that it involves the untimely death of a beloved family pet and concerns the proper measure of damages available to the owners of an animal injured or killed through the negligence of others. Observing that pet dogs are considered personal property under Georgia law, but finding that not all dogs have an actual commercial or market value, the Court of Appeals held that where the actual market value of the animal is nonexistent or nominal, the appropriate measure of damages would be the actual value of the dog to its owners. See Barking Hound Village v. Monyak, 331 Ga. App. 811, 813-814 (771 SE2d 469) (2015). The Court of Appeals concluded that the actual value of the animal could be demonstrated by reasonable veterinary and other expenses incurred by its owners in treating its injuries, as well as by other economic factors, but held that evidence of noneconomic factors demonstrating the dog’s intrinsic value to its owners would not be admissible. Id.

This Court granted certiorari to consider whether the Court of Appeals erred in holding that the proper measure of damages for the loss of a pet dog is the actual value of the dog to its owners rather than the dog’s fair market value. Because we find that longstanding *145Georgia precedent provides that the damages recoverable by the owners of an animal negligently killed by another include both the animal’s fair market value at the time of the loss plus interest, and, in addition, any medical and other expenses reasonably incurred in treating the animal, we affirm in part and reverse in part the Court of Appeals’ decision.

The damages at issue in this case arise from the death of a mixed-breed dachshund owned by Robert and Elizabeth Monyak. In 2012, the Monyaks boarded Lola, their SV^-year-old dachshund mix, for ten days at a kennel owned by Barking Hound Village, LLC (“BHV”) and managed by William Furman. Along with Lola, the Monyaks boarded their 13-year-old mixed-breed Labrador retriever, Callie, who had been prescribed an anti-inflammatory drug for arthritis pain — medication which the Monyaks gave to kennel personnel with directions that it be administered to Callie. Three days after picking up their dogs from BHV, Lola was diagnosed with acute renal failure. Despite receiving extensive veterinary care over a nine-month period, including kidney dialysis treatment, Lola died in March 2013.

The Monyaks sued BHV and Furman for damages alleging that while boarded at the kennel Lola was administered toxic doses of the medication prescribed for Callie, a much larger dog. The Monyaks asserted various claims of negligence against BHV and Furman, and sought compensatory damages, including over $67,000 in veterinary and other expenses incurred in treating Lola. In addition, alleging fraud and deceit on the part of the defendants, the Monyaks sought litigation expenses and punitive damages.

BHV and Furman moved for summary judgment on all the Monyaks’ claims asserting that the measure of damages for the death of a dog was capped at the dog’s fair market value and that, in this case, the Monyaks failed to prove Lola had any market value; thus their claims were barred as a matter of law. Alternatively, the defendants sought partial summary judgment on the Monyaks’ claims for punitive damages and fraud.

In its order denying summary judgment to the defendants except as to the Monyaks’ fraud claim which the court found duplicative of their negligence and punitive damages claims, the trial court held the Monyaks would be permitted to present evidence of the actual value of the dog to them, as demonstrated by reasonable veterinary and other expenses incurred in her treatment, as well as evidence of noneconomic factors demonstrating the dog’s intrinsic value. Further, the trial court found sufficient evidence existed to create a jury issue on the Monyaks’ claim for punitive damages pursuant to *146OCGA § 51-12-5.1 (b).1The Court of Appeals granted the defendants’ application for interlocutory review, and the Monyaks cross-appealed challenging the trial court’s grant of partial summary judgment with respect to their fraud claim.

On appeal, the Court of Appeals affirmed the trial court’s ruling rejecting a market value cap on damages. See Monyak, 331 Ga. App. at 814. Finding the evidence showed Lola had little or no market value,2 the Court of Appeals observed that “[w]here the absence of a market value is shown, ‘the measure of damages ... is the actual value to the owner.’ ” Id. at 813, quoting Cherry v. McCutchen, 65 Ga. App. 301, 304 (16 SE2d 167) (1941). Noting, however, that, in Cherry, no recovery was allowed for the sentimental value of the object to the owner, the Court of Appeals concluded that damages for the intrinsic value of the dog to the Monyaks were not recoverable. Monyak, 331 Ga. App. at 815. Finally, the Court of Appeals affirmed the trial court’s grant of partial summary judgment on the Monyaks’ fraud claim, albeit on different grounds than the trial court.3

BHV and Furman contend that the Court of Appeals erred in holding that an actual value to owner standard of damages was appropriate in this case, rather than the fair market value standard of damages generally applicable in actions for the negligent injury to, or loss of, personal property. They assert that under the fair market value standard a plaintiff is prevented from recovering an amount of damages against a tortfeasor greater than the fair market value of the property prior to its impairment, and thus argue that the entire amount of damages recoverable by the Monyaks cannot exceed the fair market value of their dog. Moreover, BHV and Furman claim that Georgia case law specifically limits the recovery of animal treatment expenses to an animal’s pre-injury fair market value, citing Atlanta *147& West Point R. v. Hudson, 62 Ga. 679, 683 (2) (1879) and Southern R. Co. v. Stearns, 8 Ga. App. 111 (68 SE 623) (1910).

The Monyaks, on the other hand, contend the Court of Appeals correctly rejected a market value cap on damages, arguing that to limit damages for the loss of a family pet to market value would not only be unjust, but would go against both Georgia precedent and the weight of authority from other jurisdictions. Although agreeing with the Court of Appeals that an actual value to owner standard is the appropriate measure of damages in this case, the Monyaks ask this Court to clarify that evidence of noneconomic factors, though inadmissible for proving the dog’s intrinsic value, would be admissible for other purposes, such as proving the reasonableness of their decision to incur significant expenses in an effort to save the life of their pet.

1. The parties agree, and Georgia law clearly provides, that a pet dog has value and is considered the personal property of its owner. See Columbus R. Co. v. Woolfolk, 128 Ga. 631, 633 (58 SE 152) (1907). See also Wilcox v. State, 101 Ga. 563, 565 (28 SE 981) (1897) (finding Georgia law pertaining to domestic animals applicable to dogs); Graham v. Smith, 100 Ga. 434, 436 (28 SE 225) (1897) (holding that the owner of a dog has a property right in the animal sufficient to sustain an action for trover). As a result, the owner of a dog may maintain an action against anyone who wantonly, maliciously, intentionally, or negligently injures or kills it. See Woolfolk, 128 Ga. at 634; Vaughn v. Nelson, 5 Ga. App. 105, 108-109 (62 SE 708) (1908). See generally Chalker v. Raley, 73 Ga. App. 415 (37 SE2d 160) (1946).

2. Having established that dogs are personal property for which a suit for damages will lie, we look to Georgia precedent in order to determine the appropriate measure of damages recoverable by a dog’s owners in such actions. In so doing, we find the Court of Appeals erred in deciding that application of an actual value to owner standard was the appropriate measure of recoverable damages, but additionally find that a cap on all damages based on application of the fair market value standard as urged by defendants is likewise incorrect.

Generally, in a suit to recover damages to personal property it is a well-established principle that “a plaintiff cannot recover an amount of damages against a tortfeasor greater than the fair market value of the property prior to impairment.” See MCI Communications Svcs. v. CMES, Inc., 291 Ga. 461, 463-464 (728 SE2d 649) (2012). However, over 120 years ago this Court decided that such a limitation was not appropriate in negligence cases involving the injury or death of an animal. See Telfair County v. Webb, 119 Ga. 916, 918 (47 SE 218) (1904); Atlanta Cotton-Seed Oil Mills v. Coffey, 80 Ga. 145, 150 (4 SE 759) (1887). Instead, this Court determined that where an animal is *148negligently injured and subsequently dies as a result of those injuries, the proper measure of damages recoverable by the animal’s owner includes not only the full market value of the animal at the time of the loss plus interest, but also expenses incurred by the owner in an effort to cure the animal. See Webb, 119 Ga. at 918; Coffey, 80 Ga. at 150.

In Webb, a plaintiff whose horse was injured after stepping through rotted wood on a county bridge sought damages from the county alleging that his mare was so badly crippled that, after attempting at great trouble and expense to cure her, he had disposed of her as being practically worthless. Webb, 119 Ga. at 917. Following a jury award for the plaintiff, the defendant appealed and, granting a new trial based on the trial court’s failure to properly charge the jury on negligence and proximate cause, this Court made the following observation with respect to the recovery of damages:

Under the ruling in Atlanta & [W.P.] R. Co. v. Hudson, 62 Ga. 679, approved in Atlanta Cotton-Seed Oil Mills v. Coffey, 80 Ga. 150, the plaintiff’s measure of damages, if he recovered, would include reasonable hire of the animal for the time during which she was temporarily disabled for service, as well as making good any diminution in her market value occasioned by the permanent effects of the injury, such amounts, however, not to exceed in the aggregate the market value of the animal with interest thereon. Plaintiff would also be entitled to recover for any expenses incurred, during the time the mare was disabled for service, in keeping her and treating her injuries.

Id. at 918 (emphasis supplied). In a subsequent case with almost identical facts, the Court of Appeals followed this Court’s instructions in Webb by allowing, as a separate item of damages not limited by the value of the horse, the recovery of expenses incurred in keeping and treating the animal during the period of its disability. See Telfair County v. Clements, 1 Ga. App. 437, 440 (57 SE 1059) (1907).

BHV and Furman rely on the Court of Appeals’ later decision in Stearns, also a horse injury case, to argue that the expense of looking after and treating an animal during its disability should not be considered a separate component of damages, but instead is included in the aggregate amount limited by the animal’s market value. See Stearns, 8 Ga. App. at 111. Areviewofthe opinionin Stearns, however, reveals that the language supportive of this argument is found only in dicta. Id. at 112. Further, to the extent this language implies that the entire amount of damages recoverable for the tortious injury of an *149animal cannot exceed the animal’s fair market value, the Stearns opinion clearly misstates both Webb and Coffey. Indeed, in Coffey, wherein the plaintiff’s horse suffered severe burns to his hoofs and ankles after being exposed to caustic chemicals on the defendant’s property and later died, this Court explained that while the loss of hire of the horse would have been a recoverable element of damages had the horse lived,

where the personal property is lost or destroyed by the negligent acts of another . . . the [plaintiff] is entitled to recover the full value of the property lost or destroyed, according to the market rates current at the time of the loss, and interest on the same. He is also entitled to recover the expense of keeping the horse, medical attendance, medicines, and things of that sort; but he is not entitled to recover the hire during the sickness of the horse in case the horse dies.

Coffey, 80 Ga. at 150 (emphasis supplied). An important distinction recognized in both these cases is that while a cap on the recovery of loss of use damages exists for an injured animal, there is no such cap on the amount of damages recoverable with respect to actual expenditures associated with the animal’s treatment and recovery. See Webb, 119 Ga. at 918; Coffey, 80 Ga. at 150. Thus, where the injured animal survives, its owner is entitled to receive loss of hire and diminution in market value up to the full market value of the animal in addition to the animal’s reasonable medical costs and treatment; whereas, when the animal fails to recover, damages are limited to the market value of the animal plus interest, as well as the reasonable costs expended on its care and treatment. See Webb, 119 Ga. at 918; Coffey, 80 Ga. at 150.4

*150In adopting a different measure of damages for use in tort cases involving injury to animals, this Court relied on a prominent nineteenth century legal treatise on negligence, see Coffey, 80 Ga. at 150, citing Shearman & Redfield, Negligence § 603 and notes, in which the authors promoted such a distinction and articulated the rationale behind it, stating:

[I]n cases of injury to animals . .. the plaintiff ought to recover for expenses reasonably incurred in efforts to cure them, in addition to the depreciation in their value, or to their whole value where they are finally lost. The law would • be inhumane in its tendency if it should prescribe a different rule, even where the animal eventually dies, since it would then offer an inducement to the owner to neglect its suffering.

Shearman & Redfield, Negligence § 603, at 680-681 (2nd ed. 1870).

By ensuring that property owners whose animals are negligently injured by another are able to recoup reasonable expenses incurred in attempting to save the animal, this Court’s decisions in Webb and Coffey are consistent with the position taken by courts in a majority of states, including those which have adopted an actual value to the owner measure of damages to determine a pet dog’s worth, see Strickland v. Medlen, 397 SW3d 184, 193, n. 58 (Tex. 2013) (recognizing that “[w]hile actual value cannot include the owner’s ‘feelings,’ ... it can include a range of other factors [such as] purchase price, reasonable replacement costs ... breeding potential... special training . .. veterinary expenses related to the negligent injury, and so on”), as well as those which have declined to do so, see Shera v. N. C. State Univ. Veterinary Teaching Hosp., 723 SE2d 352 (N.C. Ct. App. 2012) (awarding plaintiffs damages for the death of their 12-year-old dog due to veterinary malpractice in the amount of $3,105.72, which amount included reimbursement for the cost of the dog’s medical treatment plus the replacement cost for a similar dog). Similarly, under the Federal Tort Claims Act, a dog owner was allowed to recover veterinary expenses incurred in trying to save the life of a mixed-breed dog despite its ultimate death. See Kaiser v. United States, 761 FSupp. 150, 156 (D. D.C. 1991) (awarding $1,786 in incurred veterinary expenses for a mixed-breed pet dog shot by a United States Capitol police officer).

At the time this lawsuit was filed, the Monyaks’ injured dog was still alive and the veterinary fees incurred were in the neighborhood of $10,000. The fact that the dog’s treatment ultimately proved unsuccessful and the animal died nine months later should not prevent the Monyaks from seeking compensatory damages for the *151reasonable veterinary fees incurred in their attempt to save their pet. Rather, we conclude, pursuant to long-established Georgia precedent, that the proper measure of damages recoverable by the Monyaks for the negligent injury and death of their dog includes both the dog’s fair market value plus interest and any reasonable medical costs and other expenses they incurred in treating the animal for its injuries.

3. While we are sympathetic to the concerns expressed by the parties and others regarding the difficulties in establishing the fair market value of a family pet,5 this Court long ago stated that, “[t]he value of a dog may be proved as that of any other property, by evidence that he was of a particular breed, and had certain qualities, and by witnesses who knew the market value of such animal, if any market value be shown.” Woolfolk, 128 Ga. at 635. Thus, in an action for damages arising from the allegedly tortious killing of a dog belonging to a 12-year-old boy, testimony was provided regarding the dog’s breed and age, how the boy acquired the dog, how long he owned the animal prior to its death, and activities the boy did with the dog. See Chalker, 73 Ga. App. at 415. Although the only evidence presented of the dog’s value was the boy’s testimony that the dog was worth $100, the jury returned a verdict for the plaintiff in the amount of $10 and the plaintiff appealed, arguing that the verdict was contrary to the evidence. Id. Concluding that the jury was entitled to place a different value on the property than that testified to by the witnesses, the Court of Appeals held that the jurors were authorized to consider the dog’s allegedly vicious character and other qualities to reach their own conclusions regarding the dog’s value. Id. at 418.6 See also Padilla v. Padilla, 282 Ga. 273, 275-276 (646 SE2d 672) (2007) (observing that, with respect to items of a common nature, a plaintiff “need not offer any opinion evidence as to value ... so long as the *152evidence contains facts upon which the [factfinder] may legitimately exercise [its] own knowledge and ideas”).

Georgia law provides that direct testimony regarding market value is opinion evidence and a witness need not be an expert to testify as to an object’s value so long as the witness has had an opportunity to form a reasoned opinion. See OCGA § 24-7-701 (b);7 Schumpert v. Carter, 175 Ga. 860, 861 (166 SE 436) (1932). Indeed, “market value is a question peculiarly for the jury, and a jury is not required to accept even uncontradicted opinions as to market value.” Childs v. Logan Motor Co., 103 Ga. App. 633, 639 (120 SE2d 138) (1961). Instead, in determining the value of personal property in tort cases, jurors “have the right to consider the nature of the property involved, together with any other facts or circumstances properly within the knowledge of the jury which throws light upon the question, and by their verdict, may fix either a lower or higher value upon the property than that stated in the opinions and estimates of the witnesses.” Hogan v. Olivera, 141 Ga. App. 399, 402-403 (233 SE2d 428) (1977) (finding award of $10,000 for water damage to plaintiff’s real and personal property well within the range of estimated damages which could be determined from the evidence). See also Wood v. Garner, 156 Ga. App. 351, 352 (274 SE2d 737) (1980) (authorizing jury verdict placing value of antique china several hundred dollars higher than testimony of expert).

4. Although we find the Court of Appeals erred in applying an actual value to owner measure of damages in this case, we find no error in that court’s determination that Georgia precedent does not allow for the recovery of damages based on the sentimental value of personal property to its owner. See Monyak, 331 Ga. App. at 815 (“[D]amages for the intrinsic value of the dog are not recoverable.”). Instead, we agree with those courts which have held that the unique human-animal bond, while cherished, is beyond legal measure. See Shera, 723 SE2d at 357 (“[T]he sentimental bond between a human and his or her pet companion can neither be quantified in monetary *153terms or compensated for under our current law.”); Strickland, 397 SW3d at 197-198 (refusing to permit noneconomic damages rooted in relational attachment).

This does not mean, however, that all qualitative evidence regarding the plaintiffs’ dog is inadmissible. As in Chalker, we see no reason why opinion evidence, both qualitative and quantitative, of an animal’s particular attributes — e.g., breed, age, training, temperament, and use — should be any less admissible than similar evidence offered in describing the value of other types of personal property. See Chalker, 73 Ga. App. at 417. See also Sun Ins. Co. of New York v. League, 112 Ga. App. 625, 626 (145 SE2d 768) (1965) (noting evidence indicative of the value of a car after a collision included photographs of the car, itemized estimates of the cost of repairs and the testimony of automobile repairmen); Sapp v. Howe, 79 Ga. App. 1 (1) (52 SE2d 571) (1949) (allowing as proof of its value evidence of a truck’s general condition, its use by the plaintiff and state of repair, purchase price, length of time owned by the plaintiff and the mileage he put on it). Compare Sammons v. Copeland, 85 Ga. App. 318, 322 (69 SE2d 617) (1952) (holding that where record lacked descriptive evidence of numerous items of personal property from which the jury could draw an intelligent conclusion of value, the jury’s subsequent award of damages was unauthorized). The key is ensuring that such evidence relates to the value of the dog in a fair market, not the value of the dog solely to its owner.

5. As previously stated in Division 2 of this opinion, in addition to recovering the fair market value of their deceased dog plus interest, the Monyaks would be entitled to recover the reasonable veterinary and other expenses they reasonably incurred in trying to save her. Whether the veterinary costs and other expenses incurred by a pet owner in obtaining treatment for an animal negligently injured by another are reasonable will depend on the facts of each case. As observed by the Massachusetts Appeals Court in a case involving tortious injury to a dog,

[a]mong the factors to be considered are the type of animal involved, the severity of its injuries, the purchase and/or replacement price of the animal, its age and special traits or skills, its income-earning potential, whether it was maintained as part of the owner’s household, the likelihood of success of the medical procedures employed, and whether the medical procedures involved are typical and customary to treat the injuries at issue.

Irwin v. Degtiarov, 8 NE3d 296, 301 (Mass. App. Ct. 2014).

*154Decided June 6, 2016.

Hall Booth Smith, Joel L. McKie, Andrew K. Hazen, for appellants.

Peters & Monyak, Jonathan C. Peters, Robert P. Monyak, for appellees.

Of course, determining the reasonableness of medical treatment and the reasonableness of its cost is a function for the factfinder and well within the capability of jurors who routinely are asked to ascertain the appropriate value of professional services in other types of cases. See Reserve Life Ins. Co. v. Gay, 214 Ga. 2, 3 (102 SE2d 492) (1958) (holding jurors are not bound by expert opinion to determine the value of legal services rendered, but may exercise their own judgment on the subject, taking into consideration the nature of the services, the time required to perform them, and all attending circumstances); Georgia R. & Electric Co. v. Tompkins, 138 Ga. 596, 603 (75 SE 664) (1912) (allowing jurors to determine the reasonableness of a physician’s bills in a personal injury case). The burden of establishing the reasonableness of any medical treatment provided in light of the animal’s injuries, condition and prognosis, as well as the reasonableness of the cost of that treatment considering factors such as the nature of the services rendered, the time required to perform them, and all attending circumstances rests with the animal’s owner. See City of Savannah v. Waldner, 49 Ga. 316, 324 (1873). See generally Allen v. Spiker, 301 Ga. App. 893, 896 (689 SE2d 326) (2009).

6. For the foregoing reasons, we reverse the Court of Appeals’ decision in this case to the extent it holds that the proper measure of damages recoverable in tort cases involving the negligent injury to or death of an animal is one based on the actual value of the animal to its owner. We affirm, however, that portion of the Court of Appeals’ decision holding that damages representing an animal’s sentimental value to its owner are not recoverable, although we find that descriptive evidence, both qualitative and quantitative, is admissible to establish an animal’s attributes for determining its fair market value, as well as for determining the reasonableness of an owner’s expenditures for veterinary expenses. Accordingly, we remand this case to the Court of Appeals for further proceedings consistent with this opinion.

Judgment affirmed in part and reversed in part, and case remanded.

All the Justices concur.

*155Bryan Cave, Jennifer D. Odom, Ann W. Ferebee; Sutherland Asbill & Brennan, Katherine M. Smallwood; Shook, Hardy & Bacon, Leonard Searcy II, Victor E. Schwartz, Philip S. Goldberg, amici curiae.

*487JUSTICE FREEMAN

delivered the opinion of the court:

Plaintiff, Diane Dillon, brought a medical malpractice action in the circuit court of Cook County against, inter alios, Evanston Hospital (hereafter hospital) and Dr. Stephen Sener. A jury found against these particular defendants and in favor of plaintiff. The appellate court affirmed. No. 1 — 98—2893 (unpublished order under Supreme Court Rule 23). We allowed the hospital and Dr. Sener’s petition for leave to appeal (177 Ill. 2d R. 315(a)). We now affirm the judgments below in part and reverse in part, and remand the cause to the trial court for a new trial solely on the issue of damages for the increased risk of future injury.

BACKGROUND

During the course of treatment for breast cancer, Dr. Sener surgically inserted a catheter into a vein in plaintiffs upper chest under the clavicle. He performed the insertion on April 20, 1989. The purpose of the catheter was to provide a means to administer chemotherapy and to draw blood without repeatedly inserting needles into plaintiffs veins. The catheter inserted into plaintiff was approximately 16 centimeters long.

After plaintiff completed chemotherapy, the catheter ceased to function, and on July 13, 1990, Dr. Sener removed it. However, unbeknownst to plaintiff — or Dr. Sener — the catheter was not removed in its entirety. Rather, Dr. Sener removed only a seven-centimeter portion of the catheter. A nine-centimeter catheter fragment remained in plaintiff. She was not informed of any abnormality despite the fact that she had a chest X ray taken at the hospital in December 1990.

In December 1991, plaintiff had a routine chest X ray taken at a different hospital. The X ray revealed that the catheter fragment had migrated to plaintiffs heart. The tip of the fragment is embedded in the wall of the right *488atrium or the right ventricle. The rest of the fragment is floating free in plaintiffs heart.

Upon learning that the fragment was in her heart, plaintiff met with Dr. Sener. He could not recall his specific actions in removing the catheter from plaintiff. However, he acknowledged that the fragment was in her heart. Based on the length of time that the fragment had been there, Dr. Sener recommended that plaintiff not attempt to remove it because several risks were attendant to removal. For example, all or part of the fragment could escape and travel further into the heart, making retrieval more difficult, or removal could tear the heart wall. Dr. Sener opined that it would be more dangerous to attempt to remove the catheter fragment than it would be to leave it in place.

Plaintiff sought opinions from other physicians; all but one agreed with Dr. Sener. Based on the majority of medical opinions she received, plaintiff decided to leave the catheter fragment in her heart.

Plaintiff filed a complaint for medical malpractice against Dr. Sener, Dr. David Lim, who assisted in the insertion, the hospital, and the catheter’s manufacturer, Davol, Inc., a division of Bard, Inc. (hereafter Davol). After the completion of pretrial proceedings, the trial court entered summary judgment in favor of Dr. Lim. Trial commenced on plaintiffs fifth amended complaint, which named as additional defendants radiologist Dr. Ronald Port and nurse Kathy Henderson.

At the close of a trial, the jury found in favor of plaintiff and against Dr. Sener and the hospital. However, the jury found in favor of the remaining defendants. Dr. Sener and the hospital did not present the jury with any special interrogatories to determine on which basis the jury found defendants to have been negligent. The jury awarded plaintiff $1.5 million for past pain and suffering, $1.5 million for future pain and suffering, and *489$500,000 for the increased risk of future injuries. Plaintiff had not sought compensation for past or future medical expenses. Dr. Sener and the hospital appealed.

The appellate court affirmed, with one justice dissenting. No. 1 — 98—2893 (unpublished order under Supreme Court Rule 23). Dr. Sener and the hospital appeal. Additional pertinent facts will be discussed in the context of the issues raised in this appeal.

DISCUSSION

I. Fifth Amended Complaint: Negligent Insertion

Dr. Sener and the hospital first contend that plaintiffs fifth amended complaint was untimely.

Plaintiff filed her original complaint on July 1, 1992. Count I alleged that the hospital was negligent in (1) allowing the catheter to be removed in a way that caused a portion to remain in plaintiff, (2) failing to advise plaintiff of the fact that a portion of the catheter remained in her, and (3) providing a defective catheter. In count II, plaintiff alleged that Dr. Sener failed to remove the catheter. Similarly, in count III, plaintiff alleged that Dr. Setter’s actions in not removing the entire catheter were negligent. Notably, the original complaint contained no allegations against Dr. Sener or the hospital that the insertion of the catheter was negligent.

Plaintiff attached to the original complaint a report of a reviewing health professional. The report stated that the cause of action was meritorious because, inter alia, the catheter was improperly placed.

On April 19, 1993, plaintiff filed a second amended complaint adding a count against Dr. Lim, which alleged that he assisted in plaintiff’s surgery and that he negligently inserted the catheter. On March 21, 1995, the trial court granted him summary judgment.

Plaintiff continued to amend her original complaint throughout the pretrial proceedings as discovery was be*490ing conducted. In January 1994, Davol answered plaintiffs fourth amended complaint. Davol asserted the affirmative defense that plaintiffs injuries were proximately caused by the intervening and superseding negligent acts as described in the reports of reviewing health professionals attached to the fourth amended complaint. One of those reports stated in part that the catheter had been improperly placed. On September 6, 1996, plaintiff filed answers to supplemental interrogatories regarding her expert witness, Dr. Michael Blank. Dr. Blank had a new opinion after reviewing the interrogatory answers of Davol, which disclosed opinions critical of the catheter’s insertion. According to Dr. Blank, if Dr. Sener had inserted the catheter in the manner Davol asserted, then Dr. Blank believed that Dr. Sener had deviated from the standard of care in inserting the catheter, which ultimately resulted in the catheter’s fracture. On November 6, 1996, in supplemental answers to interrogatories, plaintiff disclosed that Dr. Blank might opine, based on his review of the X rays, that Dr. Sener negligently inserted the catheter in an improper location that ultimately resulted in the catheter’s fracture.

In May 1997, Davol disclosed that Dr. Paul Goldfarb would testify to his opinion that the catheter was improperly inserted, causing it to fracture as the result of repeated compression by the clavicle as the catheter passed over the first rib.

On November 17, 1997, plaintiff moved to file her fifth amended complaint adding allegations that the catheter was improperly inserted. The trial court allowed plaintiff leave to file because the removal of the catheter was, according to the court, “a completion of the same process” as the insertion. Plaintiff alleged as follows. Counts I and II alleged that Dr. Sener and the hospital negligently inspected, inserted, and removed the catheter; failed to ascertain that the catheter fragment *491remained in plaintiff; and failed to advise plaintiff that the fragment remained in her body. Count III alleged that Dr. Sener’s actions should be considered negligent under the theory of res ipsa loquitur. Count IV alleged that Davol negligently designed and manufactured the catheter; count V alleged that Dr. Port failed to see the catheter fragment in the December 1990 X ray; and count VI alleged that nurse Henderson improperly maintained the catheter after its insertion in plaintiff. Jury selection began the next day.

Dr. Sener and the hospital contend that the trial court abused its discretion in allowing plaintiff to file her fifth amended complaint, containing the allegations of negligent insertion, because it was not timely. In essence, they believe that plaintiff had ample knowledge from the outset of the litigation that Dr. Sener inserted the catheter and improperly waited until the eve of trial to officially allege negligence regarding the catheter’s insertion. Plaintiff responds that Dr. Sener and the hospital cannot complain because plaintiff presented several theories of negligence, the jury returned a general verdict against them on the negligence claim, and they failed to submit a special interrogatory on any matter. Dr. Sener and the hospital in turn reply that we may not consider plaintiffs defense because she did not raise it in the appellate court.

We may consider plaintiffs defense of the trial court’s judgment. An appellee in the appellate court may raise a ground in this court which was not presented to the appellate court in order to sustain the judgment of the trial court, as long as there is a factual basis for it. Estate of Johnson v. Condell Memorial Hospital, 119 Ill. 2d 496, 502 (1988); Hammond v. North American Asbestos Corp., 97 Ill. 2d 195, 209 (1983).

Count I of the fifth amended complaint alleged several theories of negligence in addition to the theory of *492which Dr. Sener and the hospital complain, i.e., negligent insertion. They have not challenged the sufficiency of the evidence on any of those other theories. Also, the jury returned a general verdict against them on the negligence claim. Section 2 — 1201(d) of the Code of Civil Procedure provides in pertinent part:

“If several grounds of recovery are pleaded in support of the same claim, whether in the same or different counts, an entire verdict rendered for that claim shall not be set aside or reversed for the reason that any ground is defective, if one or more of the grounds is sufficient to sustain the verdict ***.” 735 ILCS 5/2 — 1201(d) (West 2000).

Because Dr. Sener and the hospital did not submit special interrogatories, there is no way of knowing on what theory the jury found defendants negligent. “When there is a general verdict and more than one theory is presented, the verdict will be upheld if there was sufficient evidence to sustain either theory, and the defendant, having failed to request special interrogatories, cannot complain.” Witherell v. Weimer, 118 Ill. 2d 321, 329 (1987). We shall not set aside the verdict based on this contention.

II. Res Ipsa Loquitur

Dr. Sener and the hospital next contend that the trial court erred in instructing the jury on plaintiffs theory of res ipsa loquitur against Dr. Sener. As with the prior contention, plaintiff defends the. judgment by pointing to the jury verdict. The verdict form shows that the jury returned separate verdicts in favor of plaintiff against Dr. Sener on both negligence and res ipsa loquitur. Because the evidence supports the verdict based on negligence, we shall not set aside the verdict based on this contention. See Miller v. DeWitt, 37 Ill. 2d 273, 286-87 (1967); 735 ILCS 5/2 — 1201(d) (West 2000).

III. Admission of Videotape

Dr. Sener and the hospital contend that the trial court erred in allowing the jury to view a videotape depicting a *493bacterial infection in the heart that spread to the brain. The appellate court concluded that the trial court’s ruling was not an abuse of discretion.

Dr. Sener and the hospital bring this assignment of error to this court. However, their three-paragraph argument does not contain any authority. Supreme Court Rule 341(e)(7) provides that a litigant’s brief must contain citations to the relevant authority supporting the argument on appeal. 188 Ill. 2d R. 341(e)(7). “A court of review is entitled to have the issues clearly defined and to be cited pertinent authority. A point not argued or supported by citation to relevant authority fails to satisfy the requirements of Rule 341(e)(7).” Canteen Corp. v. Department of Revenue, 123 Ill. 2d 95, 111-12 (1988); accord Kelley v. Kelley, 317 Ill. 104, 107 (1925). Although we could, in light of the violation of Rule 341(e)(7), consider this matter waived, we instead will exercise our discretion in this matter and address the issue on the merits since we can discern the question sought to be resolved. See People ex rel. Carter v. Touchette, 5 Ill. 2d 303, 305 (1955); People v. Jung, 192 Ill. 2d 1, 12-13 (2000) (Freeman, J., specially concurring, joined by Miller and McMorrow, JJ.); Roberts v. Dow Chemical Co., 244 Ill. App. 3d 253, 256 (1993).

After reviewing the record, we hold that the trial court did not abuse its discretion by admitting the videotape as demonstrative evidence. Dr. David Snydman, qualified and board certified in infectious diseases, testified that the video animation would be helpful in explaining to the jury the general development of endocarditis, a condition for which plaintiff is now at risk. He clearly and specifically explained the relevant differences between the type and location of infection depicted in the videotape and the infection that plaintiff may suffer in the future, owing to the presence of the catheter fragment. Further, Dr. Sener and the hospital *494had the right and the opportunity to cross-examine Dr. Snydman so as to assure that the videotape could not have misled or confused the jury.

IV Exclusion of Cumulative Testimony Dr. Sener and the hospital next contend that the trial court erred in excluding as cumulative the testimony of one of their experts, Dr. John Raaf. The record shows that during the court’s consideration of motions in limine, the court discussed generally the problem of cumulative testimony and informed counsel for both sides that the court would not entertain cumulative medical testimony and would sustain objections to such testimony.

Dr. Richard Vasquez testified as an expert on behalf of defendants. Dr. Vasquez opined that Dr. Sener had met the medically relevant standard of care.

Dr. Sener and the hospital then called Dr. Raaf as an expert. After listening to the equivalent of approximately 20 record pages of testimony, the trial court called a sidebar to express concern regarding Dr. Raaf s testimony. The court stated that if Dr. Raaf was about to testify regarding the medical standard of care, then that testimony would be cumulative. Defense counsel stated that Dr. Raaf s testimony would go to the medical standard of care. Defense counsel declined to make an offer of proof as to other matters to which Dr. Raaf could testify. The court excused Dr. Raaf and told the jury:

“THE COURT: Folks, after talking with the lawyers, I have — I have determined that the last witness, Dr. Raaf, his testimony was going to be on similar topics to those we have covered.

So I’ve decided it would be more efficient on use of your time if we move on to another topic, okay?

THE JURY: Thank you.”

The appellate court found no abuse of discretion.

Initially, we note plaintiffs argument, in defense of the judgment, that we are precluded from reviewing this contention because Dr. Sener and the hospital failed to *495make an offer of proof. When a trial court excludes evidence, no appealable issue remains unless a formal offer of proof is made. The failure to do so results in a waiver of the issue on appeal. The purpose of an offer of proof is to inform the trial court, opposing counsel, and a reviewing court of the nature and substance of the evidence sought to be introduced. However, an offer of proof is not required where it is apparent that the trial court clearly-understood the nature and character of the evidence sought to be introduced. People v. Peeples, 155 Ill. 2d 422, 457-58 (1993); see also In re A.M., 274 Ill. App. 3d 702, 709 (1995); M. Graham, Cleary & Graham’s Handbook of Illinois Evidence § 103.7, at 23-24 (7th ed. 1999). In this case, an offer of proof was not required because the trial court understood that Dr. Raaf would testify as to the medical standard of care. See First National Bank of Mount Prospect v. Village of Mount Prospect, 197 Ill. App. 3d 855, 864-65 (1990) (offer of proof unnecessary where expert’s opinion testimony was obvious).

Turning to the merits, the exclusion of cumulative evidence is within the discretion of the trial court, whose ruling will not be reversed absent a clear abuse of that discretion. Kozasa v. Guardian Electric Manufacturing Co., 99 Ill. App. 3d 669, 678 (1981) (collecting cases). This discretion includes limiting the number of expert witnesses. See Yassin v. Certified Grocers of Illinois, 150 Ill. App. 3d 1052, 1061 (1986); M. Graham, Cleary & Graham’s Handbook of Illinois Evidence § 403.1, at 192 (7th ed. 1999).

Dr. Sener and the hospital note that plaintiff and Davol were allowed to present several expert witnesses to criticize various aspects of Dr. Sener’s conduct, while he and the hospital could present only one. They posit: “It is common knowledge that in medical malpractice cases, each side presents two or three expert witnesses to support the conduct or criticize the conduct of the Defen*496dant.” They assert that “[t]he abuse of discretion in this case is the uneven treatment of the parties.”

We cannot accept this contention. As in the appellate court, Dr. Sener and the hospital do not indicate how the evidence that Dr. Raaf would have presented, i.e., his opinion that Dr. Sener had met the medically relevant standard of care, was not cumulative to the testimony of Dr. Vasquez. Nor have they shown that the expert testimony that plaintiff and Davol presented was in any way cumulative. Further, Dr. Sener and the hospital presented several experts and treating physicians, who testified on various aspects of the case for the defense. We uphold the ruling of the trial court.

V Damages: Increased Risk of Future Injury

Dr. Sener and the hospital next contend that the trial court erred in instructing the jury that it could award plaintiff damages for “[t]he increased risk of future injuries.” Plaintiffs argument to the contrary notwithstanding, we note that this issue was adequately preserved for appellate review.

There was evidence presented at trial establishing the proximate causal connection between the actions of Dr. Sener and the hospital and the catheter fragment becoming embedded in plaintiff’s heart. On medical advice, plaintiff chose not to attempt removal of the fragment. All the expert witnesses but one believed that the risks of injury from an attempted removal of the fragment outweighed the risks that would exist if the catheter remained in the heart. The attendant risks of the catheter remaining were infection, perforation of the heart, arrhythmia, embolization, and further migration of the fragment. At the time of trial, plaintiff had not suffered from any of these conditions, although she did suffer from anxiety over the fragment’s presence.

The evidence was that it was not reasonably certain that plaintiff would in the future suffer the injuries for *497which she was at risk due to the fragment’s presence in her heart. Several physicians testified about the risk of infection, with the lowest estimated risk being close to zero and the highest being 20%. The risk of arrhythmia was less than 5%. The risks of perforation and migration were also small. The risk of embolization was low to nonexistent.

The jury instruction that addressed compensation for plaintiffs increased risks stated in relevant part:

“If you decide for the plaintiff on the question of liability, you must then fix the amount of money which will reasonably and fairly compensate her for any of the following elements of damages proved by the evidence to have resulted from the negligence of one or more of the defendants, taking into consideration the nature, extent, and duration of the injury:

The increased risk of future injuries.

The pain and suffering experienced and reasonably certain to be experienced in the future as a result of the injuries.” (Emphasis added.)

This instruction was a modified combination of Illinois Pattern Jury Instructions, Civil, No. 30.01 and No. 30.05 (3d ed. 1995). The modification was the addition of the italicized sentence on the increased risk of future injuries. There is no Illinois pattern jury instruction for that element of damages.

The jury awarded plaintiff $500,000 for her increased risk of future injuries. The appellate court upheld the award, holding that the trial court did not err in instructing the jury that plaintiff could be compensated for the increased risk of future harm.

This court has historically rejected assessing damages for future injuries. This court has explained: “It would be plainly unjust to require a defendant to pay damages for results that may or may not ensue and that are merely problematical. To justify a recovery for future damages the law requires proof of a reasonable certainty that they will be endured in the future.” Amann v. *498Chicago Consolidated Traction Co., 243 Ill. 263, 267 (1909). In 1922, this court reiterated this position in Stevens v. Illinois Central R.R. Co., 306 Ill. 370, 377 (1922).

Based on the principles noted in Amann and Stevens, some panels of our appellate court have denied recovery for an increased risk of future injury that is not reasonably certain to occur. See, e.g., Wehmeier v. UNR Industries, Inc., 213 Ill. App. 3d 6, 33-34 (1991). However, other panels of our appellate court have allowed compensation for an increased risk of future injury, notwithstanding the improbability of the injury’s occurrence. See, e.g., Jeffers v. Weinger, 132 Ill. App. 3d 877, 884 (1985) (finding “that whether there is a 1% possibility [of plaintiff losing her foot] or a 99% possibility, each is an element of damage which should be considered by the jury”). The rationale of those decisions allowing recovery is that “the increased risk is itself a present injury which should be as compensable as any other present injury.” Anderson v. Golden, 279 Ill. App. 3d 398, 400 (1996); accord Harp v. Illinois Central Gulf R.R. Co., 55 Ill. App. 3d 822, 827 (1977). In light of the above, a divergence of authority exists in Illinois whether a plaintiff may recover damages for the increased risk of future injuries.

Cases such as Stevens and Amann and the decisions of our appellate court which adhere to them represent the majority view:

“The traditional American rule *** is that recovery of damages based on future consequences may be had only if such consequences are ‘reasonably certain.’ Recovery of damages for speculative or conjectural future consequences is not permitted. To meet the ‘reasonably certain’ standard, courts have generally required plaintiffs to prove that it is more likely than not (a greater than 50% chance) that the projected consequence will occur. If such proof is made, the alleged future effect may be treated as certain to happen and the injured party may be awarded full compensation for it; if the proof does not establish a greater than *49950% chance, the injured party’s award must be limited to damages for harm already manifest.” Wilson v. Johns-Manville Sales Corp., 684 F.2d 111, 119 (D.C. Cir. 1982).

Accord 2 D. Dobbs, Remedies § 8.1(7), at 407 (2d ed. 1993); J. King, Causation, Valuation, and Chance in Personal Injury Torts Involving Preexisting Conditions and Future Consequences, 90 Yale L.J. 13'53, 1370-72 (1981); Note, Damages Contingent Upon Chance, 18 Rutgers L. Rev. 875, 876 (1964) (all-or-nothing approach “is the majority rule in the United States”). As one court has explained: “In evaluating damages in a tort action, a trier is concerned with reasonable probabilities, not with possibilities.” Healy v. White, 173 Conn. 438, 443, 378 A.2d 540, 544 (1977), overruled, Petriello v. Kalman, 215 Conn. 377, 576 A.2d 474 (1990). “[A] consequence of an injury which is possible, which may possibly ensue, is a risk which the injured person must bear because the law cannot be administered so as to do reasonably efficient justice if conjecture and speculation are to be used as a measure of damages. On the other hand, a consequence which stands on the plane of reasonable probability, although it is not certain to occur, may be considered in the evaluation of the damage claim against the defendant. In this way, to the extent that men can achieve justice through general rules, a just balance of the warring interests is accomplished.” Budden v. Goldstein, 43 N.J. Super. 340, 347, 128 A.2d 730, 734 (1957).

Not all jurisdictions follow the majority rule. For example, in Petriello v. Kalman, 215 Conn. 377, 576 A.2d 474 (1990), the Supreme Court of Connecticut provided an analysis that revealed the problems inherent with the majority approach. That court criticized the “all-or-nothing” approach as follows:

“In essence, if a plaintiff can prove that there exists a 51 percent chance that his injury is permanent or that future injury will result, he may receive full compensation for that injury as if it were a certainty. If, however, the plaintiff *500establishes only a 49 percent chance of such a consequence, he may recover nothing for the risk to which he is presently exposed. Although this all or nothing view has been adopted by a majority of courts faced with the issue, the concept has been severely criticized by numerous commentators. By denying any compensation unless a plaintiff proves that a future consequence is more likely to occur than not, courts have created a system in which a significant number of persons receive compensation for future consequences that never occur and, conversely, a significant number of persons receive no compensation at all for consequences that later ensue from risks not rising to the level of probability. This system is inconsistent with the goal of compensating tort victims fairly for all the consequences of the injuries they have sustained, while avoiding, so far as possible, windfall awards for consequences that never happen.” Petriello, 215 Conn. at 393-94, 576 A.2d at 482-83.

Accord DePass v. United States, 721 F.2d 203, 208 (7th Cir. 1983) (Posner, J., dissenting) (“A tortfeasor should not get off scot-free because instead of killing his victim outright he inflicts an injury that is likely though not certain to shorten the victim’s life”); 90 Yale L.J. at 1376-81 (criticizing all-or-nothing approach as arbitrary); 2 G. Boston, Stein on Personal Injury Damages § 9:16, at 9 — 31 through 9 — 32 (3d ed. 1997) (same).

We believe that the split of authority in our appellate court compels us to revisit this issue and reexamine our holdings in Amann and Stevens. Our review of cases from other jurisdictions indicates a trend toward allowing compensation for increased risk of future injury as long as it can be shown to a reasonable degree of certainty that the defendant’s wrongdoing created the increased risk. Anderson, 279 Ill. App. 3d at 400 (citing cases); see also United States v. Anderson, 669 A.2d 73 (Del. 1995); 2 J. Nates, C. Kimball, D. Axelrod & R. Goldstein, Damages in Tort Actions § 13.02 (2001); 2 G. Boston, Stein on Personal Injury Damages § 9:16, at 9 — 30 (3d ed. 1997) (“Compensation should be given for the fact of increased *501susceptibility”). This reasoning shows that “[t]he primary motivation of the courts for permitting damages for such an injury is fairness.” 2 J. Nates, C. Kimball, D. Axelrod & R. Goldstein, Damages in Tort Actions § 13.02, at 13 — 8 (2001). Further, based on the principle of single recovery, “[o]ur legal system provides no opportunity for a second look at a damage award so that it may be revised with the benefit of hindsight.” Petriello, 215 Conn. at 395, 576 A.2d at 483.

Based on this reasoning, the appellate court in this case relied on the appellate court’s decision in Anderson. There, the court stated that where a defendant’s negligence causes a plaintiff to suffer a present injury, the plaintiff is entitled to compensation for the full extent of the injury. If a defendant’s negligence places a plaintiff at greater risk of sustaining future injuries than if the negligence had not occurred, the appellate court saw “ ‘no legitimate reason why [the plaintiff] should not receive present compensation based upon the likelihood of the risk becoming a reality.’ ” Anderson, 279 Ill. App. 3d at 401, quoting Petriello, 215 Conn. at 396, 576 A.2d at 483. The Anderson court held that a plaintiff who has competent evidence which shows that a defendant has negligently caused her to bear the burden of an increased risk of future injury may present evidence of the increased risk as an element of present damages.

The Anderson court further noted that the treatment of an increased risk of future injury as a present injury does not run afoul of the general rule that possible future damages are not compensable absent evidence that such damages are reasonably certain to occur. The court reasoned that this rule stems from the principle that damages may not be awarded on the basis of speculation or conjecture. An award of damages for an increased risk of future injury is proper only if it can be shown to a reasonable degree of certainty that the risk was proximately *502caused by the defendant’s negligence. Therefore, there is no element of speculation or conjecture in awarding damages for increased risks. Anderson, 279 Ill. App. 3d at 400-01.

Like the court in Anderson, we also believe that the Connecticut court’s approach to this issue better comports with this state’s principle of single recovery. An entire claim arising from a single tort cannot be divided and be the subject of several actions, regardless of whether or not the plaintiff has recovered all that he or she might have recovered. This is true even as to prospective damages. There cannot be successive actions brought for a single tort as damages in the future are suffered, but the one action must embrace prospective as well as accrued damages. Mason v. Parker, 295 Ill. App. 3d 1096, 1098 (1998), quoting Radosta v. Chrysler Corp., 110 Ill. App. 3d 1066, 1068-69 (1982); accord 1 D. Dobbs, Remedies § 3.1, at 277-78 (2d ed. 1993) (“The damages remedy is not conditional, and it is not payable periodically as loss accrues unless a statute so provides. So the damages award is traditionally made once, in a lump sum to compensate for all the relevant injuries, past and future”). Indeed, this court long ago so held in the specific context of a medical malpractice action. See Howell v. Goodrich, 69 Ill. 556, 559-60 (1873) (“For such a cause of action *** there can not be successive suits brought from time to time, as damages may in the future be suffered, but the recovery is once for all, and may embrace prospective as well as accrued damages”).

The single recovery principle requires that all damages, future as well as past, must be presented and considered at the time of trial. “This in turn faces the tribunal with the difficult and uncertain task of prophecy, with no chance for second-guessing where the prophecy turns out to be mistaken, or where the parties have failed to present all items of their claims.” 4 F. Harper, F. James, & O. Gray, Torts § 25.2, at 498 (2d ed. 1986).

*503Also, this court has previously held in a different context:

“There is nothing novel about requiring health care professionals to compensate patients who are negligently injured while in their care. To the extent a plaintiffs chance of recovery or survival is lessened by the malpractice, he or she should be able to present evidence to a jury that the defendant’s malpractice, to a reasonable degree of medical certainty, proximately caused the increased risk of harm or lost chance of recovery. We therefore reject the reasoning of cases which hold, as a matter of law, that plaintiffs may not recover for medical malpractice injuries if they are unable to prove that they would have enjoyed a greater than 50% chance of survival or recovery absent the alleged malpractice of the defendant. [Citations.] To hold otherwise would free health care providers from legal responsibility for even the grossest acts of negligence, as long as the patient upon whom the malpractice was performed already suffered an illness or injury that could be quantified by experts as affording that patient less than a 50% chance of recovering his or her health.” Holton v. Memorial Hospital, 176 Ill. 2d 95, 119 (1997).

The theories of lost chance of recovery and increased risk of future injury have similar theoretical underpinnings. See Anderson, 669 A.2d at 75-76; 2 D. Dobbs, Remedies § 8.1(7), at 408 (2d ed. 1993).

We realize that our decision to recognize damages for the increased risk of future injury is at odds with our previous holdings in Stevens and Amann. However, we note that those cases are over 80 years old, and that scientific advances now enable the medical community to more accurately determine the probability of future injuries than in the past. The risk therefore of undue speculation is lessened. We further note that the split in our appellate court has caused mixed results in cases such as this, where some parties recovered compensation, while others did not. Fairness requires that this court speak to this issue definitively. Having reviewed all of the authorities on this issue, we believe our decision *504will provide needed stability in this matter for the bench and the bar.

Accordingly, we hold simply that a plaintiff must be permitted to recover for all demonstrated injuries. The burden is on the plaintiff to prove that the defendant’s negligence increased the plaintiffs risk of future injuries. A plaintiff can obtain compensation for a future injury that is not reasonably certain to occur, but the compensation would reflect the low probability of occurrence. See Feist v. Sears, Roebuck & Co., 267 Or. 402, 410, 517 P.2d 675, 679 (1973) (“ ‘Admittedly the probability of [plaintiff] getting epileptic seizures is low and it should be weighed by the jury accordingly’ ”), quoting Schwegel v. Goldberg, 209 Pa. Super. 280, 287-88, 228 A.2d 405, 409 (1967). This “fits comfortably within traditional damage calculation methods.” Anderson, 669 A.2d at 78, citing Petriello, 215 Conn. at 397-98, 576 A.2d at 484; accord 2 G. Boston, Stein on Personal Injury Damages § 9:16, at 9 — 30 through 9 — 31 (3d ed. 1997) (stating that the solution is not in denying recovery, but in “letting the jury determine on a common sense basis the amount of damages which will reasonably compensate the plaintiff’). “The defendant’s proper remedy lies in objecting to the excessiveness of the verdict in an appropriate case.” 2 J. Nates, C. Kimball, D. Axelrod & R Goldstein, Damages in Tort Actions § 13.02, at 13 — 9 (2001).

Having determined that this element of damages is compensable, we now consider whether the jury was properly instructed thereon. The record shows that Dr. Sener and the hospital failed to object with specificity to the form of the instruction and to offer their own versions thereof. Accordingly, we could consider this issue waived for appellate review. See 155 Ill. 2d R 366(b) (2) (i); Deal v. Byford, 127 Ill. 2d 192, 203 (1989).

However, the waiver rule is a principle of administrative convenience, an admonition to the parties; it is not a *505jurisdictional requirement or any limitation upon the jurisdiction of a reviewing court. In this regard, this court has recognized that a reviewing court may, in furtherance of its responsibility to provide a just result and to maintain a sound and uniform body of precedent, override considerations of waiver that stem from the adversarial nature of our system. In re C.R.H., 163 Ill. 2d 263, 274 (1994); Hux v. Raben, 38 Ill. 2d 223, 224-25 (1967); accord 155 Ill. 2d R. 366(a)(5). In this case, for reasons which we will explain, we deem that this responsibility outweighs the waiver by Dr. Sener and the hospital. See, e.g., Welch v. Johnson, 147 Ill. 2d 40, 48 (1992); American Federation of State, County & Municipal Employees, Council 31 v. County of Cook, 145 Ill. 2d 475, 480 (1991).

In Illinois, the parties are entitled to have the jury instructed on the issues presented, the principles of law to be applied, and the necessary facts to be proved to support its verdict. The decision to give or deny an instruction is within the trial court’s discretion. The standard for determining an abuse of discretion is whether, taken as a whole, the instructions are sufficiently clear so as not to mislead and whether they fairly and correctly state the law. See Magna Trust Co. v. Illinois Central R.R. Co., 313 Ill. App. 3d 375, 388 (2000); accord Korpalski v. Lyman, 114 Ill. App. 3d 563, 568 (1983).

In this case, there is no pattern jury instruction on the increased risk of future injury as an element of damages. Accordingly, this is a situation where our pattern instructions are inadequate and additional instruction is appropriate. See Balestri v. Terminal Freight Cooperative Ass’n, 76 Ill. 2d 451, 454-55 (1979). Under Supreme Court Rule 239(a) (177 Ill. 2d R. 239(a)), a nonpattern instruction is permissible if it is simple, brief, impartial, and nonargumentative. Where a unique factual situation, or a point of law, is presented, a nonpattern instruc*506tion may be given if it is accurate and will have no improper effect on the jury. Magna Trust, 313 Ill. App. 3d at 388.

Applying these principles to this case, we conclude that the instruction which the jury received on this element of damages did not adequately state the law. We earlier quoted the jury’s instruction on damages, which included the following description of this element: “The increased risk of future injuries.”

This instruction fails to instruct the jury on several important legal requirements, e.g., the increased risk must be based on evidence and not speculation, and, more importantly, the size of the award must reflect the probability of occurrence. For example, as a result of Petriello, Connecticut Civil Jury Instruction No. 2 — 40(c) was promulgated:

“Damages — Compensation for Increased Risk of Injury

***

The plaintiff claims that he/she has suffered an increased risk of [alleged future complication] as a result of the defendant’s negligence. The plaintiff is entitled to recover damages for physical harm resulting from a failure to exercise reasonable care. If the failure to exercise reasonable care increases the risk that such harm will occur in the future, the plaintiff is entitled to compensation for the increased risk. In order to award this element of damages, you must find a breach of duty that was a substantial factor in causing a present injury which has resulted in an increased risk of future harm. The increased risk must have a basis in the evidence. Your verdict must not be based on speculation. The plaintiff is entitled to compensation to the extent that the future harm is likely to occur as measured by multiplying the total compensation to which the plaintiff would be entitled if the harm in question were certain to occur by the proven probability that the harm in question will in fact occur.” (Emphasis added.)

In the present case, the instruction given failed to convey the principles of law expressed in the italicized portion of the Connecticut instruction. While not *507prescribing its use verbatim, we hold that the essence of this instruction fairly and correctly states the law on this element of damages.

Our responsibility to provide a just result requires reversal on this issue. The partial dissent, pointing to the dictionary meaning of “risk,” concludes that the jury instruction given in this case “was sufficient to describe the type of assessment the jury was required to make.” 199 111. 2d at 509 (Harrison, C.J., concurring in part and dissenting in part).

However, it must be remembered that juries are composed of laypersons who are not trained to separate issues and to disregard irrelevant matters. That is the purpose of jury instructions. The function of jury instructions is to convey to the jury the correct principles of law applicable to the submitted evidence and, as a result, jury instructions must state the law fairly and distinctly and must not mislead the jury or prejudice a party. See Ono v. Chicago Park District, 235 Ill. App. 3d 383, 386 (1992); Pry v. Alton & Southern Ry. Co., 233 Ill. App. 3d 197, 214 (1992); Fravel v. Morenz, 151 Ill. App. 3d 42, 45 (1986). In the context of this issue, reliance on a dictionary is inadequate to fulfill this purpose.

Our responsibility to maintain a sound and uniform body of precedent likewise requires reversal on this issue. As we earlier noted, today’s decision represents a departure from the previous holdings of this court. There was a split of authority in the appellate court over whether the increased risk of future injury was compensable as an element of damages. Further, those appellate court decisions that allowed recovery did not discuss the form of the instruction. We have now definitively spoken to this issue. A retrial, in which a jury may apply the correct legal principles to the submitted evidence, is appropriate to maintain a sound and uniform body of precedent.

*508The jury in this case was inadequately instructed on the increased risk of future injury as an element of damages. Accordingly, we reverse plaintiffs damages award for the increased risk of future injury, and remand the cause to the trial court for a new trial solely on that element of damages.

CONCLUSION

For the foregoing reasons, the judgments of the circuit and appellate courts are affirmed in part and reversed in part, and the cause remanded to the circuit court of Cook County for further proceedings consistent with this opinion.

Appellate court affirmed in part and reversed in part; circuit court affirmed in part and reversed in part; cause remanded.

JUSTICE FITZGERALD took no part in the consideration or decision of this case.

CHIEF JUSTICE HARRISON,

concurring in part and dissenting in part:

The appellate court’s judgment affirming the judgment of the circuit court should be upheld without qualification. Contrary to my colleagues, I would not remand for a new trial on the element of damages for increased risk of future injuries. The damages instruction tendered by plaintiff was adequate as given. Although my colleagues are quite right that the jury’s assessment of increased risk must be based on evidence, not speculation, that is true of every element of damages. Indeed, it is true of every element of plaintiffs cause of action.

Juries are told this at the outset of their deliberations. Illinois Pattern Jury Instructions, Civil, No. 1.01(3) (1995), specifically cautions the jury that its verdict *509“must be based on evidence and not upon speculation, guess or conjecture.” We do not require this caveat to be repeated in the instructions governing the other aspects of a plaintiffs claim, and there is no reason to require such repetition with respect to a plaintiffs claim for damages based on increased risk of future injuries.

I am also unpersuaded by the majority’s contention that the damages instruction tendered in this case failed to adequately apprise the jury that the size of its award for increased risk of future injuries must reflect the probability that such injuries will occur. The instruction was specifically phrased in terms of “risk.” By definition, risk includes “the product of the amount that may be lost and the probability of losing it.” Webster’s Third New International Dictionary 1961 (1986). Accordingly, the charge to the jury here was sufficient to describe the type of assessment the jury was required to make.

Even if the revisions to the instruction proposed by my colleagues would have been helpful to the jury, that is not an adequate basis under the law for disturbing the jury’s verdict. In assessing the sufficiency of the jury’s instructions, the issue is not whether our court could have phrased the instructions in a better way. It is whether the instructions given, considered as a whole and read as a series, were sufficiently clear so as not to mislead the jury and whether they fairly and correctly stated principles of law which pertain to the case. See Eaves v. Hyster Co., 244 Ill. App. 3d 260, 262 (1993).

If the defendants in this case believed that the wording in the instruction on damages was incorrect, incomplete, or otherwise inadequate, it was their duty to object to that instruction and to offer their own remedial versions. Deal v. Byford, 127 Ill. 2d 192, 203 (1989). They did not do so. In the trial court, defendants’ objection was that the issue of increased risk of future injuries should not be presented to the jury at all. Defendants did *510not take issue with the way that issue was set forth in the instruction tendered by plaintiff, and defense counsel declined an express invitation by the trial judge to propose alternative language. Under these circumstances, any claim of error with respect to the wording of the instruction has been waived. See Diaz v. Chicago Transit Authority, 174 Ill. App. 3d 396, 401-02 (1988).

In all other respects, I am in complete accord with the majority’s disposition.

MEMORANDUM OPINION & ORDER

PAUL G. GARDEPHE, District Judge.

In this action, Plaintiff Freddrick McMillan alleges that Defendant Millennium Broadway Hotel subjected him to a hostile work environment based on his race in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., 42 U.S.C. § 1981, and the New York City Human Rights Law (the “NYCHRL”), N.Y.C. Admin. Code § 8-107 et seq. Following a four-day trial, a jury returned a verdict in Plaintiffs favor, awarding him $125,000 in compensatory damages for emotional distress and $1 million in punitive damages.

*551Defendant has moved under Fed.R.Civ.P. 50 for judgment as a matter of law, and under Fed.R.Civ.P. 59 for a new trial and/or a remittitur concerning the damage awards. For the reasons stated below, Defendant’s motion for judgment as a matter of law will be denied. Defendant’s motion for a new trial will be granted with respect to the compensatory and punitive damage awards unless Plaintiff accepts a remittitur reducing the amount of compensatory damages to $30,000 and the amount of punitive damages to $100,000.

BACKGROUND

I. THE EVIDENCE AT TRIAL

McMillan has worked at the Millennium Broadway Hotel (the “Hotel”) for more than twenty years.1 (Tr. 175) After fourteen years in the Hotel’s Housekeeping Department, McMillan transferred to the Engineering Department in 2003. After his transfer, McMillan was initially supervised by Ray Cypress and Christina Canette. (Tr. 176-79) McMillan did not suffer any discrimination under their supervision. (Tr. 179)

According to McMillan, his working conditions changed in 2004 when Tom Scudero became the Hotel’s Director of Property Operations. Scudero supervised the Engineering Department and relegated McMillan to undesirable tasks, such as dealing with complaints — “house calls” — from Hotel guests. McMillan considered this assignment undesirable because it required less skill than other jobs. (Tr. 184) McMillan’s requests for other assignments were denied. (Tr. 185) McMillan also testified that he was disciplined for minor mistakes, and felt that he had to “go back to calls four [or] five times to make sure that nothing was done wrong, because anything that [his supervisors] would find ... they would write me up for.” (Tr. 197) On one occasion, McMillan was disciplined for a white employee’s mistake. (Tr. 199) McMillan testified that Scudero did not treat white employees in the same demeaning manner. (Tr. 201-02)

McMillan testified that it was “horrible” working under Scudero, and complained that Scudero “allow[ed] an atmosphere where you’re called the ‘N’ word all the time” by coworkers. (Tr. 185-86) McMillan cited an April 18, 2007 incident, in which co-worker Cromwell Bodden2 said “What’s up N* * *A” to McMillan and others in the Engineering Office.3 (Tr. 187; Dx K) McMillan also testified that on May 24, 2007, another Hotel employee, Jarek Zgoda, referred to McMillan as “boy,”4 and that on another occasion in 2007, Bodden used the phrase “us .Negroes” in McMillan’s presence.5 (Tr. 191)6

*552Two incidents at the Hotel were the focus of Plaintiffs liability case at trial: (1) the display of a black voodoo doll in January 2008; and (2) the use of a racial epithet by one of McMillan’s co-workers in June 2009.

A. The January 2008 Voodoo Doll Incident

In January 2008, Scudero traveled to New Orleans on vacation. (Tr. 270) While there, he purchased six voodoo dolls as souvenirs for his management team. (Tr. 270-71) Scudero testified that he thought the dolls “would be a cute ... souvenir. Thought, you know, typical New Orleans. We had seen them all around as we were traveling and I figured I could kind of personalize them just so I could basically give them a gift.” (Tr. 271-72)

On January 23, 2008, Scudero brought the voodoo dolls to work and laid them out on his desk so that he could decorate them for each recipient.7 (Tr. 272-73) McMillan entered Scudero’s office that morning and noticed the voodoo dolls on Scudero’s desk. (Tr. 191-92, 273) McMillan said to Scudero, “Tom, shouldn’t I be offended by those dolls?” Scudero answered no, explaining that he had bought the dolls as gifts for his managers.8 (Tr. 192) McMillan then said, “Tom, those dolls better not be about me.” (Tr. 192) Scudero replied that the dolls “were not about you,” and repeated that he had bought the dolls for his managers. (Id.) McMillan testified that he nonetheless believed that the dolls were “about black people.” (Tr. 221)

Scudero subsequently distributed the dolls to his management team. Chief Engineer Joe Fariello was not in the office at that time, however, so Scudero pinned Fariello’s doll to a bulletin board above Fariello’s desk in the Engineering Department. (Tr. 278, 254-55)

Three days after McMillan saw the dolls in Scudero’s office, he noticed the doll hanging from the bulletin board above Fariello’s desk. (Tr. 193) McMillan regularly entered the Engineering Department office in which Fariello sat: he borrowed tools that were kept behind Fariello’s desk, he frequently asked Fariello — the Chief Engineer — whether he needed assistance; and he entered the office to pick up his paycheck. (Tr. 183) McMillan testified that “[t]he [voodoo] doll was hanging to the side [of the bulletin board] with a noose around its neck.” (Tr. 193; Def. Ex. LL) The doll had a black face and pink lips. (Tr. 51; Dx LL) McMillan was “very upset” about the display (Tr. 194) and complained to Vincent Foster, his union delegate. (Tr. 152-53)

Other Hotel employees were likewise offended by the display of the doll. (Tr. 160, 50) Foster testified that he was “disgusted” by the doll. (Tr. 160) Hotel employee Colin Taylor testified that the manner in which the doll was displayed evoked a lynching. (Tr. 172)

*553On January 28, 2008, Nowratan Paray, a supervisor in the Engineering Department (Tr. 55), told McMillan that the doll represented him. (Tr. 74-78, 101-04, 144, 156, 245-46) McMillan was offended by Paray’s comment. (Tr. 75, 96)

On January 30, 2008, Eddie Cedeno, another union official, complained to Kathleen Pyne, then the Hotel’s Director of Human Resources, about the voodoo doll display. (Tr. 49-50) The doll had been hanging on Fariello’s bulletin board since January 24, 2008. (Px 23) Pyne accompanied Cedeno to the Engineering Department. (Tr. 49) After Pyne saw the doll on the bulletin board, either she or Cedeno immediately took it down. (Tr. 134-35)

Pyne testified that the display of the doll on the bulletin board created “chaos” at the Hotel, and ultimately led the union to call a “work stoppage.” Many employees — mostly minority employees — congregated in the Hotel lobby. (Tr. 50-52) Concerned about Scudero and Fariello’s safety, Pyne asked them to leave the building. (Tr. 51-52) Pyne then addressed the assembled employees and promised them that she would conduct an investigation and take corrective action if appropriate. (Tr. 52-53)

Pyne commenced her investigation immediately, and she interviewed 33 employees over the next two weeks. (Tr. 87; Px 23) She began her investigation by speaking with Scudero and Fariello, and then interviewed recipients of the dolls as well as Hotel employees who had seen or might have seen the doll pinned to Fariello’s bulletin board. (Tr. 87) Pyne took notes at each interview, and then prepared a written memorandum for each interview. (Tr. 56; Px 23) Pyne concluded that some employees were offended by the voodoo doll display, while others were not. (Tr. 55, 133) All of the employees who were offended were minorities. (Tr. 55)

The Hotel took several steps as a result of this incident. The General Manager issued a letter of apology to all employees and stated that harassment of any sort would not be tolerated at the hotel. (Dx CC; Tr. 133) When Scudero — who was on paid leave while the investigation was pending — returned to work, he gave a public apology to the Hotel’s employees. The Hotel also offered “dignity-at-work” training after this incident. (Tr. 81-82, 133, 260)

No one was disciplined or terminated as a result of the voodoo doll incident, however. (Tr. 81-82, 132-33, 260) Scudero returned to his position as Director of Property Operations, and he testified that “no one from the hotel” ever told him that he had done anything wrong in displaying the voodoo doll. (Tr. 81, 260)

B. The June 2009 Luis Sierra Incident

On June 22, 2009, while sitting at a desk in the Engineering Department office, McMillan overheard Hotel co-worker Luis Sierra repeatedly use the word “nigger” in the hallway outside. (Tr. 196, 390; Dx Q) Sierra then entered the Engineering Department office, and he continued to say “N this and N that.” (Tr. 390) McMillan told Sierra, “give me a break,” and Sierra patted him on the shoulder and said, “Ok man, Ok.” (Tr. 196) McMillan was “very upset” about the incident and immediately reported it to the Human Resources Department. (Tr. 196, 386) Robert Lafferty, who was then Director of Human Resources, conducted an investigation. (Tr. 386; Dx Q)

Lafferty asked McMillan to prepare a written statement. (Tr. 389-91) Because McMillan had identified Izlau Chin, an Engineering Department employee, as a witness to Sierra’s conduct, Lafferty “immedi*554ately” contacted her. (Tr. 391, 401) Chin told Lafferty that although she did not hear Sierra use the' word “nigger,” she overheard McMillan say, “I would appreciate it if you didn’t use that word.” McMillan then entered Chin’s office and said, “sometimes I really hate working here.” (Tr. 392; Dx Q) Lafferty asked Chin to prepare a written statement. (Tr. 392)

The following day, Chin provided a written statement to Lafferty. (Dx Q; Tr. 393) Chin’s written statement did not include McMillan’s alleged remark to Sierra that he “would appreciate it if you didn’t use that word.” (Dx Q; Tr. 393) Lafferty noted the omission and asked Chin to explain. (Dx Q; Tr. 393) Chin responded that she was not certain that McMillan had made that statement and, accordingly, she had omitted it from her written account. (Dx Q; Tr. 394)

Because McMillan had told Lafferty that Sierra’s misconduct had taken place at about 3:45 during a shift change- — when employees were punching in and out— Lafferty obtained time cards in an attempt to identify possible witnesses. (Tr. 387-88) Lafferty then interviewed all employees who punched in or out around the time of the alleged incident. (Dx Q; Tr. 387, 395) Lafferty interviewed nine employees in total, and took contemporaneous notes during the interviews. (Tr. 387, 395; Dx Q) None of the employees corroborated McMillan’s allegations. (Tr. 396; Dx Q) Lafferty also interviewed Sierra, who denied using the word “nigger” on June 22, 2009, or on any other occasion at the Hotel. (Dx Q) At the end of his investigation, Lafferty prepared a report concluding that McMillan’s allegation was not corroborated. Lafferty shared a one-page summary of his report with McMillan and advised him that his allegation had not been corroborated. (Tr. 387, 396; Dx Q) Lafferty told McMillan that if he wished to submit any additional evidence, Lafferty would be happy to consider it. ' (Tr. 397)

C. McMillan’s Damages Evidence

Because McMillan remained employed in the Hotel’s Engineering Department throughout the pendency of this litigation, he asserted no claim for economic damages. Instead, he sought damages for alleged emotional distress and punitive damages.

McMillan’s evidence concerning emotional distress was quite limited. He testified that he found working in the Engineering Department “horrible,” but otherwise did not testify about any emotional distress he suffered. (Tr. 185) When asked by his counsel how Scudero’s conduct “made you feel,” McMillan merely said that “[i]t made me feel like Tom was being racist against me for no particular reason.” (Tr. 201)

McMillan’s daughter testified that her father “was always sad” when he was working under Scudero, and that he felt that no one believed his complaints of discrimination or listened to him. (Tr. 301) She explained that after Scudero became his supervisor, McMillan “changed his temperament,” “wasn’t as happy anymore,” and “wasn’t his same self.” (Tr. 301-02) McMillan told his daughter on several occasions that he would prefer to work in the Housekeeping Department. (Tr. 302) Foster testified that “it was hard” for McMillan to work in the Engineering Department and that he had “watched [McMillan] constantly going through all the stress.” (Tr. 154, 156) McMillan told Foster that the voodoo doll incident was “very detrimental to me.” (Tr. 156)

The jury found that McMillan proved all elements of his-racial harassment hostile *555work environment claims under Title VII, Section 1981, and the NYCHRL, and that the Hotel had not proven its affirmative defense to McMillan’s claims. The jury awarded McMillan $125,000 in compensatory damages for emotional distress and $1 million in punitive damages. (Tr. 516)

DISCUSSION

I. DEFENDANT IS NOT ENTITLED TO JUDGMENT AS A MATTER OF LAW

A. Standard of Review

The Hotel seeks judgment as a matter of law with respect to McMillan’s hostile work environment claim. (Def. Br. 3-16) The standard for granting judgment as a matter of law under Fed.R.Civ.P. 50 is “well established”:

Judgment as a matter of law may not properly be granted under Rule 50 unless the evidence, viewed in the light most favorable to the opposing party, is insufficient to permit a reasonable juror to find in her favor. In deciding such a motion, the court must give deference to all credibility determinations and reasonable inferences of the jury, and it may not itself weigh the credibility of witnesses or consider the weight of the evidence. Thus, judgment as a matter of law should not be granted unless

(1) there is such a complete absence of evidence supporting the verdict that the jury’s findings could only have been the result of sheer surmise and conjecture, or

(2) there is such an overwhelming amount of evidence in favor of the movant that reasonable and fair minded [persons] could not arrive at a verdict against [it].

Galdieri-Ambrosini v. Nat’l Realty & Dev. Corp., 136 F.3d 276, 288 (2d Cir.1998) (internal citations omitted); see also Brady v. Wal-Mart Stores, Inc., 531 F.3d 127, 133-34 (2d Cir.2008) (same). The Second Circuit has noted that a party moving for judgment as a matter of law “faces a high bar.” Lavin-McEleney v. Marist Coll., 239 F.3d 476, 479 (2d Cir.2001).

B. Analysis

To prevail on a hostile work environment claim under Title VII and Section 1981, a plaintiff must demonstrate that (1) he was a member of a protected class; (2) he was subjected to harassment, either through words or actions, based on his membership in that protected class; (3) the harassment was sufficiently severe or pervasive to alter the conditions of employment and create an abusive work environment; and (4) there is a specific basis for imputing the conduct creating a hostile work environment to the employer. See Alfano v. Costello, 294 F.3d 365, 374 (2d Cir.2002); Payne v. Malemathew, No. 09-CV-1634(CS), 2011 WL 3043920, at *3 (S.D.N.Y. July 22, 2011); Early v. Wyeth Pharm., Inc., 603 F.Supp.2d 556, 578 (S.D.N.Y.2009). The jury was so instructed (Tr. 473-74), and the Hotel has not challenged the Court’s charge.

To prevail on a hostile work environment claim under the NYCHRL, a plaintiff must demonstrate that (1) he was a member of a protected class; (2) he was subjected to harassment, either through words or actions, based on his membership in that protected class; (3) he was treated less well than other employees because of his membership in that protected class; and (4) there is a specific basis for imputing the conduct creating a hostile work environment to the employer. See Zhao v. Time, Inc., No. 08 Civ. 8872(PAC), 2010 WL 3377498, at *22 (S.D.N.Y. Aug. 24, 2010); Zambrano-Lamhaouhi v. New York City Bd. of Educ., 866 F.Supp.2d 147, 161, No. 08-CV3140(NGG)(RER), 2011 *556WL 5856409, at *9 (E.D.N.Y. Nov. 21, 2011) (quoting Williams v. New York City Hous. Auth., 61 A.D.3d 62, 73-78, 872 N.Y.S.2d 27 (1st Dept.2009)); Kaur v. New York City Health and Hospitals Corp., 688 F.Supp.2d 317, 339-40 (S.D.N.Y.2010); Zakrzewska v. The New School, 14 N.Y.3d 469, 477, 902 N.Y.S.2d 838, 928 N.E.2d 1035 (2010); see also Fleming v. Max-Mara USA, Inc., 644 F.Supp.2d 247, 268 (E.D.N.Y.2009). The jury was instructed in accordance with this standard (Tr. 479), and the Hotel has not challenged the Court’s instructions.

The Hotel argues that it is entitled to judgment as a matter of law because (1) there is no evidence that McMillan experienced anything more than sporadic and isolated incidents of alleged harassment; (2) there is no evidence that McMillan was subjected to discrimination because of his race; (3) the Hotel proved its affirmative defense under federal law by demonstrating that it had an anti-harassment policy in place and that it took prompt action in response to discrimination allegations; and (4) the Hotel proved its affirmative defense under the NYCHRL by demonstrating that the alleged conduct constituted nothing more than isolated petty slights and trivial inconveniences. The Court concludes that there is sufficient evidence to support the jury’s findings on each of these issues.

With respect to the Hotel’s first argument — that McMillan suffered no more than sporadic and isolated incidents of harassment — there was sufficient evidence to support the jury’s determination that McMillan was subjected to harassment that was sufficiently severe or pervasive to alter the conditions of his employment and create an abusive work environment. The Court gave the following instruction to the jury concerning this element:

... Mr. McMillan must prove by a preponderance of the evidence that the harassment unreasonably interfered with his work performance and created an intimidating, hostile, or offensive work environment. Workplace conduct is not measured in isolation in this regard. Rather, Mr. McMillan must demonstrate either that a single incident was extraordinarily severe or that a series of incidents were sufficiently continuous and concerted to have altered the conditions of his working environment. Mr. McMillan must show that his workplace was permeated with discriminatory intimidation, ridicule, and insult that was sufficiently severe or pervasive to alter the conditions of his employment and create an abusive working environment.

In determining whether Mr. McMillan has satisfied this element, you should look to all the circumstances, including the frequency of the alleged discriminatory conduct, its severity, whether it was physically threatening or humiliating, or a mere offensive utterance, and whether the discriminatory conduct unreasonably interfered with Mr. McMillan’s performance of his work. Generally, incidents must be more than episodic: they must be sufficiently continuous and concerted in order to be deemed pervasive. However, a single incident of harassment may give rise to a hostile work environment claim if it is very serious — that is, if, by itself, it can and does work a transformation of the plaintiffs workplace.

Mr. McMillan need not show psychological injury, but he must show that he perceived the environment to be abusive and that a reasonable person would find the working environment to be hostile or abusive. In other words, Mr. McMillan must meet both an objective and subjective test. The conduct must be severe *557or pervasive enough to create an objectively hostile or abusive work environment, and Mr. McMillan must also have subjectively perceived the environment to be abusive.

(Tr. 474-76)

“[I]n all cases, juries are presumed to follow the court’s instructions.” CSX Transp., Inc. v. Hensley, 556 U.S. 838, 841, 129 S.Ct. 2139, 173 L.Ed.2d 1184 (2009) (citing Greer v. Miller, 483 U.S. 756, 766 n. 8, 107 S.Ct. 3102, 97 L.Ed.2d 618 (1987)). Here, the jury was entitled to find that the display of the voodoo doll — which deeply offended McMillan and many of his coworkers, some of whom found the display evocative of lynchings of black men — was serious enough to work a transformation of McMillan’s workplace. The jury was likewise entitled to find that the voodoo doll display — a black-faced doll hung by what some employees took to be a noose — was exceedingly severe and sufficient, in and of itself, to create a hostile work environment.9

The Hotel next argues that there was no evidence that McMillan was subjected to harassment because of his race. On this element, the jury was instructed that, to prevail on his Title VII and Section 1981 claims, “Mr. McMillan must prove that he was the subject of harassment and that this harassment was based on his race. ... The harassment must ... have been motivated by the plaintiffs race. This means that Mr. McMillan must prove beyond a preponderance of the evidence that the conduct occurred because of his race.” (Tr. 474) (emphasis added) With respect to McMillan’s NYCHRL claim, the Court instructed the jury that McMillan had to prove that he “was subject to harassment, either through words or actions, based on his membership in [a] protected class.”10 (Tr. 479) (emphasis added)

To a great extent, the outcome of the trial turned on the jury’s conclusions regarding Scudero’s intent in pinning the voodoo doll to the bulletin board. The issue of intent in a discrimination case presents a classic jury question. See Pern*558rick v. Stracher, 67 F.Supp.2d 149, 168 (E.D.N.Y.1999) (“the issue of intent usually is a jury question”); see also Papalia v. Milrose Consultants, Inc., No. 09 Civ. 9257(NRB), 2011 WL 6937601, at *7 (S.D.N.Y. Dec. 29, 2011) (“The Second Circuit has ‘repeatedly emphasized “the need for caution about granting summary judgment to an employer in a discrimination case where ... the merits turn on a dispute as to the employer’s intent.” ’ ”) (quoting Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 101 (2d Cir.2010) (quoting Holcomb v. Iona Coll., 521 F.3d 130, 137 (2d Cir.2008))).

In displaying a black-faced voodoo doll on an Engineering Department bulletin board — hanging by a string wrapped around the doll’s neck — Scudero chose to exhibit what McMillan and other minority employees regarded as an extremely inflammatory racial symbol. Although Scudero offered an explanation for the display that was not race-based (Tr. 271-72), the jury was free to reject that explanation. Zellner v. Summerlin, 494 F.3d 344, 371 (2d Cir.2007) (in ruling on a motion for judgment as a matter of law, “the court must bear in mind that the jury is free to believe part and disbelieve part of any witness’s testimony”). Moreover, the jury was entitled to consider McMillan’s testimony that he had indicated to Scudero that he was offended by the voodoo dolls, but that Scudero nonetheless decided to hang one of the dolls on an Engineering Department bulletin board. The jury was also entitled to consider Paray’s statement to McMillan that the doll represented McMillan.

In determining whether the Hotel had acted with discriminatory intent, the jury was also permitted to consider the repeated use of derogatory racial remarks by McMillan’s coworkers in the Engineering Department, as well as the adequacy of the Hotel’s response to those incidents. (Tr. 466-67) See Shub v. Westchester Cnty. Coll, 556 F.Supp.2d 227, 242 (S.D.N.Y. 2008) (permitting plaintiff to introduce as background evidence events that were the subject of a general release, noting that “[ajlthough plaintiff relies on events prior to 1999 to establish a background for defendants’ retaliatory intentions and conduct, the general release does not prohibit him from doing such”); Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 176 (2d Cir.2005) (“evidence of an earlier alleged retaliatory act may constitute relevant ‘background evidence in support of [a] timely claim’ ”) (quoting National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002)).

In sum, the Hotel has not demonstrated either that there is a “complete absence of evidence supporting the verdict” or that “there is such an overwhelming amount of evidence in [its] favor ... that reasonable and fair minded [persons] could not arrive at a verdict against [it].” Fed.R.Civ.P. 50.

The Hotel also argues that the jury was required to accept its affirmative defenses. (Def. Br. 13) The Court instructed the jury that under Title VII and Section 1981 the Hotel made out an affirmative defense if it proved by a preponderance of the evidence that “(1) it exercised reasonable care to prevent and promptly correct any racial harassment by its supervisors or employees; and (2) Mr. McMillan unreasonably failed to avail himself of any corrective or preventative opportunities provided by the hotel, or to avoid harm otherwise.” (Tr. 477; see Petrosino v. Bell Atlantic, 385 F.3d 210, 225 (2d Cir.2004)) As to McMillan’s NYCHRL claim, the jury was instructed that the Hotel made out an affirmative defense if it “provefd] by a preponderance of the evidence that the racial harassment experi*559enced by Mr. McMillan constituted nothing more than what a reasonable victim of discrimination would consider petty slights and trivial inconveniences.” (Tr. 482; see Williams, 61 A.D.3d at 79-80, 872 N.Y.S.2d 27)

Although there was evidence that the Hotel’s Human Resources Department conducted lengthy investigations of the voodoo doll incident and the Sierra incident (Tr. 86-131; Dx W; Tr. 386-99; Dx Q, R), no employee was terminated or sanctioned in any fashion for either incident. (Tr. 81-82, 132) Indeed, Pyne testified — as to the voodoo doll incident — that the Hotel never concluded that “anyone had done something wrong.” (Tr. 132) The jury could have found that the Hotel’s response to McMillan’s complaints of racial harassment was not appropriate or adequate under the circumstances. Moreover, as to McMillan’s NYCHRL claim, the jury could have concluded that the display of the voodoo doll was not a “petty slight or trivial inconvenience.” In sum, this Court cannot find that the Hotel made out its affirmative defenses as a matter of law.

The Hotel’s motion for judgment as a matter of law will be denied.

II. REMITTITUR OF THE COMPENSATORY AND PUNITIVE DAMAGE AWARDS

A. Standard of Review

“When a trial court finds a damage verdict to be excessive, it may order a new trial on all issues or only on the question of damages. Alternatively, the court may grant remittitur.... ” Iannone v. Frederic R. Harris, Inc., 941 F.Supp. 403, 411 (S.D.N.Y.1996) (citations omitted).

“ ‘Remittitur is the process by which a court compels a plaintiff to choose between a reduction of an excessive verdict and a new trial.’ ” Chisholm v. Memorial Sloan-Kettering Cancer Center, 824 F.Supp.2d 573, 579 (S.D.N.Y.2011) (quoting Thomas v. iStar Financial, Inc., 508 F.Supp.2d 252, 257 (S.D.N.Y.2007)).

“Remittitur is appropriate to reduce verdicts only in cases ‘in which a properly instructed jury hearing properly admitted evidence nevertheless makes an excessive award.’” Werbungs Und Commerz Union Austalt v. Collectors’ Guild, Ltd., 930 F.2d 1021, 1027 (2d Cir.1991) (citing Shu-Tao Lin v. McDonnell Douglas Corp., 742 F.2d 45, 50 (2d Cir.1984)). “A remittitur, in effect, is a statement by the court that it is shocked by the jury’s award of damages.” Ismail v. Cohen, 899 F.2d 183, 186 (2d Cir.1990).

B. Compensatory Damage Award

Arguing that McMillan suffered no more than “garden-variety” emotional distress, the Hotel asserts that the jury’s award of $125,000 in emotional distress damages is excessive and should be remitted to no more than $10,000. (Def. Br. 16)

“‘While it is properly within the province of the jury to calculate damages, there is “an upper limit, and whether that has been surpassed is not a question of fact with respect to which reasonable [persons] may differ, but a question of law.” ’ ” Dotson v. City of Syracuse, No. 5:04-CV-1388(NAM)(GJD), 2011 WL 817499, at *13 (N.D.N.Y. Mar. 2, 2011) (quoting Khan v. Hip Centralized Lab. Sens., Inc., No. CV-03-2411(DGT), 2008 WL 4283348, at *6 (E.D.N.Y. Sept. 17, 2008) (citations omitted)). “ ‘[A] jury has broad discretion in measuring damages, but it may not abandon analysis for sympathy for a suffering plaintiff and treat an injury as thought it were a winning lottery ticket.’ ” Id. (quoting Khan, 2008 WL 4283348, at *6). “Importantly, in caleulat*560ing the remittitur, the court must use the ‘least intrusive’ — and ‘most faithful to the jury’s verdict’ — method of ‘reducing] the verdict only to the maximum that would be upheld by the trial court as not excessive.’ ” Anderson Group, LLC v. City of Saratoga, No. 1:05-cv-1368(GLS)(DRH), 2011 WL 2472996, at *8 (N.D.N.Y. June 21, 2011) (quoting Earl v. Bouchard Transp. Co., Inc., 917 F.2d 1320, 1328-30 (2d Cir.1990)). To determine whether an award is so high as to “shock the'judicial conscience,” the Court must “ ‘consider[ ] ... the amounts awarded in other, comparable cases.’ ” DiSorbo v. Hoy, 343 F.3d 172, 183 (2d Cir.2003) (quoting Mathie v. Fries, 121 F.3d 808, 813 (2d Cir.1997)). A court should determine whether the award is “within a reasonable range,” not just “balance the number of high and low awards and reject the verdict in the instant case if the number of lower awards is greater.” Ismail, 899 F.2d at 187.

A compensatory award for emotional distress in a discrimination action may be based on testimonial evidence alone and “is not preconditioned on whether [the plaintiff] underwent treatment, psychiatric or otherwise.” Jowers v. DME Interactive Holdings, Inc., No. 00 Civ. 4753(LTS)(KNF), 2006 WL 1408671, at *3, *12 (S.D.N.Y. May 22, 2006). Damages for emotional distress, however, cannot be assumed simply because discrimination has occurred. See, e.g., Lopes v. Caffe Centrale LLC, 548 F.Supp.2d 47, 55 (S.D.N.Y.2008) (“[Plaintiff] must prove his entitlement to compensatory damages.”) (citing Fowler v. New York Transit Auth., No. 96 Civ. 6796(JGK), 2001 WL 83228, at *10 (S.D.N.Y. Jan. 31, 2001) (“ ‘[Compensatory damages must be proven and not presumed.’ ”) (citation omitted)).

“Emotional distress awards within the Second Circuit can ‘generally be grouped into three categories of claims: “garden-variety,” “significant” and “egregious.” ’ In ‘garden variety’ emotional distress claims, ‘the evidence of mental suffering is generally limited to the testimony of the plaintiff, who describes his or her injury in vague or conclusory terms, without relating either the severity or consequences of the injury.’ Such claims typically ‘lack[] extraordinary circumstances’ and are not supported by any medical corroboration.” Olsen v. County of Nassau, 615 F.Supp.2d 35, 46 (E.D.N.Y.2009) (internal citations omitted).

“ ‘Significant’ emotional distress claims ‘differ from the garden-variety claims in that they are based on more substantial harm or more offensive conduct, are sometimes supported by medical testimony and evidence, evidence of treatment by a healthcare professional and/or medication, and testimony from other, corroborating witnesses.’ ” Id. (quoting Khan, 2008 WL 4283348, at *11). “Finally, ‘egregious’ emotional distress claims ‘generally involve either “outrageous or shocking” discriminatory conduct or a significant impact on the physical health of the plaintiff.’ ” Id. (quoting Khan, 2008 WL 4283348, at *12). “In ‘significant’ or ‘egregious’ cases, where there is typically evidence of ‘debilitating and permanent alterations in lifestyle,’ larger damage awards may be warranted.” Id. (citation omitted).

“Of course, a court is not required to remit a large non-economic damage award, even where evidence of emotional damage consists solely of plaintiffs testimony.” Mendez v. Starwood Hotels & Resorts Worldwide, Inc., 746 F.Supp.2d 575, 601 (S.D.N.Y.2010) (citing Osorio v. Source Enterprises, Inc., No. 05 Civ. 10029(JSR), 2007 WL 683985 (S.D.N.Y. Mar. 2, 2007)). “However, when a court is convinced that the jury’s award is entirely *561out of proportion to the plaintiffs injury, and was motivated by sympathy rather than by evidence of harm, remittitur is the appropriate remedy.” Id.

Here, Plaintiff offered very little evidence of emotional distress. Indeed, McMillan himself did not offer any testimony concerning his emotional distress, testifying only that working for Scudero in the Engineering Department had been “horrible.” (Tr. 185) There is no evidence that McMillan ever sought medical or psychological treatment, that he missed work, that he had any difficulty sleeping, that he lost his appetite, or that his alleged emotional distress had any physical manifestation or disrupted other aspects of his daily life. He remained at work throughout the period of alleged discriminatory acts.

McMillan’s daughter’s testimony was only marginally more descriptive: she testified that while working under Scudero, her father “was always sad” (Tr. 301), “wasn’t as happy anymore” (Tr. 301), and “wasn’t his same self.” (Tr. 302) She stated that McMillan’s temperament changed. (Tr. 301) Foster testified that “it was hard” for McMillan to work under Scudero (Tr. 154), and that he “watched [McMillan] constantly going through all the stress.” (Tr. 156)

Such evidence, at best, demonstrates “garden variety” emotional distress. To the very limited extent that McMillan described his injury, he did so in “vague or conclusory terms” without “relating] either the severity or consequences of the injury.” His claims were likewise “not supported by any medical corroboration.” Olsen, 615 F.Supp.2d at 46.

In the Second Circuit, ‘“[gjarden variety’ emotional distress claims ‘generally merit $30,000 to $125,000 awards.’ ” Id.; see also Lore v. City of Syracuse, 670 F.3d 127, 177 (2d Cir.2012) (“This Court has ... affirmed awards of $125,000 each to plaintiffs for emotional distress resulting from age discrimination where the evidence of emotional distress consisted only of ‘testimony establishing shock, nightmares, sleeplessness, humiliation, and other subjective distress.’ ... [W]e [have previously] rejected [a] defendant’s contention that those damage awards, for ‘garden variety emotional distress claims,’ ‘should have been reduced to between $5,000 and $30,-000.’ ”) (citations omitted); Patterson v. Balsámico, 440 F.3d 104, 120 (2d Cir.2006) (upholding the jury’s $100,000 compensatory damages award where “the plaintiff offered testimony of his humiliation, embarrassment, and loss of self-confidence, as well as testimony relating to his sleeplessness, headaches, [and] stomach pains”); Meacham v. Knolls Atomic Power Laboratory, 381 F.3d 56 (2d Cir.2004) (upholding award of $125,000 for “subjective distress”), vacated on other grounds sub nom. KAPL, Inc. v. Meacham, 544 U.S. 957, 125 S.Ct. 1731, 161 L.Ed.2d 596 (2005); DeCurtis v. Upward Bound Int’l, Inc., No. 09 Civ. 5378(RJS), 2011 WL 4549412, at *4 (S.D.N.Y. Sept. 27, 2011) (“A review of the relevant case law in this jurisdiction reveals that plaintiffs with garden-variety claims generally receive between $30,000 and $125,000.”); Dotson, 2011 WL 817499, at *15 (“Where emotional distress encompasses humiliation, shame, shock, moodiness and being upset but is devoid of any medical treatment or physical manifestation, it is considered to be ‘garden variety.’ ‘Garden variety’ emotional distress claims generally merit $30,000 to $125,000 awards.”).

Where a plaintiff offers only sparse evidence of emotional distress, however, courts have reduced such awards to as little as $10,000. See, e.g., Mendez, 746 F.Supp.2d at 601 (remitting jury’s award of $1 million in compensatory damages for employer’s act of retaliation — namely, in*562stalling a hidden camera above the employee’s work station — to $10,000, where there was no evidence the employee suffered any significant damage because of the installation of the camera and where plaintiff “did not attribute depression, anxiety or any other indicium of non-economie damage to the presence of the camera”); Reiter v. Metro. Transp. Auth. of New York, No. 01 Civ. 2762(JGK), 2003 WL 22271223 (S.D.N.Y. Sept. 30, 2003) (reducing award from $140,000 to $10,000, where plaintiff was transferred to a job in a less desirable department but retained the same salary); Fowler, 2001 WL 83228, at *13 (reducing emotional distress award from $50,000 to $25,000, where the plaintiff “did not present any evidence detailing the duration or magnitude of his emotional injuries, nor did he present evidence of medical or psychological treatment”); Kim v. Dial Service Int’l, Inc., No. 96 Civ. 3327(DLC), 1997 WL 458783, at *13-14 (S.D.N.Y. Aug. 11, 1997) (reducing $300,000 emotional distress award to $25,000 “given the sparse evidence introduced at trial regarding the plaintiffs mental anguish”); McIntosh v. Irving Trust Co., 887 F.Supp. 662 (S.D.N.Y.1995) (reducing $219,428 emotional distress award in discrimination action to $20,000).

Given the conclusory nature of McMillan’s and his daughter’s testimony and the lack of any supporting detail or specific examples of emotional injuries suffered by McMillan, the Court finds that the evidence warrants only a modest award of emotional distress damages. In surveying the case law in this Circuit, research has revealed no case in which an emotional distress award of $125,000 has been sustained in a discrimination action on such limited evidence.

The cases cited by McMillan in support of the jury’s award (Pltf. Opp. Br. 16-17) are distinguishable. For example, in Mugavero v. Arms Acres, Inc., 680 F.Supp.2d 544 (S.D.N.Y.2010), the plaintiff “testified that her emotional distress from being terminated had specific consequences in the form of increased anxiety and insomnia ... and provided corroborating medical evidence.” Id at 578. Moreover, this Court found that “the conduct ... went far beyond typical discipline imposed in the workplace, and threatened Plaintiffs ability to earn a living and practice her profession.” Id. Accordingly, the Court determined that “[gjiven that [plaintiffs former supervisor’s] action was ‘more offensive conduct’ than is commonly seen in a ‘garden-variety’ case, neither the emotional distress award of $100,000 for Mugavero’s termination nor the total emotional distress award of $175,000 [representing emotional distress damages of $100,000 for her termination and $75,000 for the supervisor’s bad faith request to the Office of Professional Discipline to investigate plaintiff] shocks the conscience or is excessive.” Id.

Similarly, in Patterson — in which the Second Circuit held that the district court did not abuse its discretion in declining to grant a remittitur of a $100,000 emotional distress award — the plaintiff “offered testimony of his humiliation, embarrassment, and loss of self-confidence, as well as testimony relating to his sleeplessness, headaches, [and] stomach pains .... ” 440 F.3d at 120. Likewise, in Olsen, the plaintiffs offered specific evidence of emotional injuries. For example, one plaintiff testified that the discrimination she suffered caused her to become “very ‘stressed’ and ‘anxious’ about what would happen next at work ... which carried over into her personal life. [The plaintiff testified that she] began to have less patience for her husband and her children and would arrive home from work ‘very annoyed’ and ‘aggravated.’ ” 615 F.Supp.2d at 47. Another plaintiff testi*563fied that she had experienced physical manifestations of her emotional distress, including “ ‘pains running down her arm’ as well as ‘pains in her chest,’ fatigue and sleeplessness that caused her to consult her physician out of fear that she was suffering a heart attack.” Id.

The evidence in these cases is not comparable to what was offered here. McMillan “did not present either the quality or quantity of evidence” necessary to support a $125,000 award. Kim, 1997 WL 458783, at *14. Given the absence of substantial evidence of emotional distress, the Court finds that an award of $30,000 constitutes “the maximum that [can] be upheld ... as not excessive.” Anderson, 2011 WL 2472996, at *8.

Accordingly, the Hotel’s motion for a new trial concerning compensatory damages will be granted unless McMillan agrees to a remittitur reducing the compensatory damage award from $125,000 to $30,000.

C. Punitive Damage Award

The Hotel argues that the Court must vacate or remit the jury’s $1 million punitive damage award because (1) the evidence was insufficient to justify punitive damages, and (2) the award is, in any event, constitutionally excessive. (Def. Br. 19-23)

1. Standard for Punitive Damages

Punitive damages are available under both federal law and the NYCHRL. Farias v. Instructional Sys., Inc., 259 F.3d 91, 101 (2d Cir.2001) (citing 42 U.S.C. § 1981a(b)(1); N.Y. City Admin. Code § 8-502(a)). A plaintiff is not entitled to punitive damages under Title VII unless the employer “ ‘engaged in intentional discrimination ... “with malice or with reckless indifference to the federally protected rights of an aggrieved individual.” ’ ” Zimmermann v. Assoc. First Capital

Corp., 251 F.3d 376, 384 (2d Cir.2001) (quoting Kolstad v. Am. Dental Ass’n, 527 U.S. 526, 529-30, 119 S.Ct. 2118, 144 L.Ed.2d 494 (1999)). A “positive element of conscious wrongdoing” is required. Kolstad, 527 U.S. at 529-30,119 S.Ct. 2118 (1999) (quoting 42 U.S.C. § 1981a(b)(1)). “Direct evidence that an employer acted with knowledge that the discrimination ... violated federal law is not required; rather, the requisite state of mind may be inferred from the circumstances.” Manzo v. Sovereign Motor Cars, Ltd., No. 08-CV-1229(JG)(SMG), 2010 WL 1930237, at *2 (E.D.N.Y. May 11, 2010) (citing Zimmermdnn, 251 F.3d at 385 (general training in equal opportunity protocol and hiring practices is sufficient to infer awareness of Title VII requirements); Hill v. Airborne Freight Corp., 212 F.Supp.2d 59, 76 (E.D.N.Y.2002) (“Arguably, it was reasonable for the jury to infer that [defendant’s] managers knew that their actions were in violation of federal law simply by virtue of the well-established Supreme Court case law on discrimination and retaliation, the long[-]standing schemes proscribing such conduct, the size of [defendant’s company], and the common knowledge in today’s society that employment discrimination is impermissible.”)). “ ‘As an alternative to proving that the defendant knew it was acting in violation of federal law, “[e]gregious or outrageous acts may serve as evidence supporting an inference of the requisite evil motive.” ’ ” Hill, 212 F.Supp.2d at 75 (quoting Kolstad, 527 U.S. at 538, 119 S.Ct. 2118).

The NYCHRL “ ‘does not provide a standard to use in assessing whether [punitive] damages are warranted.’ ” Farias, 259 F.3d at 101. Accordingly, the Second Circuit has determined that “the federal standard applies to claims for punitive damages under the [NYCHRL].” Id.

*564The jury was properly instructed in accordance with this standard, and the Hotel does not challenge the Court’s charge. Instead, the Hotel argues that the evidence was insufficient to support any punitive damage award. In the alternative, the Hotel argues that the award is excessive.

The Court will not disturb the jury’s determination that punitive damages were warranted in this action. Given McMillan’s objection to the dolls, the inflammatory nature of the voodoo doll display, and the Hotel’s failure to impose any disciplinary sanction in connection with this incident, a rational jury could find that the Hotel acted with reckless indifference to McMillan’s protected rights. See Cruz v. Henry Modell & Co., Inc., No. CV 05-1450(AKT), 2008 WL 905356, at *9 (E.D.N.Y. Mar. 31, 2008) (“Punitive damages have been awarded in a variety of discrimination cases based on the general reprehensible nature of the discriminatory conduct.”); Colbert v. Furumoto Realty, Inc., 144 F.Supp.2d 251, 258 (S.D.N.Y.2001) (“We fail to see how racial discrimination is not sufficiently reprehensible to warrant a punitive damages award.”). Moreover, at the time of the voodoo doll incident, the Hotel had a policy against racial discrimination in place, which was distributed during new employee orientation and posted on bulletin boards within the Hotel, such that a rational jury could infer from these circumstances that Scudero knew that his actions violated McMillan’s rights. (Tr. 84-85) See Zimmermann, 251 F.3d at 385 (general training in equal opportunity protocol and hiring practices is sufficient to infer awareness of Title VII requirements); see also Hill, 212 F.Supp.2d at 76.

2. Excessiveness Inquiry

“Regarding the magnitude of punitive damage awards, due process requires that they be ‘ “reasonable in their amount and rational in light of their purpose to punish what has occurred and to deter its repetition.” ’ ”11 Hill, 212 F.Supp.2d at 75 (quoting Vasbinder v. Scott, 976 F.2d 118, 121 (2d Cir.1992) (quoting Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 21, 111 S.Ct. 1032, 113 L.Ed.2d 1 (1991))). In determining whether a punitive damage award is excessive, courts must consider the “guideposts” cited by the Supreme Court in BMW of North Am., Inc. v. Gore, 517 U.S. 559, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996), including “(1) the degree of reprehensibility of the tortious conduct, (2) the ratio of punitive damages to compensatory damages, and (3) the difference between this remedy and the civil penalties authorized or imposed in comparable cases.”12 Lee v. Edwards, 101 F.3d 805, 809 (2d Cir.1996) (citing Gore, 517 U.S. at 575, 116 S.Ct. 1589).

The Supreme Court has noted that “[p]erhaps the most important indicium of the reasonableness of a punitive damages award is the degree of reprehensibility of the defendant’s conduct.” Gore, 517 U.S. at 575, 116 S.Ct. 1589. Courts determine the reprehensibility of a defendant’s conduct by considering whether

*565the harm caused was physical as opposed to economic; the tortious conduct evinced an indifference to or a reckless disregard of the health or safety of others; the target of the conduct had financial vulnerability; the conduct involved repeated actions or was an isolated incident; and the harm was the result of intentional malice, trickery, or deceit, or mere accident.

State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 419, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003) (citation omitted); see also Gore, 517 U.S. at 576, 116 S.Ct. 1589 (“ ‘nonviolent crimes are less serious than crimes marked by violence or the threat of violence.’ Similarly, ‘trickery and deceit’ are more reprehensible than negligence.”) (citations omitted); Norris v. New York City Coll. of Tech., No. 07-CV-853, 2009 WL 82556, at *7 (E.D.N.Y. Jan. 14, 2009) (“Factors bearing on the degree of reprehensibility include ‘(1) whether a defendant’s conduct was violent or presented a threat of violence, (2) whether a defendant acted with deceit or malice as opposed to acting with mere negligence, and (3) whether a defendant has engaged in repeated instances of misconduct.’ ”) (quoting Lee, 101 F.3d at 809 (citing Gore, 517 U.S. at 575-77, 116 S.Ct. 1589)). “The existence of any one of these factors weighing in favor of a plaintiff may not be sufficient to sustain a punitive damages award; and the absence of all of them renders any award suspect.” State Farm, 538 U.S. at 419, 123 S.Ct. 1513. “[P]unitive damages ‘should reflect the enormity of [a defendant’s] offense.’ ” Lee, 101 F.3d at 809 (quoting Gore, 517 U.S. at 575, 116 S.Ct. 1589).

With respect to the ratio of punitive damages to compensatory damages, the Supreme Court has “been. reluctant to identify concrete constitutional limits on the ratio between harm, or potential harm, to the plaintiff and the punitive damages award.” State Farm, 538 U.S. at 424, 123 S.Ct. 1513 (citations omitted). However, the Court has noted that “[o]ur jurisprudence and the principles it has now established demonstrate ... that, in practice, few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process.” Id. at 425, 123 S.Ct. 1513.

Even when the “punitive award is not beyond the outer constitutional limit marked out ... by the Gore guideposts,” a court must separately determine whether the award is “so high as to shock the judicial conscience and constitute a denial of justice.” Mathie, 121 F.3d at 816-17. In determining whether a punitive damages award is excessive, a court must “keep in mind the purpose of punitive damages: ‘to punish the defendant and to deter him and others from similar conduct in the future.’ ” Lee, 101 F.3d at 809 (2d Cir.1996) (citation omitted). The Second Circuit has instructed that the ex-cessiveness inquiry for punitive damages, as for compensatory damages, “requires comparison with awards approved in similar cases.” Mathie, 121 F.3d at 817. Lower courts have noted, however, that “comparing punitive damage awards in other cases where employers were found liable for discrimination ... is of limited utility because a wide range of awards have been upheld.” Hill, 212 F.Supp.2d at 76-77 (collecting cases upholding awards ranging from $10,000 to $1.25 million). “[T]here has been an extraordinarily wide range of recent punitive damages awards in this circuit [in discrimination cases], from $300 to over $1 million.” Holness, 2012 WL 1744847, at *6 (citations omitted).

With respect to the reprehensibility of its actions, the Hotel argues that “there was no evidence demonstrating racially motivated intent, let alone deceit, *566malice, or threat of violence or repeated instances of such misconduct. There was no evidence of any hatred, ill will, or evil discriminatory intent by any of Mr. McMillan’s coworkers or supervisors.” (Def. Br. 20) McMillan counters that “the hanging of a black-faced voodoo doll by its neck arguably threatened violence — particularly where Engineering Supervisor Paray told Mr. McMillan that the doll was him knowing that Mr. McMillan was deeply troubled by the doll.” (Pltf. Opp. Br. 18) McMillan also contends that “the fact that neither Mr. Scudero nor Mr. Fariello removed the doll when Mr. McMillan indicated to Mr. Scudero that he was offended, and where Mr. Paray had specifically told Mr. Fariello that people were offended, can be seen as malice rather than mere negligence.” (Id.) McMillan also argues that the Hotel engaged in a “pattern of misconduct” spanning more than two years, and that McMillan had financial vulnerability. (Id.)

Crediting the jury’s verdict, the evidence supports the conclusion that the Hotel’s managers were at least more than merely negligent, and that they acted with knowledge that their conduct would violate McMillan’s rights. Moreover, because the jury was permitted to consider two incidents — the voodoo doll incident and the 2009 Sierra incident — in determining damages, the Hotel’s misconduct could be viewed as “repeated.” Nevertheless, “[i]t is clear that [the Hotel’s] conduct did not result in physical injury to [McMillan], nor did it evince an indifference to or reckless disregard for the health or safety of others.” Thomas v. iStar Financial, Inc., 652 F.3d 141, 148 (2d Cir.2011). Moreover, McMillan did not establish a “pattern of discrimination” that extended to other employees in his protected group. Greenbaum v. Handelsbanken, 67 F.Supp.2d 228, 269-70 (S.D.N.Y.1999).

There was likewise no evidence of retaliation against McMillan for complaining of discrimination, nor is there any evidence of trickery or deceit. Moreover, the Hotel conducted extremely thorough investigations of both the voodoo doll incident and the Sierra incident. As soon as Pyne was made aware of the voodoo doll hanging from the bulletin board, it was taken down. (Tr. 134) In addition, as discussed above, the evidence of McMillan’s emotional distress was sparse at best.

The Court finds that “[t]he defendant’s conduct, while meriting some award of punitive damages, was by no means as reprehensible as that in many other [employment] discrimination ... cases.” Iannone, 941 F.Supp. at 414. Cases upholding punitive damage awards of $200,000 or more generally involve discriminatory or retaliatory termination resulting in severe financial vulnerability to plaintiff, repeated incidents of misconduct over a significant period of time, repeated failures to address complaints of discrimination, and/or deceit. See, e.g., Manzo, 2010 WL 1930237, at *5 (upholding $200,000 punitive damage award where “there was evidence that [plaintiff] suffered significant psychological and emotional distress as a direct result of [her supervisor’s] sexually harassing behavior ...,. There was also ample evidence that [plaintiff] was in a precarious financial situation during the period of harassment, that [her supervisor] knew about that situation, and that he used it to his advantage in exerting his power over her. [The supervisor’s] harassment of [plaintiff] was not an isolated incident, but rather it began shortly after the start of her employment and continued largely unabated until her termination. Finally, as the jury concluded in awarding punitive damages, [the supervisor’s] harassment of [plaintiff], and [the] retaliatory termination, were not mere accidents. [The supervisor] inten*567tionally manipulated the terms and conditions of [plaintiffs] employment both to pursue his goal of a romantic relationship with her and to penalize her when she spurned his advances.”); Kauffman v. Maxim Healthcare Servs., Inc., 509 F.Supp.2d 210 (E.D.N.Y.2007) (remitting a $1.5 million punitive damage award to just over $500,000, where the court found that “[t]here is evidence in the record from which the jury could have concluded that the degree of reprehensibility of Defendant’s conduct was substantial. Plaintiff endured sexist and racist remarks throughout his tenure with Defendant. He was pressured by Defendant to engage in illegal acts to perpetuate discriminatory employment practices designed to maintain Defendant as a ‘white-male-driven’ company. He was berated, intimidated, and threatened by Defendant’s executives when he refused to accede to their unlawful demands upon him and punished for such refusal by being transferred to the distant New Haven office, and ultimately, by being terminated. He was also summarily ejected from his office while being cursed at by [his regional account manager] for his refusal to discriminate.... Defendant deprived Plaintiff of his livelihood and inflicted economic harm upon a financially vulnerable target” and “Defendant’s conduct also involved repeated actions of misconduct with respect to other employees.”); Watson v. E.S. Sutton, Inc., No. 02 Civ. 27399(KMW), 2005 WL 2170659 (S.D.N.Y. Sept. 6, 2005) (remitting a $2.5 million punitive damage award to $717,000 where defendant repeatedly failed to address complaints of sexual misconduct, maliciously terminated plaintiff for complaining of sexual harassment leaving her with no income, filed false affidavits in response to her EEOC charge, and falsely accused her of committing a federal crime).

The cases cited by McMillan in support of the $1 million punitive damage award here (Pltf. Opp. Br. 18-19) involve more reprehensible conduct. See, e.g., Greenbaum, 67 F.Supp.2d at 269-70 (upholding $1.25 million punitive damage award where “the jury could have inferred from some of [the deputy general manager’s] comments and other comments made by high-level [general managers] that [defendant] was not only negligent regarding [plaintiffs] federally protected rights but was acting with malice. Moreover, ‘repeated misconduct is more reprehensible than an individual instance of malfeasance,’ and the jury found that [plaintiff] was subjected to a six-year pattern of discrimination, which ended in a retaliatory attack when she finally complained of the misconduct. Other evidence suggests that [defendant] officials deceitfully hid their adverse actions from [plaintiff] over this period, and tried to retaliate against her in a deceitful manner by moving her to a position that would later be phased out for seemingly extrinsic reasons. The record also suggests that this pattern of discrimination may have extended to other female employees or potential employees as well.”); Goldsmith v. Bagby Elevator Co., Inc., 513 F.3d 1261, 1283 (11th Cir.2008) (“We conclude that the conduct of [defendant] was sufficiently reprehensible to support an award of punitive damages because the harm suffered by [plaintiff] was . not purely economic, [plaintiff] was financially vulnerable, and the racially offensive comments and conduct were not isolated.... [Plaintiffs] relationships with his family suffered, he attended counseling after his termination ... [and] the' record also .establishes that [plaintiff] was financially vulnerable and had to borrow money after he was terminated. Another factor that suggests that the misconduct of [defendant] was reprehensible is that [defendant] engaged in a pattern of retaliatory and discriminatory misconduct. Three other employees who *568had filed EEOC charges or complained about racial slurs were terminated before [plaintiff]. There was also substantial evidence ... that [defendant] engaged in a pattern of reckless indifference to its employees’ federal rights.”).

“[T]aking all of the circumstances of the ease into account, [the Hotel’s] conduct ... was insufficiently reprehensible to justify a punitive damages award in significant excess of his compensatory damages award.” Thomas, 652 F.3d at 149.

With respect to the ratio factor, the jury’s award of $1 million in punitive damages and $125,000 in emotional distress damages represents a ratio of 8 to 1. Taking into account this Court’s remittitur of the compensatory damage award, the ratio rises to approximately 33 to 1. See DiSorbo, 343 F.3d at 187 (“if we assume that [plaintiff] remits to yield a $250,000 compensatory damages award for the excessive force claim, the ratio between compensatory and punitive damages would be 2.5-to — 1”); Mendez, 746 F.Supp.2d at 603 (“The ratio between the remitted [compensatory damage] award of $10,000 and $3 million — 300:1—is so far out of proportion as to make the award of punitive damages unconstitutionally excessive.”); Quinby, 2008 WL 3826695, at *5 n. 1 (“Because the Court remits compensatory damages to $300,000, the ratio is now 4.3 to 1.”). “The Supreme Court has ‘concluded that [a punitive damages] award of more than four times the amount of compensatory damages might be close to the line of constitutional impropriety.’ ” Thomas, 652 F.3d at 149 (discussing a 5.7 to 1 ratio after taking into account the court’s remittitur of the compensatory damage award) (quoting State Farm, 538 U.S. at 425, 123 S.Ct. 1513). As noted above, the Supreme Court has stated that “few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process.” State Farm, 538 U.S. at 425, 123 S.Ct. 1513. Accordingly, this factor weighs in favor of significantly reducing the punitive damages award.

Finally, the Court must compare the punitive damage award to applicable civil penalties. Lee, 101 F.3d at 809. Here, the civil penalty for violating the NYCHRL — a maximum of $250,000 for an “unlawful discriminatory practice [that] was the result of the respondent’s willful, wanton or malicious act” — counsels in favor of reduction. N.Y.C. Admin. Code § 8-126(a); see also Thomas, 652 F.3d at 149; Norris, 2009 WL 82556, at *7. Similarly, under federal law, compensatory and punitive damages are capped at $300,000 in total. 42 U.S.C. § 1981a(b)(3)(D); see also Iannone, 941 F.Supp. at 415 (“[Defendant] employs more than five hundred employees, and combined compensatory and punitive damages therefore may not exceed $300,000.”).

A survey of punitive damage awards in discrimination and retaliation eases reveals that the $1 million award here is excessive and should be reduced significantly. See, e.g., Chisholm, 824 F.Supp.2d at 580 (remitting punitive damage award from $1 million to $50,000, finding that “an award of $50,000 is more in line with the punitive damages awarded in similar cases by this Court and other courts in this Circuit”); DeCurtis, 2011 WL 4549412, at *5 (awarding $75,000 in punitive damages on plaintiffs sex discrimination and retaliation claims, noting that “[c]ourts in this Circuit have consistently favored lower awards in circumstances comparable to those here”); Norris, 2009 WL 82556, at *7 (remitting jury’s $425,000 punitive damage award to $25,000; noting that “[w]hile the evidence supports the conclusion that [plaintiffs supervisor] acted intentionally and with knowledge that his conduct would violate *569[plaintiffs] rights, no other indicia of reprehensibility are present. There was no violence or threat of violence. Nor was there any evidence of repeated misconduct. ... Even taking the evidence in the light most favorable to Norris, the Court is left with the firm conviction that [the supervisor’s] decision to terminate her after learning of her complaint of discrimination was a transient outburst of pique and frustration; while such conduct warrants some amount of punishment and deterrence, it is not sufficiently reprehensible to support the jury’s award of $425,000.”); Parrish v. Sollecito, 280 F.Supp.2d 145, 164 (S.D.N.Y. 2003) (reducing punitive damages from $500,000 to $50,000 where the plaintiff suffered a “low degree of actual harm,” the award was 33 times the compensatory damages award, and the court was also awarding attorneys’ fees); Lamberson v. Six W. Retail Acquisition, Inc., No. 98 Civ. 8053, 2002 WL 59424, at *6-7 (S.D.N.Y. Jan. 16, 2002) (remitting punitive damage award in Title VII retaliation case from $375,000 to $30,000 where the ratio between punitive and compensatory damages was almost 27 to 1, there was no evidence of violence, deceit or malice, and no history of misconduct); Fernandez v. North Shore Orthopedic Surgery & Sports Med., P.C., 79 F.Supp.2d 197, 208 (E.D.N.Y.2000) (concluding that “the maximum award of punitive damages that would not be excessive is $50,000” after finding a low degree of reprehensibility and noting that “[i]n comparison with other civil penalties for similar conduct, the punitive damages award [of $100,000] in this case appears excessive”); Kim, 1997 WL 458783, at *14-15 (remitting $725,000 punitive damage award to $25,000 where degree of reprehensibility associated with race discrimination claim was low because “there was no violence and very little repetition of the misconduct”).

The Court concludes that a punitive damage award of no more than $100,000 is proper in this case. Such an award is nearly four times the remitted compensatory damages amount, a ratio which “[t]he Supreme Court has ‘concluded ... might be close to the line of constitutional impropriety.’ ” Thomas, 652 F.3d at 149 (quoting State Farm, 538 U.S. at 425, 123 S.Ct. 1513). If McMillan does not accept a remittitur to that amount, the Court will vacate the punitive damage award and conduct a new trial limited to the question of damages. See Kauffman, 509 F.Supp.2d at 221 (citing Vasbinder, 976 F.2d at 122).

CONCLUSION

For the reasons stated above, Defendant’s motion for judgment as a matter of law is denied. Defendant’s motion for a new trial is granted on the issue of damages unless Plaintiff agrees in writing by June 18, 2012, to a remittitur reducing the compensatory damage award to $30,000 and the punitive damage award to $100,000. The Clerk of Court is directed to terminate the motion. (Dkt. No. 66)

SO ORDERED.

PETERS, J.

Defendants appeal from a judgment for plaintiff for $187,903.75 entered on a jury verdict. Their motion for a new trial for errors of law and exeessiveness of damages was denied.

At the trial plaintiff contended that she was properly entering defendants’ bus when the doors closed suddenly catching her right hand and left foot. The bus started, dragged her some distance, and then threw her to the pavement. Defendants contended that the injury resulted from plaintiff’s own negligence, that she was late for work and either ran into the side of the bus after the doors had closed or ran after the bus and attempted to enter after the doors had nearly closed.

The evidence supports plaintiff’s version of the facts. Several eyewitnesses testified that plaintiff started to board the bus while it was standing with the doors wide open. Defendants do not challenge the sufficiency of the evidence. They do contend, however, that prejudicial errors were committed during the trial and that the verdict is excessive.

There Was no Prejudicial Error on the Issue of Liability

Defendants contend that the court erred in giving instructions on res ipsa loquitur on the ground that the doctrine is inapplicable when, as in this ease, the defendant does not possess superior knowledge concerning the accident or when, as in this ease, the plaintiff plays an active part in the events leading to it. There is no merit in this contention. Superior knowledge by the defendant is not a prerequisite for the application of the doctrine. (Leet v. Union Pac. R.R. Co., 25 Cal,2d 605, 619-620 [155 P,2d 42, 158 A.L.R. 1008] ; see *502Prosser, Res Ipsa Loquitur in California, 37 Cal.L.Rev. 183, 202-204.) Nor does participation by the plaintiff in the events leading to the accident preclude its application if there is evidence that plaintiff’s negligence, if any, was not a proximate cause of the accident. (Shaw v. Pacific Greyhound Lines, 50 Cal.2d 153,157 [323 P.2d 391] ; Zentz v. Coca Cola Bottling Co., 39 Cal.2d 436, 444 [247 P.2d 344] ; see Fleming, Torts, 299.)

Defendants contend that the instruction on res ipsa loquitur erroneously shifted the burden of proof by requiring them to prove that they were not negligent. The instruction stated that if and only if plaintiff was a passenger as defined by prior instructions then “from the happening of the accident ... an inference arises that a proximate cause of the occurrence was some negligent conduct on the part of defendant. That inference is a form of evidence1 and unless there is contrary evidence sufficient to meet or balance it, the jury should find in accordance with the inference. . . . In order to meet or balance the inference of negligence, the defendant must present evidence to show either (1) a satisfactory explanation of the accident, in which there is no negligence on the part of defendant, or (2) such care on the defendant’s part as leads to the conclusion that the accident did not happen because of ivant of care by him, but was due to some other cause, although the exact cause may be unknown. If such evidence has at least as much convincing force as the inference and other evidence, if any, supporting the inference, then you will find against the plaintiff on that issue. ’ ’ (Italics added.)

Defendants quote the italicized part of the foregoing instruction out of context to support their contention that the instruction shifted the burden of proof. Read as a whole the instructions correctly state the law of California that if defendants are to prevail they must rebut the res ipsa loquitur inference with evidence of as convincing force. (Hardin v. San Jose City Lines, Inc., 41 Cal.2d 432, 437 [260 P.2d 63] ; Burr v. Sherwin Williams Co., 42 Cal.2d 682, 691 [268 P.2d 1041] ; Williams v. City of Long Beach, 42 Cal.2d 716, 718 [268 P.2d 1061].)

Defendants also contend that the court erred in failing to caution the jury that the doctrine can be invoked *503only if the jury finds that the incident occurred as claimed by plaintiff and that plaintiff’s negligence was not a contributory proximate cause. (Hardin v. San Jose City Lines, Inc., supra, 41 Cal.2d 432, 435.) Defendants did not request such a cautionary instruction. Moreover the subject was covered by other instructions.

The court instructed the jury that the doctrine of res ipsa loquitur applies “if and only in the event” the jury should find that plaintiff was a passenger. Under the court’s definition plaintiff was not a passenger unless she entered the bus when it was reasonably prudent to do so.2 In effect the instruction stated that the doctrine did not apply if the jury believed that the accident happened as defendants contended. Furthermore, the jury was instructed to return a verdict for defendants if it found that plaintiff was eontributively negligent. There is, therefore, implied in the verdict a finding that the accident occurred as described by plaintiff rather than as described by defendants.

There is no merit in defendants’ contention that the court committed prejudicial misconduct in conducting the examination of a 9-year-old witness. Because of her tender years the court conducted the initial examination, and, in a sympathetic, impartial, and commendable manner, elicited relevant testimony. Nearly all of the court’s questions were asked without objection and defendants were given full opportunity to cross-examine.

None of the other claimed errors on the issue of liability, all minor in nature, has merit.

*504 The Damages Were Not Excessive

One of the major contentions of defendants is that the damages are excessive, as a matter of law. There is no merit to this contention.

The evidence most favorable to the plaintiff shows that prior to the accident plaintiff was in good health, and had suffered no prior serious injuries. She was single, and had been self-supporting for 20 of her 42 years. The accident happened on October 11, 1957. The trial took place in July and August of 1959.

As already pointed out, the injury occurred when plaintiff was caught in the doors of defendants’ bus when it started up before she had gained full entry. As a result she was dragged for some distance. The record is uncontradicted that her injuries were serious, painful, disabling and permanent.

The major injuries were to plaintiff’s left foot. The main arteries and nerves leading to that foot, and the posterior tibial vessels and nerve of that foot, were completely severed at the ankle. The main blood vessel which supplies blood to that foot had to be tied off, with the result that there is a permanent stoppage of the main blood source. The heel and shin bones were fractured. There were deep lacerations and an avulsion3 which involved the skin and soft tissue of the entire foot.

These injuries were extremely painful. They have resulted in a permanently raised left heel, which is two inches above the floor level, caused by the contraction of the ankle joint capsule. Plaintiff is crippled and will suffer pain for life.4 Although this pain could, perhaps, be alleviated by an operative fusion of the ankle, the doctors considered and rejected this procedure because the area has been deprived of its normal blood supply. The foot is not only permanently deformed but has a persistent open ulcer on the heel, there being a continuous drainage from the entire area. Medical care of this foot and ankle is to be reasonably expected for the remainder of plaintiff’s life.

Since the accident, and because of it, plaintiff has undergone nine operations and has spent eight months in various hospitals and rehabilitation centers. These operations involved painful skin grafting and other painful procedures. One in*505volved the surgical removal of gangrenous skin leaving painful raw and open flesh exposed from the heel to the toe. Another involved a left lumbar sympathectomy in which plaintiff’s abdomen was entered to sever the nerves affecting the remaining blood vessels of the left leg in order to force those blood vessels to remain open at all times to the maximum extent. Still another operation involved a cross leg flap graft of skin and tissue from plaintiff’s thigh which required that her left foot be brought up to her right thigh and held at this painful angle, motionless, and in a cast for a month until the flap of skin and fat, partially removed from her thigh, but still nourished there by a skin connection, could be grafted to the bottom of her foot, and until the host site could develop enough blood vessels to support it. Several future operations of this nature may be necessary. One result of this operation was to leave a defective area of the thigh where the normal fat is missing and the muscles exposed, and the local nerves are missing. This condition is permanent and disfiguring.

Another operation called a débridement, was required. This involved removal of many small muscles of the foot, much of the fat beneath the skin, cleaning the end of the severed nerve, and tying off the severed vein and artery.

The ulcer on the heel is probably permanent, and there is the constant and real danger that osteomyelitis may develop if the infection extends into the bone. If this happens the heel bone would have to be removed surgically and perhaps the entire foot amputated.

Although plaintiff has gone back to work, she testified that she has difficulty standing, walking or even sitting, and must lie down frequently; that the leg is still very painful; that she can, even on her best days, walk not over three blocks and that very slowly; that her back hurts from walking; that she is tired and weak; that her sleep is disturbed; that she has frequent spasms in which the leg shakes uncontrollably; that she feels depressed and unhappy, and suffers humiliation and embarrassment.

Plaintiff claims that there is evidence that her total pecuniary loss, past and future, amounts to $53,903.75. This was the figure used by plaintiff’s counsel in his argument to the jury, in which he also claimed $134,000 for pain and suffering, past and future. Since the verdict was exactly the total of these two estimates, it is reasonable to assume that the jury accepted the amount proposed by counsel for each item. (Braddock v. *506Seaboard Air Line Railroad Co. (Fla., 1955), 80 So.2d 662, 665.)

The summary of plaintiff as to pecuniary loss, past and future, is as follows:

Doctor and Hospital Bills...........$10,330.50

Drugs and other medical expenses

stipulated to in the amount of...... 2,273.25

Loss of earnings from time of

accident to time of trial........... 5,500.00

Future Medical Expenses:

$2,000 per year for next 10 years.... 20,000.00 $200 per year for the 24 years

thereafter ..................... 4,800.00

Drugs for 34 years............... 1,000.00

Possible future loss of earnings Total Pecuniary Loss.........

$18,103.75

25,800.00

43,903.75

10,000.00

$53,903.75

There is substantial evidence to support these estimates. The amounts for past doctor and hospital bills, for the cost of drugs, and for a past loss of earnings, were either stipulated to, evidence was offered on, or is a simple matter of calculation. These items totaled $18,103.75. While the amount of $25,800 estimated as the cost of future medical expense, for loss of future earnings and for the future cost of drugs, may seem high, there was substantial evidence that future medical expense is certain to be high. There is also substantial evidence that plaintiff’s future earning capacity may be substantially impaired by reason of the injury. The amounts estimated for those various items are not out of line, and find support in the evidence.

This leaves the amount of $134,000 presumably allowed for the nonpeeuniary items of damage, including pain and suffering, past and future. It is this allowance that defendants seriously attack as being excessive as a matter of law.

It must be remembered that the jury fixed these damages, and that the trial judge denied a motion for new trial, one ground of which was excessiveness of the award. These determinations are entitled to great weight. The amount of damages is a fact question, first committed to the discretion of the jury and next to the discretion of the trial judge on a motion for new trial. They see and hear the witnesses and frequently, as in this case, see the injury and *507the impairment that has resulted therefrom. As a result, all presumptions are in favor of the decision of the trial court (McChristian v. Popkin, 75 Cal.App.2d 249, 263 [171 P.2d 85]). The power of the appellate court differs materially from that of the trial court in passing on this question. An appellate court can interfere on the ground that the judgment is excessive only on the ground that the verdict is so large that, at first blush, it shocks the conscience and suggests passion, prejudice or corruption on the part of the jury. The proper rule was stated in Holmes v. Southern Cal. Edison Co., 78 Cal.App.2d 43, 51 [177 P.2d 32], as follows: “The powers and duties of a trial judge in ruling on a motion for new trial and of an appellate court on an appeal from a judgment are very different when the question of an excessive award of damages arises. The trial judge sits as a thirteenth juror with the power to weigh the evidence and judge thq credibility of the witnesses. If he believes the damages awarded by the jury to be excessive and the question is presented it becomes his duty to reduce them. [Citing eases.] When the question is raised his denial of a motion for new trial is an indication that he approves the amount of the award. An appellate court has no such powers. It cannot weigh the evidence and pass on the credibility of the witnesses as a juror does. To hold an award excessive it must be so large as to indicate passion or prejudice on the part of the jurors.” In Holder v. Key System, 88 Cal.App.2d 925, 940 [200 P.2d 98], the court, after quoting the above from the Holmes case added: “The question is not what this court would have awarded as the trier of the fact, but whether this court can say that the award is so high as to suggest passion or prejudice.” In Wilson v. Fitch, 41 Cal. 363, 386, decided in 1871, there appears the oft-quoted statement that: “The Court will not interfere in such cases unless the amount awarded is so grossly excessive as to shock the moral sense, and raise a reasonable presumption that the jury was under the influence of passion or prejudice. In this case, whilst the sum awarded appears to be much larger than the facts demanded, the amount cannot be said to be so grossly excessive as to be reasonably imputed only to passion or prejudice in the jury. In such cases there is no accurate standard by which to compute the injury, and the jury must, necessarily, be left to the exercise of a wide discretion; to be restricted by the Court only when the sum awarded is so large that the verdict shocks the moral sense, and raises a presumption that *508it must have proceeded from passion or prejudice.” This same rule was announced in Johnston v. Long, 30 Cal.2d 54, 76 [181 P.2d 645], where it was stated that it “is not the function of a reviewing court to interfere with a jury’s award of damages unless it is so grossly disproportionate to any reasonable limit of compensation warranted by the facts that it shocks the court’s sense of justice and raises a presumption that it was the result of passion and prejudice.” (See also Connolly v. Pre-Mixed Concrete Co., 49 Cal.2d 483, 488 [319 P.2d 343]; Leming v. Oilfields Trucking Co., 44 Cal.2d 343, 359 [282 P.2d 23, 51 A.L.R.2d 107]; Zibbell v. Southern Pacific Co., 160 Cal. 237, 255 [116 P. 513].)

There are no fixed or absolute standards by which an appellate court can measure in monetary terms the extent of the damages suffered by a plaintiff as a result of the wrongful act of the defendant. The duty of an appellate court is to uphold the jury and trial judge whenever possible. (Crystal Pier Amusement Co. v. Cannan, 219 Cal. 184, 192 [25 P.2d 839, 91 A.L.R. 1357].) The amount to be awarded is “ a matter on which there legitimately may be a wide difference of opinion” (Roedder v. Rowley, 28 Cal.2d 820, 823 [172 P.2d 353]). In considering the contention that the damages are excessive the appellate court must determine every conflict in the evidence in respondent’s favor, and must give him the benefit of every inference reasonably to be drawn from the record (Kimic v. San Jose-Los Gatos etc. Ry. Co., 156 Cal. 273, 277 [104 P. 312]).

While the appellate court should consider the amounts awarded in prior cases for similar injuries, obviously, each case must be decided on its own facts and circumstances. Such examination demonstrates that such awards vary greatly. (See exhaustive annotations in 16 A.L.R.2d 3, and 16 A.L.R.2d 393.) Injuries are seldom identical and the amount of pain and suffering involved in similar physical injuries varies widely. These factors must be considered. (Leming v. Oilfields Trucking Co., supra, 44 Cal.2d 343, 356; Crane v. Smith, 23 Cal.2d 288, 302 [144 P.2d 356].) Basically, the question that should be decided by the appellate courts is whether or not the verdict is so out of line with reason that it shocks the conscience and necessarily implies that the verdict must have been the result of passion and prejudice.

In the instant case, the nonpecuniary items of damage include allowances for pain and suffering, past and future, humiliation as a result of being disfigured and being per*509manently crippled, and constant anxiety and fear that the leg will have to be amputated. While the amount of the award is high, and may be more than we would have awarded were we the trier of the facts, considering the nature of the injury, the great pain and suffering, past and future, and the other items of damage, we cannot say, as a matter of law, that it is so high that it shocks the conscience and gives rise to the presumption that it was the result of passion or prejudice on the part of the jurors.

Defendants next complain that it was prejudicial error for plaintiff’s counsel to argue to the jury that damages for pain and suffering could be fixed by means of a mathematical formula predicated upon a per diem allowance for this item of damages. The propriety of such an argument seems never to have been passed upon in this state. In other jurisdictions there is a sharp divergence of opinion on the subject. (See anno., 60 A.L.R.2d 1331.) It is not necessary to pass on the propriety of such argument in the instant case because, when plaintiff’s counsel made the argument in question, defendants’ counsel did not object, assign it as misconduct or ask that the jury be admonished to disregard it. Moreover, in his argument to the jury, the defendants’ counsel also adopted a mathematical formula type of argument. This being so, even if such argument were error (a point we do not pass upon), the point must be deemed to have been waived, and cannot be raised, properly, on appeal. (State Rubbish etc. Assn. v. Siliznoff, 38 Cal.2d 330, 340 [240 P.2d 282].)

The judgment appealed from is affirmed.

Gibson, C. J., White, J., and Dooling, J., concurred.

TRAYNOR, J.

I dissent.

Although I agree that there was no prejudicial error on the issue of liability, it is my opinion that the award of $134,000 for pain and suffering is so excessive as to indicate that it was prompted by passion, prejudice, whim, or caprice.1

Before the accident plaintiff was employed as a file clerk *510at a salary of $375 a month. At the time of the trial she had returned to her job at the same salary and her foot had healed sufficiently for her to walk. At the time of the accident she was 42 years old with a life expectancy of 34.9 years.

During closing argument plaintiff’s counsel summarized the evidence relevant to past and possible future damages and proposed a specific amount for each item. His total of $187,903.75 was the exact amount awarded by the jury.

His proposed amounts were as follows:

Doctor and Hospital Bills..........$10,330.50

Drugs and other medical expenses

stipulated to in the amount of.... 2,273.25

Loss of earnings from time of

accident to time of trial.......... 5,500.00 $ 18,103.75

Future Medical Expenses:

$2,000 per year for next ten years 20,000.00 $200 per year for the 24 years

thereafter .................... 4,800.00

Drugs for 34 years............... 1,000.00 25,800.00

43,903.75

Possible future loss of earnings..... 10,000.00

Total Pecuniary Loss.............. 53,903.75

Pain and Suffering:

From time of accident to time of

trial (660 days) @ $100 a day.... 66,000.00

For the remainder of her life

(34 years) @ $2,000 a year....... 68,000.00 134,000.00

Total proposed by counsel.......... $187,903.75

The jury and the trial court have broad discretion in determining the damages in a personal injury case. (Johnston v. Long, 30 Cal.2d 54, 76 [181 P.2d 645] ; Roedder v. Rowley, 28 Cal.2d 820, 823 [172 P.2d 353].) A reviewing court, however, has responsibilities not only to the litigants in an action but to future litigants and must reverse or remit when a jury awards either inadequate or excessive damages. (E.g., Clifford v. Ruocco, 39 Cal.2d 327, 329 [246 P.2d 651] [inadequate award]; Torr v. United Railroads, 187 Cal. 505, 509 [202 P. 671] [inadequate award] ; Chinnis v. Pomona Pump Co., 36 Cal.App.2d 633, 642-643 [98 P.2d 560] [inadequate award] ; Bellman v. San Francisco H. S. Dist., 11 Cal.2d 576, 588 [81 P.2d 894] [excessive award]; Mondine v. Sarlin, 11 Cal.2d 593, 600 [81 P.2d 903] [excessive award]; Lindemann v. San Joaquin Cotton Oil Co., 5 Cal.2d 480, 510 [55 P.2d 870] [exees*511sive award]; Phelps v. Cogswell, 70 Cal. 201, 204 [11 P. 628] [excessive award].)

The crucial question in this case, therefore, is whether the award of $134,000 for pain and suffering is so excessive it must have resulted from passion, prejudice, whim or caprice. “To say that a verdict has been influenced by passion or prejudice is but another way of saying that the verdict exceeds any amount justified by the evidence.” (Zibbell v. Southern Pacific Co., 160 Cal. 237, 254 [116 P. 513]; see Doolin v. Omnibus Cable Co., 125 Cal. 141, 144 [57 P. 774].)

There has been forceful criticism of the rationale for awarding damages for pain and suffering in negligence cases. (Morris, Liability for Pain and Suffering, 59 Columb.L.Rev. 476; Plant, Damages for Pain and Suffering, 19 Ohio L.J. 200; Jaffe, Damages for Personal Injury-. The Impact of Insurance, 18 Law and Contemporary Problems 219; Zelermyer, Damages for Pain and Suffering, 6 Syracuse L.Rev. 27.) Such damages originated under primitive law as a means of punishing wrongdoers and assuaging the feelings of those who had been wronged. (Morris, Liability for Pain and Suffering, supra, 59 Columb.L.Rev. at p. 478; Jaffe, Damages for Personal Injury -. The Impact of Insurance, supra, 18 Law and Contemporary Problems at pp. 222-223.) They become increasingly anomalous as emphasis shifts in a mechanized society from ad hoc punishment to orderly distribution of losses through insurance and the price of goods or of transportation. Ultimately such losses are borne by a public free of fault as part of the price for the benefits of mechanization. (Cf. Peterson v. Lamb Rubber Co., 54 Cal.2d 339, 347-348 [5 Cal.Rptr. 863, 353 P.2d 575]; Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358 [161 A.2d 69, 77, 75 A.L.R.2d 1]; Escola v. Coca Cola Bottling Co., 24 Cal.2d 453,462 [150 P.2d 436] [concurring opinion].)

Nonetheless, this state has long recognized pain and suffering as elements of damages in negligence cases (Zibbell v. Southern Pacific Co., supra, 160 Cal. 237, 250; Roedder v. Rowley, supra, 28 Cal.2d 820, 822) ; any change in this regard must await reexamination of the problem by the Legislature. Meanwhile, awards for pain and suffering serve to ease plaintiffs’ discomfort and to pay for attorney fees for which plaintiffs are not otherwise compensated.

It would hardly be possible ever to compensate a person fully for pain and suffering. “ ‘No rational being would change places with the injured man for an amount of gold *512that would fill the room of the court, yet no lawyer would contend that such is the legal measure of damages. ’ ” (Zibbell v. Southern Pacific Co., supra, 160 Cal. 237, 255; see 2 Harper and James, The Law of Torts 1322.) “Translating pain and anguish into dollars can, at best, be only an arbitrary allowance, and not a process of measurement, and consequently the-judge can, in his instructions give the jury no standard to go by; he can only tell them to allow such amount as in their discretion they may consider reasonable. . . . The chief reliance for reaching reasonable results in attempting to value suffering in terms of money must be the restraint and common sense of the jury. ...” (McCormick, Damages, § 88, pp. 318-319.) Such restraint and common sense were lacking here.

A review of reported cases involving serious injuries and large pecuniary losses reveals that ordinarily the part of the verdict attributable to pain and suffering does not exceed the part attributable to pecuniary losses. (See 16 A.L.R2d 3-390; 18 West Cal.Dig., Damages, §§ 130-132.) The award in this case of $134,000 for pain and suffering exceeds not only the pecuniary losses but any such award heretofore sustained in this state even in cases involving injuries more serious by far than those suffered by plaintiff. (See Leming v. Oilfields Trucking Co. (1955), 44 Cal.2d 343, 358 [282 P.2d 23, 51 A.L.R.2d 107]; Deshotel v. Atchison, T. & S. F. Ry. Co. (1956), 144 Cal.App.2d 224, 231 [300 P.2d 910]; McNulty v. Southern Pacific Co. (1950), 96 Cal.App.2d 841, 847 [216 P.2d 534] discussed in Kalven, The Jury and The Damage Award, 19 Ohio L.J. 158, 170; Sullivan v. City & County of San Francisco (1950), 95 Cal.App.2d 745, 758-761 [214 P.2d 82]; Gluckstein v. Lipsett (1949), 93 Cal.App.2d 391, 398 [209 P.2d 98]; Huggans v. Southern Pacific Co. (1949), 92 Cal.App.2d 599, 615 [207 P.2d 864].) In McNulty v. Southern Pacific Co., supra, the court reviewed a large number of cases involving injuries to legs and feet, in each of which the total judgment, including both pecuniary loss and pain and suffering did not exceed $100,000.2 Although excessive damages is “an issue which is primarily factual and is not therefore a matter which can be decided upon the basis of awards made in other cases” (Leming v. Oilfields Trucking Co., 44 Cal.2d 343, 356 [282 P.2d 23, 51 A.L.R2d 107]; Crane v. Smith, 23 Cal.2d 288, 302 [144 P.2d 356]), awards for similar in*513juries may be considered as one factor to be weighed in determining whether the damages awarded are excessive. (Maede v. Oakland High School Dist., 212 Cal. 419, 425 [298 P. 987]; McNulty v. Southern Pacific Co., supra, 96 Cal.App. 2d 841, 848.)

The excessive award in this case was undoubtedly the result of the improper argument of plaintiff’s counsel to the jury. Though no evidence was introduced, though none could possibly be introduced on the monetary value of plaintiff’s suffering, counsel urged the jury to award $100 a day for pain and suffering from the time of the accident to the time of trial and $2,000 a year for pain and suffering for the remainder of plaintiff’s life.

The propriety of counsel’s proposing a specific sum for each day or month of suffering has recently been considered by courts of several jurisdictions. (See 19 Ohio L.J. 780; 33 So.Cal.L.Rev. 214, 216.) The reasons for and against permitting “per diem argument for pain and suffering” are reviewed in Ratner v. Arrington (Fla.App.), 111 So.2d 82, 85-90 [1959 Florida decision holding such argument is permissible] and Botta v. Brunner, 26 N.J. 82 [138 A.2d 713, 718-725, 60 A.L.R.2d 1331] [1958 New Jersey decision holding such argument to be an “unwarranted intrusion into the domain of the jury”].

The reason usually advanced for not allowing such argument is that since there is no way of translating pain and suffering into monetary terms, counsel’s proposal of a particular sum for each day of suffering represents an opinion and a conclusion on matters not disclosed by the evidence, and tends to mislead the jury and result in excessive awards. The reason usually advanced for allowing “per diem argument for pain and suffering” is that it affords the jury as good an arbitrary measure as any for that which cannot be measured.

Counsel may argue all legitimate inferences from the evidence, but he may not employ arguments that tend primarily to mislead the jury. (People v. Purvis, 52 Cal.2d 871, 886 [346 P.2d 22]; People v. Johnson, 178 Cal.App.2d 360, 372 [3 Cal.Rptr. 28]; Affett v. Milwaukee & Suburban Transport Corp.) 11 Wis.2d 604 [106 N.W.2d 274, 280] ; Michael and Adler, Trial of an Issue of Fact, 34 Columb.L.Rev. 1224, 1483-1484; cf. Rogers v. Foppiano, 23 Cal.App.2d 87, 94-95 [72 P.2d 239].) A specified sum for pain and suffering for any particular period is bound to be conjectural. Positing such a sum for a small period of time and then multiplying that sum *514by the number of days, minutes or seconds in plaintiff’s life expectancy multiplies the hazards of conjecture. Counsel could arrive at any amount he wished by adjusting either the period of time to be taken as a measure or the amount surmised for the pain for that period.

“The absurdity of a mathematical formula is demonstrated by applying it to its logical conclusion. If a day may be used as a unit of time in measuring pain and suffering, there is no logical reason why an hour or a minute or a second could not be used, or perhaps even a heart-beat since we live from heart-beat to heart-beat. If one cent were used for each second of pain this would amount to $3.60 per hour, to $86.40 per twenty-four hour day, and to $31,536 per year. The absurdity of such a result must be apparent, yet a penny a second for pain and suffering might not sound unreasonable. . . . The use of the formula was prejudicial error.” (Affett v. Milwaukee & Suburban Transport Corp., supra, 11 Wis.2d 604 [106 N.W.2d 274, 280].)

The misleading effect of the per diem argument was not cured by the use of a similar argument by defense counsel. Truth is not served by a clash of sophistic arguments. (See Michael and Adler, The Trial of an Issue of Fact, 34 Columb. L.Rev. 1224, 1483-1484.) Had defendant objected to the improper argument of plaintiff’s counsel this error would be a sufficient ground for reversal whether or not the award was excessive as a matter of law. Defendant’s failure to object, however, did not preclude its appeal on the ground that the award was excessive as a matter of law or preclude this court’s reversing on that ground and ruling on the impropriety of counsel’s argument to guide the court on the retrial. (Code Civ. Proe., § 53.)

I would reverse the judgment and remand the cause for a new trial on the issue of damages.

Schauer, J., and McComb, J., concurred.

Appellants’ petition for a rehearing was denied September 13, 1961. Traynor, J., Schauer, J., and McComb, J., were of the opinion that the petition should be granted.

MEMORANDUM

MORTON, District Judge.

This suit is brought by plaintiffs Great American Music Machine, Inc. (GrAMM), a Colorado corporation, and Ralph Harrison, a citizen and resident of Colorado, against Mid-South Record Pressing Company, a division of GRT Corporation, with its principal place of business in Davidson County, Tennessee. The complaint seeks monetary damages, based upon breach of contract and implied warranty in connection with some record albums which plaintiffs allege were defectively pressed by Mid-South. The defendant counterclaims on its open account with the plaintiff corporation in the stipulated amount of thirteen thousand and twenty-five dollars and thirty-nine cents ($13,025.39). Jurisdiction of this court is properly invoked under 28 U.S.C. § 1332.

FINDINGS OF FACT

In August of 1971, plaintiff Harrison and several of his close friends and business associates formed “Crossroads Limited Partnership,” the predecessor to plaintiff corporation. The partnership was formed for the purpose of promoting and exploiting the musical talents of Harrison as a songwriter and singer, although he was then unknown in the entertainment field and had never performed professionally. The business plan of the partnership was to finance the production of a master tape for an album by Ralph Harrison, convert the partnership into a corporation, produce and promote the album and Harrison as an artist, and raise additional capital through a public offering of the stock of the corporation. GrAMM was incorporated by the Crossroads venture in March of 1972, and all the rights of Crossroads were merged into the new corporation.

In the fall of 1971, Harrison went to New York City to produce the master tape for an album featuring himself as the singing artist. The production cost of the master tape was thirty-one thousand and eighty-eight dollars ($31,088.-00). The title of the album was-to be “Free Spirit Movin’.”

In early February of 1972, Harrison and an investor in the venture came to Nashville, Tennessee, to contract for the pressing and packaging of the record album. On behalf of GrAMM, they contracted orally with the defendant, Mid-South Record Pressing Company, for the pressing of forty thousand (40,000) record albums, at a cost of thirteen thousand and twenty-five dollars and thirty-nine cents ($13,025.39). GrAMM received assurances that the records would be of high quality. Although there was some dispute in the testimony at trial, it appears to the satisfaction of this court that there was some discussion with Janet Tabor, manager of defendant company, concerning the overall business plan of GrAMM. It is the finding of this court that GrAMM’s plan to offer stock *880to the public in June of 1972 was mentioned in this discussion.

Under the terms of the oral agreement between the parties, Mid-South was to mail directly to members of ESA, a national sorority, some thirty-two thousand (32,000) copies of the album. (One of Harrison’s songs on the record had been adopted by ESA as its theme song). GrAMM supplied the postage in advance for this mailing. To be enclosed with the albums sent to ESA members was a letter requesting that five dollars ($5.00) be remitted to GrAMM, of which one dollar ($1.00) would be donated to a certain service project of the sorority. The bulk of the remaining 8,000 albums was to be sent to Gambit Records, a Nashville company with whom GrAMM had contracted for nationwide distribution. By mid-February of 1972, a test pressing of good quality had been approved by GrAMM, and Mid-South commenced production of the album. Though there was some dispute in the testimony at trial, the court finds that the contemplated delivery date was the first week of April, 1972.

On April 3, 1972, GrAMM received a shipment of the records at its office in Denver, Colorado. At that time it was discovered by Harrison and others that the records were defective in that they were warped, pitted and blistered, producing excessive surface noises when played. GrAMM immediately sent two representatives to Nashville on April 4, 1972, to investigate the situation. Upon arrival, the GrAMM representatives learned that some eight thousand (8,000) of the records had already been shipped to ESA members; roughly four thousand (4,000) records had been delivered to Gambit, from which an undetermined number had been sent to distributors and disc jockeys around the country.

The court finds as a matter of fact that the first pressing of the record by Mid-South was for the most part commercially unacceptable. Witnesses for both the plaintiff and the defendant testified as to this fact. Gordon Close, one of the GrAMM representatives sent to Nashville in early April, and Janet Tabor of Mid-South both agreed that the larger part of the records still on hand at Mid-South were unusable and that the entire lot should be scrapped and new records pressed. To be included in the new pressing were replacements for the defective albums which had already been shipped out.

After the new records were pressed, the plaintiff did not complain of the quality of the second pressings. In fact, Gordon Close, who acted as plaintiff’s quality control representative, testified that the re-pressing was completed to his expectations. Mr. Close called in Arnold Thies from Gambit to listen to random albums from the second pressing, and Mr. Thies also verified their high quality. The second pressing of the records appears to have been shipped out around the first of May, 1972.

Although GrAMM did not complain of the quality of the second pressing nor reject the second batch of albums, it has refused to pay its open account with Mid-South. The amount due on the account is $13,025.39.

In relation to the contemplated stock offering by GrAMM, plaintiff introduced evidence at trial attempting to show that Mr. Mike McBride of Equidyne, Inc., a brokerage firm in Salt Lake City, Utah, had agreed to a firm underwriting of five hundred thousand dollars ($500,000.00) worth of GrAMM securities. However, plaintiff could offer no written memorandum relating to the alleged oral offer by McBride. Additionally, Mr. McBride testified at the trial that a condition of this firm underwriting was that GrAMM have its record album “up and going” prior to the time of the underwriting, and that it was customary, at some finalized point, for his firm to issue a written letter of intent.

There was conflicting testimony as to why the underwriting failed to materialize. McBride testified that GrAMM *881“kind of avoided us and the deal just slipped away.” With regard to who was at fault, McBride firmly stated, “They backed out; I didn’t.” James Cox, on the other hand, testified that McBride would not return his calls and insisted that the failure of the underwriting was caused by the defective pressing of the first batch of record albums.

From the evidence developed at trial with regard to the underwriting offer, it is difficult for this court to ascertain exactly why the underwriting did not go through. It is noteworthy, however, that Mr. McBride admitted that his firm did not have sufficient capital to purchase the underwriting,1 and that in December of 1972, Equidyne was found to be in net capital violation by the Securities Exchange Commission. Equidyne, Inc. went into self-liquidation in February of 1973, according to Mr. McBride.

CONCLUSIONS OF LAW

The court finds that the defendant company breached implied warranties of merchantability and fitness for a particular purpose, T.C.A. § 47-2-314 and § 47-2-315, in the first pressing of the record albums. Defendant also breached its express contractual agreement to produce records of high quality.

At the outset, the court finds that plaintiff Ralph Harrison’s claim, for breach of warranty is not cognizable under Tennessee law, since there was no privity between plaintiff Harrison and the defendant company.2

Plaintiff Harrison urges that T.C.A. § 23-3004, passed on April 10, 1972, abolishes the requirement of privity in this case.

However, in Ford Motor Company v. Moulton, 511 S.W.2d 690 (S.Ct. Tenn.1974), cert. denied, 419 U.S. 870, 95 S.Ct. 129, 42 L.Ed.2d 109 (1974), the Tennessee courts held that the above statute abolishing the privity requirement is not to be retroactively applied.

Affirming the trial judge in the Moulton case, supra, the Tennessee Court of Appeals held in an unpublished opinion:

It is a well-accepted principle of statutory construction that statutes have only prospective application, unless the legislative intent that they be given retrospective application is clearly shown. Taylor v. Rountree, 83 Tenn. (15 Lea) 725 (1885). In the present ease there is nothing on the face of the statute to indicate that it is to be applied retrospectively, and accordingly, we hold that it has only prospective application. Applying the rule laid down in Bates v. Shapard, 224 Tenn. 672, 461 S.W.2d 946 (1970), dealing with prospective application of an amendment to the statute of limitations affecting actions arising in connection with the sale of goods, we find that T.C.A. § ES-S004- is intended to apply only to sales occurring after the effective date of the statute, (emphasis added)

The dismissal of the warranty counts of the complaint on the above grounds was affirmed by the Supreme Court of Tennessee.

The Moulton case appears to be dispositive of the question of whether Mr. Harrison is required to be in privity in order to bring his suit for breach of implied warranty. The oral contract between GrAMM and Mid-South was made in early February of 1972, prior to the passage of T.C.A. § 23-3004. Thus, Tennessee law requires that plaintiff Harrison be in privity, Leach v. Wiles, *88258 Tenn.App. 286, 429 S.W.2d 823 (1968) , and Harrison’s complaint must fail.

Turning now to the cause of the corporate plaintiff GrAMM, the court finds no merit-to defendant’s contention that there was accord and satisfaction between the parties when defendant re-pressed the records. Under Tennessee law, it is essential that both parties intend to agree to an accord and satisfaction. Lichter v. B. Mifflin Hood Co., 198 F.2d 472 (6th Cir. 1952). In this case, GrAMM received no more than it was originally entitled to, and there was no proof that GrAMM intended to enter into an accord and satisfaction. Lytle v. Clopton, 149 Tenn. 655, 261 S.W. 664 (1924); Tullahoma Concrete Pipe Co. v. Pyramid Concrete Pipe Co., 46 Tenn.App. 559, 330 S.W.2d 578 (1969) .

The court finds as a matter of law that plaintiff justifiably rejected the entire first pressing of the record albums as nonconforming goods. T.C.A. § 47-2-602. This rejection included the 12,000 records which had already been shipped out to ESA members and Gambit. Plaintiff notified the defendant of the defects as soon as it became aware of them, on the day it received initial shipment. The defective records had only negligible value as scrap, and defendant made no request that they be returned to it. The cost of retrieving the records already distributed would have greatly exceeded their value as scrap. Any revenue from the records that were shipped to ESA members appears to have been from the second “replacement” batch of records.

With regard to the second pressing of the record albums, the court finds that plaintiff GrAMM is liable on its open account with defendant in the amount of $13,025.39. Plaintiff’s liability is predicated upon the fact that it accepted the repressed records and under T.C.A. § 47-2-607 must pay at the contract rate for goods accepted by it. The fact that plaintiff accepted the second batch of records does not, however, in any way preclude its suit for damages occasioned by the defective pressing of the first batch of records. The delivery of the second batch of records did not constitute a cure within the meaning of T.C.A. § 47-2-508, as the damage had already occurred and the time set for performance had expired.

Having previously determined that defendant Mid-South breached express and implied warranties, we now turn to the question of damages. Plaintiff GrAMM has elected to sue for breach of contract, rather than suing in tort for negligence. The damages recoverable for a breach of contract “ . . . are limited to those reasonably within the contemplation of the defendant when the contract was made, while in a tort action a much broader measure of damages is applied.” Prosser, Handbook on the Law of Torts, p. 613.

The standard measure of damages under the Uniform Commercial Code, as adopted in Tennessee, is not particularly helpful under the facts of this case. Under T.C.A. § 47-2-714(2):

The measure of damages for breach of warranty is the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted .

In the instant case, no credible evidence was proffered to the court to reflect the difference between the value that the records would have had if they had been perfectly pressed the first time and delivered on time, as warranted, and the value of the repressed records which were delivered late, after some of the defective records had already been distributed.

Fortunately, the drafters of the Code anticipated such unique factual circumstances and added the following provision to § 47-2-714(2): *883Additionally, T.C.A. § 47-2-714(3) provides :

*882. unless special circumstances show proximate damages of a different amount.

*883In a proper ease any incidental and consequential damages under the next section may also be recovered.

T.C.A. § 47-2-715 explains what may be included as incidental and consequential damages:

(1) Incidental damages resulting from the seller’s breach include expenses reasonably incurred in inspection, receipt, transportation and care and custody of goods rightfully rejected, any commercially reasonable charge, expenses or commissions in connection with effecting cover and any other reasonable expense incident to the delay or other breach.

(2) Consequential damages resulting from the seller’s breach include

(a) any loss resulting from general or particular requirements and needs of which the seller at the time of contracting had reason to know and which could not reasonably be prevented by cover or otherwise; and

(b) injury to person or property proximately resulting from any breach of warranty. (emphasis added)

According to Comment 4 to the above-quoted section:

The burden of proving the extent of loss incurred by way of consequential damage is on the buyer, but the section on liberal administration of remedies rejects any doctrine of certainty which requires almost mathematical precision in the proof of loss. Loss may be determined in any manner which is reasonable under the circumstances. (emphasis added)

With regard to certainty of proof required on damage questions generally, Tennessee law provides:

. there is a clear distinction between the measure of proof necessary to establish the fact that plaintiff had sustained some damage, and the measure of proof necessary to enable the jury to fix the amount. The rule which precludes the recovery of uncertain damages applies to such damages as are not the certain result of the wrong, not to those damages which are definitely attributable to the wrong and only uncertain in respect of their amount, (citation omitted) Acuff v. Vinsant, 59 Tenn.App. 727, 443 S.W.2d 669 at 674 (1969).

The question of allowable damages in this ease is made more difficult by the speculative nature of the business venture undertaken by GrAMM. It is undisputed that Harrison had not demonstrated that his talents as a songwriter and artist had any appreciable market value prior to the production of the record, “Free Spirit Movin’.” The proof clearly indicates the extremely hazardous nature of an undertaking to produce a “hit” record and create a “star” in the entertainment world.

Plaintiff GrAMM contends that the defective first pressing and resultant delay and confusion virtually destroyed the market for the “Free Spirit Movin’ ” album, and that Mid-South’s breach also caused the failure of the firm underwriting of $500,000 by Equidyne. Plaintiff concedes that it is impossible to project with reasonable certainty what the future profits of the new corporation might have been. Instead, plaintiff asks for (1) the cost of laying the ground work for the manufacture and distribution of the album, including production costs of the record, plus advertising and promotional costs; (2) the cost of keeping the corporation going as a business entity from the date of the breach until the date that plaintiff finally had a successful public offering and began producing music for commercial use; (3) the capital lost from the projected underwriting which failed to materialize, less that realized from a subsequent stock offering; and (4) expenses allegedly incurred following the breach in an attempt by GrAMM to rehabilitate the record, including: advertising expenses, promotional salaries, telephone *884costs, office supplies, payroll taxes, and salaries of management personnel and secretaries.

As previously noted, while the amount of damages may be approximated, the fact of damage attributable to the wrong must be proven with reasonable certainty. The court rejects the first two elements of damages propounded by the plaintiff, for the reason that the plaintiff did not prove to the court's satisfaction that there was ever any appreciable market for the record, nor that any such market was destroyed.

With regard to the existence of any market for the record, it is noteworthy that 32,000 of the 40,000 records pressed were to be shipped to ESA members as a promotional gimmick, with the request that $5.00 be remitted. The ESA members were, of course, under no legal obligation to pay the requested price for this unordered merchandise. 39 U.S.C. § 3010. There was no proof as to what percentage of the ESA members was likely to send in the requested price.

It was shown at trial that the usual practice among unknown artists in the record industry is to first put out a “single” record, as this is less expensive than an album. In this manner, the marketability of the artist can be tested prior to the production of an album. Ralph Harrison had never produced a single record, nor even performed professionally, prior to the production of the “Free Spirit Movin’ ” album. Therefore, the court must necessarily rely on the proof at trial with regard to the marketability potential of “Free Spirit Movin’.”

James Fogelsong, President of Dot Records and an expert in the music field, testified that the lyrics and artist’s performance in “Free Spirit Movin’ ” were not exceptional in any way; that its production was ordinary or worse; and that the musical instruments in the album “were not in time.” Paul Perry, a disc jockey for a popular Nashville radio station, testified that he was impressed with the jacket of the album, but not with the ingredients of the record. He testified that he found no fault with the pressing of the album, and that the ingredients on the record couldn’t measure up to the programming standards of his station in any event. He further testified that, in his opinion, the album “would not have had any major marketization,” even with an initial pressing of highest quality.

Plaintiff offered no credible expert witnesses to refute the testimony of Fogelsong and Perry. No market survey or other reliable evidence with regard to market potential was introduced by plaintiff. Based upon the proof, the court concludes that no appreciable market existed for the “Free Spirit Movin’ ” album.

Although GrAMM proved the amount of its investment and the cost of operating its business during the period in question, it offered no convincing proof that, with an initial pressing of high quality, it would in all probability have sold a sufficient number of records to recoup its investment. “Ordinarily, damages are said to be speculative when the probability that a circumstance will exist as an element for compensation becomes conjectural.” 25 C.J.S. Damages § 2. In the absence of credible proof that the album had a probability of success, the court cannot speculate that this would have been the case. In fact, the proof at trial convinced the court that the album had a far greater chance of failure than of success.'

Even assuming, arguendo, that a market existed for the record album, there would be a question as to destruction of any such market by the initially defective first pressing. Fogelsong and Perry both testified that a record can be rehabilitated from an initially defective pressing. Perry testified that his usual practice, when he receives a defectively pressed record but finds the contents to have artistic merit, is to contact the company and ask for another copy. Perry indicated that he could judge the artistic merit of a record regardless of the *885pressing. Perry also cited a specific example of a record that had originally been defectively pressed and had subsequently become a “big hit.” Perry and Fogelsong both testified that defective pressings occur with some frequency in the industry, particularly since the fuel crisis has affected the vinyl supply in this country.

The law is well settled that the injured party is not to be put in a better position by a recovery of damages for breach of contract than he would have been in if there had been full performance. 25 C.J.S. Damages § 3. In this case, to grant plaintiff its entire investment in the album as damages for the breach by defendant would in all probability be to put GrAMM in a far better financial position than it would have been in had there been no breach. This the court will not do. It does not appear that plaintiff would have recouped the investment even if there had been no breach.

The court also rejects plaintiff’s damages claim with regard to the failure of the $500,000.00 firm stock underwriting to materialize. First, the proof was not sufficiently clear as to why the underwriting did not go through. In absence of such satisfactory proof, the court cannot hold defendant liable for the failure.

Secondly, the court finds that such damages are too remote to have reasonably been within the contemplation of the parties at the time the contract was made. Although it appears from the proof that some mention was made of the stock offering in the conversation between GrAMM and Mid-South representatives, it does not appear that it was discussed in such detail that defendant would have had any idea that it might be held liable for the failure of the underwriting. As noted by the court in Baker v. Riverside Church of God, 61 Tenn.App. 270, 453 S.W.2d 801 (1970), in quoting from Squire et al. v. Western Union Telegraph Co., 98 Mass. 232 (1867):

A rule of damages which should embrace within its scope all the consequences which might be shown to have resulted from a failure or omission to perform a stipulated duty or service would be a serious hindrance to the operations of commerce and to the transaction of the common business life. The effect would often be to impose a liability wholly disproportionate to the nature of the act or service which a party had bound himself to perform and to the compensation paid and received therefore. 453 S.W.2d 801, 810.

In the case currently before the court, plaintiff asks damages in excess of $200,000 for breach of a $13,000 contract. The breach of the contract has not been satisfactorily proven to be the cause of the alleged loss. Certainly, these damages may not be allowed.

Under the circumstances peculiar to this case, the court finds the best measure of allowable damages to be the expenses reasonably incurred by GrAMM in its efforts to rehabilitate the record following the breach.

The court concludes that the following elements may be included in the expenses of rehabilitating-the record:

(1) salaries and travel expenses of GrAMM representatives sent to Nashville to negotiate the re-pressing of the record album and act as GrAMM’s quality control agents;

(2) salaries of other GrAMM employees for the period in which they were actively engaged in the rehabilitation of the record;

(3) extra mailing and handling costs attributable to the defective first pressing;

(4) reasonable telephone costs;

(5) advertising and promotional expenses reasonably incurred by GrAMM in rehabilitating the record; and

(6) a reasonable amount for office supplies and various other miscellaneous expenses.

*886The above elements of damages were not sufficiently separated from the rest of the damages alleged in the proof at trial to enable this court to set the amount of damages with any reasonable certainty. Therefore, the court directs the plaintiff to submit affidavits concerning the above elements of damages. Plaintiff shall furnish copies of such affidavits to defendant’s counsel, and defendant shall have an opportunity to respond and except to plaintiff’s affidavits.

Plaintiff is allowed fifteen (15) days for the submission of affidavits, and defendant shall have ten (10) days from the date such affidavits are filed with the Clerk of this court in which to respond and file counter-affidavits.

The court will review plaintiff’s affidavits and defendant’s responses thereto and will determine whether an additional hearing will be necessary in this cause.

An appropriate order shall be entered.

OPINION

WIESE, Judge.

In an earlier opinion issued in this case, the court resolved in plaintiffs favor the question of whether Western Union Telegraph Company (‘Western Union”), New Valley’s principal subsidiary, was entitled to recover contract damages as a result of the National Aeronautics and Space Administration’s (“NASA”) anticipatory repudiation of a contract promising NASA’s “best efforts” to launch Western Union’s communications satellite, the Westar VI-S, into earth orbit. New Valley Corp. v. United States, 67 Fed.Cl. 277 (2005). Notwithstanding this ruling, plaintiffs right to recover contract damages is once again at issue. Defendant has moved for summary judgment asserting that the damages identified in the court’s opinion do not qualify as direct damages but instead constitute consequential damages and lost profits and therefore are not recoverable under the terms of the parties’ contract. Plaintiff has cross-moved for summary judgment claiming that it is entitled on the basis of the stipulated facts to recover $43.3 million pursuant to the court’s earlier opinion. For the reasons set forth below, the parties’ cross-motions are denied.

I.

During the period relevant to this action (1984-1991), Western Union was a corporation in financial distress — a condition brought on by an ever — increasing interest burden arising out of indebtedness undertaken to finance capital expenditures that ultimately failed to produce their expected revenue flow. In an effort to arrest the decline in the company’s fortunes, Western Union began to sell off assets, including those comprising the company’s communications satellite division, the Westar Division. Included in the Westar *413Division assets was the Westar VI-S, a communications satellite built by Western Union at a cost of $82.2 million and acquired by Hughes Communications, Inc., in January 1989 for $20.5 million.1 At the time Western Union contracted for the construction of the Westar VI-S, it expected to launch that satellite aboard the Space Shuttle pursuant to a contract executed with NASA in 1984. This contract, however, was later disavowed by NASA due in the main to a reevaluation of the nation’s launch program precipitated by the loss of the Space Shuttle Challenger in January 1986 and the subsequent decision by President Reagan to forego commercial launches in favor of payloads that either were shuttle-unique or had national security and foreign policy implications.

Western Union eventually went into bankruptcy and following its reemergenee from that process brought suit in this court seeking, inter alia, damages for NASA’s breach of contract. The case went to trial on the issue raised by defendant, namely, that because of Western Union’s precarious financial condition, the company would not have been able to perform the contract on the date that performance was scheduled to occur and therefore had no basis for recovery of damages. In support of that argument, defendant relied on the Restatement (Second) of Contracts § 254(1) (1981) which declares that “[a] party’s duty to pay damages for total breach by repudiation is discharged if it appears after the breach that there would have been a total failure by the injured party to perform his return promise.”

We rejected defendant’s argument, concluding that section 254 is simply a codification of the general rule requiring a party seeking damages for breach of contract to demonstrate that the breach was the proximate cause of the injury claimed. New Valley, 67 Fed.Cl. at 284. That requirement, we noted, was satisfied in the instant case because absent NASA’s breach, Western Union’s sale of the Westar Division assets would have included the transfer (by assignment) of the satellite launch contract, thereby allowing Western Union to realize, through such assignment and sale, the market value of that contract. Id. Given this fact, we ruled that it was irrelevant whether or not plaintiff had the financial capacity to launch the satellite in its own right because under either scenario “the breach must be seen as the proximate cause of injury to plaintiff.” Id. We left for later consideration the question of how much more Hughes Communications would have paid for the Westar Division assets had they included a NASA launch contract.

II.

A.

Pursuant to the terms of the parties’ contract, any award for a breach of contract must be restricted to direct damages and may not include lost profits or other consequential damages. Specifically, under the heading “Limitation of United States Government and Customer Liability,” the launch services contract provided:

[T]he United States Government’s liability to the Customer ... whether or not arising as a result of an alleged breach of this Agreement, shall be limited to direct damages only and shall not include any loss of revenue, profits or other indirect or consequential damages.

Defendant maintains that the damages contemplated in the court’s earlier opinion constitute consequential damages and lost profits and therefore, based on the language quoted above, are not recoverable under the parties’ contract.

In support of this argument, defendant asserts that Western Union did not sell the Westar Division assets because of the breach but rather because it was confronting a liquidity crisis that left it without sufficient funds to satisfy its day-to-day operations and also meet its debt service obligations. Defendant thus maintains that plaintiffs damages cannot be said to flow directly from the breach but are instead the result of a collateral undertaking and therefore constitute consequential damages. More particularly, *414defendant identifies plaintiffs damages claim as a claim for lost profits, i.e., monies that Western Union claims it would have realized had it been able to sell its favorably priced NASA launch contract for its much higher market value.

We cannot accept this argument. Direct damages, or what are more often referred to as “general damages,” 24 Richard A. Lord, Williston on Contracts § 64:1, at 11 (4th ed.2002), are damages measured by the loss of the value of the performance promised by the breaching party. In other words, such damages are “based on the value of the very thing to which the plaintiff was entitled ..., they encompass paper losses or unrealized losses, and ... they are determined as of a particular date, usually by market measures.” 3 Dan B. Dobbs, Law of Remedies § 2.2(3), at 40-41 (2d ed.1993). Consequential damages (also called “special damages”), on the other hand, are those damages that “result as a secondary consequence of the defendant’s non-performance,” id. § 12:4(1), at 62, i.e., they “arise from the interposition of an additional cause, without which the act done would have produced no harmful result,” United States v. Chicago B. & Q.R. Co., 82 F.2d 131, 136 (8th Cir.1936). Consequential damages are thus distinguishable from general damages in that rather than being based on the value of the promised performance itself, they are based on the value of some consequence that that performance may produce. Dobbs, supra § 12.4(1), at 62.2

Consistent with these definitions, we believe that the damages identified in our earlier decision are direct damages rather than consequential damages. Specifically, we described those damages as the additional amount that Hughes Communications “would have paid for the Westar Division assets had they included a NASA launch contract.” New Valley, 67 Fed.Cl. at 284. In so ruling, we had in mind only one component of the Westar Division assets, namely, the value of the launch contract. As the balance of our opinion makes clear, we expected that value to fall somewhere between the market value of a substitute launch contract (stipulated by the parties to be $31.6 million) and the sale price Western Union reasonably might have expected to receive given its distressed financial position and Hughes Communications’ awareness of that condition.

Defendant’s assertion that the sale of the Westar Division assets was a collateral undertaking and hence rendered any loss identified with that sale a consequential damage is not correct. The sale of the Westar Division assets was not the cause of the loss claimed. Rather, the cause of that loss was defendant’s breach — an event that preceded the sale of the assets by many months. As we noted in our earlier opinion, the sale was simply the focal point of the loss, i.e., the occasion when the market value of the launch contract could have been realized by Western Union had there in fact been no breach. Id.

Nor is defendant correct in describing as lost profits the gain that Western Union could have expected to realize from the sale of the launch contract. That gain- — -the difference between the contract price and the market price (or more specifically, the price Hughes Communications would have been willing to pay) — is synonymous with the very value of the performance for which Western Union had bargained. Such a value, by definition, constitutes general damages rather than lost profits. Accordingly, defendant’s motion for summary judgment must fail.

B.

Where defendant’s motion miscategorizes the damages identified in the court’s earlier decision, plaintiffs motion miscalculates them. As an initial matter, plaintiff does not limit its damages calculation to the sale value of the launch contract, as our opinion intended, but instead includes damages for the entire loss associated with the sale of the Westar Division assets, including, in particu*415lar, the $11.7 million difference between the cost to Western Union to build the Westar VI-S satellite and the $20.5 million Hughes Communications in turn paid to purchase it. In addition, plaintiff identifies the difference between plaintiffs contract price and the market price for a substitute launch — stipulated by the parties as $31.6 million — as the value of the launch contract, rather than the difference between the contract price and the price Hughes Communications would have paid, as we earlier contemplated. We cannot endorse either of these positions.

The diminution in value of the Westar Division assets that we discussed in our earlier opinion was a reference to the launch contract only and not to any related assets whose market value might be dependent upon the availability of a launch contract, such as the Westar VI-S satellite itself. Clearly, a claim for the diminution in the value of the satellite (here, the demand for $11.7 million) is a claim involving a secondary injury traceable to the breach and as such is a claim for consequential damages not recoverable under the parties’ contract.

Plaintiffs second point — that we accept the parties’ stipulation regarding the market value of a substitute launch contract as the basis for an entry of judgment in its favor — similarly misconstrues the court’s view of this ease. As framed in our earlier opinion, the upper boundary for the calculation of plaintiffs damages is not the market price for a substitute launch contract (the $31.6 million now claimed) but rather the price Western Union reasonably could have expected to receive from the sale of its launch contract. As we put it then: “The question we must address is how much more Hughes Communications would have paid for the Westar Division assets had they included a NASA launch contract.” Id.

Implicit in this position is the court’s view that market damages are not appropriate where actual damages are ascertainable. Had plaintiff entered into a substitute launch contract, for example, its damages would have been measured by the difference in price between the breached contract and the substitute contract. Hughes Communications Galaxy, Inc. v. United States, 271 F.3d 1060, 1066 (Fed.Cir.2001) (citing U.C.C. § 2-712 (1997) (recognizing a buyer’s right to damages based on the costs of “cover”)). Where, as here, the proof of damages is tied to a hypothetical sale of the launch contract rather than to its replacement, the damages should similarly be calculated by reference to that sale, ie., the measured difference between the contract price and the price Hughes Communications would have been willing to pay for the NASA contract. For the reasons given, plaintiffs cross-motion for summary judgment must be denied.

CONCLUSION

For the reasons set forth above and consistent with the court’s earlier decision, the parties’ cross-motions for summary judgment are denied. The damages issue shall proceed to trial. Accordingly, on or before September 29, 2006, the parties shall file a status report proposing a schedule for pretrial and trial proceedings on this issue.

OPINION REGARDING CROSS-MOTIONS FOR SUMMARY JUDGMENT BROUGHT SEPARATELY BY MICHAEL JORDAN AND WORLDCOM, INC.

ARTHUR J. GONZALEZ, Bankruptcy Judge.

INTRODUCTION

Before the Court are cross-motions for summary judgment separately brought by Michael Jordan (“Jordan”) and WorldCom, Inc. (hereafter referred to as the “Debtors” or “MCI”).

BACKGROUND

On or about July 10, 1995, Jordan and the Debtors entered into an endorsement agreement (the “Agreement”). At that time, Jordan was considered to be one of the most popular athletes in the world. The Agreement granted MCI a ten-year license to use Jordan’s name, likeness, “other attributes,” and personal services to advertise and promote MCI’s telecommunications products and services beginning in September 1995 and ending in August 2005. The Agreement did not prevent Jordan from endorsing most other products or services, although he could not endorse the same products or services that MCI produced. In addition to a $5 million signing bonus, the Agreement provided an annual base compensation of $2 million for Jordan. The Agreement provided that Jordan would be treated as an independent contractor and that MCI would not withhold any amount from Jordan’s compensation for tax purposes. The Agreement provided that Jordan was to make himself available for four days, not to exceed four hours per day, during each contract year to produce television commercials and print advertising and for promotional appearances. The parties agreed that the advertising and promotional materials would be submitted to Jordan for his approval, which could not be unreasonably withheld, fourteen days prior to their release to the general public. From 1995 to 2000, Jordan appeared in several television commercials and a large number of print ads for MCI.

On July 1, 2002, MCI commenced a case under chapter 11 of title 11 of the United States Code (the “Bankruptcy Code”) in the Bankruptcy Court for the Southern District of New York. On January 16, *6802008, Jordan filed Claim No. 11414 in the amount of $2 million plus contingent and unliquidated amounts allegedly due under the Agreement. On July 18, 2003, the Debtors rejected the Agreement as of that date, pursuant to § 365(a) of the Bankruptcy Code. Following that rejection of the Agreement, Jordan filed Claim No. 36077 (the “Claim”) in the amount of $8 million — seeking $2 million for each of the payments that were due in June of 2002, 2003, 2004, and 2005. MCI does not object to the Claim to the extent Jordan seeks $4 million for the 2002 and 2003 payments under the Agreement. As of the rejection in July 2003, two years remained under the Agreement.

The Parties’ Contentions1

MCI asserts two bases for disallowance of the Claim. One, MCI contends that the Agreement is an “employment contract” within the meaning of section 502(b)(7) of the Bankruptcy Code and that Jordan’s claim is “capped” pursuant to that section. Second, MCI argues that Jordan had an obligation to mitigate his damages and failed to do so. MCI argues that these two bases entitle it to summary judgment with respect to its objection to the Claim, and assert that either under section 502(b)(7) or as a result of Jordan’s failure to mitigate damages following the Debtors’ rejection, the Claim should be reduced to $4 million. MCI argues that it is under no obligation to pay Jordan for contract years 2004 and 2005.

Jordan argues for summary judgment allowing the Claim in full and overruling and dismissing MCI’s objections to the Claim. Jordan argues that because he was not an “employee” of MCI and because the Agreement was not an “employment agreement,” section 502(b)(7) does not apply to cap his claim. Regarding MCI’s mitigation argument, Jordan argues that the objection should be overruled and dismissed for three independent reasons (1) Jordan was a “lost volume seller” and thus mitigation does not apply, (2) there is no evidence that Jordan could have entered into a “substantially similar” endorsement agreement, and (3) Jordan acted reasonably when he decided not to pursue other endorsements after MCI’s rejection of the Agreement.

DISCUSSION

A. Summary Judgment Standard

Under Federal Rule of Civil Procedure 56(c), made applicable to this proceeding by Federal Rule of Bankruptcy 7056, summary judgment is only appropriate where the record shows that “there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” See Fed. R. Civ. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). A genuine issue of material fact exists, where “there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). In determining whether such an issue exists, “the court is required to resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought.” Stern v. Trustees of Columbia Univ., 131 F.3d 305, 312 (2d Cir.1997). The court’s role is “not to weigh the evidence or make determinations of credibility but to ‘determine whether there is a genuine issue for trial.’” Village of Kiryas *681Joel Local Dev. Corp. v. Ins. Co. of N. America, 996 F.2d 1390, 1392 (2d Cir.1993) (quoting Anderson, 477 U.S. at 249, 106 S.Ct. at 2511). It is well established that a party opposing a motion for summary judgment “may not rest upon mere conclusory allegations or denials.” See Colavito v. N.Y. Organ Donor Network, Inc., 438 F.3d 214, 222 (2d Cir.2006) (quoting Markowitz v. Republic Nat’l Bank of N.Y., 651 F.2d 825, 828 (2d Cir.1981)). When cross-motions for summary judgment are made, as here, courts use the same standard as for individual motions for summary judgment — each motion must be considered independently of the other and the court must consider the facts in the light most favorable to the non-moving party for each. See Heublein, Inc. v. United States, 996 F.2d 1455, 1461 (2d Cir.1993). In such a situation, the court is not required to grant judgment as a matter of law for one side or the other. See id.

B. Application of Section 502(b)(7)

Jordan argues that section 502(b)(7) does not apply to his claim because he was an independent contractor and not an employee of MCI. MCI argues that section 502(b)(7) does apply to the Claim because the Agreement was an Employment Contract and Jordan was an “employee” within the meaning of that statute.

Section 502(b)(7) provides

(b) [T]he court, after notice and a hearing, shall determine the amount of ... [a] claim ... as of the date of the Sling of the petition, and shall allow such claim in such amount, except to the extent that....

(7) if such claim is the claim of an employee for damages resulting from the termination of an employment contract, such claim exceeds -

(A) the compensation provided by such contract, without acceleration, for one year following the earlier of—

(i) the date of the Sling of the petition; or

(ii) the date on which the employer directed the employee to terminate, or such employee terminated, performance under such contract; plus

(B) any unpaid compensation due under such contract, without acceleration, on the earlier of such dates;

11 U.S.C. § 502(b)(7).

This section caps an employee’s claim for damages resulting from the termination of an employment agreement when the employer has Sled for bankruptcy to (1) one year’s compensation provided by such agreement measured from the earlier of the date of the Sling of the bankruptcy petition or the date of termination, plus (2) any unpaid compensation due on such date. See, e.g., In re Protarga, Inc., 329 B.R. 451, 465 (Bankr.D.Del.2005). The statutory language shows Congress’s intent to limit the amount of damages that are recoverable from a debtor employer when each of two conditions is present — -the claim must be that of an “employee” and the damages sought are for the termination of an “employment contract.” See In re Lavelle Aircraft Co., No. 94-17496DWS, 1996 WL 226852, at *3 (Bankr.E.D.Pa. May 2, 1996). Neither “employee” nor “employment contract” is deSned in the statute or legislative history. See id., at *4.

When originally enacted, subsection (b)(7) did not contain the phrase “of an employee.” That language was added in 1984.2 See In re Continental Airlines, 257 *682B.R. 658, 665 (Bankr.D.Del.2000). One commentator has stated that the 1984 addition was made to eliminate the possibility of third parties, such as third party contractors, asserting a claim against the estate. See id. (citing Norton Bankruptcy Code Pamphlet, 1994-95 Edition (Revised) § 502(b), Editor’s Comment at 379 (1995)).

The cases that have discussed the issues of whether a person was an “employee” and whether the parties had an “employment contract” pursuant to section 502(b)(7) have considered a varied, non-exhaustive list of factors. The factors evidencing an employment contract include (a) how the agreement is entitled, (b) if the agreement identifies job responsibilities, (c) if the agreement provides the terms for compensation and benefits, (d) if withholding taxes and social security benefits are deducted from pay, (e) if the agreement constrains the “employee” from certain other activities, (f) if the agreement is not assignable, (g) if the debtor had the right to control the activities of the “employee,” 3 and (h) the amount of hours the “employee” needed to devote to the debt- or’s business per year.4 Another case stated that factors showing that a person was not an employee included that (i) the “employee” ran his own business, and (j) the “employee” provided services from a location far from the debtor.5

The majority of these factors favor Jordan. First, the Agreement6 explicitly stated that “Jordan shall be treated as an independent contractor under the terms of this Agreement” and that the Debtors would not withhold taxes. On the federal tax Form 1099 that MCI provided to Jordan, MCI identified Jordan’s compensation as “non-employee compensation.” See Jordan’s Statement of Uncontested Material Facts In Support of Mot. Summ. J., Ex. 11. The Agreement did not provide that the Debtors would furnish Jordan with health insurance or pension benefits, and MCI has not shown that it did provide Jordan with those benefits. The Agreement did not provide the Debtors with substantial rights to control Jordan’s activities; in fact, under the Agreement, Jordan retained substantial rights over his activities for the Debtors. For example, MCI agreed to submit copies of “all packaging, advertising and/or promotional materials” to Jordan for his approval before releasing them to the general public. The Agreement also provided that the timing of Jordan’s work for MCI would be subject to Jordan’s schedule. The hours worked under the Agreement strongly favor Jordan. In Bergh, the court noted that the agreement limited the party’s consulting services to a maximum of 120 hours per year. Bergh, 141 B.R. at 416 (finding that the limit on the hours was one of the agreement’s “significant differences” from factors “which evidence an employment contract”). Here, Jordan was required to work a maximum of sixteen hours per year.

MCI points out that in In re Wilson Foods Corp., 182 B.R. 278 (Bankr.D.Kan.1995), the court found the consultant, a party designated as an “independent eon-*683tractor,” to be an employee under section 502(b)(7). The claimant there had been a party to a three-year “Employment Agreement” with the debtor, with the possibility of renewal for a like term. When her term was not renewed, the Employment Agreement provided that the claimant was to serve as a consultant for seven years. After the debtor filed for bankruptcy, the court found that the “terms contained in the written contract, delineated an ‘Employment Agreement,’ evidenced an employment relationship between” the debtor and the claimant. Wilson Foods, 182 B.R. at 283. Some of the factors in that case admittedly do not favor Jordan — there the claimant had to pay her own taxes, the Employment Agreement was assignable only under limited circumstances,7 and had a non-compete clause. The Agreement contains similar provisions. However, the Wilson Foods court considered that because the consulting contract was contained in the same Employment Agreement under which the claimant served as executive vice president, the “situation is not so far removed from the general statement that the purpose of § 502(b)(7) was to ‘limit the claims of key executive-employees, who for one reason or another, were able to exact long-term contracts calling for substantial remuneration.’ ” Wilson Foods, 182 B.R. at 288 (citation omitted). See also Russell Cave, 253 B.R. at 823 (“the critical difference ... [in] Wilson Foods ... is that her consulting contract was part and parcel of the employment contract”).

As shown by Russell Cave’s distinction of Wilson Foods, the policy considerations behind section 502(b)(7) favor Jordan. Section “502(b)(7) serves a ... purpose by limiting employee damage claims, especially those of officers, owner-managers and other key-executives who had been able to exact favorable long term contracts calling for substantial remuneration.” Lavelle Aircraft, 1996 WL 226852, at *5 (emphasis added); see also In re Prospect Hill Res., Inc., 837 F.2d 453, 455 (11th Cir.1988) (“One purpose of section 502(b)(7) was to relieve bankrupt employers of the continuing duty to pay high salaries to officers and owners-managers who had been able to exact favorable terms of tenure and salaries while the business prospered.”). Here, Jordan was not an officer, an owner-manager, or a key executive of MCI. He was a popular athlete whose image MCI wished to license to sell its services and products. Section 502(b)(7)’s envisioned harm of high-level corporate insiders negotiating a long-term deal has no application to Jordan, whose main duty to the company was showing up for sixteen hours a year at photo and commercial shoots that were presumably far from MCI’s corporate offices. See, e.g., In re Cincinnati Cordage & Paper Co., 271 B.R. 264, 269 (Bkrtcy.S.D.Ohio 2005) (“This code section was designed to limit the claims of key executives who had been able to negotiate contracts with very beneficial terms.”).

As pointed out in In re U.S. Truck Co., Inc., 89 B.R. 618, 627 (E.D.Mich.1988), the Report of the Commission on the Bankruptcy Laws of the United States, which originally proposed this exception and whose draft was adopted almost word-for-word, explained the rationale for this section: “This clause is intended principally to apply to long-term contracts providing substantial compensation to management *684executives of corporate debtors. It also applies to the termination of contracts obligating payment for future athletic, entertainment, or other services.” Commission Report, H.R. Doc. 137, 93rd Cong., 1st Sess., Part II at 106 (1973), reprinted in Collier on Bankruptcy, Appendix B, Part 4-674 (15th Ed. Rev.2006).

Based upon a review of aforementioned, most specifically the factors cited in the case law, the Court finds that Jordan was not an “employee” and the Agreement was not an “employment contract” pursuant to section 502(b)(7). Therefore, there being no genuine issue of material facts as to Jordan’s status, the Court grants summary judgment to Jordan on this point and holds that this basis for MCI’s objection to the Claim is overruled and denied.

C. Mitigation

The doctrine of avoidable consequences, which has also been referred to as the duty to mitigate damages, “bars recovery for losses suffered by a non-breaching party that could have been avoided by reasonable effort and without risk of substantial loss or injury.” Edward M. Crough, Inc. v. Dep’t of Gen. Servs. of D.C., 572 A.2d 457, 466 (D.C.1990). The burden of proving that the damages could have been avoided or mitigated rests with the party that committed the breach. See Obelisk Corp. v. Riggs Nat’l Bank of Washington, D.C., 668 A.2d 847, 856 (D.C.1995); see also Norris v. Green, 656 A.2d 282, 287 (D.C.1995) (“The failure to mitigate damages is an affirmative defense and the [breaching party] has the burden of showing the absence of reasonable efforts to mitigate”). The efforts to avoid or mitigate the damages do not have to be successful, as long as they are reasonable. See Edward M. Crough, 572 A.2d at 467.

Jordan argues that as a “lost volume seller” he was under no obligation to mitigate damages. Alternatively, Jordan argues that MCI failed to establish that Jordan could have entered a “substantially similar” endorsement contract and that Jordan acted reasonably in not entering another endorsement agreement after MCI’s breach. MCI counters that Jordan is not a lost volume seller and that MCI has shown that Jordan failed to take reasonable steps to mitigate damages.

The damages for a contract’s rejection are determined in accordance with the law that would govern the value of the claim outside the context of bankruptcy. See, e.g., R & O Elevator Co. v. Harmon, 93 B.R. 667, 669, 672 (D.Minn.1988) (discussing mitigation theory under applicable state law); see also In re Dabrowski, 257 B.R. 394, 414 n. 40 (Bankr.S.D.N.Y.2001) (state law determines consequences of breach deemed rejection under § 365); In re Mitchell, 249 B.R. 55, 58 (Bankr.S.D.N.Y.2000) (to determine the effect of rejection under § 365, “we look to state law”).

The Court will look to the District of Columbia (“D.C.”) as the applicable state law for mitigation and other consequences of MCI’s rejection of the Agreement. The parties, under Section 16 of the Agreement, “Arbitration; Governing Law,” provided that any controversy would be submitted to arbitration to be governed in accordance with D.C. law. This is the only choice of law provision in the Agreement. MCI has asserted that the Agreement was negotiated between “WorldCom in Mississippi and Michael Jordan’s agent in Washington, D.C. with input from Michael Jordan, a resident of Illinois.” New York’s choice-of-law rules would require application of D.C. law under a “center of gravity approach” as D.C. was where one party negotiated from and *685was the location specified in the only-choice of law provision. See Beth Israel Med. Ctr. v. Horizon Blue Cross & Blue Shield of N.Y., 448 F.3d 573, 583 (2d Cir.2006) (stating factors, including place of negotiation, considered under “center of gravity” analysis); see also Cargill, Inc. v. Charles Kowsky Res., Inc., 949 F.2d 51, 55 (2d Cir.1991) (“New York courts generally defer to the choice of law made by the parties to a contract”).

The Court was not furnished nor did research reveal D.C. cases precisely on point. Therefore, the Court will discuss and rely on cases from other jurisdictions where needed.

1. Whether Jordan Was a “Lost Volume Seller ”

Jordan argues that MCI’s mitigation defense does not apply here because Jordan is akin to a “lost volume seller.” Jordan points to testimony demonstrating that he could have entered into additional endorsement contracts even if MCI had not rejected the Agreement. Thus, he argues, any additional endorsement contracts would not have been substitutes for the Agreement and would not have mitigated the damages for which MCI is liable.

“A lost volume seller is one who has the capacity to perform the contract that was breached in addition to other potential contracts due to unlimited resources or production capacity.” Precision Pine & Timber, Inc. v. United States, 72 Fed.Cl. 460, 490 (Fed.Cl.2006). A lost volume seller does not minimize its damages by entering into another contract because it would have had the benefit of both contracts even if the first were not breached. See Jetz Service Co. v. Salina Props., 19 Kan.App.2d 144, 865 P.2d 1051, 1055-56 (1993). The lost volume seller has two expectations, the profit from the breached contract and the profit from one or more other contracts that it could have performed at the same time as the breached contract. See Snyder v. Herbert Greenbaum & Assocs., 38 Md.App. 144, 380 A.2d 618, 624 (1977). “The philosophical heart of the lost volume theory is that the seller would have generated a second sale irrespective of the buyer’s breach” and that “[i]t follows that the lost volume seller cannot possibly mitigate damages.” D. Matthews, Should the Doctrine of Lost Volume Seller Be Retained? A Response to Professor Breen, 51 U. Miami L.Rev. 1195, 1214 (July 1997); see also Snyder, 380 A.2d at 625 (under this theory, “the original sale and the second sale are independent events”).

The lost volume seller theory is recognized in the Restatement (2d) of Contracts, §§ 347, 350 (1981) (the “Restatement (2d)”).8 The lost volume seller theo*686ry applies to contracts for services as well as goods. See Restatement (2d), § 347, ill. 16; see also Jetz Service, 865 P.2d at 1055-56 (applying theory to seller of services); Gianetti v. Norwalk Hosp., 64 Conn.App. 218, 779 A.2d 847, 853 (2001) (applying theory to provider of medical services), aff'd in part, rev’d in part, 266 Conn. 544, 833 A.2d 891 (2003).9

This case offers a twist on the typical lost volume seller situation. In what the Court regards as the typical situation, the non-breaching seller has a near-inexhaustible supply of inventory. See, e.g., Katz Commc’ns, Inc. v. Evening News Ass’n, 705 F.2d 20, 26 (2d Cir.1983). In the typical situation, when a buyer breaches an agreement to buy a good or service from the seller, the item is returned to inventory and the lost volume seller continues in its efforts to sell its goods or services. However, the transactions that occur following the breach are not necessarily the result of the breach but fundamentally the result of the seller continuing efforts to market its goods and services. It is this continuous effort coupled with a virtually limitless supply that warrants the lost volume exception to mitigation. As stated above, the transactions that may occur after the breach would in the context of the lost volume seller have occurred independent of the breach. Here, Jordan lacked a nearly limitless supply and had no intention of continuing to market his services as a product endorser.10

Although not addressed by a D.C. court, the majority of cases hold that Jordan bears the burden of proving that he is a lost volume seller. See generally Precision Pine, 72 Fed.Cl. at 495 (“The case law demonstrates that ... plaintiff bears the burden of demonstrating that it should be compensated as a lost volume seller”); Snyder, 380 A.2d at 624; Ullman-Briggs, Inc. v. Salton, Inc., 754 F.Supp. 1003, 1008-09 (S.D.N.Y.1991); R.E. Davis Chemical Corp. v. Diasonics, Inc., 826 F.2d 678, 684 (7th Cir.1987); Green Tree Fin. Corp. v. ALLTEL Info. Servs., Inc., No. Civ. 02-627 JRTFLN, 2002 WL 31163072, at *9 (D.Minn. Sept. 26, 2002).

To claim lost volume seller status, Jordan must establish that he would have had the benefit of both the original and subsequent contracts if MCI had not rejected the Agreement. See Ullman-Briggs, 754 F.Supp. at 1008. Although there is no definitive set of elements that the non-breaching party must show, many cases seem to follow the language from the Restatement (2d), Section 347, that the non-breaching party must show that it “could and would have entered into” a subsequent agreement. See, e.g., Donald Rubin, Inc. v. Schwartz, 191 A.D.2d 171, 172, 594 N.Y.S.2d 193, 194-95 (1st Dep’t 1993); Precision Pine, 72 Fed.Cl. at 496-97; Gianetti, 833 A.2d at 897; Jetz Ser*687vice, 865 P.2d at 1056; see also Green Tree Financial, 2002 WL 31163072, at *9 (“[t]o recover lost profits under this theory, a non-breaching party must prove three things: (1) that the seller of services had the capability to perform both contracts simultaneously; (2) that the second contract would have been profitable; and (3) that the seller of service would have entered into the second contract if the first contract had not been terminated”).

In his arguments, Jordan focuses primarily on his capacity to enter subsequent agreements, arguing that the loss of MCI’s sixteen-hour annual time commitment hardly affected his ability to perform additional endorsement services. On this prong alone, Jordan likely would be considered a lost volume seller of endorsement services because he had sufficient time to do multiple endorsements. Although he does not have the “infinite capacity” that some cases discuss, a services provider does not need unlimited capacity but must have the requisite capacity and intent to perform under multiple contracts at the same time. See Gianetti, 266 Conn. at 561-62, 833 A.2d 891 (plastic surgeon could be considered a lost volume seller if it were determined that he had the capacity and intent to simultaneously work out of three or four hospitals profitably).

Contrary to Jordan’s analysis, courts do not focus solely on the seller’s capacity. The seller claiming lost volume status must also demonstrate that it would have entered into subsequent transactions. See Diasonics, 826 F.2d at 684; Green Tree Financial, 2002 WL 31163072, at *9; Gianetti, 779 A.2d at 853 (“for sellers of personal services to come within the purview of the Restatement’s lost volume seller theory ..., they must establish,” in addition to capacity, that additional sales would have been profitable and that they would made the additional sale regardless of the buyer’s breach). Jordan has not shown he could and would have entered into a subsequent agreement. Rather, the evidence shows that Jordan did not have the “subjective intent” to take on additional endorsements. See Ullman-Briggs, 754 F.Supp. at 1008. The testimony from Jordan’s representatives establishes that although Jordan’s popularity enabled him to obtain additional product endorsements in 2003, Jordan desired to scale back his level of endorsements. Jordan’s financial and business advisor, Curtis Polk (“Polk”), testified that at the time the Agreement was rejected, Jordan’s desire was “not to expand his spokesperson or pitchman efforts with new relationships.” See Debtors’ Mot. Summ. J., App. 5, at 32. Polk testified that had Jordan wanted to do additional endorsements after the 2003 rejection, he could have obtained additional deals. See id. at 64-65. Jordan’s agent, David Falk (“Falk”), testified that “there might have been twenty more companies that in theory might have wanted to sign him” but that Jordan and his representatives wanted to avoid diluting his image. See Debtors’ Mot. Summ J., App. 6, at 24. Jordan’s Memorandum for Summary Judgment stated that at the time the Agreement was rejected, Jordan had implemented a strategy of not accepting new endorsements because of a belief that new deals would jeopardize his ability to achieve his primary goal of National Basketball Association (“NBA”) franchise ownership.

In a district court case in the Southern District of New York, the court held that the test of whether a plaintiff has established lost volume seller status has both subjective and objective components. See Ullman-Briggs, 754 F.Supp. at 1008-09. That case involved the breach of a sales distribution agreement; the plaintiff was a sales representation company that had *688represented the defendant, a manufacturer of small electrical appliances. Id. at 1004. After the defendant terminated the contract, the plaintiff took on seventeen new lines of products to represent. Id. at 1006. The plaintiff argued that its damages award should not be offset by the commissions it earned from these new lines. Id. at 1008. The court disagreed, finding that the plaintiff failed to show it had the subjective intent to take on these accounts even if the defendant had not terminated their agreement. Id. at 1009 (plaintiffs “own proof refuted that intent as to many of the additional lines”). The court stated that the plaintiffs “admission that it would not have had the subjective intent to take on many of the additional lines if Saltón had not terminated the contract” was “fatal to Ullman-Briggs’ claim that it may be properly be regarded as a lost volume seller.” Id. Here, although the situation is not strictly parallel because there were no subsequent deals by Jordan, the testimony by Jordan’s agent and advisor shows he lacked the subjective intent to take on additional endorsement opportunities regardless of MCI’s rejection of the Agreement.

Jordan’s situation is akin to that of the plaintiff in Samaritan Inns, Inc. v. District of Columbia, 114 F.3d 1227 (D.C.Cir.1997). In that case, Samaritan Inns, the plaintiff, provided below-market rental housing to recovering substance abusers. Id. at 1229. It successfully sued the District of Columbia and District officials for violations of the Fair Housing Act, such as unlawfully enforcing a stop-work order and initiating proceedings to revoke the plaintiffs construction permits. At issue on appeal, and of relevance here, was a portion of the damages award. The defendants appealed the award of more than $2 million in damages for potential contributions the plaintiff claimed it lost because of the defendants’ conduct. Id. at 1229, 1232. Once the controversy began, Samaritan Inns had chosen not to begin a planned fundraising campaign and argued that its damages included the lost contributions from this campaign. Id. The court analogized the plaintiffs argument to the lost volume seller theory, as the plaintiff claimed that charitable contributions are given on a regular basis. Id. at 1236. “[I]f a charity solicits money on an annual basis, a donation in one year will not compensate the charity for a donation ‘lost’ in a prior year.” Id. If not for the disruption of an annual fundraising drive, “the charity would have received contributions in both years.” Id. The problem with the damages award, according to the district court, was that the fundraising campaign was of “limited duration” and not an annual program. Id. The district court noted that if the fundraising program had been an annual event, a fact-finder could reasonably conclude that the plaintiff irretrievably lost the contributions, but it was unexplained under the circumstances — circumstances that included the “limited” duration of the campaign — why the plaintiff could not “simply make up the ‘lost’ contributions in later years and still achieve the goals of the [fundraising] campaign.” Id. Here, if Jordan had been seeking additional endorsement agreements independent of the Agreement’s rejection, the Court could conclude that Jordan was a lost volume seller and irretrievably lost the money from the MCI Agreement. However, given Jordan’s planned limitation on his endorsement activity based upon a desire to cultivate an image he perceived more compatible with that of an owner of an NBA team, rather than to continue to market his celebrity athlete image, the Court cannot make that conclusion.

One of the classic examples of the lost volume seller is found in Neri v. Retail Marine Corp., 30 N.Y.2d 393, 399-400, 334 *689N.Y.S.2d 165, 169-70, 285 N.E.2d 311 (N.Y.1972)

[I]f a private party agrees to sell his automobile to a buyer for $2,000, a breach by the buyer would cause the seller no loss (except incidental damages, i.e., expense of a new sale) if the seller was able to sell the automobile to another buyer for $2,000. But the situation is different with dealers having an unlimited supply or standard-priced goods. Thus, if an automobile dealer agrees to sell a car to a buyer at the standard price of $2,000, a breach by the buyer injures the dealer, even though he is able to sell the automobile to another for $2,000. If the dealer has an inexhaustible supply of cars, the resale to replace the breaching buyer costs the dealer a sale, because, had the breaching buyer performed, the dealer would have made two sales instead of one. The buyer’s breach, in such a case, depletes the dealer’s sales to the extent of one, and the measure of damages should be the dealer’s profit on one sale.

This example would surely have a different result if the car dealership was winding down its business and had agreed to sell one of its last cars to a buyer. If that buyer subsequently breached the contract and did not purchase the car, the dealership could hardly be expected to recover lost profits damages if the dealer put the car back onto a deserted ear lot, made no attempts to sell it, and kept the dealership shuttered to new customers. Those modifications are analogous to Jordan’s situation, with his stated desire to withdraw his services from the endorsement marketplace, and the lost volume seller theory accordingly does not apply to his circumstances.

Jordan states that it is a “red herring” to speculate under the lost volume analysis on what he would have done because that

ignores the central point of the lost volume principle: if Jordan had ... accepted a substantially similar endorsement opportunity- — exactly what [MCI] argues he was required to do to mitigate damages — the damages for which [MCI] is liable would not have been reduced by one penny because the lost volume principle would allow Jordan to retain the benefits of both the [MCI] Agreement and the hypothetical additional endorsement.

See Michael Jordan’s Reply Brief, at 14-15.

Jordan overlooks an important point about the lost volume seller theory — that the “original sale and the second sale are independent events,” Snyder, 380 A.2d at 625, because the lost volume seller’s intent to enter into new contracts is the same before and after a purchaser’s breach. The lost volume seller’s desire to sell more units of goods or services is virtually unaffected by the loss of a single sale or agreement.

Next, even if Jordan had mitigated damages by entering one subsequent endorsement agreement, this, without more, does not mean that Jordan was a lost volume seller. The lost volume seller has the intent and capacity to sell multiple units despite the breach of a contract for one transaction.

Finally, if Jordan had entered into a subsequent agreement or agreements, and if he had showed both the capacity and the intent to make subsequent sales, that might have had the effect of helping him to establish his status as a lost volume seller, which generally would relieve him of the duty to mitigate. This would not be a novel situation but it ignores the fact that he did not do so. See, e.g., Storage Tech. Corp. v. Trust Co. of N.J., 842 F.2d 54, 57 (3d Cir.1988) (“The lost volume seller theory is a response to a breaching buyer’s *690right to have a non-breaching seller mitigate damages. In other words, a seller can avoid the effect of its failure to mitigate by proving that it was a lost volume seller.”); Chicago Title Ins. Corp. v. Magnuson, No. 2:03-CV-368, 2005 WL 2373430, at *23 (S.D.Ohio Sept. 26, 2005) (when there is no evidence in the record that plaintiff “turned away or would have turned away business during the relevant period” and the “only evidence on the issue supports that the [plaintiff] could and would have completed such transactions,” the consequent instructions to the jury that the plaintiff was a lost volume seller and therefore had no duty to mitigate its damages were not erroneous).

Because the evidence establishes, among other things, that Jordan would not have entered into subsequent agreements, Jordan has not established that he is a lost volume seller. This theory thus does not relieve Jordan from the duty to mitigate damages.

2. Whether Jordan Made Reasonable Efforts to Mitigate

Jordan argues at length that MCI must show that Jordan could have entered a “substantially similar” endorsement contract in order to mitigate damages. However, this is not the law of the mitigation of damages or the avoidable consequences theory. This language stems from federal employment cases concerning back pay and mitigation, which this case, while similar in many respects, is not. See, e.g., Ford Motor Co. v. E.E.O.C., 458 U.S. 219, 231-32, 102 S.Ct. 3057, 3065-66, 73 L.Ed.2d 721 (1982) (the duty to mitigate damages, “rooted in an ancient principle of law, requires the claimant to use reasonable diligence in finding other suitable employment. Although the ... claimant need not go into another line of work, accept a demotion, or take a demeaning position, he forfeits his right to back pay if he refuses a job substantially equivalent to the one he was denied”) (footnotes omitted); Ingrassia v. Shell Oil Co., 394 F.Supp. 875, 886 (S.D.N.Y.1975) (“The general rule in wrongful discharge actions is that the employee is obliged to mitigate damages by seeking and accepting other available employment of the same or substantially similar character but not employment of a substantially different kind”).

Several of the justifications for the “substantially similar or equivalent” standard of employment law, aside from the general remedial policy of making the non-breaching party whole for losses caused by the breaching party, show why there is less concern here regarding a “substantially equivalent” opportunity as Jordan was not an employee of MCI. For one, the standard exists in part to ensure the employee’s future advancement by mandating that the employee’s promotional opportunities and status should be virtually identical to the prior position. See Sellers v. Delgado Community College, 839 F.2d 1132, 1138 (5th Cir.1988). Since Jordan was never an employee of MCI, this is not relevant. Second, to require acceptance of inferior employment can mean “that one who has been discriminated against would be obliged, in order to mitigate damages, to submit to the very discrimination of which he complains.” See Williams v. Albemarle City Bd. of Ed., 508 F.2d 1242, 1244 (4th Cir.1974). This, obviously, has no application here. Finally, the employee’s duty to make reasonable efforts in finding substantially equivalent employment is “based both on the doctrine of mitigation of damages and on the policy of promoting production and employment.” See N.L.R.B. v. Miami Coca-Cola Bottling Co., 360 F.2d 569, 575 (5th Cir.1966).

*691The main case relied on by Jordan for this argument regarding a “substantially similar” opportunity is a case analyzed under employment law and one that presented a completely different factual and procedural background. See Parker v. Twentieth Century-Fox Film Corp., 3 Cal.3d 176, 89 Cal.Rptr. 737, 474 P.2d 689 (1970). In Parker, the plaintiff, a leading movie actress, agreed to perform in a musical-type film in California. Id. at 690. The employer studio later decided not to make the movie and offered to the plaintiff as a substitute the leading role in a dramatic “western type” movie set in an opal mine and to be filmed in Australia. Id. at 694. The plaintiff turned down that offer, sued for damages on the original agreement, and the trial court ruled on a summary judgment motion that the earnings from this substitute employment that the plaintiff refused could not be applied in mitigation because the second offer was “different” and “inferior.” Id. The California Supreme Court affirmed. Id.11

More accurately, MCI must show the absence of reasonable efforts by Jordan to avoid consequences or minimize his damages. See Norris v. Green, 656 A.2d 282, 287 (D.C.1995); Joseph M. Perillo, Calamari & Perillo on Contracts, § 14.15, at 584 (5th Ed.2003) (“The doctrine of avoidable consequences merely requires reasonable efforts to mitigate damages”). As the D.C. law has not addressed this issue in any depth, the Court again turns to other jurisdictions where necessary.

Since “reasonable efforts in the form of affirmative steps are required to mitigate damages,” see Robinson v. United States, 305 F.3d 1330, 1334 (Fed.Cir.2002) (emphasis added) (citing Restatement (2d) § 350), MCI carries its burden by showing that Jordan has not taken affirmative *692steps to mitigate damages. Jordan admits in his brief that at the time of the rejection of the Agreement, “Jordan had already implemented a business strategy of not accepting new endorsements.” See Jordan’s Memo, in Support of Mot. Summ. J. at 17. Falk testified that a replacement telecommunications company was not approached. See Debtors’ Mot. Summ. J., App. 6, at 25-26. Polk testified that Jordan did not return to the endorsement marketplace to try and replace the revenue he was to be paid under the Agreement. See Debtors’ Mot. Summ. J., App. 5, at 28-29, 55. Polk explained that Jordan did not wish to expand his “pitchman efforts with new relationships” because of his primary goal of becoming the owner of an NBA team. Id. at 31-32. Although Jordan points to his discussions with another company, Nextel, as showing that he was willing to listen to endorsement agreements after MCI’s bankruptcy, MCI effectively responds that responding to an inquiry by giving them contact information and indicating a willingness to respond to another call “is not trying to find an alternative” agreement — it is, in effect, “doing nothing.” See Transcript of Sept. 12, 2006 Hearing, at 32-33. Based on the foregoing, and drawing all permissible factual inferences in favor of Jordan, the Court determines that MCI has established that Jordan did not take affirmative steps to mitigate damages.

3. Whether Jordan’s Beliefs that Another Endorsement Would Dilute His Impact as an Endorser or Harm His Reputation Were Reasonable Justifications for not Mitigating Damages

Jordan cites the risk that entering another endorsement contract could dilute his impact as an endorser or damage his reputation or business interests.

a. Dilution

Jordan’s dilution argument is not convincing. Jordan’s agent Falk testified that although there were no “fixed numbers” for the amount of endorsements, Jordan and his representatives were wary about dilution and sensitive about “protecting the brand” of Jordan. See Debtors’ Mot. Summ. J., App. 6, at 11. Jordan does not set forth any facts showing that Jordan’s image was at risk of dilution. MCI convincingly responds that adding an agreement to replace a lost one is merely maintaining the status quo, not a dilution of Jordan’s impact by addition. MCI’s expert stated that Jordan had previously had sixteen endorsement agreements in place (see Debtors’ Memo, in Opp. to Jordan’s Mot. for Summ. J., Ex. A (Carter Depo. at 50, 91)), which further weakens Jordan’s dilution argument and casts doubt on Falk’s statement that Jordan and his advisors “always felt that less is more” in terms of endorsements. See Michael Jordan’s Memo. In Support of Mot. for Summ. J. at 16-17. While the Court recognizes that Jordan’s image is the true commodity here and its market value could be diluted from overexposure, MCI has shown that Jordan’s image was not at risk of dilution by replacing the MCI endorsement agreement with another one. The only statements Jordan offers to support his argument that he behaved reasonably by not seeking another endorsement in 2003 because of a concern with diluting his image are conclusory in nature and contradicted by the available evidence. The contention that pursuing an endorsement opportunity would dilute the image Jordan wished to cultivate as one befitting an NBA team owner, also discussed under Point 4 below, may well raise factual issues regarding the impact an endorsement may have on a team owner’s image but that impact is irrelevant to Jordan’s duty to *693mitigate damages for his “rejected” endorsement contract. There is no genuine issue of material fact that dilution did not excuse Jordan’s duty to mitigate damages.

b. Risk to Reputation

Under the risk to reputation theory Jordan cites, an injured party is not allowed to recover from a wrongdoer those damages that the injured party “could have avoided without undue risk, burden or humiliation.” See Restatement (2d), § 350(1). Jordan’s “harm to reputation” argument is flawed because the envisioned harm to Jordan’s reputation does not rise to the level of harm found in the cited case law.

The cases cited by Jordan illustrate the harm to reputation that will excuse a party’s duty to mitigate. In Eastman Kodak Co. v. Westway Motor Freight, Inc., 949 F.2d 317 (10th Cir.1991), Kodak shipped a load of sensitized photographic material on a truck operated by the defendant. Most of the material was destroyed in transit because of the defendant’s mishandling. The Tenth Circuit held that Kodak was not required to sell the damaged merchandise to mitigate damages, stating that the record revealed that Kodak’s reputation, which it spent considerable resources in developing, “could be harmed if it was required to sell damaged merchandise in order to mitigate damages.” Id. at 320.

Another case cited by Jordan is similar to Eastman Kodak. In Sony Magnetic Products, Inc. of America v. Merivienti O/Y, 668 F.Supp. 1505 (S.D.Ala.1987), the plaintiffs merchandise, cassette tapes, had been damaged while it was being loaded onto a ship. The plaintiff refused to allow the cassettes to be marketed as “seconds” with only a non-warranty sticker on them and without removal of the marks identifying the cassettes as plaintiffs products. The court stated it was “convinced that as a matter of public policy a manufacturer which has spent years and millions of dollars developing a reputation in the marketplace should not be required to jeopardize that reputation under [those] circumstances.” Id. at 1515.

Those cases show the uncontroversial maxim that a plaintiff faced with the choice of (1) selling a sub-standard product to the public to mitigate damages caused by the breach of another and (2) doing nothing&emdash;can choose to do nothing, but Jordan was not confronted with those circumstances. While Jordan’s reputation is considerable and obviously the result of careful development, there are no factual assertions that support the proposition that Jordan’s choosing another endorsement opportunity is akin to being forced to sell damaged goods, as was the case in Eastman Kodak and Sony Magnetic Products.

Jordan also cites District Concrete Co. v. Bernstein Concrete Corp., 418 A.2d 1030, 1037 (D.C.1980), for the proposition that it is not unreasonable for a plaintiff “to take into consideration ... consequences such as injury to reputation” as a factor in post-breach decisions. Bernstein had sued its concrete supplier, District Concrete, for breach of a requirements contract. Bernstein was the sub-contractor for a construction project building an apartment complex. Id. at 1032. After the complex’s roof was poured with concrete, defects in the concrete were found. Id. at 1033. Bernstein considered two approaches to cure the problem (1) tearing out the slab and replacing it, or (2) building a “composite slab” over the defective area. Id. Bernstein estimated the cost of each approach to be about $100,000 but considered that the highly visible “tear-out method” could damage Bernstein’s and the general contractor’s reputations. Id. Although the chosen “composite slab” approach ended *694up costing more than anticipated, the court held that the choice of this method was reasonable when made, given that the “costs and time involved” for each were comparable and also considering the consequences of possible reputation damage. Id. at 1037.

That case is of little help to Jordan. For one, any harm to Jordan’s reputation arising from MCI’s bankruptcy is not comparable to the reputation damage a construction contractor faces from building a defective roof. As MCI’s expert testified, consumers do not believe that celebrity endorsers are experts in the products they endorse,12 while a consumer would expect a builder to build a defective-free roof. If the roof fails, consumers would blame the builder. If a company fails, consumers do not blame the company’s celebrity endorsers. Also, Jordan has not shown that he faced two reasonable approaches to mitigate his damages, with one of those approaches carrying a risk to his reputation. Jordan has stated that he was faced with two choices (1) mitigate damages, which he alleges could harm his reputation, or (2) concentrate on a venture that has no connection to the mitigation of damages. This situation is thus not comparable to District Concrete.

The above analysis also applies to Jordan’s cited case of Citizens Fed. Bank v. United States, 66 Fed.Cl. 179 (Fed.Cl.2005). There, the court held that the breaching party cannot engage in “Monday-morning quarterbacking” to criticize the wronged party’s choice of mitigation. Id. at 185. “Where a choice has been required between two reasonable courses, the person whose wrong forced the choice can not complain that one rather than the other was chosen.” Id. Here, MCI is not complaining about the choice between “two reasonable courses” of mitigation. MCI is arguing that choosing to take no steps to mitigate is not a reasonable course.

In arguing that Jordan acted reasonably by avoiding further endorsements based on a belief that those efforts would harm his business interests or reputation, Jordan argues essentially that he would be harmed by doing precisely what he originally contracted to do under the Agreement and what he has been doing for other clients for a number of years — endorsing products and services. The Court recognizes the possibility of Jordan’s market saturation being a valid concern but Jordan’s argument that he wanted to get out of endorsements to pursue other ventures does not reheve the duty to mitigate. Furthermore, MCI’s expert stated that an additional endorsement agreement would not have harmed Jordan’s reputation by either diminishing Jordan’s image in the endorsement marketplace or harming Jordan’s goal of becoming an NBA team owner. See Debtors’ Reply Memo, Exh. C. at 91, 58 (pointing out that other NBA franchise owners have multiple business interests). Jordan has not asserted any facts to refute those assertions nor did he undermine the credibility of the expert making such assertions. Based on the foregoing, there is a no genuine issue of material fact as to whether reasonable endorsement efforts done to mitigate damages would have harmed Jordan’s reputation. The Court notes that even if there were a genuine issue of material fact as to whether another endorsement would negatively impact his becoming an NBA team owner, for the reasons set forth below, such would be irrelevant to the issue of mitigation regarding his endorsement contract.

*6954. Whether Focusing on NBA Ownership Was a Reasonable Decision

Jordan cites his goal of owning an NBA team as a reasonable justification for his decision not to enter additional endorsement agreements.

In support, Jordan cites cases that hold if a non-breaching plaintiff chooses a reasonable course of action despite the existence of another course of action that, in hindsight, would have been better at lessening harm, the plaintiffs damages are not reduced. A closer examination at such cases reveals that they are not applicable to Jordan’s situation. Cases that Jordan cites, such as Novelty Textile Mills, Inc. v. C.T. Eastern, Inc., 743 F.Supp. 212 (S.D.N.Y.1990), and Fed. Ins. Co. v. Sabine Towing & Transp. Co., 783 F.2d 347 (2d Cir.1986), share a common theme not present in the instant matter: the non-breaching party faced a choice between two reasonable courses of action right after the breach or tort that inflicted the damage, and made a choice to lessen the damage that appeared reasonable at the time. See, e.g., Novelty Textile Mills, 743 F.Supp. at 219 (“If the course of conduct chosen by the plaintiff was reasonable, the plaintiff can recover despite the existence of another reasonable course of action that would have further lessened the plaintiffs damages”). Jordan’s choice to focus on NBA team ownership, in contrast, was not done to lessen the damage from MCI’s rejection, but was done for other, unrelated business reasons.

In Novelty Textile Mills, the plaintiff hired the defendant to ship its fabric, but while the defendant had the fabric in its possession, a liquid contaminant damaged the goods. 743 F.Supp. at 215. The court held that, given the circumstances, the plaintiffs decision to salvage the damaged goods rather than attempting to clean them was reasonable. Id. at 219. The court considered factors such as the resale cost, the low value of the goods, and that the goods were no longer fit for their intended use. Id. at 220.

In Tennessee Valley v. M/V Delta, 598 F.2d 930 (5th Cir.1979), the plaintiffs barge sank after the defendant towed it. 598 F.2d at 932. The plaintiff decided to raise the barge from the river bottom, rather than abandoning it and contacting the U.S. Army Corps of Engineers, who would have removed it and sought recovery from the negligent party. Id. at 934. The trial court concluded that the sinking resulted entirely from the defendant’s lack of due care. Id. at 932. But at the time the plaintiff made the decision to raise the barge, the defendant denied liability, so the plaintiff faced the possibility that it could be liable for the costs of removal and for any damage the abandoned vessel caused to third parties if it did not act. Id. at 934. The court found the decision to remove the barge to be a reasonable one. Id. at 935. “In determining whether the victim’s conduct falls within the range of reasonableness, the court must consider that the necessity for decision-making was thrust upon him by the defendant, and judgments made at time of crisis are subject to human error.” Id. at 933.

Those cases demonstrate that a court will not sharply second-guess the decisions made by a non-breaching party when it attempts to mitigate the damages caused by the breaching party. The cases differ from Jordan’s situation because his decision to focus on NBA team ownership was independent of MCI’s rejection and was not contemplated as one that would lessen the harm of that rejection. Such a decision was unrelated to the duty to mitigate damages resulting from a rejected agreement as a product endorser. In short, the argument that Jordan acted reasonably by focusing solely on his efforts to *696become an NBA team owner is a red herring. It may have been reasonable for Jordan to focus on becoming an NBA team owner in the scope of Jordan’s overall future desires but that does not mean it can support a determination that he was relieved of his obligation to mitigate damages in response to MCI’s rejection of the Agreement.

Furthermore, Jordan did not have to pursue any endorsement, such as one that would be beneath a celebrity of Jordan’s stature, e.g., endorsing a product likely to be distasteful to Jordan or his fans. Jordan had the duty to take reasonable efforts to mitigate, such as by seeking another endorsement for an established, reputable company for compensation near to what he received from MCI. MCI has established that there is no genuine issue as to whether Jordan made reasonable efforts to do so. The Court finds that as a matter of law Jordan has failed to mitigate damages. See Hutton v. Sally Beauty Co. Inc., No. 4:02-CV-00190-SEB-WG, 2004 WL 2397606, at *4 (S.D.Ind. Oct. 22, 2004) (granting summary judgment to defendant where defendant introduced sufficient evidence to establish that plaintiff made no reasonable attempts to mitigate her damages following the termination of her employment).

D. The Need for a Further Determination of Damages

A case cited by MCI shows the correct path for further resolution of this matter. Wisconsin Ave. Nursing Home v. D.C. Human Rights Comm’n, 527 A.2d 282 (D.C.1987), did not, as MCI asserts,13 hold that the plaintiffs failure to mitigate damages barred any recovery. After finding that the discharged employee had not exercised reasonable diligence in seeking substitute employment, the court remanded the case for the factual determination, with the burden of proof on the defendant, of the wages the plaintiff could have earned had she diligently sought substitute employment. Id. at 291-92. See also Obelisk Corp. v. Riggs Nat’l Bank of Washington, D.C., 668 A.2d 847, 856 (D.C.1995) (affirming this jury instruction “if you find ... that a party should have taken advantage of a business opportunity which was reasonably available to a party under all of the circumstances shown by the evidence, then you should reduce the amount of that party’s damages by the amount that the party would have received if it had taken advantage of such opportunity. However, the burden of proving that the damage could have been avoided or mitigated rests with the party that committed the breach.”); In re Rowland, 292 B.R. 815, 820 (Bankr.E.D.Pa.2003) (“To prove a failure to mitigate, a defendant must show: (1) what reasonable actions the plaintiff ought to have taken, (2) that those actions would have reduced the damages, and (3) the amount by which the damages would have been reduced”) (quoting Koppers Co., Inc. v. Aetna Cas. & Surety Co., 98 F.3d 1440 (3rd Cir.1996)). Thus, even though the Court finds that Jordan has failed as a matter of law to mitigate damages, the Court does not disallow the Claim in full.

In this case, there has been no determination and no evidence presented of what Jordan could have reasonably earned had he fulfilled his obligation to mitigate damages by entering the endorsement marketplace following MCI’s rejection of the Agreement. It is not clear that Jordan could have found an endorsement agreement in 2003 that paid him $2 million a year for the contract years 2004 and 2005. It is also unlikely that Jordan would have *697been obligated to accept a large number of endorsements of smaller value to make up the $2 million, due to the dilution effect such a number would have, because such efforts would likely be unreasonable. However, the facts may reveal that one or more endorsements could have been found without “diluting” his image and partially or completely mitigating the damages. Although MCI’s expert stated that he believed that Jordan could have easily earned $2 million from an additional endorsement in 2003, (see Debtors’ Memo. In Opp. to Jordan Mot. for Summ. J., Ex. A (Carter Depo. at 92)), that opinion was not presented with any objective evidence of the marketplace, such as what other celebrity endorsers of Jordan’s stature earned that year and which companies were in the market for an endorser of Jordan’s stature. Although the Court finds that as a matter of law Jordan has not mitigated damages, there must be an evidentiary hearing on how much his claim should be reduced to reflect what portion would have been mitigated had he used reasonable efforts to do so.

Conclusion

Jordan’s motion for summary judgment is granted in part and denied in part. To the extent Jordan moved to overrule MCI’s objection to the Claim that the “Agreement” is an employment agreement under section 502(b)(7), Jordan’s motion is granted. To the extent Jordan moved to overrule MCI’s objection based on MCI’s argument that Jordan failed to mitigate damages, Jordan’s motion is denied. MCI’s motion for summary judgment is granted in part and denied in part. To the extent MCI sought to disallow the Claim in full, MCI’s motion is denied. To the extent MCI moved for a ruling that section 502(b)(7) limits the Claim, MCI’s motion is denied. To the extent MCI claimed that Jordan failed to mitigate damages, MCI’s motion is granted in part. The Court finds that Jordan failed to mitigate damages but a further evidentiary hearing is necessary to determine what Jordan could have received had he made reasonable efforts to mitigate, a determination that consequently will affect the Claim.

The Debtors are to settle an order consistent with this opinion.

STRAUB, Circuit Judge:

Plaintiff-Appellant Boris Raishevich (“Raishevich”) appeals from (1) an amended judgment of the United States District Court for the Southern District of New York (William C. Conner, Judge) reducing his compensatory damage award from $24,000 to $12,000 (“Raishevich II”), and (2) a post-trial order denying his motion for attorneys’ fees, Raishevich v. Foster, 70 F.Supp.2d 411 (S.D.N.Y.1999) (“Raishevich IV").1

Raishevich brought suit pursuant to 42 U.S.C. § 1983 and the Civil Rights Attorney’s Fees Awards Act of 1976, 42 U.S.C. § 1988, seeking damages for the destruction of his photographic transparencies by Defendant-Appellee Charles Foster (“Foster”), an evidence custodian for the New York State Police. He also sought an award of attorneys’ fees. After Foster conceded liability, the District Court held a bench trial, limited to the issue of damages. Raishevich now appeals from the reduction of his compensatory award and the denial of his motion for attorneys’ fees.

For the reasons given below, we affirm the District Court’s order reducing the damage award. We find, however, that the District Court exceeded its allowable discretion in denying Raishevich’s motion for attorneys’ fees solely on the basis of his rejection of a settlement figure the District Court proposed during a pre-trial settlement conference. Thus, we vacate the court’s order denying Raishevich’s motion for attorneys’ fees and remand for further proceedings on that issue.

BACKGROUND

For approximately fifteen years, Raishe-vich assembled a collection of photographic transparencies of cannabis, or marijuana, plants. Raishevich I, 9 F.Supp.2d at 417. In November 1993, officers of the New York State Police arrested Raishe-vich and seized numerous items from his home, including 347 transparencies from his cannabis collection. See id. Although *341he requested that the police return his transparencies, they were destroyed by Foster, an evidence custodian for the New York State Police. On May 2, 1995, Ra-ishevich brought suit pursuant to 42 U.S.C. § 1983 seeking compensatory damages for the destruction of these transparencies as well as an award of costs, including attorneys’ fees, pursuant to 42 U.S.C. § 1988(b).

Several pre-trial developments are of interest for our purposes. On March 6, 1996, Foster conceded liability. On May 30, 1996, Raishevich obtained new counsel, the law firm of Michael Kennedy, which has continued its representation of Raishe-vich through this appeal. On March 25, 1998, approximately two months before trial, the District Court conducted a settlement conference. Although each party’s recollection of the conference differs somewhat, and, importantly, differs from that of the District Court, a few facts seem clear. During this conference, Assistant Attorney General Bruce A. Brown (“Brown”) represented to the District Court on behalf of the defendant that “any figure over $25,000 would be beyond the settlement authority of [his] immediate supervisors and would require approval from Albany.” Raishevich’s counsel indicated that it would be difficult to convince her client to accept an offer less than $34,700. The District Court then “proposed a compromise at $30,000 and asked the attorneys to discuss the proposal with their clients and inform the Court as to their decision.” Raishevich IV; 70 F.Supp.2d at 415. At oral argument before this Court, Brown confirmed that his supervisors refused to authorize a $30,000 settlement, and both counsel agreed that Foster never made an offer of $30,000. Tr. of Oral Argument at 15, 17, 18, 20, 22. Also at oral argument, Brown went beyond his representation to the District Court regarding the extent of his settlement authority and indicated that there was never a formal offer of $25,000 because any such offer would have required the approval of New York State’s Comptroller. Id. at 17, 21. Thus, no offer was made, nor any compromise reached.

During a two-day bench trial solely on the issue of damages, Raishevich produced little evidence of his past earnings from his now-destroyed transparencies. The District Court’s evaluation of the evidence reveals that it found much of Raishevich’s proof regarding his past earnings — findings not directly challenged on appeal— either unsubstantiated or unconvincing. See Raishevich I, 9 F.Supp.2d at 418-19. The District Court discredited Raishe-vich’s expert witness’s testimony that the value of a one-time use of a transparency was $1500, seemingly finding her testimony to be both flawed and largely irrelevant. See id. at 419-21. After receiving conflicting evidence regarding the value of Raishevich’s transparencies, the District Court found that $200 was the proper measure of the actual value of each transparency. See id. at 421. The District Court then examined how many prints from his transparencies Raishevich could have sold over a thirty-year period. See id. Despite finding that evidence of his past earnings and productions was “scant,” the District Court provided Raishevich with “the benefit of every doubt” and concluded that Raishevich’s peak publication rate was two prints per year. This yielded sixty uses of his destroyed transparencies over a thirty-year period. Id. At $200 per use, the damages amounted to $12,000. The District Court then doubled the award of $12,000 to $24,000 because Foster’s destruction of the transparencies may have hindered Raishevich’s ability to prove his damages with greater specificity. See id. Finally, the District Court stated that the parties should bear their own costs and attorneys’ fees. See id. at 422.

*342Foster then sought an order amending the District Court’s findings of fact and judgment in order to reduce the damage award. Raishevich also moved to increase the damage award and to amend the judgment to include an award of attorneys’ fees. In its December 17,1998 order (“Raishevich II”), the District Court granted Foster’s motion and reduced the amount of compensatory damages to $12,000, denied Raishevich’s motion to increase the damages because his motion was untimely, and reserved decision on Raishevich’s motion for attorneys’ fees pending our decision following rehearing in Quaratino v. Tiffany & Co., 129 F.3d 702 (2d Cir.1997), vacated and superseded on rehearing, 166 F.Sd 422 (2d Cir.1999). In halving the damage award, the District Court explained that it had improperly taken the “Bigelow principle”2 into account twice in its initial decision, both in determining the publication rate of a Raishevich transparency and in supplementing the resulting damage figure at the end. The District Court, however, had not explicitly discussed the “Bigelow principle” in its initial opinion.

■ Following Raishevich II, Raishevich moved for an order amending the judgment in order to increase the compensatory damages and to include an award of punitive damages and prejudgment interest. On January 13, 1999, the District Court granted Raishevich’s motion for an award of prejudgment interest but denied his motion in all other respects (“Raishe-vich III”). In this opinion, the District Court explained that it previously had applied the Bigelow principle twice—“first by substantially increasing plaintiffs estimated rate of publication ... by choosing the highest rate ever achieved (two compensated publications per year) [thereby arriving at a total damage figure of $12,000], and again by doubling the final determined market value,” so as to award $24,000.

Raishevich filed a notice of appeal to this Court on January 19, 1999. On February 24, 1999 the appeal was withdrawn without prejudice to reinstatement after the District Court decided the pending issue of attorneys’ fees. On November 10, 1999, the District Court denied Raishevich’s motion for attorneys’ fees, finding that although Raishevich was a prevailing party, special circumstances existed that rendered an award unjust. Raishevich TV, 70 F.Supp.2d at 414-15. The District Court concluded that such an award was unjust because (1) liability had been conceded; (2) Raishevich’s expert had predicted a large sum in damages; and (3) Raishevich had rejected an offer of settlement that was greater than the amount he ultimately received in damages. Id.

On December 8, 1999, Raishevich filed a notice of appeal of the District Court’s amended judgment of December 17, 1998, the initial judgment of August 3, 1998, and its four opinions and orders. On appeal, Raishevich contends that the District Court erred in reducing the damage award and also abused its discretion in denying his application for attorneys’ fees.

*343DISCUSSION

I. Reduction of Damage Award

Raishevich objects to the District Court’s reduction of his compensatory damage award, arguing that the District Court did not include a duplicative consideration of the Bigelow principle, see swpra note 2, in its initial judgment. Following a bench trial, we will not upset a district court’s factual findings unless we are “left with the definite and firm conviction that a mistake has been committed.” Travellers Int’l, A.G. v. Trans World Airlines, Inc., 41 F.3d 1570, 1574 (2d Cir.1994) (internal quotation marks omitted). However, we review de novo a district court’s conclusions of law. See id. at 1575.

Although Raishevich bore the burden of persuasion with regard to his entitlement to compensatory relief, he had no obligation to offer a mathematically precise formula as to the amount of damages. Electro-Miniatures Corp. v. Wendon Co., 771 F.2d 23, 27 (2d Cir.1985). If the plaintiffs inability to prove an exact amount of damages arises from actions of the defendant, a factfinder “has some latitude to ‘make a just and reasonable estimate of damages based on relevant data.’ ” Id. (quoting Bigelow v. RKO Radio Pictures, Inc. 327 U.S. 251, 264, 66 S.Ct. 574, 90 L.Ed. 652 (1946)). The factfinder, however, may not base its award on speculation or guesswork. See Sir Speedy, Inc. v. L & P Graphics, Inc., 957 F.2d 1033, 1038 (2d Cir.1992). When “damages are at some unascertainable amount below an upper limit and when the uncertainty arises from the defendant’s wrong, the upper limit will be taken as the proper amount.” Gratz v. Claughton, 187 F.2d 46, 51-52 (2d Cir.1951). The Bigelow principle thus applies to situations in which the amount of damages, although not specifically ascertainable because of misconduct by the defendant, falls within a certain range. It provides the plaintiff with the benefit of a more liberalized standard of proof and prevents the defendant from “profit[ing] by his wrongdoing at the expense of his victim.” Bigelow, 327 U.S. at 264, 66 S.Ct. 574.

In this case, the District Court reduced its initial damage award because it concluded that it had applied the Bigelow principle twice. Although Raishevich takes issue with this conclusion, we find that the District Court did not err in reducing the award to correct its previous double counting. While the District Court did not discuss the Bigelow principle in its initial opinion, it is clear that it applied Bigelow’s, principles in determining Ra-ishevich’s peak publication rate of two prints per year. Raishevich provided little to no evidence indicating the uniqueness of his work, his exploitation of the market demand for cannabis photography or the market value of one of his transparencies.3 Raishevich I, 9 F.Supp.2d at 418-21. Moreover, the District Court found that, during a ten-year period, Raishevich published no more than ten prints. See id. at 421. For some of these publications, Ra-ishevich received no compensation or the compensation he allegedly received was deemed questionable by the District Court. See id. at 418-19, 421. The District Court also noted that in the two-year period immediately preceding the seizure, Raishe-vich failed to publish at all. See id. at 421. Thus, it is clear from the initial opinion that the District Court’s selection of a rate of two uses per year was a choice to use the upper limit and therefore to apply the *344Bigelow principle. That principle thus directly contributed to the $12,000 damage calculation. The District Court applied Bigelow again in doubling the resulting $12,000 figure to $24,000.

Raishevich points to no precedent requiring a District Court to factor the Bigelow principle in each point of its analysis; to do so would be to multiply the Bigelow factor exponentially. Our precedent suggests the opposite: Bigelow provides only that the factfinder is given some latitude in making a reasonable assessment of the damages, but it does not authorize the assessment of an additional penalty beyond permitting the plaintiff a more liberalized standard of proof. Although the Bigelow principle should be applied, it should not be applied twice. Here, recognizing that Raishevich’s evidence was weak, the District Court gave him the benefit of the doubt, but initially did so twice. Therefore, the District Court correctly reduced its damage award in Raishevich II because it had previously applied Bigelow twice.

II. Denial of Attorneys’ Fees

Our review of the denial of an award of attorneys’ fees is “highly deferential to the district court” and we reverse only for an abuse of discretion. Alderman v. Pan Am World Airways, 169 F.3d 99, 102 (2d Cir.1999) (internal quotation marks omitted). While “abuse of discretion” is “one of the most deferential standards of review[,] ... [a] district court necessarily abuses its discretion if its conclusions are based on an erroneous determination of law, or on a clearly erroneous assessment of the evidence.” Matthew Bender & Co. v. West Publ’g Co., 240 F.3d 116, 121 (2d Cir.2001) (internal quotation marks and citations omitted).

Title 42, section 1988 of the United States Code authorizes district courts to award reasonable attorneys’ fees to prevailing parties in proceedings in vindication of civil rights. See 42 U.S.C. § 1988(b). Although a district court typically has wide discretion in choosing whether to deny attorneys’ fees, we have indicated that this discretion is narrowed by a presumption that successful civil rights litigants should ordinarily recover attorneys’ fees unless special circumstances would render an award unjust. Kerr v. Quinn, 692 F.2d 875, 877 (2d Cir.1982). As we explained in Kerr, the “function of an award of attorney’s fees is to encourage the bringing of meritorious civil rights claims which might otherwise be abandoned because of the financial imperatives surrounding the hiring of competent counsel.” Id. We recognized, however, that in cases in which the merits are strong and a probable damage award is high, local counsel would be easily obtained due to the prospect of a significant contingency fee, and thus an award of attorneys’ fees would not further the statutory purpose. See id. Accordingly, we established a two-step test for courts to apply when considering whether special circumstances make it appropriate to deny attorneys’ fees. A court must make an initial determination whether “the plaintiffs claim was so strong on the merits and so likely to result in a substantial judgment that counsel in similar cases could be easily and readily retained.” Id. To evaluate this prong, a court, analyzing the posture of the case at the time counsel is sought, must determine whether “attorneys who generally take such cases on a contingent basis would readily appreciate the value of the case and agree to pursue it.” Id. at 878.

After the court determines that the plaintiffs ease satisfies this first requirement for denial of fees, it then may use its discretion to deny fees if, “in light *345of all of the circumstances and the size of recovery, an award of such fees might work an injustice.” Id. We emphasized that this decision will turn on such factors as the award of punitive damages, the amount of the compensatory award, the degree and measurability of the harm to the plaintiff, and the public interest in the particular claim.4 See id.

A. Prevailing Party

Before we reach the question whether the District Court correctly applied the Kerr test, we must address whether Raishevich is a “prevailing party.”5 42 U.S.C. § 1988(b). To so qualify, a “civil rights plaintiff must obtain at least some relief on the merits of his claim.” Farrar, 506 U.S. at 111, 113 S.Ct. 566. A plaintiff who achieves relief as a result of a settlement may be considered a prevailing party if the relief obtained was “of the same general type” as the relief sought. Lyte v. Sara Lee Corp., 950 F.2d 101, 104 (2d Cir.1991) (internal quotation marks omitted). We conclude, as the District Court did, that because Raishevich sought monetary compensation for the value of his destroyed transparencies and because Foster is legally obligated to compensate him, Raishevich qualifies as a “prevailing party.” Raishevich qualifies despite the fact that he received a lesser amount than he sought, because a “judgment for damages in any amount ... modifies the defendant’s behavior for the plaintiffs benefit by forcing the defendant to pay an amount of money he otherwise would not pay.” Farrar, 506 U.S. at 113, 113 S.Ct. 566 (holding that a party who wins nominal damages may be considered a prevailing party); see also Ruggiero v. Krzeminski, 928 F.2d 558, 564 (2d Cir.1991) (holding that a party who achieves only partial success may be considered a prevailing party). At minimum, therefore, Raishevich has established his eligibility for a fee award. See LeBlanc-Sternberg v. Fletcher, 143 F.3d 748, 758 (2d Cir.1998) (“A plaintiff who has ‘prevailfed]’ in the litigation has established only his eligibility for, not his entitlement to, an award of fees.”) (quoting Farrar, 506 U.S. at 114, 113 S.Ct. 566) (alteration in original). It remains to be determined whether the District Court exceeded its allowable discretion in concluding that Raishevich is not entitled to an award.

B. Likelihood of Attracting Similar Counsel

The District Court found that by the time Raishevich obtained his current counsel, the facts in his ease were so favorable that other counsel could easily have been obtained.6 Raishevich challenges this *346conclusion, arguing that the facts at the time he brought his complaint were not nearly as favorable as the District Court indicated. Raishevich’s current counsel did not file this complaint but was hired after the defendant conceded liability. Although counsel asserted at oral argument before us that his firm was seeking fees for Raishevich’s former attorney’s work, this assertion is belied by the record. In his memorandum of law in support of his application for attorneys’ fees and costs, Raishevich, through his counsel, explicitly forfeited the opportunity to seek fees for his prior counsel’s work. Pl.’s Mem. of Law submitted to the District Court at 18.

The District Court did not exceed its allowable discretion in concluding that the merits were strong and that a high award was probable at the time Raishevich’s current counsel was obtained. As the District Court noted, Foster had conceded liability before Raishevich’s current counsel was hired. Thus, only the amount of damages to be awarded was at issue. Moreover, at the time current counsel was obtained, the only existing expert witness report evaluating the value of Raishevich’s transparencies was that of Raishevich’s expert. This report stated that Raishevich had “suffered damages of no less than $261,000 and as much as $522,000.” At that time, no competing expert report had been undertaken. Thus, although Raishevich’s counsel now argues that the amount of damages was still “hotly contested” and, therefore, the concession of liability alone could not satisfy Kerf s first prong, the record does not support his argument. Hence, the District Court did not exceed its allowable discretion here because “attorneys who generally take such cases on a contingent basis would [have] readily appreciate[d] the value of the case and agree[d] to pursue it.” Kerr, 692 F.2d at 878.7

C. Discretion to Deny Fee Award

Having found Kerfs, first prong satisfied, the District Court moved to Kerfs second question — whether an award of fees would be unjust. See Kerr, 692 F.2d at 877 (“The district court’s discretion to deny fees begins ... only after an initial determination [that the first prong is satisfied].”). The District Court found that such injustice would occur because Raishevich refused to accept a settlement offer of an amount significantly greater than that which he ultimately recovered. We find that the District Court exceeded its allowable discretion in denying an award of attorneys’ fees on the basis of Raishevich’s rejection of the court-proposed settlement “offer.”

In this case, both parties agree that the defendant never made a formal (or even an informal) settlement offer of either $25,000 or $30,000. Rather, the $25,000 figure was contingent on approval by state authorities and the $30,000 figure was the court’s proposal alone. Thereafter, Foster did not accept the court’s figure, nor propose a new amount. Yet, despite the fact that no settlement offer existed, the District Court penalized Raishevich for not accepting the court’s proposed figure. The District Court of*347fered no other reason for finding that the circumstances of this case were so “special” as to indicate that an award of attorneys’ fees would be “unjust.” See Raishevich IV, 70 F.Supp.2d at 414-15. In addition, it is far from settled that a court may use the refusal to accept an informal oral settlement proposal, as opposed to a formal written offer made pursuant to Fed.R.Civ.P. 68, as a basis to deny fees. See, e.g., Ortiz v. Regan, 980 F.2d 138, 140-41 (2d Cir.1992) (reversing denial of attorneys’ fees for work done after an informal request to negotiate a settlement); Grosvenor v. Brienen, 801 F.2d 944, 948 (7th Cir.1986) (holding that oral settlement offer made at a settlement conference and refused • by the plaintiff did not satisfy the requirements of Rule 68 and could not cut off the plaintiffs post-offer attorneys’ fees). We have indicated that “[ajbsent a showing of bad faith, ‘a party’s declining settlement offers should [not] operate to reduce an otherwise appropriate fee award.’ ” Ortiz, 980 F.2d at 141 (quoting Cowan v. Prudential Ins. Co. of Am., 728 F.Supp. 87, 92 (D.Conn.1990) (Winter, J., sitting by designation), rev’d on other grounds, 935 F.2d 522 (2d Cir.1991)). No finding of bad faith, however, was made below. Thus, by equating its proposal that was not accepted by either party with an actual settlement offer, the District Court relied on “a clearly erroneous assessment of the evidence.” Kerin v. United States Postal Serv., 218 F.3d 185, 188-89 (2d Cir.2000). Moreover, by relying on Raishevich’s refusal of the court’s proposal, the District Court made an “erroneous determination of law.” Revson v. Cinque & Cinque, P.C., 221 F.3d 71, 78 (2d Cir.2000). Accordingly, we conclude that the District Court exceeded its allowable discretion in relying upon this basis to deny fees.

We also recognize that the District Court’s reliance on its own settlement proposal in denying a fee award is a “problem,” Ortiz, 980 F.2d at 140. We have cautioned that a

district court should not rely on informal negotiations and hindsight to determine . whether further litigation was warranted and, accordingly, whether attorney’s fees should be awarded ... [because] “[a] rule giving trial judges discretion to deny such fees where the refusal of an offer is shown after the fact to have been unwise might well lead to very uneven results and even misuse in cases in which judges become involved in settlement negotiations.”

Ortiz, 980 F.2d at 140-41 (quoting Cowan, 728 F.Supp. at 92). Here, the District Judge conducted a settlement conference and proposed a settlement figure in a case later tried to the bench. Both parties rejected his proposed figure, but one party bore the brunt of that rejection by the court’s subsequent denial of its motion for attorneys’ fees.

Although the decision to deny or award attorneys’ fees is “uniquely within the province of a district court, we nevertheless need to ensure that any such decision is made with restraint and discretion.” Salovaara v. Eckert, 222 F.3d 19, 27 (2d Cir.2000) (quoting Schlaifer Nance & Co. v. Estate of Warhol, 194 F.3d 323, 334 (2d Cir.1999)). We conclude that, in this case, the District Court exceeded its allowable discretion in denying attorneys’ fees to the prevailing party on the basis of that party’s rejection of the court’s settlement proposal, which was also rejected by his adversary. It is quite clear from the record that the District Court concluded that Raishevich’s refusal to settle at its proposed amount was a “special circumstance” that, by itself, rendered an award of fees unjust. Because the District Court did not analyze the other factors suggested in Kerr, 692 F.2d at 878, and because the decision to award or deny fees is best *348determined by the district judge “who is most familiar with all facets of the case,” id, a remand is appropriate. See, e.g., Matthew Bender & Co. v. West Publ’g Co., 240 F.3d 116, 126 (2d Cir.2001) (remanding where district court relied on wrong legal standard and did not specifically identify other facts that could have justified a fee award); Mentor Ins. Co. (U.K.) Ltd. v. Brannkasse, 996 F.2d 506, 521 (2d Cir.1993) (“[T]his Court will not speculate as to whether the award is appropriate under any other theory that has not been stated by the district court....”). On remand, the District Court should reconsider Ra-ishevich’s application for attorneys’ fees.

CONCLUSION

For the foregoing reasons, we affirm the District Court’s amended judgment filed on December 17, 1998 reducing the compensatory damage award. However, we vacate the District Court’s order of November 10, 1999 denying Raishevich’s application for attorneys’ fees and remand for the District Court to reconsider his application. Each party shall bear its own costs on this appeal.