Opinion
12 Civ. 5355 (AEK)
01-19-2022
ROBERT BYRNE, Plaintiff, v. YEATS CONSTRUCTION MANAGEMENT, INC. and MONOMOY FARM LLC, Defendants.
HONORABLE NELSON S. ROMAN, U.S.D.J.
On October 15, 2020, this case was reassigned to the undersigned. Prior to the reassignment, Plaintiff and Defendant Monomoy Farm LLC had consented to the jurisdiction of Magistrate Judge Lisa Margaret Smith for all purposes pursuant to 28 U.S.C. § 636(c). ECF No. 58. Defendant Yeats Construction Management, Inc., which is in default, did not consent to Judge Smith's exercise of jurisdiction. Therefore, this inquest on damages stemming from the default must be decided by way of a report and recommendation. See Vilato v. The City of Yonkers, No. 13-cv-5825 (NSR) (PED), 2016 WL 6271889, at *1 n.1 (S.D.N.Y. June 9, 2016), adopted by 2016 WL 6269607 (S.D.N.Y. Oct. 26, 2016); ECF No. 95 at 2.
REPORT AND RECOMMENDATION
ANDREW E. KRAUSE United States Magistrate Judge.
Plaintiff Robert Byrne (“Byrne”) commenced this action against Defendants Yeats Construction Management, Inc. (“Yeats”) and Monomoy Farm LLC (“Monomoy Farm”), asserting claims of strict liability under the New York Labor Law (“NYLL”) and negligence under state common law stemming from a work-related accident in which he fell from a ladder. See ECF No. 5 (Amended Complaint). On August 5, 2016, Your Honor entered a default judgment against both Defendants and referred the matter to Magistrate Judge Lisa Margaret Smith for an inquest on damages. ECF Nos. 25, 26. Judge Smith conducted an inquest hearing on November 3, 2016. See Docket Sheet, Minute Entry dated 11/03/2016. Following the inquest hearing, Monomoy Farm successfully moved to vacate the default judgment. ECF No. 51. Yeats remains in default. See ECF No. 25 (default judgment); ECF No. 95 at 1 (summarizing procedural history).
Following discovery, Monomoy Farm filed a motion for summary judgment, which Judge Smith granted in part and denied in part. ECF No. 83. Thereafter, Plaintiff settled his claims against Monomoy Farm, and pursuant to a stipulation of voluntary dismissal so ordered by the Court on June 17, 2019, the claims against Monomoy Farm were dismissed with prejudice. ECF Nos. 91, 94. In response to an order issued on August 7, 2019, ECF No. 95, Plaintiff filed papers under seal in support of his claim for damages against Yeats, see ECF No. 106 & footnote 6, infra. Upon reviewing Plaintiff's submissions, the Court found that because the submitted medical records were not properly authenticated, they could not be considered. The Court therefore ordered Plaintiff to re-submit the records with proper authentication, see ECF No. 99, and the properly authenticated medical records (which also included certain medical bills) subsequently were filed under seal, ECF Nos. 103-104, 107. Yeats has not filed anything in response to any of Plaintiff's submissions, nor has it ever contacted the Court. For the reasons that follow, I respectfully recommend that Plaintiff be awarded damages from Yeats in the total amount of $788,299.58, plus post-judgment interest in accordance with 28 U.S.C. § 1961.
BACKGROUND
The following facts are drawn from the Amended Complaint (“Am. Compl.”), Plaintiff's testimony at the inquest hearing held on November 3, 2016,, and additional documents submitted by Plaintiff in support of his application for damages.
Plaintiff was the only witness who testified at the inquest hearing.
Monomoy Farm owned a property at 806 Peach Lake Road, North Salem, New York, and prior to July 15, 2009, it hired Yeats, a contractor, to manage a construction project on the property. Am. Compl. ¶¶ 3, 8-9. The construction project involved the repair and/or alteration of the buildings located on the property. Id. ¶ 9. Yeats hired Plaintiff to work on the construction project in March or April 2009. Id. ¶ 10; see Transcript of Nov. 3, 2016 Inquest Hearing (ECF No. 75-8) (“Hearing Tr.”) at 7:7-16. In the Amended Complaint, Plaintiff alleges that on July 15, 2009, Yeats provided Plaintiff tools and equipment-and Monomoy Farm provided Plaintiff tools, equipment, and a ladder-to complete the construction project on the property. Am. Compl. ¶¶ 11-12. At the hearing, Plaintiff testified that he believed the ladder belonged to Monomoy Farm because the ladder “was on the property, and it didn't belong to Yeats Construction,” Hearing Tr. at 11:11-14, and although Plaintiff testified that he was provided with supplies, he also said that he had his own tools, see id. at 8:9-13.
While Plaintiff was using the ladder provided by Monomoy Farm to repair and/or alter buildings on the property, the ladder became unstable, causing Plaintiff to fall approximately 15 feet and sustain the following alleged injuries: (1) comminuted fractures of the left heel bone, requiring multiple surgeries; (2) multiple infections; (3) swelling in the left foot; (4) loss of vertical stature; (5) general shock to his nervous system; and (6) anxiety and apprehension about his mental and physical conditions. Am. Compl. ¶¶ 13-14. These injuries allegedly have affected Plaintiff's ability “to engage in and enjoy activities of everyday living and resume his pre-accident lifestyle.” Id. ¶ 14.
During the inquest hearing, Plaintiff described what happened as follows:
I set up my ladder to take off probably the last piece of rotten fascia board. It was about eight feet long, and I was on the ladder, and I was prizing it off. And just in a split second, the ladder kicked out from underneath me, and I came like straight down along the wall. I jammed my heel bone into
the concrete patio area. And I just knew instantly I was in trouble . . . the pain was just out of this world, absolutely.
Hearing Tr. at 9:24 - 10:7. Plaintiff testified that after the fall, he was taken to Stamford Hospital, where hospital personnel took x-rays but could not operate on him at that time because of the swelling in his foot. Id. at 19:22 - 20:2, 23:1-2; see ECF No. 29 (“Byrne Aff.”) Ex. A (“Medical Records”) at BYRN0341 (July 16, 2009 exam note of orthopedic surgeon, Dr. Adam Brodsky: “This is a severe injury of the heel. We will need a CT scan to evaluate to determine whether it needs surgical treatment. If it does, we will need to get the swelling under control.”). According to Plaintiff, he had “never had sort of the pain like that in [his] life ever.” Hearing Tr. at 20:8-9; see Medical Records at BYRN0028-29 (Emergency Department Report: Plaintiff had “severe heel pain” and felt nauseated); BYRN0038 (Emergency Department Physician Sheet: Plaintiff's pain was “severe” and “10” on a scale of 0-10); BYRN0351 (Medical History Form filled out and signed by Plaintiff on 7/16/09: pain was a 10, was sharp and burning, was constant, and woke him from his sleep). Medical records reflect that Plaintiff had to return to the hospital emergency room later that day because of the pain in his heel. Hearing Tr. at 21-22; Medical Records at BYRN0040; BYRN0055-56 (Emergency Department report: “This patient presents here for further pain control.”); BYRN0057 (Triage Sign-In Form: “Took 5 Percocet pills and still in a lot of pain”). Plaintiff explained that after being discharged from the hospital, he continued to be in severe pain; stayed on his couch all the time, keeping his foot elevated; only got up to use the bathroom once a day; and had friends make him food. Hearing Tr. At 22-23.
Authenticated copies of Plaintiff's medical records were submitted to the Court in October 2020. See ECF Nos. 103-104, 107. However, the Bates stamped medical records filed in November 2016 as attachments to Plaintiff's affidavit at ECF No. 29 are not entirely the same as the authenticated records in the more recent submission. Where the Court has determined that an unauthenticated, Bates stamped medical record corresponds to an authenticated, but not Bates stamped, medical record, the Court cites to the Bates stamped document found at ECF No. 29.
Plaintiff testified that he underwent multiple surgeries as a result of the accident. The first surgery, on August 4, 2009, was to treat the fracture of his heel bone. Id. at 24; Medical Records at BYRN0077-78 (Operative Report). He said that after this surgery he felt terrible and was unable to sleep. Hearing Tr. at 25:5-13. Plaintiff stated that he still had to keep his foot elevated, remained bound to his couch, got up once a day to use the bathroom, and kept ice packs around his bandages. Id. at 25:14-20, 26:1-3. Plaintiff testified that he had to have a second surgery several weeks later because he had developed a staph infection. Id. at 26:6-23; see Medical Records at BYRN0138-39 (Stamford Hospital Operative Report for surgery on 9/3/2009). Plaintiff said that after this surgery, he felt “[t]he same. The pain on a scale of one to ten, for the first twelve months of this break, was twelve.... I can't explain how painful it was and still is.” Hearing Tr. at 27:8-12. Plaintiff testified that at the time of this second surgery, he had been given a PICC line-“like a chain from my heart to an open wound on my arm”-to enable him to “go get antibiotics every single day for the next twelve months.” Id. at 26:20-23, 27:22 - 28:5; see Medical Records at BYRN0126. However, the Medical Records evidence that the PICC line was removed after six weeks. See, e.g., Medical Records at BYRN0289 (Interagency Patient Referral Report: Plaintiff was to get six weeks of IV antibiotic infusions which were to end on 10/15/09); BYRN0288 (Infusion Center Daily Nursing Progress Note for 10/15/09: “Pulled PICC”); BYRN0352 (September 23, 2009 exam note by Dr. Brodsky: Plaintiff “was on IV antibiotics. He is about 2 weeks in with 4 weeks left of the antibiotics.”).
The Operative Report describes the procedure performed as follows: “Open reduction and internal fixation of left calcaneus fracture, relocation left peroneal tendons, subtalar joint debridement, application of posterior splint, use of x-ray.” Medical Records at BYRN0077. Plates and screws were inserted into Plaintiff's foot as part of the procedure. Id. at BYRN0078.
In a section labeled “Procedure Indications,” the Operative Report states:
This patient is a 36-year-old male who is now 3 to 4 weeks status post open reduction internal fixation of his left calcaneus. He did well immediately after surgery. Unfortunately, he had a wound dehiscence. We observed this for about 24 hours and it looked to be heading in the wrong direction. Decision was made to take to the operating room for I and D[.] Recommendation was made for irrigation and debridement in the operative [sic] room and application of wound VAC. . . .Medical Records at BYRN0138. Wound dehiscence is “when a surgical incision reopens either internally or externally.” Healthline, “Wound Dehiscence: When an Incision Reopens,” available at https://www.healthline.com/health/wound-dehiscence#:~:text=Wound%20dehiscence%2C%20as%20defined%20by,following%20abdomi nal%20or%20cardiothoracic%20procedures (last visited 1/18/2022).
“A peripherally inserted central catheter (‘PICC'), also called a PICC line, is a long, thin tube that's inserted through a vein in your arm and passed through to the larger veins near your heart.” Mayo Clinic, “Peripherally inserted central catheter (PICC) line,” available at https://www.mayoclinic.org/tests-procedures/picc-line/about/pac-20468748 (last visited 1/19/2022).
Medical records provided to the Court suggest that a third surgery was performed on September 17, 2009, to treat another surgical wound infection. See Medical Records at BYRN0199 (Stamford Hospital Discharge Summary). Based on the Court's review of all of the evidence submitted, however, it is unclear whether a surgery was, in fact, performed on that date. There are no billing records for such a surgery, and contemporaneous notes from Dr. Brodsky do not reference any such surgery. An exam note for an office visit on September 16, 2009, states that Plaintiff was “[d]oing well status post left calcaneal wound dehiscence with I&D and wound vac treatment. The patient looks great . . . I will check him back in a week [sic] time for a wound check and we will take x-rays at that point,” Medical Records at BYRN0353, and Dr. Brodsky's exam note for Plaintiff's office visit on September 23, 2009, states that Plaintiff was “[s]ix weeks status post open reduction internal fixation of left calcaneus with wound breakdown, doing well,” Medical Records at BYRN0352. There is no mention in these records of a surgery on September 17, 2009.
And although Plaintiff's counsel noted during the inquest hearing that there is a medical record which states that yet another surgery was performed on October 15, 2009, see Medical Records at BYRN0287, there are neither billing records for, nor any other evidence of, this surgery. Plaintiff himself testified at the inquest hearing that other than the surgery on September 3, 2009, he did not recall any other procedures performed for infections on his foot, other than the insertion of the PICC line. Hearing Tr. at 27:13-24. Based on the evidence presented, it is clear that Plaintiff underwent two surgeries as a result of the accident. The ambiguity in the Medical Records, combined with the fact that Plaintiff himself only testified about having had two surgical procedures, make it impossible for the Court to conclude that Plaintiff underwent any additional surgeries as a result of the injuries he sustained on July 15, 2009.
Plaintiff testified that he was not able to return to work for 14 months, and when he did, he was limited in what he was able to do. Id. at 30:17-22. Plaintiff explained:
I don't have full motion in my foot anymore. I don't have motion side to side. So I can't walk on a roof or uneven ground or (unintelligible) get up on a ladder. So I'm kind of limited now to doing interior work, like fit kitchens and baseboard and just general interior work on a house.Id. at 30:24-31:3. According to Plaintiff, these limitations continued through the date of the hearing. Id. at 31:4-8. Plaintiff elaborated that he cannot run, play soccer, or play football and that his foot “swells up every day.” Id. at 31:11-13; see id. at 41:18-42:5 (before the accident, Plaintiff used to play football and rugby and used to go to the gym six days a week). He said that he had to wear a special boot to work and that because of the swelling, he “end[ed] up halfway during the day loosening one shoe, just to let my foot breathe.” Id. at 31:15-18; see id. at 35:13-22. Plaintiff said that when he returned home from work, he would elevate his foot and that he would ice his foot at least two times a week. Id. at 31:22-25. He noted that “the humidity and the damp weather affects me a lot[.]” Id. at 32:1.
Plaintiff testified that he had problems going up and down stairs and had to come down the stairs sideways. Id. at 32:21-23. He said that there was an occasion on which he fell down the stairs at home because of his foot. Id. at 32:25-33:12. Plaintiff stated that he was able to sleep but woke up four to five times a night in pain, and that he could not put a blanket over his foot or lie on his side because both of those increased his pain. Id. at 33:13-24. Plaintiff testified that at no point since the accident has he ever taken any prescription pain medication, except when he was in the hospital, because he did not have insurance to pay for it. Id. at 34:5-35:3. But he said that he has pain in his foot all the time, every day, though if he is moving and active, he can tolerate it. Id. at 35:23-36:5. Plaintiff explained:
Like when I sit down and when I get up to move again, it's severe for 20 or 30 steps until - it's like I have to walk it out of it. And then in saying that, if I'm up for six to eight hours, it just doubles back on me again saying, “You know what? Sit down for a while,” you know.Id. at 36:5-10. Plaintiff said that because of the injury in his foot, he ended up with pain in his left knee, hips, and back from limping and not walking properly. Id. at 36:11-23. He added that, depending on how much walking he was doing, the knee “would probably bother me at least once or twice a week. My hips will be once every two weeks. That would be my hips and my back.” Id. at 36:24-37:6.
Plaintiff testified that he went back to his orthopedic surgeon, Dr. Brodsky, to see if there was anything that could be done to alleviate his pain, and the doctor said that the only thing that could be done would be to fuse the joint. Id. at 37:9-15; see Byrne Aff. Ex. B (“Brodsky Report”). Plaintiff said he did not have the joint fused because if he did so, it would make it difficult for him to bend and kneel, and he would be unable to work; in other words, he thought that the fusion procedure would “limit me an awful lot more than what I am already limited.” Hearing Tr. at 37:16-38:1.
In the Amended Complaint, Plaintiff asserts one claim against Yeats-specifically, that Yeats violated NYLL § 240 when it “failed to offer the plaintiff any safety equipment, including but not limited to a harness, hard hat, slings, hangers, blocks, pulleys, braces, irons, and/or ropes, while the plaintiff was elevated on a ladder repairing and/or altering the buildings located at 806 Peach Lake Road, North Salem, New York . . . .” Am. Compl. ¶ 17; see Hearing Tr. at 17:5-14 (Plaintiff testified that he was not provided with any safety equipment-“absolutely nothing”- and there was no one at the job site who was supposed to be holding the ladder for Plaintiff). Plaintiff testified that if he had been provided with safety equipment, he would have used it. Hearing Tr. at 19:13-15. Plaintiff alleges that Yeats' failure to offer any safety equipment proximately caused his injuries and that Plaintiff's “risk of injury from an elevation-related hazard was foreseeable” to Yeats. Am. Compl. ¶¶ 18-19.
DISCUSSION
I. Legal Standard
“A default judgment that is entered on the well-pleaded allegations in a complaint establishes a defendant's liability, and the sole issue that remains before the court is whether the plaintiff can show, with reasonable certainty, entitlement to the amount of damages [he or she] seeks.” Trinity Biotech, Inc. v. Reidy, 665 F.Supp.2d 377, 380 (S.D.N.Y. 2009) (citations and quotation marks omitted). Rule 54(c) of the Federal Rules of Civil Procedure requires that “a default judgment must not differ in kind from, or exceed in amount, that [which] is demanded in the pleadings.” But “Rule 54 does not require plaintiff to have demanded a sum certain in order to recover on default.” Jordonne v. Ole Bar & Grill, Inc., No. 13-cv-1573 (VB) (JCM), 2016 WL 3409088, at *5 (S.D.N.Y. Apr. 26, 2016) (quotation marks omitted), adopted by, 2016 WL 3360524 (S.D.N.Y. June 16, 2016). “When assessing damages, a court cannot rely on the plaintiff's statement of the damages; rather, damages must be established with reasonable certainty.” Negrin v. Kalina, No. 09-cv-6234 (LGS) (KNF), 2013 WL 6671688, at *4 (S.D.N.Y. Dec. 17, 2013) (quotation marks omitted), adopted by 2014 WL 67231 (S.D.N.Y. Jan. 7, 2014); Credit Lyonnais Sec. (USA), Inc. v. Alcantara, 183 F.3d 151, 155 (2d Cir. 1999). “State substantive law governs the issue of damages in a case over which a federal court exercises diversity jurisdiction.” Negrin, 2013 WL 6671688, at *4. Accordingly, in this diversity case, the Court applies New York law in deciding the issue of damages.
II. Analysis
Plaintiff seeks an award of damages against Yeats in the amount of $1,154,887.76. ECF No. 106 (“Pl.'s Inquest Ltr.”). As noted above, his only claim against Yeats is for violation of NYLL § 240.
Plaintiff's inquest letter dated September 3, 2019, re-submits for the Court's consideration the same evidence that he presented in the context of the inquest proceedings conducted in November 2016. See Pl.'s Inquest Ltr. at 1 (“Plaintiff seeks entry of a judgment against the Defendant Yeats Construction Management, Inc. for $1,154,887.76 in accordance with the letter submitted on November 23, 2016 (Exhibit 1 [previously filed at ECF No. 37]); the affidavit of Robert Byrne dated November 1, 2016 (Exhibit 2 [previously filed at ECF No. 29]); and the transcript of the November 3, 2016 Inquest Hearing (Exhibit 3 [previously filed at ECF No. 75-8]).”). Plaintiff has not provided any evidence related to anything that transpired after the date of the inquest hearing. Plaintiff's September 3, 2019 letter is filed under seal, see ECF No. 106, because of confidential information contained in the letter regarding the settlement between Plaintiff and Monomoy Farm.
In his prayer for relief in the Amended Complaint, Plaintiff seeks general damages, special damages, compensatory damages, and “[s]uch other relief as the court shall deem proper.” Am. Compl. at 7. Plaintiff's request for a total of $1,154,887.76 in damages is comprised of: (1) $98,887.76 for medical expenses incurred for treatment of his injuries, Byrne Aff. ¶ 23 & Ex. A; (2) $56,000 for lost wages ($1,000 per week for 56 weeks), id. ¶ 24; (3) $1,000,000 for pain and suffering, id. ¶ 28; and (4) $350 for the case filing fee, id. ¶ 29.
It is well settled that “[a]ctual, or compensatory damages, are recoverable in a personal injury action under New York law.” Jordonne, 2016 WL 3409088, at *8. “‘Generally, under New York law a plaintiff may recover his [or her] loss of earnings, medical expenses, and mental and physical pain and suffering.'” Id. (quoting Ulrich v. Veterans Admin. Hosp., 853 F.2d 1078, 1082 (2d Cir. 1988)).
A. Medical Expenses
Plaintiff submitted copies of his medical bills to the Court, as well as a chart which reflects his calculation of his medical expenses based on the submitted bills. Byrne Aff. ¶ 23 & Ex. A. Plaintiff's counsel also stated at the hearing that there was a lien of an unknown amount on any award of medical expenses by the “New York State No Insurance Fund,” an erroneous reference to the New York State Insurance Fund. Hearing Tr. at 2:16-24. However, no documentation or any other evidence substantiating a New York State Insurance Fund lien has been provided to the Court, and thus there is no admissible evidence for the Court to consider regarding any purported lien. In addition to the medical bills filed at ECF No. 29, some medical bills included in the October 2020 submission to the Court reflect that a substantial amount of Plaintiff's medical expenses were paid by workers' compensation. See ECF No. 107.
In his inquest submissions, Plaintiff states that the expenses set forth in the bills total $98,887.76, see ECF No. 37 at 2 & Byrne Aff. ¶ 23, but the Court's calculation based on the bills submitted as evidence totals $154,107.06. Based on the documentary record, the Court has included $54,753.73 billed by Stamford Hospital for services provided from August 4, 2009 through August 7, 2009 and $465.57 from a Stamford Hospital bill for services provided on September 30, 2009. The Court also has determined, however, that Plaintiff's medical bills reflect a total of $94,840.04 in payments/adjustments made by workers' compensation and other sources (including the entirety of the $54,753.73 in Stamford Hospital bills from August 4-7, 2009). In accordance with New York Civil Practice Law and Rules § 4545, Plaintiff is not entitled to any recovery for medical expenses already covered by collateral sources such as workers' compensation or insurance. See Freeman v. Tuan Anh Nguyen, No. 13-cv-832 (JMA), 2015 WL 224801, at *3 (E.D.N.Y. Jan. 15, 2015) (denying recovery of medical expenses under C.P.L.R. § 4545 where documents submitted by plaintiff indicated that his medical expenses “were completely covered by a collateral source, i.e. worker's compensation and/or his insurance”).
The workers' compensation payments/adjustments were for Stamford Hospital bills for services provided on 7/16/09, 8/4/09-8/7/09, 9/2/09, 9/3/09-9/8/09, and 9/9/09. A combination of “bad debt” adjustments and workers' compensation payments were made to cover bills from EMP of Fairfield County, LLC totaling $1,274.45 for two visits on 7/15/09 and one visit on 9/12/09. The other payment/adjustment reflected in the records was for a Stamford Hospital bill for services provided on 9/12/09. See generally ECF No. 107.
The statute provides that:
In any action brought to recover damages for personal injury . . . where the plaintiff seeks to recover for the cost of medical care . . ., evidence shall be admissible for consideration by the court to establish that any such past or future cost or expense was or will, with reasonable certainty, be replaced or indemnified, in whole or in part, from any collateral source .... If the court finds that any such cost or expense was or will, with reasonable certainty, be replaced or indemnified from any such collateral source, it shall reduce the amount of the award by such finding ....N.Y. C.P.L.R. § 4545(a).
Accordingly, I conclude that the evidence supports an award of $59,267.02 for Plaintiff's medical expenses ($154,107.06 - $94,840.04), and respectfully recommend that Plaintiff be awarded that amount.
B. Lost Wages
In both his affidavit submitted in support of his request for damages and his inquest hearing testimony, Plaintiff stated that he was earning $1,000 per week in wages at the time of his accident and that he was out of work for approximately 14 months; Plaintiff therefore seeks lost wages of $56,000. Byrne Aff. ¶ 24; see Hearing Tr. at 7:17-19, 30:17-19. “The basic New York rule is that loss of earnings must be established with reasonable certainty, focusing, in part, on the plaintiff's earning capacity both before and after the accident.” Norcia v. Dieber's Castle Tavern, Ltd., 980 F.Supp.2d 492, 502 (S.D.N.Y. 2013) (quotation marks and brackets omitted). “Damages for loss of past earnings may be awarded based solely on plaintiff's testimony without supporting documentation.” Id. at 503 (quotation marks omitted). Based on Plaintiff's testimony, I respectfully recommend that Plaintiff be awarded $56,000 in lost wages.
C. Noneconomic Damages-Pain and Suffering
Plaintiff seeks $1 million for pain and suffering as a result of the accident, undifferentiated between past and future pain and suffering. “While calculation of strict economic loss, such as past medical expenses, can be fairly straightforward, calculating damages for pain and suffering is an inherently imprecise and difficult undertaking.” Callaghan v. Jacobs, No. 08-cv-03523 (SHS) (DF), 2010 WL 1221800, at *5 (S.D.N.Y. Mar. 5, 2010) (quotation marks omitted), adopted by 2010 WL 1222048 (S.D.N.Y. Mar. 29, 2010); see Norcia, 980 F.Supp.2d at 505 (“Plaintiff also seeks compensation for pain and suffering, which ‘does not lend itself to neat mathematical calculation.'”) (quoting Caprara v. Chrysler Corp., 52 N.Y.2d 114, 127 (1981)). “New York courts have awarded past pain and suffering damages based on the medical procedures endured and nature of the injury suffered.” House v. Kent Worldwide Mach. Works, Inc., 359 Fed.Appx. 206, 209-10 (2d Cir. 2010) (collecting cases). “In regards to future pain and suffering awards, New York courts take into consideration the period of time that the injuries or disabilities are expected to continue. If the injuries or disabilities are permanent, courts take into consideration the period of time that the plaintiff can be expected to live.” Jordonne, 2016 WL 3409088, at *8 (quotation marks and alterations omitted); see House, 359 Fed.Appx. at 209 (“Future pain and suffering damages are calculated in part through reference to actuarial tables to determine the projected life span of the plaintiff.”). “[A]s to both future- and past-pain-and-suffering damages, comparable approved awards from similar cases serve as guideposts for determining reasonable compensation under New York law.” Norcia, 980 F.Supp.2d at 505 (quotation marks and ellipsis omitted).
The Court begins by looking at comparable approved awards from similar cases to inform its determination of reasonable compensation for Plaintiff's past and future pain and suffering.
In his November 23, 2016 letter submission, ECF No. 37, Plaintiff mostly cites cases that were settled for global dollar amounts-the reports of these settlements do not provide a detailed breakdown of the components of damages. It is therefore difficult, if not impossible, to assess what portions of those settlements are attributable to economic damages such as lost wages and medical expenses and what portions are attributable to noneconomic damages, whether past or future. Consequently, these cases provide little useful guidance for the Court for purposes of this analysis.
As to past pain and suffering, in Gorman v. Mathew, 151 A.D.3d 816 (2d Dep't 2017), the plaintiff, who was injured in a motor vehicle accident, suffered “a right calcaneus (heel) fracture going ‘into the subtalar joint,'” and had surgery “which required ‘put[ting] the pieces together and secur[ing] them with screws and a plate on the side of the heel.'” Id. At 817. Plaintiff “‘generally felt better'” five months after the surgery, but he still did not return to work, and the treating physician testified that the plaintiff “would be unable to return to his previous employment because he had difficulty moving.” Id. The plaintiff never returned to work and ended up retiring more than two years earlier than he had planned. Id. Although the jury had awarded $15,000 for past pain and suffering following a trial that took place two years after the accident, the appellate court increased the award to $75,000-a total of $37,500 per year. Id. at 816-17.
In Carlos v. W.H.P. 19 LLC, 301 A.D.2d 423 (1st Dep't 2003), the plaintiff was awarded $81,000 for past and pain and suffering over an unspecified period of years. The plaintiff had suffered a “non-displaced fracture of the calcaneus bone and a tear of the anterior ligament in the lateral aspect of the ankle,” resulting in “progressive degenerative changes and a permanent restriction of motion thereby limiting [the plaintiff's] ability to walk on some surfaces” and a 50 percent permanent loss of motion in his foot and ankle. Id. at 423.
In Starr v. Cambridge Green Homeowners Ass'n, Inc., 300 A.D.2d 779 (3d Dep't 2002), the appellate court upheld an award of $528,000 for four years of past pain and suffering-a total of $132,000 per year. The plaintiff had fallen from a roof and, according to the medical expert at trial, “sustained multiple fractures of the femur, which required surgery and the insertion of a surgical pin, a fractured calcaneus (heel bone), a fractured wrist on plaintiff's dominant hand, which required surgery and the insertion of five surgical pins, and a fractured hip.” Id. at 781. The plaintiff had “swelling and constant pain in his heel, which require[d] him to wear an oversized shoe.” Id. The plaintiff had been in the hospital for 2.5 weeks, and when he was discharged from the hospital, the plaintiff stayed with a friend because he could not take care of himself. Id. The plaintiff was “restricted to a hospital bed or wheelchair for three months and was then on crutches for an additional two months.” Id. While the plaintiff was able to return to work after nine months, he could no longer perform roofing work because he had to sit to perform his work, and he had to reduce his workweek from 48 hours to 28 hours. Id. at 781-82.
A medical expert at trial also testified that the plaintiff would “require total hip replacement surgery” and had a wrist disability that was “marked, permanent, pain producing and progressive, with arthritis that will continue to worsen over time.” Starr, 300 A.D.2d at 781.
In Xiu v. 422 Sunshine Court, 037578/02 (N.Y. Sup. Nov. 2006), a case cited by Plaintiff, see ECF No. 37 at 23, the plaintiff fell 12 feet when he was working on a renovation project and the floor collapsed. The plaintiff suffered comminuted calcaneus fractures that were treated with closed reduction. The jury awarded the plaintiff $50,000 for past pain and suffering for an unspecified period of years.
“Closed reduction is a procedure to set (reduce) a broken bone without cutting the skin open.” Medline Plus, “Closed reduction of a fractured bone,” available at https://medlineplus.gov/ency/patientinstructions/000521.htm#:~:text=Closed%20reduction%20is %20a%20procedure,possible%20after%20the%20bone%20breaks (last visited 1/19/2022).
Using the aforementioned cases as “guideposts,” the Court finds that Plaintiff's injury and treatment-the factors most directly relevant for measuring past pain and suffering-appear most similar to those in Gorman. Like the plaintiff in Gorman, Plaintiff here had a calcaneus fracture that required surgery consisting of reassembling the pieces of his heel bone and securing them with a metal plate and screws, and required a comparable period of time to recover from his injury. See Medical Records at BYRN0077-78. In contrast, whereas Plaintiff's sole injury was his fractured calcaneus, the plaintiff in Carlos suffered the additional injury of a torn ligament in his ankle, and the plaintiff in Starr had four different injuries-a fractured calcaneus, multiple fractures of the femur, a fractured wrist on his dominant hand, and a fractured hip. Lastly, the calcaneus fractures suffered by the plaintiff in Xiu were treated with a less invasive surgery than Plaintiff had here.
In Gorman, the plaintiff was awarded damages for past pain and suffering of $37,500 per year. The Court takes into account the passage of time since June 2017, the month in which the decision in Gorman was issued, and adjusts this award for inflation. See Dancy v. McGinley, No. 11-cv-7952 (LMS), 2015 WL 13214324, at *2 (S.D.N.Y. May 11, 2015) (“It is also appropriate for the court to adjust for inflation when comparing verdicts and remittitur orders in prior cases.”); Ravina v. Columbia Univ., No. 16-CV-2137 (RA), 2019 WL 1450449, at *13 n. 5 (S.D.N.Y. Mar. 31, 2019) (“The Court has taken into account inflation when comparing Ravina's award to the compensatory damages awards upheld in prior cases.”). According to the U.S. Department of Labor, Bureau of Labor Statistics Consumer Price Index Inflation Calculator at http://www.bls.gov/data/inflationcalculator.htm (last visited January 19, 2022), $37,500 in June 2017 dollars is the equivalent of approximately $42,682 in December 2021 dollars, the latest month for which such data is available. Plaintiff's accident occurred on July 15, 2009, and although that was more than 12 years ago, the record before the Court only includes evidence regarding Plaintiff's past pain and suffering through the date of the inquest proceeding on November 3, 2016, approximately 7.33 years from the date of the accident. Accordingly, I respectfully recommend that Plaintiff be awarded $312,859.06 ($42,682 x 7.33) in total damages for past pain and suffering, covering the period from July 15, 2009 through November 3, 2016.
As to future pain and suffering, the jury awarded the plaintiff in Gorman, supra, $80,000 for future pain and suffering over an unspecified period of years where, five months after surgery, the plaintiff “generally felt better,” although he did not return to work.
In Carlos, supra, where the plaintiff suffered a permanent restriction of motion that limited his ability to walk on some surfaces and a 50 percent permanent loss of motion in his foot and ankle, the appellate court upwardly modified the jury's award of damages for future pain and suffering to $102,800 over a period of 14.6 years, or approximately $7,000 per year. The jury had awarded plaintiff approximately $2,500 per year, and the trial judge had increased the award to approximately $10,000 per year. See 301 A.D.2d at 423. But the appellate court rejected the trial court's figure as excessive because the plaintiff's calcaneus fracture had healed, the plaintiff no longer needed crutches or took medication for the heel pain, and the plaintiff's treating physician was uncertain about whether the plaintiff would require future surgery.
In Xiu, supra, the jury awarded the plaintiff $400,000 in future pain and suffering for an unspecified period of years. The plaintiff claimed that he would permanently experience pain and have an antalgic gait, but there was no evidence that he would need surgery in the future.
The jury in Starr, supra, awarded the plaintiff $750,000 for future pain and suffering over a period of 29 years, or approximately $26,000 per year. In addition to no longer being able to work as a roofer and having to limit substantially the number of hours he worked per week, the plaintiff could no longer participate in the sports and leisure activities that he once enjoyed. See 300 A.D.2d at 781-82.
Using these cases as “guideposts,” the Court finds that the extent of the ongoing injuries and limitations experienced by Plaintiff as a result of his injury-critical considerations for purposes of assessing future pain and suffering-are most similar to those in Carlos and Starr. As set forth above, during the inquest hearing, Plaintiff testified to constant pain and swelling in his foot and having to wear a special boot to work, as well as loss of range of motion in his foot, difficulty in going up and down stairs, and an inability to go to the gym and participate in sports activities as he had prior to the accident. Plaintiff also testified to experiencing pain in his left knee, hips, and back from limping and not walking properly as a result of his injury. In the report prepared on July 15, 2013, four years after the accident, Dr. Brodsky concluded:
Using the Fifth Edition AMA Guidelines, this injury puts [Plaintiff] at a 38% foot impairment rating. This rating is computed secondary to his subtalar arthritis and his overall alignment of the heel. I do feel that he is at maximum medical improvement.
Within a reasonable degree of certainty, Mr. Byrne may need future treatments regarding the heel including injections, physical therapy, and/or surgery. Surgical procedures for him would be a subtalar fusion based on the arthritis that has resulted. The patient understands his prognosis and the treatment plan. I will see him back as needed in the office.Brodsky Report at 1-2.
The awards for future pain and suffering in Carlos and Starr were approximately $7,000 per year and $26,000 per year, respectively. Similar to the plaintiff in Carlos, by the time of the inquest hearing, Plaintiff's calcaneus fracture had healed, and Dr. Brodsky concluded only that Plaintiff “may need” future surgery. And although Plaintiff is similarly situated in certain respects to the plaintiff in Starr, who had swelling and constant pain in his heel which required him to wear an oversized shoe and who, as a result of his injuries, could no longer participate in the sports and leisure activities that he once enjoyed, as noted above, the plaintiff in Starr suffered multiple injuries beyond a fractured calcaneus (to his femur, wrist, and hip), resulting in additional forms of permanent pain and limitation. Accordingly, I find that a reasonable rate of damages for Plaintiff's future pain and suffering is a figure consistent with the award in Carlos. The Court again takes into account the passage of time since January 2003, the month in which the decision in Carlos was issued, and adjusts for inflation. According to the U.S. Department of Labor, Bureau of Labor Statistics Consumer Price Index Inflation Calculator at http://www.bls.gov/data/inflationcalculator.htm (last visited January 19, 2022), $7,000 in January 2003 dollars is the equivalent of approximately $10,741 in December 2021 dollars, the latest month for which such data is available.
Additionally, since Plaintiff's injury is permanent, the Court must determine Plaintiff's life expectancy using actuarial tables. At the time of the inquest hearing on November 3, 2016, Plaintiff was almost 44 years old. Since the Court has calculated past pain and suffering looking backward from the date of the inquest proceeding, the calculation for future pain and suffering must be made looking forward from that same date, and the Court must measure Plaintiff's life expectancy as of that date. The life expectancy table in the New York Pattern Jury Instructions -Civil, Appendix A, lists the life expectancy for a male aged 43-44 as 33.5 years. See 1A N.Y. PJI3d, App. A (2021). Accordingly, I respectfully recommend that Plaintiff be awarded a total of $359,823.50 ($10,741 x 33.5) for future pain and suffering.
In his affidavit submitted in advance of the inquest hearing, Plaintiff stated that his life expectancy was 38.66 years, see Byrne Aff. ¶ 27, but he did not cite a source for this number.
D. Costs
Plaintiff seeks recovery of the $350 case filing fee, which is recorded on the docket sheet. “[I]n calculating costs, federal courts sitting in diversity look to Rule 54(d)(1) of the [Federal; Rules of Civil Procedure], which provides that ‘unless a federal statute, these rules, or a court order provides otherwise, costs - other than attorney's fees - should be allowed to the prevailing party[.]'” Master Grp. Global Co., Ltd. v. Toner.com Inc., No. 19-cv-6648 (AMD), 2020 WL 5260581, at *15 (E.D.N.Y. Aug. 10, 2020) (quoting Fed.R.Civ.P. 54(d)(1)), adopted by 2020 WL 5259057 (E.D.N.Y. Sept. 3, 2020). Accordingly, I respectfully recommend that Plaintiff be awarded his costs of $350.
E. Pre-Judgment and Post-Judgment Interest
The prayer for relief in the Amended Complaint does not include a demand for prejudgment interest, and its catch-all request for “[s]uch other relief as the court shall deem proper,” Am. Compl. at 7, does not serve as such a demand. See Guanghong Int'l (HK) Ltd. v. Ultimate Fin. Solutions LLC, No. 11-cv-4019 (RMB) (KNF), 2012 WL 1228085, at *6 (S.D.N.Y. Mar. 26, 2012), adopted by 2012 WL 2402902 (S.D.N.Y. June 26, 2012); Silge v. Merz, 510 F.3d 157, 160 (2d Cir. 2007). As noted above, because Rule 54(c) of the Federal Rules of Civil Procedure requires that “a default judgment must not differ in kind from, or exceed in amount, that [which] is demanded in the pleadings,” I respectfully recommend that Plaintiff not be awarded prejudgment interest.
In contrast, although Plaintiff did not specifically seek post-judgment interest in the Amended Complaint, the award of post-judgment interest is mandatory pursuant to 28 U.S.C. § 1961, which applies to federal judgments entered in diversity cases. See Bleecker v. Zetian Sys., Inc., No. 12-cv-2151 (DLC), 2013 WL 5951162, at *2 (S.D.N.Y. Nov. 1, 2013) (citing Westinghouse Credit Corp. v. D'Urso, 371 F.3d 96, 100 (2d Cir. 2004)); Cappiello v. ICD Publ'ns. Inc., 720 F.3d 109, 112 (2d Cir. 2013) (explaining that 28 U.S.C. § 1961, rather than state law, provides the measure of post-judgment interest in diversity cases). Accordingly, I respectfully recommend that Plaintiff be awarded post-judgment interest at the statutory rate set forth in 28 U.S.C. § 1961, starting on the date judgment is entered.
CONCLUSION
For the foregoing reasons, I respectfully recommend that Plaintiff be awarded damages and costs on his claim against Yeats in the total amount of $788,299.58 ($59,267.02 + $56,000+ $312,859.06 + $359,823.50 + $350), plus post-judgment interest in accordance with 28 U.S.C. § 1961.
Although Plaintiff settled with Monomoy Farm, his damages award should not be offset by the settlement amount. “While New York General Obligations Law § 15-108 allows for a reduction in damage awards based on the amount received by settling parties, such protection must be raised as an affirmative defense, or it is forfeited.” Jordonne, 2016 WL 3409088, at *10 n.9. This provision of the General Obligations Law does not apply where the non-settling defendant defaults and therefore fails to raise the affirmative defense. See RLI Ins. Co. v. King Sha Grp., 598 F.Supp.2d 438, 447 (S.D.N.Y. 2009).
Plaintiff must serve Yeats with a copy of this Report and Recommendation, including copies of any unpublished decisions cited herein, at its last known address, and must file appropriate proof of service on or before January 29, 2022.
NOTICE
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 and Recommendation to file written objections. See also Fed.R.Civ.P. 6(a),(d) (adding three additional days when service is made by mail). A party may respond to another party's objections within fourteen (14) days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections, and any responses to such objections, shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Nelson S. Roman, United District Court, Southern District of New York, 300 Quarropas Street, White Plains, New York, 10601, and to the chambers of the Honorable Andrew E. Krause at the same address.
Any request for an extension of time for filing objections or responses to objections must be directed to Judge Roman, and not to the undersigned.
Failure to file timely objections to this Report and Recommendation will result in a waiver of objections and will preclude appellate review. See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Campbell, 782 F.3d 93, 102 (2d Cir. 2015).