Opinion
02 Civ. 2810 (RMB) (KNF).
June 17, 2010
REPORT AND RECOMMENDATION
I. INTRODUCTION
In an opinion dated January 4, 2010, the Second Circuit Court of Appeals vacated the judgment respecting damages, entered by your Honor, based upon a report and recommendation the undersigned magistrate judge issued, after an inquest following the defendants' default in the action. The Second Circuit remanded the matter for a determination of the amount of damages to be awarded the plaintiffs for: (1) past and future pain and suffering; and (2) loss of consortium, based on the submissions they made to the court previously. Your Honor referred the case to the undersigned anew, for a report and recommendation on this issue; it is addressed below.
II. BACKGROUND
In 2000, Walter House ("House") was employed by Tesa Tape Co., Inc., in Middletown, New York, as an operator of a machine that manufactured adhesive, pressure-sensitive tape. The machine is commonly referred to as a "50 machine" or "machine #50," and it is designed, manufactured, assembled, tested, inspected, repaired and sold by the defendants. According to the complaint, because the 50 machine House operated had a defective design, it "posed an unreasonable risk of harm to persons including . . . Walter House, who operated the '50 machine.'" (emphasis omitted). On March 1, 2000, while using this machine, an article of House's clothing became caught on, and his body was pulled "into the machine," causing House to sustain injuries to his person ("the incident" or "the accident"). At the time of the accident, House was 34 years old.
At an inquest, a reviewing court accepts as true all the well-pleaded factual assertions in the complaint, except those relating to damages. See Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir. 1981). The plaintiff is also entitled to all reasonable inferences from the evidence adduced. See id. However, claims that are not well-pleaded, or facts that the pleadings do not establish, cannot support a judgment by default. See Bambu Sales, Inc. v. Ozak Trading, Inc., 58 F.3d 849, 854 (2d Cir. 1995) (citing Trans World Airlines, Inc. v. Hughes, 449 F.2d 51, 69 [2d Cir. 1971] [holding that a default judgment entered on the well-pleaded allegations of a complaint establishes liability],rev'd on other grounds, Hughes Tool Co. v. Trans World Airlines, Inc., 409 U.S. 363, 93 S. Ct. 647 [1973]).
An affidavit by Dr. David E. Asprinio, an orthopedic surgeon with "attending privileges" at the Westchester Medical Center ("WMC"), was submitted by the plaintiffs; it outlines House's medical treatment after his accident. According to Dr. Asprinio, House was airlifted to WMC, where the following injuries were observed to have been suffered by him: "a near amputation of both lower extremities, bilateral open fractures of the tibia and fibula; a dislocated left knee; head trauma including an abrasion of [the] left temporal area; abrasions to the left lateral ribs; mid abdominal tenderness and distention; an abrasion over C-7; and ecchymosis over the left flank." Doctors learned, from x-rays and CT scans, that House had also suffered a contusion of the right lung, and internal bleeding "near the pancreas and [that there was] a small amount of fluid around the liver and spleen." As a result of his condition, House underwent multiple operative procedures. Among the procedures performed on House, within the first week of his arrival at WMC, were: (1) two surgeries, on March 1, 2000, for his leg injuries; (2) multiple transfusions "of various blood products," on March 2, 2000, while he underwent a "splenectomy, a pancreatectomy, [a] jejeunostomy tube replacement, . . . and a closed thoracostomy," and received a Swan Ganz catheter; (3) additional leg surgery, on March 3, 2000, including an "irrigation and debridement"; (4) a second "irrigation and debridement of Mr. House's bilateral lower extremities," on March 6, 2000; (5) plastic surgery, on March 6, 2000, to apply "a pig skin xenograft to the left popliteal area [of the] right leg"; (6) plastic surgery, on March 7, 2000, to provide "a right radial forearm free flap to cover the right tibia/fibula fracture" and two drains "at that site"; and (7) a "third irrigation and debridement," in addition to an "intramedullary nailing of the left tibia," on March 8, 2000. Thereafter, House endured:
[a] on March 10, 2000, Debridement of Left Lower Extremity Complex Grade IIb Injury with Significant Soft Tissue Reconstruction with Free Latisimus Dorsi Muscle Flap from Left Chest and Split Thickness Skin Grafting 380cm Squared Donor Site Right Thigh for the Skin Grafting[; b] on March 14, 2000, Tracheostomy, Exploratory Laparotomy, Lysis of Adhesions Drainage of Intra-abdominal Abscess[; c] on March 20, 2000, CT Guided Placement of Abdominal Drain[; d] on March 31, 2000, CT Guided Placement of 8 French Drain to Left Retroperitoneal Area of Abdomen[; e] on April 2, 2000, CT Guided Placement 10 French Cholecystotomy Drain[; f] on April 6, 2000, Exploratory Laparotomy, Insertion Right Tube Thoracostomy Left Lateral Thoracotomy, Insertion of Left Tube Thoracostomy Retroperitoneal Exploration and Irrigation of Intra-abdominal Abscess[; g] on April 19, 2000, CT Scan of Chest, Drainage of Bilateral Lungs[; h] on April 21, 2000, Endoscopy, Gastric Perforation[; i] on June 15, 2000, "Dynamization Right Tibial Intra-medullary Nail Exchange Reamed Intramedullary Nailing Impending Left Tibial Nonunion[; and] [j] on June 22, 2000, Gastric Perforation Secondary to Jackson-pratt Drain Erosion.
In addition, an audiology examination was performed on House, revealing a "slight increase" in hearing loss, and, a later audiology examination, performed in July 2000, "revealed Residual Hearing Loss Left Ear of 6khz."
On July 25, 2000, House was transferred to the Horton Rehabilitation Center. On August 15, 2000, Dr. Asprinio examined House, and took x-rays and radiographs of his legs, at which time Dr. Asprinio recommended a "dynamization of [House's] left tibial intramedullary nail" be performed, which would "give him the ability to bear weight on his left side." On August 22, 2000, Dr. Asprinio "performed dynamization of the left tibial intramedullary nail with removal of the static interlocking screw." On September 23, 2000, he evaluated House's progress, determined that both his knees were "extremely unstable" and recommended that House consider a "ligament reconstruction." In addition, Dr. Asprinio discussed with House "potential additional procedures . . . given the possibility of nonunion and explained . . . that he might benefit from an amputation."
On November 20, 2000, Dr. Asprinio assessed House's progress. At that time, House complained of pain, "after prolonged periods of ambulation on the left leg," and, after examining House's legs, a "new short cast was placed on the left leg." Dr. Asprinio recommended that House consider "future supplemental bone grafting of the left lower extremity." On December 13, 2000, Dr. Asprinio examined House's legs, upon learning that a "foul order [was emanating from] underneath the short leg cast." After removing the cast, Dr. Asprinio "found an area of venous stasis changes," "superficial serous fluid without obvious sinus tract or purulent drainage," "mild surrounding erythema," "no gross motion," and "no changes with no significant bridging of bone." Dr. Asprinio recommended bone grafting, if House's cellutisis resolved, and informed House that amputation might be necessary, if House developed a deep infection or experienced nonunion.
On December 15, 2000, House was admitted to WMC, for treatment of cellulitis. On December 18, 2000, House underwent an irrigation and debridement, among other procedures. On December 28, 2000, House underwent a below-the-knee amputation, and, on December 30, 2000, an additional surgery was performed, "for closure of the amputation site."
In "February 200[1]," House was evaluated for left hip pain; x-rays revealed "a valgus impacted left femoral neck fracture," for which House was admitted to WMC, on "February 8, 200[1]." A "percutaneous internal fixation of the femoral neck" was performed. On "February 22, 2000," Dr. Asprinio removed sutures from House's wounds to his "hip and stump," and advised House "to remain non weight bearing on his left leg." Upon re-evaluation the following month, House was advised he could start "weight bearing as tolerated," and was instructed to resume physical therapy, "for strengthening, range of motion and gait training."
Dr. Asprinio's affidavit appears to document House's surgeries and condition chronologically; however, when discussing House's treatment after his December 2000 amputation, Dr. Asprinio refers to "February 2000." Since House was not injured until March 2000, the Court draws the inference that Dr. Asprinio intended to state that House was treated, after his amputation, in February 2001.
House continued to treat with Dr. Asprinio, including visits in: (1) May 2001, during which House informed Dr. Asprinio that he was "ambulating with a single or quad cane," attended physical therapy three times per week, and experienced intermittent pain; (2) August 2001, during which House complained of pain "in the distal aspect of the amputation and x-rays revealed spurring"; and (3) October 2001, during which House was recommended for a consultation with Dr. Howard Luks, to explore surgical removal of the intramedullary nail in his right tibia. In February 2002, Dr. Luks performed surgery on House, which included the following procedures: (a) "removal of the intramedullary right tibial nail"; (b) "right knee arthroscopy with partial medial and lateral meniscectomies"; (c) "right knee arthroscopy with Achilles tendon allograft"; (d) "posterior cruciate ligament reconstruction"; and (e) "lateral collateral ligament reconstruction with posterolateral corner advancement." House was instructed to wear a "Bledsoe brace at all times" after this surgery. In May 2002, House appeared to be healing well, and was instructed to use a brace and continue physical therapy.
Prior to an appointment with Dr. Luks, in October 2002, a magnetic resonance imaging ("MRI") was performed on House's left knee, as he had been experiencing pain. The MRI revealed a "tear of the medial meniscus and maybe a small radial tear of the lateral meniscus." House underwent an "elective arthroscopy to repair the tears."
As noted previously, because Dr. Asprinio's affidavit proceeds chronologically, the Court draws the reasonable inference that the reference to an "October 2000" appointment relates to an October 2002 appointment.
According to Dr. Asprinio, "[s]ince the date of the accident to the present[,] Mr. House has intermittently remained under my care." Dr. Asprinio believed, "within a reasonable degree of medical certainty, that Mr. House will continue to have pain and disability as a result of these injuries," and "will require continued medical care." Contained within the same exhibit as Dr. Asprinio's affidavit are House's WMC medical records, which support Dr. Asprinio's account of the medical treatment House received after his accident.
House has also submitted an affidavit, in which he states he is a high school graduate, and, during the year before his accident, he earned approximately $43,987.93. According to House, he underwent more than seventeen "major surgeries" and an additional twenty "invasive and non-invasive procedures," as a result of the incident. Since the incident, House maintains that he has "experienced anxiety, sleep disturbance, feelings of depression, fatigue, become short tempered, had problems with following simple instructions and performing simple tasks[,] and on some occasions[, has become] verbally abusive to family members."
Before his accident, House was the "caretaker" of his family, and his wife stayed at home, caring for their two sons, aged two and seven at the time of the accident. After the accident, House's wife became the caretaker for House and their sons, and she works outside the home full-time. House is "unable to work since [he] was a machine operator and [now he] cannot stand for [long] periods of time." House no longer "go[es] out socially," and relations between him and his wife have "diminished due to our alter[ed] roles and [his] lack of initiation." House elaborated that he feels "self conscious about [his] injuries in public and with friends of [his] children," causing his social life to change from what it was before his accident. House contends his injuries have affected his ability to "roughhouse and play sport[s]" with his children, and he can no longer participate in his hobbies, hunting and operating a snowmobile; nor can he "operate a standard motor vehicle [without] difficulty." House "can no longer participate in athletic activities, run, walk long distances, go up and down stairs with ease and ha[s] problems walking in poor weather." As a result of his injuries, House feels "constant pain to both legs," and is "forced to continue monitoring [his] sugar levels and maintain a diabetic diet."
House's wife, Debra ("D. House"), submitted an affidavit, in support of her claim for "deprivation of the love, companionship and consortium of [her] husband." D. House states that, prior to his accident, House was the caretaker of their family, while D. House stayed at home and cared for their two sons. D. House explains that, "[s]ince [her] husband's accident, [she] has become the caretaker of [her] husband and sons and had to take a full time outside job to supply the household with income." D. House maintains that it has been "difficult" for her to work full-time and care for her family while House has had "extended hospital stays." According to D. House, she has transported her husband to all his medical and physical therapy appointments, and has given him the medicines prescribed for his injuries and diabetes. D. House contends that, "[b]efore the accident, [her] husband was energetic, meticulous and motivated"; however, since the accident, he has become "incapable of following through on simple household tasks and has sometimes become fatigued, irritable, and verbally abusive to [her] and [her] sons." D. House maintains that her marriage to House has been "affected" by his accident, as evidenced by her "altered role[]" as caretaker and homemaker, her husband's "lack of initiation," and the changes in their social life, due to her husband's self-consciousness about his injuries.
According to D. House, the accident also affected their children. She notes that House "can not play with our children as other fathers do," and their oldest son "was taunted by his classmates who referred to his father as a 'pancake.'" D. House states that her oldest son has gone through "periods of acting out and periods of anger concentrated towards [his father's] employer." D. House contends her husband has "constant pain to both legs."
As is relevant to the instant report, the plaintiffs request the following damages be awarded: (1) "$8,000,00.00," for House's past pain and suffering; (2) "$10,000,00.00," for House's future pain and suffering; and (3) "$3,000,00.00," for D. House's loss of services and consortium.
DISCUSSION
Past and Future Pain and Suffering
A. Past Pain and SufferingDetermining a proper amount of damages to award for past pain and suffering typically involves considering past decisions made, and jury verdicts rendered, awarding such damages for similar injuries. See e.g. Valentine v. Lopez, 283 A.D.2d 739, 743, 725 N.Y.S.2d 714, 719 (App. Div. 3d Dep't 2001) ("Since . . . awards for personal injury, especially those for pain and suffering, are subjective opinions, formulated without the guidance of precise and detailed guidelines, we look to comparable cases to determine whether the jury's verdict deviates materially from what has been found to be reasonable compensation").
In Hotaling v. CSX Transportation, 5 A.D.3d 964, 773 N.Y.S.2d 755 (App. Div. 3rd Dep't 2004), a jury's award of $6 million, for past pain and suffering, was reduced to $4 million, for a plaintiff whose leg was crushed between two locomotives, who experienced "agony during his protracted rescue" and endured 11 surgical procedures on his legs, including "placement of hardware to set fractured bones, debridement to remove dead tissue, a leeching procedure to alleviate blood flow problems and skin grafts from both his right and left legs." Id. at 971, 762, 773 N.Y.S.2d at 966, 758. In addition, the plaintiff in Hotaling maintained that he was "in constant pain, had difficulty sleeping and became increasingly discouraged," and ultimately elected to undergo, as his final surgery, an above-the-knee amputation of his left leg. Id. The plaintiff had been engaged in athletic activities prior to his accident, and he became "severe[ly]" depressed and experienced post traumatic stress disorder as a result of his accident. Id. at 967, 773 N.Y.S.2d at 758.
In Firmes v. Chase Manhattan Automotive Finance Corp., 50 A.D.3d 18, 852 N.Y.S.2d 148 (App. Div. 2d Dep't 2008), the plaintiff, while riding his motorcycle, collided with a pickup truck, resulting in 47 days of hospitalization, and "11 surgeries including the amputation of the left leg below the knee, debridements to remove dead tissue, and the grafting of skin from his right leg." Id. at 22, 852 N.Y.S.2d at 152. During this time, the plaintiff felt "phantom pain." Id. On appeal, the jury's award of $2 million, for past pain and suffering, for the period of two years, was reduced to $1.5 million. Id. at 28, 852 N.Y.S.2d at 156.
In Nunez v. Laurence LEVY, LFP 1020 PWB, LLC, 862 N.Y.S.2d 816, 2008 WL 2219892 (Slip. Op. 2008) (Sup. Ct. N.Y. Cty. April 15, 2008), the "lower portion" of the plaintiff's right leg was crushed, when a two-ton bank vault door loosened from its hinges and fell on him. The plaintiff was "pinned under the door for 30-60 minutes," during which time "the pain was very bad, very 'powerful,' causing him to scream and to cry." Id. at * 11. The plaintiff was hospitalized for 13 days, during which time his right leg was amputated below the knee, and he continued to experience pain. See id. After his hospitalization, the plaintiff was fitted with a prosthetic leg, and underwent rehabilitation. The accident occurred in August 2003, and in March 2007, a jury awarded the plaintiff $5,000,000 for past pain and suffering. This verdict was determined to be unreasonable, and the New York State Supreme Court, New York County, found that $2,500,000, for past pain and suffering, was appropriate compensation for the period August 2003 through March 2007. See id. at *11-12.
In the case at bar, the affidavits submitted establish that, on the date of injury, House's condition presented "a near amputation of both lower extremities, bilateral open fractures of the tibia and fibula, a dislocated left knee, head trauma including an abrasion of [his] left temporal area, abrasions to the left lateral ribs, mid-abdominal tenderness and distention, an abrasion over C-7, and ecchymosis over the left flank. In addition, House underwent twenty surgical procedures, including, to name a few: skin grafting, below-the-knee amputation of his left leg, multiple laparotomies, drainage of an intra-abdominal abscess, placement of an intramedullary nail in the left tibia, a splenectomy, a pancreatectomy, a jejeunostomy tube replacement, insertion of a Swan Ganz catheter, and an endoscopy. After his release from the hospital, House was transferred to a rehabilitation center; House has also undertaken physical therapy. House affirmed, through his affidavit, that he experiences "constant pain" in both his legs, and Dr. Asprinio confirmed that House complained to him of pain in his legs.
The facts of this case are similar to those in Firmes, since both plaintiffs underwent below-the-knee amputations for a single leg, and endured similar surgeries. However, House had 20 operations, while the plaintiff in Firmes had 11; House was hospitalized for 146 days, and the plaintiff in Firmes, for 46 days. The plaintiff in Firmes provided more details regarding the pain he experienced at the time of the accident, and during his hospitalization, while House describes only being in "constant pain." In any event, the plaintiff in Firmes was awarded $1.5 million, for past pain and suffering, covering a period of two years.
The facts in the case at bar are also similar to those inNunez, where the plaintiff endured a below-the-knee amputation. However, unlike the plaintiff in Nunez, whose surgical amputation occurred on the day of his accident, House endured 19 surgeries prior to a determination that amputation was necessary, and, as noted above, House was hospitalized for 146 days, while the plaintiff in Nunez was hospitalized for 13 days. The plaintiff inNunez was awarded $2.5 million, for past pain and suffering, endured over a period of approximately 42 months.
While the plaintiffs in Nunez and Firmes provided more detailed information than House has on the amount and type of pain each experienced at the time of his accident, drawing all reasonable inferences from the evidence adduced in the instant case, it is reasonable and appropriate to conclude that House experienced a great deal of pain, when he was pulled into a machine that caused grave bodily injury to his person. See Au Bon Pain Corp., 653 F.2d at 65. In addition, House reports that, since the accident, he has experienced "constant pain." The Court has considered the number of surgeries House endured, the below-the-knee amputation to his left leg, the type and amount of other surgeries House underwent, the length of his hospitalization, and the physical therapy he attended after his hospitalization. Since the period of "past pain and suffering" runs from "the date of the accident through trial," Furey v. United States, 458 F. Supp. 2d 48, 56 (N.D.N.Y. 2006), the Court finds that damages for House's "past pain and suffering" should aim to compensate him for the period from March 1, 2000-the date of the accident-through May 24, 2007, when a default judgment was entered; this period is 7 years, 2 months, and 23 days, or, approximately 7.23 years. The compensation for past pain and suffering (1) in Nunez, was at the rate of $714,285.71 per year; and (2) in Firmes, was at the rate of $750,000 per year. Since House was hospitalized for a longer period of time than either of the plaintiffs in the two cases noted immediately above, and endured more surgical procedures than either of those plaintiffs, the Court finds that House is entitled to damages, for past pain and suffering, calculated at the higher of the two rates, $750,000 per year, for 7.23 years. This would result in an award, for past pain and suffering, of $5,422,500.
B. Future Pain and Suffering
"In making an award for future pain and suffering . . . the fact-finder is determining the sum that the plaintiff should have now as compensation for the pain and suffering he will endure."Oliveri v. Delta S.S. Lines, Inc., 849 F.2d 742, 751 (2d Cir. 1988). In determining an award for future pain and suffering, courts typically look to the nature of the plaintiff's injury and its future effect on his or her life, as well as the life expectancy of the plaintiff. See Hixson v. Cotton-Hanlon, Inc., 60 A.D.3d 1297, 1298, 875 N.Y.S.2d 361, 363 (App. Div. 4th Dep't 2009).
The plaintiff has submitted the "Life Table for white males: United States, 2003," which appears in "National Vital Statistics Reports, Vol. 54, No. 14," published in April 2006. According to this table, House, who was 34 years of age at the time of the accident, could expect to live an additional 45 years.
In his affidavit, House states that he is unable to pursue his former hobbies, hunting and snowmobiling, and his ability to play with his children has been "affected." House endures "constant pain" in both his legs, and his social life has suffered, because he feels too "self conscious about [his] injuries in public and [when around] friends of [his] children." In addition, House "can no longer participate in athletic activities, run, walk long distances, go up and down stairs with ease, and [he experiences] problems walking in poor weather."
Dr. Asprinio opined, through his affirmation, that, "within a reasonable degree of medical certainty, . . . Mr. House will continue to have pain and disability as a result of [the] injuries [he sustained in the March 1, 2000 accident," and "will require continued medical care."
House's wife also affirmed that House is: (a) unable to "physically play" with their children; (b) in "constant pain"; and (c) "self conscious about going ou[t] in public." She also indicated that her husband has difficulty operating a standard motor vehicle, and can no longer participate in his hobbies. Furthermore, House and his wife noted, in their respective affidavits, that, since his accident, House has been unable to "follow through" in performing simple household tasks, and becomes fatigued, irritable and verbally abusive to his family.
"When determining pain and suffering awards, courts often look to awards in similar cases." Furey, 458 F. Supp. 2d at 56-57. InHotaling, as discussed above, the plaintiff's leg was amputated, when it was sandwiched between two colliding locomotives. At the time of the accident, the plaintiff in Hotaling was 37 years old. The jury awarded him $2 million for future pain and suffering.See Hotaling, 5 A.D.3d at 967, 773 N.Y.S.2d at 759. In Firmes, the plaintiff's left leg was amputated, below the knee; he was awarded $5,200,000, for future pain and suffering. That award was based upon "50.1 years of future life expectancy," and the following additional factors, "beyond the amputated limb itself, stump pain, the inability to use a prosthesis, the inability to perform certain chores and work, and the need for continuing psychotherapy." Firmes, 50 A.D.3d at 22-23, 852 N.Y.S.2d at 152. In Nunez, the plaintiff endured a below-the-knee amputation, and was awarded $4,000,000, "for future pain and suffering, including the permanent effect of the injury for 43 years." Nunez, 862 N.Y.S.2d 816, 2008 WL 2219892, at *12 (Slip Op.). This award was based upon testimony from a prosthetist, that the plaintiff would require a replacement prosthesis every one and one-half years, for the rest of his life, and from the plaintiff, who explained that he "still has pain," "he can no longer play sports like he used to," "his friends don't call him so much anymore," and it is "very hard . . . to meet women or be social like he was before the accident." Id. at *11-12.
In the instant case, the affidavits submitted establish that House's injuries, and in particular, his amputation, will impact his life in the future, since the amputated limb: (i) impedes his mobility; (ii) prevents him from participating in his hobbies; (iii) inhibits his physical interaction with his children; (iv) prevents him from working at his former occupation, machine operator; (v) causes him to be irritable and unable to "follow through" with simple household tasks; and (vi) causes House to feel so self-conscious that he avoids public places and being seen by others. In addition, evidence in the record shows that House is in, and has been in, continual pain, and will require ongoing medical attention.
This case is similar to Nunez, in that both the plaintiff inNunez and House reported that, after their respective accidents, each continued to feel pain, was unable to engage in the hobbies he enjoyed before his accident, his social life has diminished, and each will require ongoing medical attention. House's claim, for future pain and suffering, is also similar to the one made by the plaintiff in Firmes. Each experienced the same type of amputation. Each reported suffering from chronic pain, having difficulty performing household chores, being unable to maintain his former employment, and needing ongoing medical attention. While the plaintiff in Hotaling received an award for future pain and suffering that was approximately half the amounts awarded inNunez and Firmes, neither the life expectancy of the plaintiff inHotaling was disclosed in the court's opinion, nor the factors that were considered in determining the amount of damages to award, for future pain and suffering.
The plaintiff in Firmes was awarded $5,200,000, for 50.1 years of future pain and suffering, or approximately $103,792.42 per year. The plaintiff in Nunez was awarded $4,000,000, for 43 years of future pain and suffering, or approximately $93,023.26 per year. The Court is mindful that the plaintiffs in Nunez andFirmes provided more detailed information than House has, about the ongoing medical treatment each would likely require. However, each of the three plaintiffs supplied information supporting a finding that, as a result of his accident, he endures chronic pain, will require ongoing medical treatment, cannot participate in his hobbies, has no prospect of resuming his prior employment and has had his social life altered forever. Therefore, the Court finds that awarding House $4,185,000 ($93,000 per year, for 45 years) is reasonable and appropriate to compensate him for future pain and suffering he will experience as a result of the accident.
"The form of a final judgment in diversity jurisdiction personal injury cases is considered substantive law for Erie [R.R. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817 (1938)] purposes, governed by the structured judgment provisions of [New York Civil Practice Law and Rules ("CPLR")] §§ 5041-5049." Okraynets v. Metropolitan Transp. Auth., 555 F. Supp. 2d 420, 452 (S.D.N.Y. 2008). Under New York law, when a future damages award is "in excess of two hundred fifty thousand dollars in an action to recover damages for personal injury," the
court shall enter a judgment for the amount of the present value of an annuity contract that will provide for the payment of the remaining amounts of future damages in periodic installments. The present value of such contract shall be determined in accordance with generally accepted actuarial practices by applying the discount rate in effect at the time of the award to the full amount of the remaining future damages. . . . The period of time over which such periodic payments shall be made and the period of time used to calculate the present value of the annuity contract shall be the period of years determined by the trier of fact in arriving at the itemized verdict; provided, however, that the period of time over which such periodic payments shall be made and the period of time used to calculate the present value for damages attributable to pain and suffering shall be ten years or the period of time determined by the trier of fact, whichever is less. . . . The annual payment for the first year shall be calculated by dividing the remaining amount of future damages by the number of years over which such payments shall be made and the payment due in each succeeding year shall be computed by adding four percent to the previous year's payment. Where payment of a portion of the future damages terminates in accordance with the provisions of this article, the four percent added payment shall be based only upon that portion of the damages that remains subject to continued payment. Unless otherwise agreed, the annual sum so arrived at shall be paid in equal monthly installments and in advance.
In determining how to apply CPLR § 5041(e) to the circumstances of an inquest, where "defendants, of course, have not addressed the subject of damages and plaintiff has ignored the requirements of the statute," the Court must make its own computations, guided by the language of CPLR § 5041(e). Sales v. Republic of Uganda, 828 F. Supp. 1032, 1046 (S.D.N.Y. 1993).
Upon entry of judgment, a lump sum of $250,000, must be paid to the plaintiffs, see CPLR § 5041(b); thereafter, $3,935,000 remains to be paid. As noted above, House's life expectancy from the date of the accident is 45 years, and his future pain and suffering award covers this period. Since the amount of damages, as well as the period they cover, exceed the amount and time-period specified in CPLR § 5041(e) for a lump-sum payment, the Court will structure annual payments by the defendants, to House, for the next ten years. See CPLR § 5041(e). The award for future pain and suffering, minus the $250,000 initial lump sum payment, is thus divided into 10 payments of $393,500. "The award for future pain and suffering must be reduced to its present value." In the Matter of the Complaint of Delmarine, 535 F. Supp. 2d 318, 320 (E.D.N.Y. 2008). Since Doca v. Marina Mercante Nicaraguense, S.A., 634 F.2d 30 (2d Cir. 1980), "courts have applied [a] 2% discount where the parties have failed to agree upon a different factor or submitted convincing evidence that another factor would be more appropriate." Delmarine, 535 F. Supp. 2d at 321. The Court must discount each payment to present value, starting with the second of the ten installment payments, using a 2% discount rate, and then add compounded interest, using the 4% rate provided in CPLR § 5041(e). The following chart reflects these calculations:
The payment made in the first year is not discounted to present value, since this payment is being made contemporaneously with the entry of judgment. In addition, compounded interest is not being added to this payment, since CPLR § 5041 provides that compounded interest is not added to the first annual payment, but is included in all successive payments.
Loss of Consortium
"[C]onsortium represents the marital partners' interest in the continuance of the marital relationship as it existed at its inception." Buckley v. National Freight, Inc., 90 N.Y.2d 210, 214, 659 N.Y.S.2d 841, 843 (1997) (internal quotations and citations omitted). "A loss of consortium claim embraces what the non-injured has lost; it covers the loss of support and services provided by the injured spouse as well as such elements as love, companionship, affection, society, sexual relations, and solace."Zavaglia v. Sarah Neuman Center for Healthcare and Rehabilitation, 883 N.Y.S.2d 889, 893, 2009 N.Y. Slip. Op. 29321, at *4 (Slip. Op. July 29, 2009). To this end,
[w]here a spouse, prior to injury, performed certain household services for his or other spouse, the latter spouse may recover the pecuniary value of the services that the injured spouse formerly performed. . . . By a parity of reasoning, where an injury to a spouse compels the other spouse to perform additional tasks, not previously performed, for the injured spouse, the non-injured spouse may properly recover for the pecuniary value of those additional services.Id. at 892-93, 2009 N.Y. Slip. Op. 29321, at *3. "[A]wards for loss of consortium in New York . . . often fall within a low six-figure range, if not lower." Okraynets, 555 F. Supp. 2d at 440.
In Okraynets, the court reviewed several New York loss of consortium awards, in order to determine the proper amount of damages to award a spouse, whose husband became a paraplegic as a result of injuries sustained in a construction accident. TheOkraynets court considered the following cases: (1) Walsh v. State of New York, 232 A.D.2d 939, 648 N.Y.S.2d 816 (App. Div. 3rd Dep't 1996), in which a spouse was awarded $185,000 for loss of consortium, since her 28-year old husband had fallen from a building, causing, inter alia, nerve damage and "significant loss of function in his back and lower extremities." Okraynets, 555 F. Supp. 2d at 440 (describing Walsh). The court considered that the plaintiff's ability to perform household chores and care for his children was "'markedly diminished,'" causing his wife to make "'sacrifices . . . to care for him and maintain their household'"Id. (quoting Walsh, at 940, 648 N.Y.S.2d at 817); (2) DeLeonibus v. Scognamillo, 238 A.D.2d 301, 656 N.Y.S.2d 275 (App. Div. 2d Dep't 1997), in which a spouse was awarded $275,000 for loss of consortium, based upon her 34 year-old husband's sustaining "severe and permanent orthopedic and neurological injuries, resulting in chronic pain and depression," and a showing that the wife had "under[taken] all of the household services her husband once performed." Okraynets, 555 F. Supp. 2d at 441 (describingDeLeonibus); (3) Kirby v. Turner Constr. Co., 286 A.D.2d 618, 730 N.Y.S.2d 314 (App. Div. 1st Dep't 2001), in which a 31-year old fell approximately 20 feet from a construction site, resulting in "compression fractures at two vertebra . . ., a severe hip contusion, and depression," and requiring him to use "a cane to ambulate." Okraynets, 555 F. Supp. 2d at 441 (describing Kirby). His wife was awarded $300,000, for loss of consortium, based upon a finding that her husband continued to be in pain, "lost the ability to perform certain tasks," though he was "nevertheless able to perform many daily tasks, including driving" Id. (internal quotations omitted); and (4) Kirschhoffer v. Van Dyke, 173 A.D.2d 7, 577 N.Y.S.2d 512 (App. Div. 3rd Dep't 1991), in which a woman was injured when her car collided with a dump truck, causing her to undergo spinal fusion surgery. Her husband was awarded $400,000 in loss of consortium damages, because his wife's condition continued to improve "to the point where she could 'do some walking' and perform 'light housework.'" Okraynets, 555 F. Supp. 2d at 441 (quoting Kirschhoffer, 173 A.D.2d at 10-11, 577 N.Y.S.2d at 515. After considering these cases, the court inOkraynets, awarded Mrs. Okraynets $750,000 in loss of consortium damages, because her husband will never walk again, and it is "highly improbable that he will be able to perform 'many daily tasks,'" and Mrs. Okraynets "is almost entirely deprived of her husband's services for the duration of his life." Okraynets, 555 F. Supp. 2d at 442. In addition, the court found that, because Mr. Okraynets' "paraplegia resulted in a loss of sexual function, Mrs. Okraynets can never again experience the marital intimacy with her husband that she had envisioned at the inception of their marriage," and, because of her husband's incontinence, she will "likely need to sleep in [a] separate bed[]," from her husband. Id.
The affidavits submitted in the case at bar establish that, before his accident, House was "energetic, meticulous and motivated," and, after the accident, he "is incapable of following through on simple household tasks and has sometimes become fatigued, irritable and verbally abusive" to his wife and children. House's wife transports him to "all medical and physical therapy appointments and give[s] him [the] medicine prescribed for his injuries and the resulting diabetes." The Houses' social lives have suffered, as a result of House's self-consciousness about his amputation. Moreover, D. House has become the breadwinner for the family, working full-time, outside the household, in order to supply their family with income, in addition to caring for her family, as she had done before House's accident. The affidavits do not make clear the extent of the housework House performed, prior to his accident, that he can no longer perform, whether House is unable to engage in any occupation, whether House is unable to operate a motor vehicle, or the frequency of House's "fatigue[], irritab[ility] and verbal[] abus[e]," and whether these traits were present prior to the accident. While the affidavits show that the Houses have had to make changes to the way their household operates, the affidavits lack specificity respecting: (a) the breadth of the changes; (b) whether these changes are permanent; (c) whether House's condition might improve; and (d) the distribution of household and child-care responsibilities before and after the accident.
Having considered the cases cited above, the Court finds that it is reasonable and appropriate to award Debra House $300,000, for loss of consortium. This amount reflects that the information provided in this case is similar to that provided in Kirby, supra. In addition, having reviewed all the damages awards discussed above, $300,000 is slightly more than the average of the loss of consortium awards granted in Kirby, Kirschhoffer, DeLeonibus, and Walsh. While the non-injured spouse in Okraynets received a much higher award for loss of consortium, that case is distinguishable from the instant case, since Mr. Okraynets is paralyzed permanently, and very detailed information was provided concerning how the marital relationship changed, after Mr. Okraynets' accident, including information on the loss of marital intimacy.
IV. RECOMMENDATION
For the reasons set forth above, I recommend the plaintiffs be awarded: (1) $5,422,500, for past pain and suffering; (2) $4,185,000 for future pain and suffering, to be made in ten payments reflecting a discount to present value and the addition of compound interest, as reflected in the chart above, with the first payment and a $250,000 lump-sum payment being made upon entry of judgment; (3) $300,000, for the loss of consortium claim; and (4) annual payments of $43,987.93, for past lost earnings, from March 1, 2000, to the date judgment is entered; (5) prejudgment interest, at the rate of nine percent per annum, on the amount of past lost earnings, as determined pursuant to provision (4) immediately preceding, computed from March 1, 2000, to the date judgment is entered; and (5) post-judgment interest, pursuant to 28 U.S.C. § 1961(a). It is further recommended that the defendants be ordered to post security in the total amount of the judgment, including pre- and post-judgment interest, within thirty days of the entry of judgment.
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The plaintiffs shall serve the defendant with a copy of this Report and Recommendation and shall submit proof of service to the court.
V. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Richard M. Berman, 500 Pearl Street, Room 650, New York, New York 10007, and to the chambers of the undersigned, 40 Centre Street, Room 540, New York, New York 10007. Any requests for an extension of time for filing objections must be directed to Judge Berman. FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140, 470 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 58-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).