Opinion
02 Civ. 2810 (RMB) (KNF).
August 27, 2008
REPORT and RECOMMENDATION
BACKGROUND
Plaintiffs Walter House ("W. House") and Debra House ("D. House") brought this action against Kent Worldwide Machine Works,et. al., to recover damages for injuries allegedly caused by a defectively designed machine. The plaintiffs asserted claims under New York law, specifically: (1) strict product liability; (2) breach of implied warranty of merchantability and fitness; (3) negligence; and (4) loss of consortium. On May 24, 2007, your Honor determined that a default judgment should be entered against Kent Worldwide Machine Works, Inc., Kent Worldwide Machine Works, Worldwide Processing of Ohio, Inc., Worldwide Process Technologies, Worldwide Converting Co., Worldwide Converting Machinery, and Worldwide Converting Machinery, Inc., and referred the matter to the undersigned so that an inquest may be held, to determine the amount of damages, if any, to be awarded to the plaintiffs by the defendants. On December 5, 2007, the Court issued a Report and Recommendation to your Honor recommending that no award of damages, costs, attorneys' fees and applicable interest be made to the plaintiffs because of the plaintiffs' failure to comply with the Court's order directing them to file: (i) proposed findings of fact and conclusions of law; (ii) supporting affidavits setting forth their proof of damages, the costs of this action, their attorneys' fees, and any applicable interest; and (iii) a certificate of service on the defendants. The plaintiffs objected to the Court's Report and Recommendation and submitted a "Revised Memorandum of Findings of Fact and Conclusions of Law" and an affidavit by David E. Aspirino, M.D. On June 25, 2008, your Honor referred the plaintiffs back to this Court, directing them to "resubmit their application for damages based on the new materials." On July 2, 2008, the plaintiffs resubmitted their application for damages, costs, attorneys' fees and applicable interest, consisting of a document styled "Memorandum of Findings of Fact and Conclusions of Law," accompanied by Exhibits A through W. The defendants did not oppose the plaintiffs' submissions. No hearing was requested by the parties in connection with this matter.
FINDINGS OF FACT
At an inquest, the complaint's factual allegations must be accepted as true, except as they relate to damages. See Au Bon Pain Corp. v. Artect. Inc., 653 F.2d 61, 65 (2d Cir. 1981). In addition, the plaintiff is entitled to all reasonable inferences from the evidence presented. See id. Based upon the submissions made by the plaintiffs and the complaint filed in the instant action, the following findings of fact are made:
In 2000, 34-year old W. House was employed by Tesa Tape Co., Inc., in Middletown, New York, as an operator of a machine that manufactured adhesive, pressure-sensitive tape. For the year prior to March 1, 2000, W. House earned approximately $43,987.93. The defendants designed, manufactured, assembled, tested, inspected, sold and made repairs to the machine that W. House operated. On March 1, 2000, an article of W. House's clothing was caught in the machine he was operating, and his body was pulled into the machine, injuring him. W. House was airlifted to Westchester Medical Center ("WMC"), where he remained until July 25, 2000. Dr. David Aspirino, an orthopedic surgeon, performed multiple operative procedures in WMC, on W. House's legs, in connection with the injuries sustained on March 1, 2000. As a result of these injuries, W. House underwent numerous major surgeries and invasive and non-invasive procedures, including a below the knee amputation of the left leg, performed on December 28, 2000, and multiple surgeries on his right leg. Additionally, W. House lost his spleen and part of his pancreas and developed diabetes.
At the time of the accident, W. House was a caretaker of his wife and two children, ages 7 and 2. Since the accident, W. House has experienced anxiety, sleep disturbance, feelings of depression and fatigue. He has become short tempered and has problems following simple instructions and performing simple tasks. W. House also experiences problems with hearing, concentration, memory, decision making and organization. Due to the accident, he is unable to work as a machine operator, because he cannot stand for long periods of time. As a consequence, W. House's spouse, D. House, had to take employment outside their home, and she became the caretaker for her husband and their two children. She has been responsible for transporting W. House to all medical and physical therapy appointments and administering prescribed medication to him. W. House's relationship with his spouse deteriorated and their social life has been affected, due to W. House's injuries. Additionally, W. House is not able to pursue physical activities with his children and his hobbies: hunting and snowmobiling. W. House has experienced constant pain in both legs, from the date of the accident to the present, and he cannot participate in any athletic activities, run, walk long distances, climb up and down stairs or operate a motor vehicle, without difficulties. Dr. Aspirino opined, based upon a review of WMC's inpatient medical records and office records of the University Orthopaedics, P.C., that W. House will continue to: (i) have pain and a disability as a result of the injuries he sustained on March 1, 2000; and (ii) require medical care.
CONCLUSIONS OF LAW
A default judgment in an action establishes liability, but is not a concession of damages. See Flaks v. Koegel, 504 F.2d 702, 707 (2d Cir. 1974). The amount of damages must be established by the plaintiff in a post-default inquest, "unless the amount is liquidated or susceptible of mathematical computation." Id. In conducting an inquest, a court need not hold a hearing "as long as it ensured that there was a basis for the damages specified in the default judgment." Transatlantic Marine Claims Agency, Inc. v. Ace Shipping Corp., 109 F.3d 105, 111 (2d Cir. 1997) (quotingFustok v. ContiCommodity Services, Inc., 873 F.2d 38, 40 [2d Cir. 1989]). A court may rely on detailed affidavits or documentary evidence in evaluating the fairness of the sum requested. See Fustok, 873 F.2d at 40. Only competent evidence may be considered by the court in determining damages and, in order to be admissible, evidence must be authenticated. See Fed.R.Evid. 901 and 902; United States v. Pluta, 176 F.3d 43, 49 (2d Cir. 1999). Fed.R.Evid. 901(a) requires a proponent of evidence to submit "evidence sufficient to support a finding that the matter in question is what its proponent claims." "The trial court has broad discretion to determine whether a document has been properly authenticated." Pluta, 176 F.3d at 49. A plaintiff has "no obligation to offer a mathematically precise formula as to the amount of damages."Raishevich v. Foster, 247 F.3d 337, 343 (2d Cir. 2001). If the plaintiff is unable to prove an exact amount of damages and that inability "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. (citation omitted).
Past and Future Pain and Suffering and Loss of Consortium
The plaintiffs seek: (a) $8,000,000.00 for [W. House's] past pain and suffering; (b) "$10,000,00.00 [sic] for [W. House's] future pain and suffering over the next 34 years"; and (c) "$3,000,00.00 [sic] for [D.] House's past and future loss of services and companionship of her spouse." In support of their request for damages, the plaintiffs submitted a document styled "Memorandum of Findings of Fact and Conclusions of Law," accompanied by a set of exhibits. The plaintiffs contend their "Past Present and Future Conscious Pain and Suffering and Loss of Services" are supported by the following exhibits: Exhibit A, "Westchester Medical Center (3/1/00-7/25/00);" Exhibit B, "Westchester Medical Center (12/15/00-12/22/00);" Exhibit C, "Westchester Medical Center (12/26/00-1/3/01);" Exhibit D, "Westchester Medical Center (2/7/01-2/10/01);" Exhibit E, "Horton Medical Center (8/8/00);" Exhibit F, "Dr. David Aspirino (affidavit also)" ("Dr. Aspirino"); Exhibit G, "Dr. Nelson Wong;" Exhibit H, "Dr. Mary Ann Kezmarsky;" Exhibit I, "Dr. Karen Ferrara;" Exhibit J, "Dr. Howard Luks" ("Dr. Luks"); Exhibit K, "Dr. Andrew Hornstein;" Exhibit L, Affidavit by W. House, Exhibit O, Affidavit by D. House; and Exhibit M, "National Center for Health Statistics' Life Tables printed in 2003." The plaintiffs' proposed findings of fact and conclusions of law with respect to W. House's past and future pain and suffering, are contained on page Nos. 1-22 of their "memorandum." Of these 22 pages, page Nos. 2-18 consist of a narrative of the medical procedures and treatments W. House underwent, without any citation to the exhibits. The plaintiffs' Exhibit A, alone, consists of 587 pages, and neither Exhibit A nor any other exhibit, except Exhibits L and M, is cited in connection with the plaintiffs' request for an award for past and future pain and suffering. It is inappropriate for the plaintiffs to unlade a mass of documents on the Court, without indicating what document(s) supports what finding(s) of fact. "Judges are not like pigs, hunting for truffles buried in briefs." United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991).
In their initial application for damages, entitled "Plaintiff's Inquest Memorandum and Supporting Documents," the plaintiffs provided a "Summary of Requested Damages," as follows: TOTAL SPECIAL DAMAGES: $3,474,903.14 TOTAL AMOUNT REQUESTED: $18,473,903.14
Despite the Court's order, dated June 28, 2007, directing the plaintiffs to submit "proposed findings of fact and conclusions of law, as well as an inquest memorandum, accompanied by affidavits and exhibits," the plaintiffs' document is entitled "Memorandum of Findings of Fact and Conclusions of Law." The plaintiffs failed to comprehend the difference between findings of fact and conclusions of law and a memorandum of law. A memorandum of law is "[a] party's written statement of its legal arguments presented to the court." BLACK'S LAW DICTIONARY 1006 (8th ed. 2004).
The plaintiffs' exhibits A through K purport to include, among other things, W. House's medical records from WMC, Horton Medical Center and various physicians who treated him in connection with the injuries sustained on March 1, 2000. However, with the exception of Exhibit F, Dr. Aspirino's affidavit, that references WMC's records, some of which are contained in Exhibits A, B, C, and D, pertaining to the procedures and treatment Dr. Aspirino performed in connection with W. House's injuries, and his personal relevant notes and records, other exhibits pertaining to W. House's medical records have not been authenticated by the plaintiffs. For example, Exhibits G, H, I and K purport to be medical records by Dr. Nelson Wong, Dr. Mary Ann Kezmarsky and Dr. Andrew Hornstein, respectively. However, these documents are not accompanied by any evidence, such as affidavits or any alternative means, appropriate under the Federal Rules of Evidence, sufficient to support a finding that they have not been materially altered and that they are what they purport to be. Moreover, while Exhibit J consists of Dr. Luks': (i) November 27, 2001 letter to Dr. Aspirino; (ii) February 20, 2002 operation report; and (iii) follow-up notes, dated February 26, March 19, April 9, May 7, July 16, and October 8, 2002, only the November 27, 2001 letter is signed by Dr. Luks; all the other documents are unsigned and no evidence is provided demonstrating their authenticity. Dr. Aspirino's affidavit references the surgery performed on W. House by Dr. Luks, on February 20, 2002, as well as the postoperative February 26 and May 2, 2002 visits to Dr. Luks. However, Dr. Aspirino's affidavit does not reference W. House's visits to Dr. Luks on March 19, April 9 and May 7, 2002, and, it appears to the Court, erroneously references W. House's visits to Dr. Luks of July 16 and October 8, 2002, as the visits that took place on July 16 and October 8, 2000. Therefore, the Court is not warranted in finding that Exhibits E, G, H, I, J and K constitute competent evidence that the Court can consider in support of the plaintiffs' request for damages.
The plaintiffs seek $8,000,000.00 for W. House's past pain and suffering. They contend "[s]ome of the details of [W. House's] ordeal have been included in this memorandum and in his affidavit that is attached as Exhibit 'L[,]' but the full measure of the pain, suffering and anguish cannot possibly be expressed in using the vehicle of a memorandum of law." According to the plaintiffs, "a fair and adequate sum for his past pain and suffering is the amount of $8,000,000.00." The plaintiffs make citation to certain cases, in order to "aid the Court in evaluating the pain and suffering of [W.] House." They contend that, unlike the plaintiff in Sladick v. Hudson General Corp., 226 A.D.2d 263, 641 N.Y.S.2d 270 (App.Div. 1st Dep't 1996), "whose main injury was the amputation" and who received an award of $2,500,000 for past pain and suffering and $5,000,000 for future pain and suffering for an above the knee amputation, W. House "suffered other major internal injuries, brain injury and injuries to other lower extremity." In support of their request, the plaintiffs also offer, inter alia, Bondi v. Bambrick, 308 A.D.2d 330, 764 N.Y.S.2d 674 (App.Div. 1st Dep't 2003), in which an award of $9,750,000 for past and future pain and suffering to a 35-year old woman who lost part of her leg and underwent nine surgeries, including painful skin grafts, was found to be reasonable.
The Court's review of the cases offered in support of the plaintiffs' claim demonstrate that the plaintiff in Sladick also suffered injuries to the leg that was not amputated as well as other injuries and the Appellate Division's decision does not indicate the length of the period for which past pain and suffering damages were awarded to that plaintiff. The total pain and suffering award, found to be reasonable in the Bondi case, does not provide any guidance to the Court, because the Appellate Division's decision does not indicate what amount was awarded for past and what amount for future pain and suffering. Furthermore, it does not indicate what type of evidence was presented to substantiate the nature, extent and duration of that plaintiff's pain and suffering, in connection with her loss of part of her leg and the multiple surgeries, including skin grafting she underwent.
The record before the Court lacks evidence of misconduct on the defendants' part that prevented the plaintiffs from presenting evidence to establish their damages. The plaintiffs did not present evidence of any kind to substantiate their claim that W. House suffered a "brain injury." They presented evidence of W. House's condition at the time he was admitted to WMC, after the March 1, 2000 accident: "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; and abrasion over C-7; and ecchymosis over the left flank." The evidence demonstrates that W. House underwent numerous surgical procedures, including, but not limited to skin grafting, treatment of a serious infection of his left leg, below the knee amputation of his left leg, multiple laparotomies, drainage of intra-abdominal abscess, placement of an intramedullary nail and endoscopy. W. House suffered a residual hearing loss in his left ear. W. House stated, in his affidavit, that "[s]ince March 1, 2000, [he has] experienced constant pain to both legs" and that he suffered deprivation of numerous life activities, such as participating in athletic activities, running, walking long distances, climbing stairs, operating a motor vehicle, roughhousing with his children and pursuing hobbies, which he no longer can perform or can perform with difficulties. However, W. House did not specify the nature, extent and duration of the pain he has experienced since March 1, 2000.
Dr. Aspirino stated, in his affidavit, that, "[o]n February 7, 2000," W. House presented himself "for evaluation of left hip pain," for which he was examined and treated during his "February 22, 2000" and "March 26, 2000" visits. It appears to the Court, from the chronological order in which Dr. Aspirino narrated W. House's medical history, that the dates referenced by Dr. Aspirino, in connection with W. House's hip treatment visits, indicate the year 2000 erroneously, and that those visits to Dr. Aspirino would have taken place in 2001. Dr. Aspirino noted that, on August 13, 2001, W. House returned to his office and "stated he was doing very well only using a cane for walking long distances. He did complain of some pain in the distal aspect of the amputation site and x-rays revealed spuring." Dr. Aspirino failed to qualify the nature, extent and duration of the pain suffered by W. House and it appears, from his affidavit, that some of the pain suffered by W. House was treated successfully at various stages of his treatment with Dr. Aspirino.
Dr. Aspirino also indicated that, on February 20, 2002, Dr. Luks performed surgery on W. House that included "removal of intramedullary right tibial nail, right knee arthroscopy with partial medical and lateral meniscectomies, right knee arthroscopy with Achilles tendon allograft, posterior cruciate ligament reconstruction, and lateral collateral ligament reconstruction with posterolateral corner advancement." Dr. Aspirino noted that a medical report indicates that W. House "returned to Dr. Lukas on July 16, 2000" and "he was progressing very well with physical therapy and stated that pain improved markedly." Furthermore, Dr. Aspirino noted, W. House "returned to see Dr. Luks on October 8, 2000," when Dr. Luks advised him "that he would have to undergo an elective arthroscopy to repair the tears." If Dr. Luks performed the above surgery on February 20, 2002, the subsequent visits W. House made to him, in connection with that procedure, could not have taken place in 2000, as Dr. Aspirino indicated. The inconsistency of the dates in Dr. Aspirino's affidavit and the lack of information evidencing the nature, extent and duration of the pain W. House suffered at any given stage of his treatment, make the Court's task of determining W. House's past pain and suffering damages impossible.
The plaintiffs also seek "$10,000,00.00" for W. House's future pain and suffering, which the plaintiffs contend "must cover the life expectancy of 34 years (See Exhibit "M.")," and "$3,000,00.00 for [D.] House's past and future loss of services and companionship of her spouse." As explained above, the plaintiffs' request for future pain and suffering and loss of consortium damages is ambiguous. It is not clear whether the plaintiffs seek $10,000,000 for W. House's future pain and suffering, but they omitted one digit erroneously, or they seek $100,000, but they misplaced the commas. Similarly, it is not clear whether the plaintiffs seek $3,000,000 for D. House's loss of consortium, but they omitted one digit erroneously, or they seek $300,000, but they misplaced the commas. In their complaint, the plaintiffs sought "the sum of THIRTY FIVE MILLION ($35,000,000.00) DOLLARS" on their strict product liability, breach of implied warranty of merchantability and fitness and negligence claims and "the sum of THREE MILLION ($3,000,000.00) DOLLARS" on their loss of consortium claim. While it is possible that the plaintiffs intended to seek $10,000,000 for W. House's future pain and suffering and $3,000,000 for D. House's loss of consortium in their application for damages, the Court's determination cannot be based on speculation. See Raischevich, 247 F.3d at 343 ("The factfinder, however, may not base its award on speculation or guesswork.").
In support of their contention that W. House's future pain and suffering damages "must cover the life expectancy of 34 years," the plaintiffs rely on their Exhibit M, consisting of: (1) page No. 15 of Volume 54, No. 14, April 19, 2006, "Table 4. Life table for the white population: United States, 2003-Con.;" (2) page Nos. 16-17 of Volume 54, No. 14, April 19, 2006, "Table 5. Life table for white males: United States, 2003;" and (3) page Nos. 18-19 of Volume 54, No. 14, April 19, 2006, "Table 6. Life table for white females: United States, 2003," of the National Vital Statistics Reports, issued by the National Center for Health Statistics. While the National Vital Statistics Reports may be considered public records, for the purpose of Fed.R.Evid. 901, providing copies of certain pages from those reports, without any explanation of their relevance or application to the facts of this case, is insufficient to support the plaintiffs' contention about "the life expectancy period of 34 years." For example, it is not clear to the Court why the plaintiffs rely on an outdated life expectancy table, when the most recent life table was published in Volume 56, No. 9, December 28, 2007, by the National Center for Health Statistics and was available at the time of the plaintiffs' application. It is also not clear what the relevance of page No. 15 of "Table 4. Life table for the white population: United States, 2003-Con." is to the plaintiffs' life expectancy, because page No. 15 contains the age intervals starting with 65-66 and ending with 100+, and neither W. House, who was born in 1966, nor D. House, who was born in 1970, were 65-66 years of age or older in 2003, the year for which the life expectancy tables were calculated in Volume 54, No. 14. Moreover, in 2003, W. House was 37 years old, and Table 5, submitted within Exhibit M by the plaintiffs, does not indicate 34 years as a life expectancy for that age. The plaintiffs' contention, that "the real life expectancy would have been 40 years but has been actuarially reduced because of the diabetes" that W. House developed as a result of his injuries, is not supported by any competent evidence and the plaintiffs failed to make citation to any competent record evidence in its support. Therefore, the plaintiffs' contention, that W. House's life expectancy is 34 years, is speculative. Additionally, in 2003, D. House was 33 years old, and Table 6, submitted in Exhibit M by the plaintiffs, does not indicate "42.6 years" as a life expectancy for that age, as the plaintiffs contend, and the plaintiffs failed to explain why or how D. House's life expectancy is relevant to any of the plaintiffs' claims, based on W. House's injuries.
"The expectation of life at any given age is the average number of years remaining to be lived by those surviving to that age on the basis of a given set of age-specific rates of dying." National Vital Statistics Reports, United States Life Tables, 2004, Volume 56, No. 9, p. 3.
The plaintiffs' Exhibit P purports to be an incomplete document that bears, in its upper left corner of its initial page, the phrase "Final Lifetime Medical Cost Estimate" and, on the bottom center of each of its 4 pages numbered p. 2-5, the phrase "2002 ParadigmHealth. All rights reserved. Proprietary and Confidential." No evidence sufficient to identify and authenticate this document was submitted to the Court and no reference is made to nor has an explanation been given of it in connection with the plaintiffs' request for past and future pain and suffering and loss of consortium damages. One section on the initial page of Exhibit P is entitled "Estimated remaining Life Expectancy;" it bears a date stamp December 5, 2002, and states that "[T]he standard estimated remaining life expectancy for a 36-year-old male is approximately 40 years," indicating "Source: Vital Statistics of the United States, 1998 Life Tables, volume II, Section 6. Lawyers and Judges Publishing Company, 2002." The same section also notes that W House's "remaining life expectancy is estimated to be 34 years, with a reduction in life expectancy due to the following: smoking, diabetes." Even assuming Exhibit P was competent evidence, the information it provides is irrelevant because it is based on the outdated 1998 life expectancy table, prepared before W. House sustained his injuries, and no explanation is provided about the source or method used to calculate the reduction in life expectancy noted on the document.
In support of her claim for loss of consortium damages, D. House submitted an affidavit, providing many of the same statements W. House provided in his affidavit. D. House indicated that, since her spouse's accident, she has been responsible for transporting him to medical appointments and administering medication to him. She stated that their "social life has been affected due to his self consciousness about his injuries when going out in public and our marriage has been affected due to altered roles and his lack of initiation." Additionally, D. House described how W. House's accident "also put a burden on my children." However, the loss of consortium claim is personal to the spouse and the effect of the injuries on the other members of the family is irrelevant. See Millington v. Southeastern Elevator Co., Inc., 22 N.Y.2d 498, 503, 293 N.Y.S.2d 305, 308 (1968);Fafard v. Ajamian, 60 A.D.2d 853, 853-54, 400 N.Y.S.2d 856, 857 (App.Div. 2nd Dep't 1978). D. House's affidavit is devoid of any specifics describing the nature and the extent of her loss of companionship, emotional support, love, felicity and intimate relations. Since "[c]onsortium represents the marital partners' interest in the continuance of the marital relationship as it existed at its inception," see Buckley v. National Freight, Inc., 90 N.Y.2d 210, 214, 659 N.Y.S.2d 841, 843 (1997), it is incumbent upon a plaintiff seeking loss of consortium damages, to present evidence demonstrating the nature and the extent of what is being lost from the marital relationship. Conclusory statements of the type: (i) "[o]ur life has been affected" as a result of W. House's injuries, without a detailed explanation of how it was affected; (ii) "[b]efore the accident, my husband was energetic, meticulous and motivated," without any detailed description of W. House's disposition, temperament, character and attainments; and (iii) "our marriage has been affected due to altered roles and his lack of initiation," are not sufficient to demonstrate the nature of W. House's services and society, including companionship, emotional support, love, happiness, intimate relations, assistance, and affection and the extent to which the injuries sustained prevented W. House from performing those services and providing that society. Therefore, the Court lacks a basis upon which to determine what amount, if any, should be awarded to D. House on her loss of consortium claim.
The above-mentioned deficiencies demonstrate the lack of care with which the plaintiffs' application for damages was prepared and the lack of diligence with which the plaintiffs acted when they failed to correct the deficiencies in their initial applications, despite being given multiple opportunities to do so. Accordingly, the Court finds that the plaintiffs did not sustain their burden of proving their: (a) past and future pain and suffering; and (b) loss of consortium damages.
Economic Loss
The plaintiffs contend that Exhibit P, "[a] Life Care Plan set forth by [W. House's] workmen's compensation carrier details the cost for his continued medical care and treatment with the compensation lien paid to date." However, the plaintiffs' Exhibit P is not competent evidence because it has not been authenticated. The plaintiffs contend, in their request to recover for "economic loss," that the total lost wages are "about $1,378,000.00." They contend W. House earned an annual salary of $43,987.65 for the 52 weeks prior to the accident, bringing the total amount of his past lost earnings to $329,907.38, without any increases. To verify the wages earned by W. House, the plaintiffs submitted Exhibit R, "the employer wage verification form dated July 7, 2000." However, Exhibit R is not competent evidence; it has not been authenticated by the plaintiffs and, therefore, cannot be considered by the Court. According to the plaintiffs, W. House's "work life expectancy is 19.6 years, which would bring his future lost earnings to $862,157.94, again without any percentage increase in salary." No evidence has been submitted by the plaintiffs to substantiate their contention that W. House's "work life expectancy is 19.6 years." Therefore, it is impossible for the Court to assess W. House's future lost earnings.
W. House stated, in his affidavit, that for one year prior to his accident, he earned "approximately $43,987.93," without indicating whether that amount was net or gross. The plaintiffs contend, based on Exhibit Q, "United States Department of Labor, Bureau of Labor Statistics, release dated June 7, 2007," that "wages in the State increased at about 1.1% during the year 2006 with some of the larger counties in the state experiencing wage growth up to 4.1%." They contend further that, "using this statewide average of about 1%, [W.] House's wage at a base of $43,987.65 would increase at the average rate of about $440 for a few years, and then $500.00 for a few years, and then $550.00 for a few years and then over $600.00 per year." The plaintiffs argue that "[m]erely adding a total of 19% to the total lost wages" would be sufficient to incorporate "incremental increases as could be expected."
The plaintiffs failed to explain why the state average increase, rather than an increase in the place of W. House's employment, should be used in projecting his increases in salary. They also failed to explain why the increases proposed are based on "a few years" rather than on the actual number of years to which any proposed increase(s) would apply, and they also failed to specify what years are covered by any proposed increase. Additionally, the plaintiffs proposed that an average increase be employed, based on the proposed total amount of past and future lost earnings, but failed to provide separate proposed increases for past lost earnings and future lost earnings. Thus, the plaintiffs provided no basis for the Court to determine what increase, if any, would apply to W. House's past lost earnings. Therefore, based on the evidence of his annual salary prior to the accident, provided in W. House's affidavit, the Court finds that W. House is entitled to past lost earnings from March 1, 2000, to the present, calculated based on his annual salary of $43,987.93.
The plaintiffs contend W. House's "medical expenses to date amount to $864,474.82" and, "[b]ased upon the life medical plan prepared by the workers compensation carrier, the cost of the future medical care would total $1,417,363.00 (since this report was prepared in 2002 updating it for the five years that have transpired would reduce their original finding of $1,662,363.00 by their average of $49,000.00 per year for the five years.)." Additionally, the plaintiffs maintain, W. House "should be awarded his full economic loss of the Workers' Compensation lien (said amount totals $864,474.82) which Plaintiff will have to repay, as required by New York's Workers' Compensation Law § 29, from any recovery obtained herein. (See Exhibit'S')."
The plaintiffs did not submit evidence to the Court to support their contentions concerning medical expenses incurred to date and projected future medical expenses. The plaintiffs made no citation to any of their exhibits when they reference "the life medical plan prepared by the workers compensation carrier" in 2002 and they do not indicate who W. House's workers compensation carrier is. Moreover, the plaintiffs' Exhibit P, purports to be an e-mail communication, forwarded on September 5, 2007, by Barbara Connor, General Adjuster Resolution Management Services Fireman's Fund Ins. Co., to the law firm of counsel to the plaintiffs. However, no affidavit or other evidence was submitted to the Court, by counsel to the plaintiffs or any other person, to establish that Exhibit P is what it purports to be. In light of the multiple opportunities given to the plaintiffs, by the Court, to correct deficiencies in their application for damages and their failure to do so, the Court has no basis upon which to determine an appropriate award to the plaintiffs for: (a) past lost earnings; (b) future lost earnings; (c) past medical expenses; and (d) future medical expenses.
Costs
Fed.R.Civ.P. 54(d) provides that, unless otherwise provided by a statute, the Federal Rules of Civil Procedure or a directive issued by a court, "costs, other than attorneys' fees shall be allowed as of course to the prevailing party." "[The] list of recoverable costs is obviously the list set out in 28 U.S.C. § 1920, the general statute governing the taxation of costs in federal court." Arlington Central School Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 297-98, 126 S. Ct. 2455, 2460 (2006); see Rangolan v. County of Nassau, 370 F.3d 239, 250 (2d Cir. 2004). The list of taxable costs includes: (1) fees of the clerk and marshal; (2) fees of a court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case; (3) fees and disbursements for printing and witnesses; (4) fees for exemplification and copies of papers necessarily obtained for use in the case; (5) docket fees under 28 U.S.C. § 1923; and (6) compensation of court-appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under 28 U.S.C. § 1828. See 28 U.S.C. § 1920. A district court does not have discretion, under Fed.R.Civ.P. 54(d), to tax as costs expenses incurred beyond those specified as taxable by Congress in 28 U.S.C. § 1920. See Whitfield v. Scully, 241 F.3d 264, 269 (2d Cir. 2001); Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 441-42, 107 S. Ct. 2494, 2497 (1987).
The plaintiffs seek $22,567.31 as costs, "(known as "disbursements" and incurred by their counsel during the prosecution of this action)." In support of their request for costs, they offer Exhibit T, which is a "financial breakdown of the amount" submitted to the Court by the plaintiffs "on pages twenty eight (28) through thirty (30) of the original Memorandum." The plaintiffs state in a footnote: "Should your Honor want to see each and every invoice and check stub evidencing same we will provide a supplemental exhibit with all of this documentation."
As with numerous other exhibits, submitted in support of their application for damages, the plaintiffs failed to provide an affidavit or other evidence demonstrating Exhibit T is what it purports to be and that the information contained therein is true. Consequently, the Court cannot consider it in determining the costs, if any, to be awarded in this action. The plaintiffs' original application for damages, which the plaintiffs contend includes pages 28-30 indicating the costs of this action, was rejected by the Court due to the deficiencies noted in the Court's December 5, 2007 Report and Recommendation. One of those deficiencies was the plaintiffs' failure to include "any supporting affidavits setting forth their proof of damages, the costs of this action, their attorneys' fees, and any applicable interest." Therefore, the plaintiffs' failure to provide competent evidence to establish the costs incurred in prosecuting this action and to cure previous deficiencies, indicated to them by the Court, and their reliance on their initial application for damages, rejected by the Court as deficient, do not warrant the court in awarding the plaintiffs the costs they incurred in prosecuting this action.
Attorneys' Fees
Contingent-fee agreements are subject to a reasonableness determination by a court. See Alderman v. Pan Am World Airways, 169 F.3d 99, 102 (2d Cir. 1999). A party seeking a fee award must support the request with contemporaneous time records detailing, "for each attorney, the date, the hours expended, and the nature of the work done." New York State Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1154 (2d Cir. 1983). Fee applications without such supporting data "should normally be disallowed." Id.
The plaintiffs contend "[t]his is a 'contingency' fee type of case with a Retainer agreement that contains a standard agreement of an attorneys fees of one-third (33 1.3%) of the net recovery (the gross recovery reduced by allowable disbursements)." In support of their contention, they offer Exhibit U, purporting to be a copy of the retainer agreement and Exhibit V, purporting to be a retainer statement filed "with the [New York] Office of Court Administration."
No evidence has been submitted to the Court, by the plaintiffs, to demonstrate that Exhibits U and V are what they purport to be. Additionally, the plaintiffs did not indicate who the parties to the retainer agreement are. Moreover, Exhibit U, which purports to be the referenced retainer agreement, also does not indicate who the parties are to the agreement. The signatures on the purported retainer agreement, Exhibit U, are hardly visible and legible and, from what is visible and legible, it appears to the Court that W. House's signature does not appear on the purported retainer agreement. The only signature that seems to appear on Exhibit U consists of a three-part name, but the record in this action does not indicate that either plaintiff's name consists of three parts. Therefore, the Court cannot consider the plaintiffs' Exhibit U in determining their application for attorneys' fees.
Even if competent evidence were submitted demonstrating a retainer agreement between the plaintiffs and the law firm in this action, no evidence has been submitted by the plaintiffs, including, inter alia, the: names, qualifications and level of experience of the attorneys who worked on this matter, number of hours spent by each attorney on the litigation and the nature of the work performed by each attorney, to enable the Court to assess whether the fees requested are reasonable. Absent such evidence, recovering attorneys' fees is not warranted.
Prejudgment Interest
In New York, the applicable interest rate is nine per centum per annum. See New York Civil Procedure Law and Rules ("CPLR") § 5004. Pursuant to CPLR § 5001(b), interest "shall be computed from the earliest ascertainable date the cause of action existed, except that interest upon damages incurred thereafter shall be computed from the date incurred." The plaintiffs are entitled to prejudgment interest of nine per centum per annum, on the amount awarded, from March 1, 2000, until the date the judgment is entered in this action.
Post-Judgment Interest
28 U.S.C. § 1961 informs that "interest shall be allowed on any money judgment in a civil case recovered in a district court." 28 U.S.C. § 1961(a). Interest is calculated "from the date of the entry of the judgment, at a rate equal to the weekly average 1-year constant maturity Treasury yield, as published by the Board of Governors of the Federal Reserve System, for the calendar week preceding the date of the judgment." 28 U.S.C. § 1961(a). Therefore, the plaintiffs are entitled to post-judgment interest, at the rate prescribed by the above-noted statute, commencing from the date the default judgment is entered.
RECOMMENDATION
For the reasons set forth above, I recommend that the plaintiffs' damages application for: (1) past and future pain and suffering; (2) loss of consortium; (3) past and future medical expenses; (3) future lost earnings; (4) costs; and (5) attorneys' fees, be denied. I recommend, further, that the plaintiffs' requests for the following be granted: (a) past lost earnings, calculated based on W. House's annual salary of $43,987.93, from March 1, 2000, to the date judgment is entered; (b) prejudgment interest, at nine per centum per annum, on the amount of past lost earnings as determined pursuant to provision (a), immediately preceding, computed from March 1, 2000, to the date judgment is entered; and (c) post-judgment interest, pursuant to 28 U.S.C. § 1961(a).
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The plaintiffs shall serve the defendants with a copy of this Report and Recommendation and shall submit proof of service to the court.
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 have ten (10) days from service of the 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, United States District Judge, 500 Pearl Street, Room 650, New York, New York 10007, and to the chambers of the undersigned, 500 Pearl Street, Room 530, 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 TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140 (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. Candair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988);McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).
WALTER HOUSE PAST LOST EARNINGS: $329,907.38 FUTURE LOST EARNINGS: $862,157.94 PAST MEDICAL EXPENSES: $864,474.82 FUTURE MEDICAL EXPENSES: $1,417,363.00 PAST PAIN AND SUFFERING: $8,000,00.00 FUTURE PAIN AND SUFFERING $10,000,00.00 DEBRA HOUSE LOSS OF SERVICES CLAIMED: $3,000,00.00 Notwithstanding the plaintiffs' erroneous addition of the amounts for W. House's "total special damages" and his past and future pain and suffering, it was not clear to the Court what amounts were sought for W. House's past and future pain and suffering and D. House's loss of services. Typically, when writing a number in the Hindu-Arabic numeral system, one begins on the right-hand end, writes a decimal point, and separates numbers into groups of three digits, by placing a comma after every third digit beginning at the decimal point and moving to the left. Thus, the commas divide the numbers into groups of three digits, each group and each digit having its own place value. Accordingly, $8,000,00.00, $10,000,00.00 and $3,000,00.00 are not recognized ways of writing numbers in the Hindu-Arabic numeral system. That is so because to read a number with more than three digits, one must start on the left and read the digits in each group. For example, the plaintiffs' erroneous request for $3,000,00.00 is ambiguous because it is not clear whether the plaintiffs seek: (a) $300,000, but misplaced the commas; or (b) $3,000,000, but omitted one digit erroneously. The plaintiffs had two opportunities, subsequent to their initial application for damages, to correct deficiencies in their application, but failed to do so.