Mercado v. Choyang Medical Co. Ltd. et al

Filing 38

ORDER ADOPTING REPORT AND RECOMMENDATIONS: In sum, the Clerk of Court is directed to enter judgment for plaintiff and against defendants ChoYang Medical Co. Ltd., d/b/a ChoYang Medical Industry Ltd., John Doe and Jane Doe d/b/a ChoYang Health Equipment, Cho Yang Dana U.S.A. Corp., and Choyang New York, Inc., jointly and severally, in an amount of $500,000.SO ORDERED. Forward for Judgment. Ordered by Judge Nina Gershon on 10/14/2015. (Priftakis, Tina)

FILED

IN CLERK'S OFFICE
US DISTRICT COURT E.O.N.Y.

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

OCT 1 5 2015

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BROOKLYN OFFICE

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Maria Ligia MERCADO,
ORDER
Plaintiff,
07-cv-3563 (NG)

- v.CHOYANG MEDICAL CO. LTD., d/b/a
CHOYANG MEDICAL INDUSTRY LTD.,
.JOHN DOE and .JANE DOE d/bh1 CHO YANG
HEALTH EQUIPMENT, CHO YANG DANA
U.S.A. CORP., CHOY ANG DANA USA CORP.,
HYUN CliUNG IGM, CHOY ANG NEW
YORI(, INC., and XYZ DISTRIBUTION INC.,
Defendants.

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GERSHON, United States District .Judge:
Plaintiff Maria Ligia Mercado alleges that she suffered injuries during a trial use of
defendants' massage bed. On Septetnber 30, 2009, I granted plaintiffs tnotion for judgtnent by
default against defendants Cho Yang Medical Co. Ltd., d/b/a Cho Yang Medical Industry Ltd.,
John Doe and Jane Doe d/h/a Cho Yang Health Equipment, Cho Yang Dana U.S.A. Corp., and
Choyang New York, Inc.

I also referred the detennination of plaintiffs damages to the

Honorable Viktor Pohorelsky, magistrate judge, who recon1mended that plaintiff be denied relief
without prejudice to her renewing her application with the support of authenticated medical
records and a treating physician's affidavit. By order dated Noven1ber 3, 20 II, I adopted Judge
Pohorelsky's recommendation in its entirety.
In the n1onths that followed, plaintiff repeatedly requested extensions of tin1e to renew
her damages application, causing substantial delay, and failed to adhere to several court

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deadlines. As a result, Judge f>ohorelsky recommended on April 14, 2014 that the action be
dismissed for failure to prosecute.

In her objection to that recomn1endation, plaintiff finally

subtnitted the n1edical doctnnentation she long ago had been instructed to procure. Given the
strong judicial preference for resolving cases on the tnerits, I concluded that, with the record now
sufficiently developed, dismissal of the action was not warranted and that plaintiffs datnages
application should be referred back to Judge Pohorelsky for resolution.

I simultaneously

instructed plaintiffs counsel, Gary Certain, Esq., to show cause why he should not be sanctioned
$1,000 for failing to comply with court deadlines.
In a thorough report and recommendation dated July 9, 2015, Judge Pohorelsky
recommended that plaintiff be awarded $500,000 in pain and suffering damages. No objections
to the report and recotntnendation have been filed. Finding no clear error in Judge Pohorelsky's
damages calculation, I now adopt his July 9, 2015 report and recommendation in its entirety.
I also conclude that sanctions will not be imposed on plaintiffs counsel at this time.
Although counsel's response to tny show-cause order in no way justifies his inattention to court
deadlines, I am confident that counsel has been sufficiently reminded of his obligation to adhere
to the schedule imposed by the court and, when necessary, to request extensions in a timely
manner. This, however, is the final reminder. To the extent further proceedings are conducted in
this action, any violation of a court order by plaintiffs counsel will result in monetary sanctions.

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In sum, the Clerk of Court is directed to enter judgment for plaintiff and against
defendants ChoYang Medical Co. Ltd., d/b/a ChoYang Medical Industry Ltd., John Doe and
Jane Doe d/b/a ChoYang I-Iealth Equipment, Cho Yang Dana U.S.A. Corp., and Choyang New
York, Inc., jointly and severally, in an amount of $500,000.

SO ORDERED.
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s/Nina Gershon
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NINA GERSHON
United States District Judge
Dated: October 14, 2015
Brooldyn, New York

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