Saporito et al v. Smith et al
MEMORANDUM AND OPINION: For the reasons set forth in the attached Memorandum and Order, I award plaintiff, John Saporito, $370,136.24 in past pain and suffering, $29,863.76 for past medical expenses, and $350,000 for future pain and su ffering and medical expenses for a total award of $750,000. The clerk of the court is directed to enter judgment for plaintiff in accordance with this order and the order issued on September 21, 2011. Ordered by Magistrate Judge William D. Wall on 9/30/2013. (Kennedy, Michael)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
JOHN SAPORITO and PHYLLIS SAPORITO,
MEMORANDUM AND ORDER
CV 07-3985 (WDW)
-againstKENNETH E. SMITH and DEPARTMENT OF
THE NAVY OF THE UNITED STATES OF
THOMAS P. RAM, ESQ.
THE GUCCIARDO LAW FIRM
Attorneys for Plaintiffs
99 Wall Street, 19th Floor
New York, New York 10005-4301
LORETTA E. LYNCH, UNITED STATES ATTORNEY
By DIANE LEONARDO BECKMANN, ESQ.
EASTERN DISTRICT OF NEW YORK
Attorneys for Defendants
610 Federal Plaza
New York, New York 11722
WALL, Magistrate Judge:
This action was brought under the Federal Tort Claims Act, 28, U.S.C. §1346(b), to
recover damages for personal injuries suffered by plaintiff John Saporito (“Saporito”) when he
fell from his motorcycle while trying to avoid a collision with a car driven by defendant Kenneth
E. Smith on October 6, 2005. At the time of the accident, Smith was acting within the scope of
his employment with the defendant United States Department of the Navy.
The liability phase of the trial was heard by the court on April 29, 2010. In a
Memorandum and Order issued on September 21, 2011, I found in favor of plaintiffs. Docket
Entry (“DE”) . Although the parties engaged in settlement discussions, the parties failed to
agree to a settlement, and I scheduled the damages trial for March 14, 2012. DE . The
parties requested and were granted multiple adjournments of the damages trial, but it was
eventually held on January 8, 2013. At trial, plaintiffs presented the testimony of Dr. Yan Q.
Sun, Saporito, and Phyllis Saporito. Defendants presented the testimony of Dr. Gerald Gorski.
Saporito seeks $1,150,000 in past pain and suffering damages, $850,000 in future pain and
suffering damages, and $29, 863.76 in past medical bills.1 Plaintiff’s Memorandum in Support
(“Pl. Mem.”) at 40-41. Defendant submits that Saporito should be awarded no mare than
$125,000 in damages. Defendant’s Memorandum in Opposition at 24.
Based on the evidence presented, as well as the post-trial materials submitted by the
parties, the court makes the following findings of fact and conclusions of law in accordance with
Rule 52 of the Federal Rules of Civil Procedure. To the extent that any of the findings of fact
may be deemed a legal conclusion, it shall be deemed a conclusion of law, and vice versa.
I. FINDINGS OF FACT
Based on the testimony given and evidence presented, I find that Saporito suffered the
following injuries directly from the accident:
1. Road rash abrasions to the shoulder, face and left hand. Pl. Ex. 10 at 131.
2. A three (3) centimeter laceration above his left eye requiring six (6) stitches. Pl. Ex. 10
3. A comminuted radial head fracture of the left elbow, subluxation of the left elbow, and
subluxation of the distal radioulnar joint. Pl. Ex. 10 at 251, 257; Tr. 8:6-7
The Court notes that although Phyllis Saporito is listed as a plaintiff and she testified
4. Fractured right hyoid bone. Pl. Ex. 10 at 131.
5. Loss of one tooth. Pl. Ex. 10 at 240.
Due to the radial head fracture in Saporito’s left elbow, Dr. Sun performed surgery on
Saporito, which included the replacement of the radial head with a prosthesis. Pl. Ex. 10 at 151.
To fix the rupture of the interosseous membrane, Dr. Sun inserted “K-wires” through the skin to
stabilize the bones. Tr. 11:18-21. After these surgeries, Saporito underwent a year of physical
therapy. Tr. 90:23-24. However, Dr. Sun determined that the interosseous membrane and the
TFCC did not heal well and were impinging on Saporito’s wrist joint, causing him pain. Tr.
13:19-20. To alleviate the pain, Dr. Sun performed an ulnar-shortening osteotomy, which
consists of removing “a piece of bone from the ulna to lower the distal ulnar joint” and inserting
plates and screws to hold the bone together. Tr. 13:24-25; 16:21-23. Saporito continued to feel
pain at the surgery site, apparently due to irritation from the implanted hardware. Tr. 16:21-23.
As a result, Saporito had further surgery to remove the hardware in 2009. Tr. 16:23. This
surgery was performed by a Dr. Hurst. Tr. 16:25.
I find that the arthritis in Saporito’s elbow and wrist are a result of the accident and
subsequent surgeries. Tr. 17:23-25. I find that Saporito has persistent pain in his elbow,
especially while he is moving the affected arm, and persistent tightness and pain in his left wrist.
Tr. 90. Saporito can no longer perform activities that were routine and enjoyable to him. Tr. 9293. Notably, Saporito can no longer perform many household chores, perform routine outdoor
chores, ride his motorcycle long distances, go fishing, or play the drums. Tr. 92-93.
III. CONCLUSIONS OF LAW
New York law applies in this action brought pursuant to the Federal Tort Claims Act, 28
U.S.C. §§1346, 2871-80. See 28 U.S.C. §1346 (b). In New York, “[a] plaintiff who has been
injured by another's negligence is entitled to a sum of money that will ‘justly and fairly’
compensate [him] for all losses proximately caused by the wrongdoing, to restore [him], to the
extent possible, to the position [he] would have been in had the wrong not occurred.” Kane v.
U.S., 189 F. Supp. 2d 40, 52 (S.D.N.Y. 2002) (citing McDougald v. Garber, 73 N.Y.2d 246, 538
N.Y.S.2d 937, 939, 536 N.E.2d 372 (1989)). “Recovery for noneconomic losses such as pain
and suffering and loss of enjoyment of life rests on ‘the legal fiction that money damages can
compensate for a victim’s injury.’ We accept this fiction, knowing that although money will
neither ease the pain nor restore the victim’s abilities, this device is as close as the law can come
in its effort to right the wrong.” Kane, 189 F. Supp. 2d at 52-53.
Pursuant to New York Insurance Law § 5104, absent a showing of “serious injury,” a
plaintiff may not recover for non-economic losses arising from an automobile accident. N.Y. Ins.
Law §5104. However, Saporito argues that as a motorcyclist, he is exempt from proving “serious
injury” under §5104 for the purposes of recovering non-economic losses. Pl. Mem. at 3-4.
Defendant has not offered opposition on this point and the case law supports Saporito’s
argument. Kinch v. Dollar Rent-A-Car Systems, Inc., No. 98-CV-1917, 2000 WL 35904867, at
*3 (W.D.N.Y. June 9, 2000) (citing Carbone v. Visco, 115 A.D.2d 948, 948 (4th Dep’t 1985)).
Thus, I find Saporito need not prove that he suffered a “serious injury” to recover non-economic
Generally, in a personal injury action “under New York law a plaintiff may recover his
loss of earnings, medical expenses, and mental and physical pain and suffering.” Ulrich v.
Veterans Admin. Hosp., 853 F.2d 1078, 1082 (2d Cir. 1988). Here, Saporito seeks damages for
past pain and suffering, medical expenses, and future pain and suffering. Pl. Mem. at 2-4. “[A]
district court reviews the evidence presented at trial in support of the challenged damage award
and compares the award to other New York cases in which evidence of similar injuries was
presented.” Presley v. U.S. Postal Service, 317 F.3d 167, 173 (2d Cir. 2003) (citing Gasperini v.
Ctr. for Humanities, Inc., 518 U.S. 415, 437-39 (1996)). “When determining a pain and
suffering award, it is appropriate for the Court to review awards in comparable cases.” Kolerski
v. U.S., No. 06-CV-422S, 2008 WL 4238924, at *5 (W.D.N.Y. Sept. 8, 2008) (citing Furey v.
U.S., 458 F. Supp. 2d 48, 56 (N.D.N.Y. 2006)).
Both parties have cited several cases to support each of their estimates for damages.
However, these cases can be distinguished from the case at bar for various factual reasons. I find
that this case is most similar to Roshwalb v. Regency Maritime Corp., 182 A.D. 2d 401 (1st Dep’t
1992), in which the plaintiff suffered a comminuted fracture of her elbow requiring the
implantation of hardware and additional surgeries to alleviate the pain. In Roshwalb, the plaintiff
was awarded a gross verdict of $750,000.00.
Here, as outlined above, Saporito suffered a comminuted radial head fracture of his elbow
requiring prosthesis and two additional surgeries to relieve the pain from the original surgery. In
addition, Saporito suffered road rash abrasions to several parts of his body, lost one tooth,
fractured his hyoid bone, and received a laceration to his face. From the testimony presented at
trial, I find that Saporito has permanent scarring from his injuries and has significant arthritis
where his injuries occurred. I further find that Saporito continues to experience pain from his
injuries and likely will for the rest of his life. In addition, I find that Saporito is no longer able to
enjoy his life to the same standard he did prior to the accident. Therefore, I award Saporito
$370,136.24 in past pain and suffering, $29,863.76 for past medical expenses, and $350,000 for
future pain and suffering and medical expenses for a total award of $750,000.
Finally, in the Memorandum and Order I issued on September 21, 2011 following the
liability phase of this case, I directed plaintiffs’ counsel to “electronically file a letter addressing
Phyllis Saporito’s role in this action.” DE  at 12. To this date, plaintiffs’ counsel has failed
to file such a letter. Furthermore, although Phyllis Saporito testified at the damages trial, all of
her testimony concerned her husband’s injuries, not her own, and none of the supplemental
papers submitted by plaintiffs contained a request for relief for any damages suffered by Phyllis
Saporito. Therefore, due to plaintiffs’ failure to abide the court’s directives or to support her
claims in any way, I deem Phyllis Saporito’s claims in this matter to be abandoned.
Dated: Central Islip, New York
September 30, 2013
/s/William D. Wall
WILLIAM D. WALL
United States Magistrate Judge
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