On August 12, 2008, Howard Wieder entered the vestibule at the Home Depot store in Flushing when he encountered Rosario and Jorge Berg who were arguing with and cursing at a store employee. Ms. Berg then accosted Mr. Wieder, both verbally and physically. Mr. Wieder responded verbally but out of nowhere he was then struck on the back of his head by Mr. Berg and pummeled by Ms. Berg. Wieder then struck Mr. Berg with a punch and ran away.

Home Depot in Flushing

A store security guard caught up with Mr. Wieder a block away and forcefully held him there until police arrived and arrested him. Wieder was handcuffed, put into a patrol car, taken to the police station, charged with assault and harassment and spent a day and night in jail before he was released. A month later, all charges against Wieder were dropped.

Wieder initially commenced suit in state court against Home Depot, the security guard and the Bergs as well as the City of New York and several police officers. The defendants removed the case to federal court where it was dismissed with leave to file state law claims against Home Depot and the security guard. The new case was brought in Queens but administratively transferred to Kings County.

After a trial on the issue of liability, the jury awarded plaintiff pain and suffering damages in the sum of $1,800,000 (all past – 10 years) on the causes of action alleging battery and false imprisonment.

Both parties appealed. In Wieder v. Home Depot U.S.A., Inc. (2d Dept. 2022), the appeals court affirmed the liability verdict but ordered that the damages award be reduced to $500,000.

At the time of his arrest, plaintiff was employed as a court attorney for a Supreme Court justice in Queens County and was pursuing a nomination to the judiciary. He testified to his pain and anguish and the loss of his reputation arising from his arrest and he adduced evidence that he’d been on a short list for the nomination.

Mr. Wieder never got the nomination, allegedly because the arrest and charges, even though dismissed, were a deal killer virtually assuring that he would never become  a judge. Furthermore, following the arrest, Mr. Wieder found that invitations to Bar events became scarcer and both friends and acquaintances would now avoid him. Colleagues would scatter as he approached.

The appellate court found that Mr. Wieder was uniquely vulnerable to reputational harm but, without explanation, also found that the jury award should be slashed to $500,000.

Inside Information:

  • The Bergs ultimately defaulted and the case went to trial solely against Home Depot and the security guard.
  • Defense counsel told the jury that should award no more than $100,000 for plaintiff’s pain and suffering. Plaintiff’s counsel asked for $2,000,000.
  • Plaintiff testified that he would have earned $1,400,000 more over his work life as a judge than he would have as a court attorney but the trial judge declined to allow his lost earnings claim to be considered by the jury in assessing damages. The defense argued that the lost earnings claim was properly dismissed as speculative.