Malmberg v. United States

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ______________________________________________ CHARLES MALMBERG, Plaintiff, v. 5:06-CV-1042 (FJS/TWD) UNITED STATES OF AMERICA, Defendant. ______________________________________________ APPEARANCES OF COUNSEL OFFICE OF ROBERT B. NICHOLS ROBERT B. NICHOLS, ESQ. 716 Brisbane Building 403 Main Street Buffalo, New York 14203 Attorneys for Plaintiff HANCOCK ESTABROOK, LLP ALAN J. PIERCE, ESQ. 100 Madison Street, Suite 1500 Syracuse, New York 13202 Attorneys for Plaintiff OFFICE OF THE UNITED WILLIAM F. LARKIN, AUSA STATES ATTORNEY KAREN FOLSTER LESPERANCE, AUSA James Hanley U.S. Courthouse & Federal Building 100 South Clinton Street Syracuse, New York 13261-7198 Attorneys for Defendant SCULLIN, Senior Judge MEMORANDUM-DECISION AND ORDER I. BACKGROUND Plaintiff commenced this action on September 15, 2006, seeking to recover damages for injuries he sustained in November 2004 during the course of an anterior cervical disectomy and fusion procedure at the Syracuse VA Medical Center. After bench trials on liability and damages, this Court concluded that the Government was liable for Plaintiff's injuries and awarded him $4,468,859.91 in damages. See Dkt. No. 146 ("Malmberg I"). Both parties appealed various aspects of this award. In Malmberg v. United States, 816 F.3d 185 (2d Cir. 2016) ("Malmberg II"), the Second Circuit vacated the damages award and directed this Court to reconsider whether Plaintiff should be permitted to amend the ad damnum clause in his complaint to increase the amount of damages requested and to explain its rationale for awarding $2 million in damages for Plaintiff's past and future pain and suffering. After remand, this Court denied Plaintiff's motion to increase the ad damnum clause and concluded that, in light of its decision concerning the ad damnum clause, there [was] no reason for the Court to address how the $2.5 million award for past pain and suffering compares to awards in cases involving plaintiffs with comparable injuries because, even if the Court were to find that comparable cases warranted an increase, any such increase would be limited to a maximum of $511,320. . . . See Dkt. No. 171, Memorandum Decision and Order dated April 13, 2018, at 19 n.3 ("Malmberg III"). Both parties appealed. On appeal, both parties contested whether this Court had clearly erred in denying Plaintiff's request to increase the ad damnum from $6 million to $25 million. The Second Circuit concluded that this Court had erred and, therefore, reversed that aspect of this Court's judgment and remanded for this Court "to determine anew the damages owed to [Plaintiff], taking into account an increased ad damnum of $25 million, which fixes the ceiling on the maximum recoverable damages." See Dkt. No. 182, Mandate ("Malmberg IV"), at 6. -2On appeal, Plaintiff also argued, and the Government agreed, that this Court had failed to explain sufficiently its award for past and future pain and suffering. See id. Therefore, the Second Circuit "vacate[d] this aspect of the damages award" and instructed this Court "to consider whether its initial pain and suffering award complies with New York law and to explain the basis for its decision." See id. at 7. The Second Circuit also instructed this Court to "take into account, among other things, awards in comparable cases." See id. Finally, on appeal, the Government contended, and Plaintiff did not dispute, that this Court "failed to correctly offset the damages award by the amount of disability payments [Plaintiff] has received under 38 U.S.C. § 1151 ." See id. The Second Circuit agreed and, therefore, "vacate[d] this aspect of the damages award and direct[ed] [this] Court to offset the final award by the amount of § 1151 benefits that [Plaintiff] receives through the date of any amended judgment entered on remand." See id. Pending before the Court are the parties' submissions addressing the issues that the Court must decide in light of the Second Circuit's August 15, 2019 Mandate, Malmberg IV, which reversed in part, vacated in part, and remanded this matter for further proceedings consistent with that Mandate. II. DISCUSSION "'Although there is no precise rule for determining damages for pain and suffering, a trier of fact is bound by a standard of reasonableness.'" Davis v. Yisrael, No. 16 CV 1574 (LMS), 2019 WL 2098151 , *2 (S.D.N.Y. May 14, 2019) (quoting Battista v. United States, 889 F. Supp. 716, 727 (S.D.N.Y. 1995) (citing Paley v. Brust, 21 A.D.2d 758 (1st Dep't 1964))). "'[A] review of jury -3awards and settlement amounts in recent New York cases involving comparable injuries suffered under comparable circumstances, while not binding, provides helpful guidance to the court in determining a reasonable range for the value of non-economic damages to be awarded in this case.'" Id. (quoting Robinson v. United States, 330 F. Supp. 2d 261, 295-96 (W.D.N.Y. 2004)); (citing Marcoux v. Farm Serv. & Supplies, Inc., 290 F. Supp. 2d 457 (E.D.N.Y. 2003) (explaining that "[a]ssigning dollar amounts to pain and suffering is an inherently subjective determination") (citations omitted); Berroyer v. United States, 990 F. Supp. 2d 283, 309 (E.D.N.Y. 2014) ("The Court also recognizes that the facts of each case are different and there may be case-specific variables that reasonably lead to a higher or lower amount in damages.")). In their papers, the parties referred to more than twenty cases. The Court has reviewed all of those cases, as well as several others, to guide its decision regarding the amount of damages to award Plaintiff. In addition, to take inflation into account, the Court has converted the awards in those cases to 2019 Dollars using the US Inflation Calculator.1 After reviewing the relevant cases, the Court has compiled a table of representative cases that present a reasonable range of awards for non-economic damages in cases in which the injuries that the plaintiffs suffered are similar to the injuries that Plaintiff suffered in this case. These cases provide helpful guidance to the Court in determining the appropriate amount of damages for past and future pain and suffering to award in this case. 1 According to this Calculator, through January 2020, the latest Consumer Price Index is 256.974 and the Inflation Rate is 2.3%. See www.usinflationcalculator.com (last visited January 28, 2020). -4Case Name Year of Award | Injuries Award 2019 Dollars (December 2019) Saladino v. 2011; upheld by | quadriplegic (37 | $5 million (past | $5,682,807.34 Stewart & 2d Cir. 2012 year old male at | pain and (past) Stevenson Servs., time of accident) | suffering); $10 $11,365,614.68 Inc., No. 01-CV- (by time of million (future (future) 7644 (SLT) verdict, injury 11 | pain and (JMA), 2011 WL years ago and life | suffering) Cumulative rate 284476 expectancy of 24 of Inflation: (E.D.N.Y. Jan. years) 13.7% 26, 2011), aff'd sub nom Total award: Saladino y. Am. $17,048,422.02 Airlines, Inc., 500 F. App'x 69 (2d Cir. 2012) Barnhard vy. 2011 quadriplegic on appeal, reduce | $3,409,684.40 Cybex Int'l, Inc., award to $3 (past) 89 A.D.3d 1554 million (past (4th Dep't 2011) pain and suffering); $9 $10,229,053.21 million (future (future) pain and suffering) - Cumulative rate remittitur of Inflation: (maximum 13.7% amounts jury could have Total award: awarded) $13,638,737.61 -5- Case Name Year of Award | Injuries Award 2019 Dollars (December 2019) McMillan y. City | 2008 quadriplegic $4.5 million $5,343,429.96 of New York, (past pain and (past) Nos. 03-CV- suffering (injured 6049, 08-CV- in 2003)); $7.5 $8,905,716.59 2887, 2008 WL million (future (future) 4287573 pain and (E.D.N.Y. Sept. suffering (age 44 | Cumulative rate 17, 2008) when judgment of Inflation: entered)) 18.7% Total award: $14,249,146.55 Coniker v. State | 2002 quadriplegic; 23. | $1 million (past | $1,421,106.17 of New York, years old at time | pain and (past) 2002 WL of accident in suffering - 9 32068270 (N.Y. 1992 years); $2.5 $3,552,765.43 Ct. of Claims million (future (future) 2002) pain and suffering 30 Cumulative rate years) of Inflation: 42.1% Total award: $4,973,871.60 Auer v. State of | 2001 quadriplegic; found award of New York, 289 accident $750,000 for A.D.2d 626 (3d occurred in 1990 | future pain and Dep't 2001) when she was 18 | suffering inadequate and raised to $1.5 $2,166,584.75 million (38 years) Cumulative rate of Inflation: 44.4% -6- Case Name Year of Award | Injuries Award 2019 Dollars (December 2019) Brown v. City of | 2000 dove off pier, $1 million (past | $1,484,651.57 New York, 275 struck head, pain and (past) A.D.2d 726 (2d rendered him suffering); $3 $4,453,954.70 Dep't 2000) quadriplegic; million (future (future) brother rendered | pain and pentaplegic suffering) - Cumulative rate remittitur for of Inflation: both 48.5% Total award: $5,938,606.27 Driscoll v. New 1999 quadriplegic, 19 | $900,000 (past $1,381,100.24 York City Transit years old pain and (past) Auth., 262 suffering); $1.1 $1,688,011. 40 A.D.2d 271 (2d million (future (future) Dep't 1999) pain and suffering) - Cumulative rate remittitur of Inflation: 53.5% Total award: $3,069,111.64 In 2014, when the Court issued its first Memorandum-Decision and Order related to damages in this case, the Court awarded Plaintiff $500,000 for past pain and suffering (10 years) and $1,500,000.00 for future pain and suffering (26 year life expectancy). Now, approximately 5.5 years later, the past pain and suffering award should account for 15.5 years and the future pain and suffering should be based on 20.5 year life expectancy. Furthermore, the Court's 2014 decision was based in part on the limit of the ad damnum clause which was $6,000,000. After the Second Circuit's mandate in Malmberg IV, the ad damnum is now $25,000,000. After reviewing the relevant case law, the Court finds that it would be reasonable to award -7- Plaintiff damages for past pain and suffering in the amount of $7,500,000 and damages for future pain and suffering in the amount of $10,500,000. The Court comes to this conclusion based, in large measure, on the thorough analysis of the court in Saladino v. Stewart & Stevenson Servs., Inc., No. 01-CV-7644 (SLT) (JMA), 2011 WL 284476 (E.D.N.Y. 2011), aff'd sub nom Saladino v. Am. Airlines, Inc., 500 F. App'x 69 (2d Cir. 2012), which this Court finds persuasive. In that case, the trial court noted that "[b]oth federal and state courts have long acknowledged that, in contrast to economic damages, awards for pain and suffering 'do not lend themselves as easily to computation,' In re Joint Eastern and Southern Dist. Asbestos Litig., 9 F. Supp. 2d 307, 311 (S.D.N.Y. 1998), and a precise measure is simply 'impossible,' Braun v. Ahmed, 127 A.D.2d 418, 424 , 515 N.Y.S.2d 473 (2nd Dep't 1987)." Saladino, 2011 WL 284476 , at *3. "In truth, '[a]ssigning dollar amounts to pain and suffering is an inherently subjective determination.'" Id. (quoting Marcoux, 290 F. Supp. 2d at 478 ). In reaching its decision on non-economic damages in that case, the Saladino court noted that, "[i]n several recent cases, New York courts ha[d] sustained pain and suffering awards to paralysis victims of at least $10 million and up to $17.5 million." Id. at *6. The court further explained that it was "'not trying to ascertain an average award based on comparable cases," but instead [was] trying 'to assess what amount is the highest amount of compensation allowable based on the evidence, that would not deviate materially from reasonable compensation.'" Id. (quoting Okraynets, 555 F. Supp. 2d at 429 (quotation marks omitted)). In particular, the court compared the plaintiff's award to that of the plaintiff in Tenuto v. Lederle Labs., No. 1134/81, 2010 WL 625223 (N.Y. Sup. Feb. 17, 2010) (Table), in which the trial court had sustained an aggregate pain and suffering award of $17.5 million to a plaintiff who -8contracted contact polio from his infant daughter after she had received a vaccination. The court explained that, as with the plaintiff, "Mr. Tenuto's injuries 'cost him his job, his marriage, and the loss of enjoyment of life. He lives in a small handicapped accessible apartment [and] uses a wheelchair to get around.'" Id. (quoting [Tenuto, 2010 WL 625223 ] at *16). The court also noted that, in Tenuto, "[t]he court [had] sustained the award in part because Mr. Tenuto had waited 30 years for his day in court [while] Mr. Saladino was injured nearly 11 years ago and ha[d] a life expectancy of 24 years." Id. Furthermore, the court explained that, although Mr. Tenuto was a permanent paraplegic, "Mr. Saladino's injuries had left him a quadriplegic incapable of caring for himself in any way." Id. Therefore, the court concluded that the aggregate award of $15 million for pain and suffering, which was less than the award to Mr. Tenuto, was not excessive. See id. The Saladino court also compared the plaintiff's injuries to those of the plaintiffs in the following cases: Miraglia v. H & L Holding Corp., 5 Misc. 3d 1021(A) , 799 N.Y.S.2d 162 (Sup. Ct., Bronx Cty., 2004), involving a 45-year-old construction worker who became a paraplegic after suffering injuries when he fell into a trench and became impaled on a rebar, in which the appellate division had reduced his award to $5 million for past and $5 million for future (35 years) pain and suffering; Bissell v. Town of Amherst, 56 A.D.3d 1144 , 867 N.Y.S.2d 582 (4th Dep't 2008), in which "the court approved an award of $3 million for approximately five years of past pain and suffering and $7 million for 32.7 years of future pain and suffering for a plaintiff who experienced incontinence, sexual dysfunction, chronic excruciating pain, and had no motor function below his knees"; Ruby v. Budget Rent-A-Car Corp, 23 A.D.3d 257 , 806 N.Y.S.2d 12 (1st Dep't 2005), in which the plaintiff "was rendered a paraplegic at the age of 25, suffering complications like chronic pain, incontinence, psychological effects, and loss of sexual function" and, in which, "[t]he appellate -9court reduced the jury award to $2 million for past pain and suffering and $8 million for future pain and suffering based on a life expectancy of 44.6 years"; and Okraynets v. Met. Transp. Auth., 555 F. Supp. 2d 420 (S.D.N.Y. 2008), in which the plaintiff "was injured when he fell from a wall and equipment landed on him," rendering him "a paraplegic and suffered from infection, incontinence, chronic pain, loss of sexual function, and other associated conditions, some requiring surgery"; "use[d] a wheelchair and perform[ed] self-catheterization and bowel disimpactation multiple times a day"; "court reduced jury award to an aggregate of $10.5 million, based in part on a life expectancy of 39 years." Saladino, 2011 WL 284476 , at *7. After reviewing these cases, the Sa/adino court explained that, "[i]n sum, a review of these New York cases leads this Court to conclude that $15 million for pain and suffering does not deviate materially from reasonable compensation." /d. at *8. Tenuto v. Lederle | 2010 permanent $12 million (past | $14,069,248.27 Labs., No. paraplegic; pain and (past) 1134/81, 2010 physical suffering); $5 $5,862,186. 78 WL 625223 condition will million (future (future) (Sup. Ct., degenerate pain and Richmond Cty., greatly; award 30 | suffering) Cumulative rate Feb. 17, 2010) years after injury; of Inflation: (Table) life expectancy 17.2% 20 years Total award: $19,931,435.05 -10- Bissell v. Town 2008 paralysis, $3 million (past | $3,562,286.64 of Amherst, 56 incontinence of | pain and (past) A.D.3d 1144 bladder and suffering); $7 $8,312,002.16 (4th Dep't 2008) bowel, able to million (future (future) perform some pain and hygienic care for | suffering) Cumulative rate self; award 5.25 of Inflation: years after injury; 18.7% life expectancy 32.7 years Total award: $11,874,288.80 Okraynets v. 2008 paraplegia, $2.5 million $2,968,572.20 Met. Transp. condition, if (past pain and (past) Auth, 555 F. progressed, could | suffering); $8 $9,499,431.03 Supp. 2d 420 lead to million (future (future) (S.D.N.Y. 2008) quadriplegia; pain and award 2 years suffering) Cumulative rate after injury; 39 of Inflation: years life 18.7% expectancy Total award: $12,468,003.23 Miragliav. H & | 2007 paraplegia; life $5 million (past | $6,165,104.03 L Holding Corp., expectancy 35 pain and (past) 5 Misc. 3d years suffering); $5 $6,165,104.03 1021(A) , 799 million (future (future) N.Y.S.2d 162 pain and (Sup. Ct., Bronx suffering) Cumulative rate Cty., 2004) of Inflation: 23.3% Total award: $12,330,208.06 -l1- Year of Award 2019 Dollars Ruby v. Budge 2005 paraplegia, $2 million (past | $2,618,095.24 Rent-A-Car associated pain and (past) Corp., 23 A.D.3d complications, suffering); $8 $10,472,380.95 257 (1st Dep't constant and million (future (future) 2005) severe pain; life | pain and expectancy 44.6 | suffering) Cumulative rate years of Inflation: 30.9% Total award: $13,090,476.19 Based on its review of all of these cases, particularly the injuries of the plaintiffs, the Court finds that, given the severity of Plaintiff's injuries, an award of $7,500,00.00 for past pain and suffering and $10,500,000.00 for future pain and suffering is an award that "does not deviate materially from reasonable compensation." Saladino, 2011 WL 284476 , at *8. I. CONCLUSION Having reviewed the entire file and in accordance with the Second Circuit's August 15, 2019 mandate, see Dkt. No. 182, the Court hereby ORDERS that the total award of damages due to Plaintiff is $22,373,011.10, calculated as follows: Baseline starting point (Dr. Reagles' Scenario #2) $4,156,537.00 Future medical care (that the court subtracted out in its original decision) $1,176,191.33 "Generic medical services" (that the Court subtracted out in its original decision) $ 13,772.76 Minus: § 1151 benefits at $7,131/month that Plaintiff has received to August 2016) ($667,857) August 2016 to February 2019 (43 mos.) -12- ($306,633) $ (974,490.00) Past pain and suffering $ 7,500,000.00 Future pain and suffering $10,500,000.00 Total $22,373,011.10 and the Court further ORDERS that Plaintiff is entitled to post-judgment interest on the entire award at the appropriate federal rate pursuant to 28 U.S.C. § 1961 ; and the Court further ORDERS that the Clerk of the Court shall amend the judgment in this case to reflect the total amount of damages due to Plaintiff consistent with this Memorandum-Decision and Order. IT IS SO ORDERED. Dated: February 4, 2020 Syracuse, New York Freder& f J Jr. Senior United States District Judge -13-