Malmberg v. United States of America

Filing 146

MEMORANDUM-DECISION AND ORDER directing the clerk to enter judgment in favor of the Plaintiff in the total amount of $4,468,859.91. Signed by Senior Judge Frederick J. Scullin, Jr on 8/21/2014. (amt)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
__________________________________________
CHARLES MALMBERG,
v.

5:06-CV-1042
(FJS/TWD)

UNITED STATES OF AMERICA,
Defendant.
__________________________________________
APPEARANCES

OF COUNSEL

HANCOCK ESTABROOK, LLP
1500 AXA Tower I
Syracuse, New York 13221
Attorneys for Plaintiff

ALAN J. PIERCE, ESQ.

OFFICE OF ROBERT B. NICHOLS
716 Brisbane Building
403 Main Street
Buffalo, New York 14203
Attorneys for Plaintiff

ROBERT B. NICHOLS, ESQ.

OFFICE OF THE UNITED
STATES ATTORNEY
James T. Hanley U.S. Courthouse
& Federal Building
100 South Clinton Street
Syracuse, New York 13261
Attorneys for Defendant

WILLIAM F. LARKIN, AUSA

SCULLIN, Senior Judge
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Currently before the Court are the parties’ proposed post-bench trial findings of fact and
conclusions of law regarding damages. See Dkt. Nos. 143, 144.

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II. BACKGROUND
On August 28, 2006, Charles Malmberg (“Plaintiff”) filed a complaint pursuant to the
Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b) and 2671 et. seq., against the United
States of America (“Defendant”) for injuries sustained during a surgery he underwent on
November 4, 2004, at Syracuse Veterans Administration Medical Center (“SVAMC”), in
Syracuse, New York. See Dkt. No. 1 at ¶ 4. The operation was an anterior cervical discectomy
with fusion (“ACDF”). 1 See Dkt. No. 85 at 1. After the surgery, Plaintiff was diagnosed with
C7 incomplete quadriplegia, neurogenic bladder and bowel. See Dkt. No. 143 at ¶ 10. In his
complaint, Plaintiff asserted two causes of action. First, during Plaintiff’s operation at SVAMC,
Defendant “carelessly and negligently rendered medical and care and treatment to the plaintiff”
that was “not in accordance with good and accepted medical practice.” See Dkt. No. 1 at ¶ 10.
Plaintiff alleged that Defendant’s negligence was the direct and proximate cause of his
permanent injury. See id. at ¶ 11. Second, prior to the operation, Defendant “failed to obtain the
informed consent of the plaintiff to perform the surgery.” See id. at ¶ 15.
The Court held a bench trial on April 12-14 and April 26, 2010, to determine the issue of
liability. See Dkt. No. 100. At the conclusion of that trial, the Court held that Plaintiff had
established, by preponderance of the evidence, that Defendant’s actions caused his injury and
that those actions were a deviation from the accepted standards of medical practice. See Dkt.
No. 85 at 10. Subsequently, the Court held a three-day bench trial on December 3, 2012,
December 4, 2012, and December 13, 2012, to determine the amount of damages.

1

The surgery was to remove a degenerative disc and osteophytes causing an impingement at C5C6. The ACDF is a surgical procedure performed to remove a herniated or degenerative disc in
the cervical (neck) spine.
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Prior to Plaintiff’s surgery, Dr. Hunsinger was Plaintiff’s primary care physician. 2 See
Dkt. No. 138 at 80. During the damages trial, Dr. Hunsinger testified that Plaintiff’s status had
“significantly deteriorated” since 2010. 3 See id. at 81. Plaintiff hired Dr. Kenneth Reagles to
develop a Life Care Plan (“LCP”). 4 Defendant hired Dr. Peter Stickney to develop a LCP. See
Dkt. No. 144 at 20. Plaintiff hired Dr. Daniel McGowan as a forensic economist to forecast
future medical costs. 5 See Dkt. No. 139 at 81. Dr. McGowan used a life expectancy of 26 years.
Defendant hired Dr. Spizman as a forensic economist to forecast future medical costs. Dr.
Spizman used a life expectancy of 27 years. Both Dr. Reagles and Dr. Stickney provided two
scenarios. See Dkt. No. 143 at 6. Each scenario was given a present value based on the assigned
economist. Scenario #1 of Dr. Reagles’ Life Care Plan cost $6,159,425. 6 Scenario #2 of Dr.
Reagles’ Life Care Plan cost $4,156,537. 7 Scenario #1 of Dr. Stickney’s Life Care Plan cost
$4,628,647. Scenario #2 of Dr. Stickney’s Life Care Plan cost $3,504,161. See Dkt. No. 128.

2

The record indicates that Dr. Hunsinger still is Plaintiff’s primary care physician.

3

For example, Dr. Hunsinger testified that Plaintiff’s depression had increased, and he had
developed a decubitis ulcer in his right ankle, and chronic constipation, required catheter usage,
and treatment for chronic pain, and had increased spasticity and agoraphobia. See Dkt. No. 138
at 85-102.
4

An LCP is an array or an itemization of all of the anticipated future health and rehabilitation
goods and services that an individual with a disabling condition will probably need over the
course of his lifetime.
5

Dr. McGowan’s calculations included (1) periodic evaluations, (2) therapeutic modalities, and
(3) adaptive equipment.
6

Scenario #1 is based on the assumption that Plaintiff will continue to reside in his own home
and will require increased support as he ages, including round-the-clock in-home services
commencing at age 62. See Dkt. No. 97-3 at 25.
7

Scenario #2 is based on the assumption that, at age 62, Plaintiff will require the assistive
services of a residential habilitation facility.
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During the damages trial, Dr. Stickney compared both of Dr. Reagles’ scenarios. See Exhibits
“SS” and “TT.”
On May 6, 2013, Plaintiff submitted his proposed post-trial findings of fact and
conclusions of law. See Dkt. No. 143. On the same day, Defendant submitted its proposed posttrial findings of fact and conclusions of law. See Dkt. No. 144.

III. DISCUSSION
A. Federal Tort Claims Act
This action arises under the FTCA, which waives the United States’ sovereign immunity
from suits for personal injury damages caused by the “negligent or wrongful act or omission” of
its employees “under circumstances where the United States, if a private person, would be liable
to the claimant in accordance with the law of the place where the act or omission occurred.” 28
U.S.C. § 1346(b); see also Guccione v. United States, 847 F.2d 1031, 1033 (2d Cir. 1988);
Hurwitz v. United States, 884 F.2d 684, 686 (2d Cir. 1989); Avakian v. United States, 739 F.
Supp. 724, 730 (N.D.N.Y. 1990). The Government’s liability pursuant to the FTCA is
determined under New York law. See 28 U.S.C. § 1346(b).

B. Amount of damages
“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. NYPJI 2:277.’” Dockery v. United States, 663 F. Supp. 2d. 111,
121-22 (N.D.N.Y. 2009) (quoting Kane v. U.S., 189 F. Supp. 2d 40, 52 (S.D.N.Y. 2002));
Delano v. United States, 859 F. Supp. 2d 487, 507 (W.D.N.Y. 2012) (citation omitted).

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C. Whether Plaintiff’s total FTCA damages award is offset by prior VA Benefits (“§ 1151
payments”)
Plaintiff argues that there should not be any offset based on his VA benefits. Plaintiff
also asserts that “[a]ny award for future medical care should not be limited on the ground that
because plaintiff is a veteran, he is entitled to free VA Medical care, hospitalization and
institutionalization.” See Dkt. No. 143 at 8. (citing Ulrich v. Veterans Administration Hospital,
853 F.2d 1078, 1084 (2d Cir. 1988)). To the contrary, Defendant contends that Plaintiff has the
ability to gain special grants or receive free medications and, therefore, does not have the right to
select a doctor or private hospital of his own choice for future medical needs. See id.
First, Defendant argues that New York CPLR § 4545(a) applies. See Dkt. No. 144 at 6.
It states,
In any action to recover damages for personal injury . . . where plaintiff seeks to
recover for the cost of medical care, dental care, custodial care or rehabilitation
services, loss of earning or other economic loss, 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 sources such as insurance . . . social security . . . or . . .
employee benefit programs . . .
See id.
Defendant states that, through April 30, 2013, Plaintiff has received $382,617.00 in 38
U.S.C. § 1151 benefits from the VA. See id. at 7 n.1. Defendant contends that this case is
analogous to Morgan v. United States, 968 F.2d 200, 206-08 (2d Cir. 1992), rather than Ulrich v.
United States, 853 F.2d 1078, 1082-83 (2d Cir. 1988). Defendant asserts that the Second Circuit
in Morgan “held that the entire amount of a personal injury award under the Federal Tort Claims
Act must be reduced by the entire amount of any VA benefits awarded to a plaintiff under Title

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38 U.S.C. § 351 (now § 1151) for the same injury.” See Dkt. No. 144 at 7. Therefore, “the total
amount awarded to [Plaintiff] must be reduced by the total amount of § 1151 benefits paid to him
by the VA up to the date of the award.” See id. Additionally, Defendant states that an offset of
future benefits against any award of damages is unnecessary “because Title 38 U.S.C. § 1151(b)
requires that . . . [Plaintiff’s] future 1151 benefits will cease until such time as the amount he
would have been paid in such benefits equals the dollar amount recovered in this lawsuit.” See
id. at 8.
38 U.S.C. § 1151(a) provides compensation provided to a disabled person where
[t]he disability or death was caused by hospital care, medical or surgical
treatment, or examination furnished the veteran under any law administered by
the Secretary, either by a Department employee or in a Department facility as
defined in section 1701(3)(A) of this title, and the proximate cause of the
disability or death was –
(A) carelessness, negligence, lack of proper skill, error in judgment, or similar
instance of fault on the part of the Department in furnishing the hospital care,
medical or surgical treatment, or examination . . . .
38 U.S.C. § 1151(a)(1)(A) (emphasis added).
Here, Plaintiff wishes to rely upon the four-part holding in Ulrich. In Ulrich, plaintiff
was a 100% disabled veteran with service-related catatonic schizophrenia, who was later
rendered a paraplegic after a fall from a smoke stack while under psychiatric care at a VA
Hospital. See Ulrich, 853 F.2d at 1079. First, with regard to the pain and suffering, in Ulrich,
the rationale was that the plaintiff’s prior wartime benefits were not equivalent to a pain and
suffering award. See id. at 1082. Second, with regard to the future medical expenses, the Ulrich
court stated that the plaintiff “was not obligated to seek medical care from the party whose
negligence created his need for such care simply because that party offers it without charge.” Id.
at 1084.

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Similar to this case, in Ulrich, there was a bifurcated non-jury trial. The Ulrich court
found defendants liable for failure to supervise the plaintiff following admission to the
Psychiatric Service of VA Buffalo. See id at 1079. However, in Ulrich, the set-off was
improperly calculated with the pain and suffering award because the plaintiff had been receiving
disability benefits under § 314 rather than under 38 U.S.C. § 351. See id. at 1082. The Ulrich
court stated that “plaintiff’s increased § 314 benefits are not the ‘equivalent’ of pain and
suffering damages, a circumstance which might justify a set-off.” 8 Id.
With regard to future medical expenses, the Ulrich court said that “any award for future
medical expenses should not be limited on the ground that, as a veteran, plaintiff is entitled to
free VA medical care, hospitalization, and institutionalization.” Id. at 1084. The Ulrich court
further stated that the plaintiff “ha[d] a right to select a doctor or private hospital of his own life
choice for his future medical needs.” Id. (citing Feeley v. United States, 337 F.2d 924, 934-35
(3d Cir. 1964); Powers, 589 F. Supp. at 1108-09; Christopher, 237 F. Supp. at 798-99).
Contrarily, in Morgan, an x-ray taken found a mass in the plaintiff’s chest area. See
Morgan, 968 F.2d at 201. Subsequently, the VA’s hospital staff failed to perform a CAT scan.
See id. This failure resulted in a delay of diagnosing the plaintiff with Hodgkin’s disease. See
id. During this delay, the plaintiff’s tumor quadrupled in size. See id. Thus, the plaintiff had to
undergo eight months of chemotherapy, during which he suffered debilitating side-effects. See
8

Citing Brooks v. United States, 337 U.S. 49, 53-54, 69 S. Ct. 918, 920-21, 93 L. Ed. 1200
(1949) (indicating that set-off might be appropriate where tort damages are the “equivalent of
elements taken into account in providing disability payments”); Pike v. United States, 652 F.2d
31, 34 (9th Cir. 1981) (set-off appropriate only where benefits are intended to compensate for
same element of damages as FTCA award); Mosley v. United States, 538 F.2d 555, 561 (4th Cir.
1976) (same); Hale v. United States, 416 F.2d 355, 360-61 (6th Cir. 1969) (same); Powers v.
United States, 589 F. Supp. 1084, 1107 (D. Conn. 1984) (same); see also Christopher v. United
States, 237 F. Supp. 787, 799 (E.D. Pa. 1965) (“Certainly pain and suffering has no bearing on
what disability rating a veteran will receive and could not be construed to be a duplication of
benefits.”).
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id. First, the Morgan court explained that 38 U.S.C. § 351 was renumbered to § 1151 by
Department of Veterans Affairs Codification Act, Pub. L. No. 102-83, § 5(a) (1991) (“1991
DVA Act”). Those “§ 351 payments” (now “§ 1151 payments”) apply to veterans who are
injured, or whose injuries are aggravated, through the fault of VA hospital staff.
Second, the Morgan court “remanded to the magistrate judge to permit recalculation of
the damage award with a setoff of the statutory benefits against the total amount of the FTCA
damages award.” Id. at 202. The Morgan court found that the setoff provision of § 351 affected
all elements of damages -- meaning, the entire award that a court grants. See id. at 203. The
Morgan court explained that § 351 was fundamentally different from § 314 in that § 351 does
not grant special benefits. 9 Further, the Morgan court stated that, “[o]n its face, § 351’s
requirement that the statutory payments be offset against ‘the total amount included in [the
FTCA] judgment’ seems a relatively straightforward way of referring to the total amount of
damages awarded pursuant to the FTCA claim for all components of the veteran’s injury as a
result of VA hospital malpractice.” Id. at 206. Lastly, the Morgan court distinguished the Ulrich
ruling:
In sum, we read “the total amount included in such judgment” in § 351 to refer to
the total amount of FTCA damages included in the judgment for any type of
injury resulting from VA medical treatment. Our interpretation is consistent with
prior dicta of this Court and the Supreme Court interpreting § 351. See United
States v. Kubrick, 444 U.S. 111, 116 n.5, 100 S. Ct. 352, 356 n.5, 62 L. Ed. 2d
259 (1979) (“[u]nder 38 U.S.C. § 351, the benefits payments must be set off
against the damages awarded in tort; and the increment in future monthly benefits
is not paid until the aggregate amount of the benefits withheld equals the damages
awarded” (emphasis added)); Ulrich v. Veterans Administration Hospital, 853
F.2d 1078, 1082 (2d Cir. 1988) (construing 38 U.S.C. § 314 as not authorizing
setoff against plaintiff’s pain and suffering award, “unlike § 351” (emphasis
added)).

9

Section 314 sets rates of wartime disability compensation for specified percentage levels of
disability. See 38 U.S.C. § 1114.
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Id. at 206-07.
Therefore, because the Morgan court distinguished the Ulrich holding regarding the set
off of § 351 (“§ 1151”) benefits from the total FTCA damages award, the Court will offset any
award in this case by prior VA benefits, § 1151 payments, that Plaintiff has received up to the
date of judgment.

D. Whether Defendant’s alternative LCP and corresponding economic analysis should be
precluded
Plaintiff states that on December 10, 2012, his counsel received an email from defense
counsel which included what defense counsel referred to as “Spizman’s revised report updated
12/6/12.” See Dkt. No. 143 at 9. Plaintiff contends that Stickney’s amended life plan was
introduced into evidence over his objection. See id. Further, Plaintiff asserts that Defendant
“ignored the Court’s discovery deadline of August 1, 2012 but also had this ‘alternative report’
dated December 5, 2012 but didn’t attempt to provide it to plaintiff’s counsel until December 12,
2012[.]” See id. at 10. Plaintiff avers that he was prejudiced since he was prevented from
deposing experts on the subject matter of their testimony. See id. at 11. Lastly, Plaintiff states
“there can be no justification but for the late disclosure, and certainly if the Court were to even
consider as relevant that certain services would be provided free by the VA, that would clearly
be harmful to the plaintiff.” See id.
To the contrary, Defendant argues that Dr. Stickney’s revised report does not prejudice
Plaintiff. See Dkt. No. 144 at 16-20.
Federal Rule of Civil Procedure 37(c)(1) provides that
[i]f a party fails to provide information . . . as required by Rule 26(a) or (e), the
party is not allowed to use that information . . . to supply evidence on a motion, at
a hearing, or at a trial, unless the failure was substantially justified or is harmless.
...
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Fed. R. Civ. P. 37(c)(1).
This rule is designed “to avoid ‘surprise’ or ‘trial by ambush.’” Am. Stock Exch., LLC v.
Mopex, Inc., 215 F.R.D. 87, 93 (S.D.N.Y. 2002) (quoting Transclean Corp. v. Bridgewood
Servs., Inc., 77 F. Supp. 2d 1045, 1061 (D. Minn. 1999) (Rule 26(e)(2) “has a simple but
important purpose; namely, to prevent [t]rial by ambush”), aff’d in relevant part, 290 F.3d 1364
(Fed. Cir. 2002)) (other citation omitted).
The sanction of preclusion under Rule 37(c)(1) is “’automatic’ absent a determination of
either ‘substantial justification’ or ‘harmlessness.’” Id. (citations omitted). “’Substantial
justification means “justification to a degree that could satisfy a reasonable person that parties
could differ as to whether the party was required to comply with the disclosure request.”’” Id.
(quoting Henrietta D. v. Giuliani, No. 95 Civ. 0641, 2001 WL 1602114 at *5 (E.D.N.Y. Dec. 11,
2001)). The burden of proving substantial justification rests with the party that has failed to
disclose information. See id. (citing Wright v. Aargo Sec. Servs., Inc., 99 Civ. 9115, 2001 WL
1035139, at *2 (S.D.N.Y. Sept. 7, 2001)).
Despite the “automatic” nature of Rule 37(c)(1), “the imposition of sanctions under the
rule is a matter within the trial court’s discretion.” Id. (quoting Jockey Int’l, Inc. v. M/V
“Leverkusen Express”, 217 F. Supp. 2d 447, 452 (S.D.N.Y. 2002)). Further, “[p]reclusion of
evidence is generally a disfavored action.” Id. (citation omitted). The preclusion of evidence not
disclosed in discovery is “a drastic remedy and will apply only in situations where the failure to
disclose represents . . . flagrant bad faith and callous disregard of the rules.” Johnson Elec. N.
Am. Inc. v. Mabuchi Motor Am. Corp., 77 F. Supp. 2d 446, 458 (S.D.N.Y. 1999) (citations
omitted).

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Here, the Court has discretion to determine whether Defendant’s late submission was
harmless. See Jockey Int’l, Inc., 217 F. Supp. 2d at 452. It cannot be said that Defendant
exercised “flagrant bad faith” or a “callous disregard of the rules.” Johnson Elec. N. Am., Inc.,
77 F. Supp. at 458. There is nothing in the record to show that Plaintiff was in any way
prejudiced by the amended report of Defendant’s economist, Dr. Spizman, over Dr. Stickney’s
two options. Further, it cannot be said that the Court’s determination of whether to offset those
services that the VA rendered free is harmful to Plaintiff. If the law dictates that there is an
offset, or subtraction, of a certain amount that the VA has already provided to Plaintiff, then this
is not harmful. Rather, it is what the Court is required to do in determining the overall FTCA
damages award.
Therefore, to the extent that Plaintiff argues for preclusion of evidence under Rule 37
regarding Dr. Spizman’s economic amendment to Dr. Stickney’s LCP, the Court denies
Plaintiff’s claim and finds that the admission of this evidence causes no harm to Plaintiff.

E. Whether Plaintiff should have to use the VA for medical care and services in the future
Plaintiff contends that, “even if the [Defendant] were to provide some service free of
charge to the veteran, the veteran is not obligated in any way to limit himself to whatever the VA
System has to offer.” See Dkt. No. 143 at 12. Additionally, Plaintiff argues that, “were the
Court to deduct a setoff for possible prospective medical benefits, that setoff would, as a
practical matter, unduly limit and virtually predetermine not only the kind of medical care
necessary for the treatment of plaintiff’s condition, but also the source of such medical care.”
See id. Lastly, Plaintiff “has not been satisfied with some of the subsequent care he has received
by the VA” and has “expressed his desire to obtain care from the private sector.” See id. at 13.

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Although Defendant does not directly address Plaintiff’s issue, Defendant asserts that,
although Dr. Reagles, Plaintiff’s Life Care Planner, provided an objectively reasonable itemized
list outlining costs of future medical services and needs, Dr. Reagles’ report “contains many
items that are either not necessary or covered by grants and/or provided free of charge by the
Department of Veterans Affairs.” See Dkt. No. 144 at 19.
Here, the record clearly demonstrates that Dr. Hunsinger stated with a reasonable degree
of medical certainty the nature of Plaintiff’s future medical needs. Furthermore, Defendant made
no objections regarding Dr. Hunsinger’s testimony on the reasonableness of Dr. Reagles’ LCP.
Q
Doctor, did there come a time on March the 9th of this year that you met
with Dr. Reagles to review a life care plan, sir, for Mr. Malmberg?
A

Yes.

Q
And as a result of that meeting, did you give Dr. Reagles certain
suggestions or changes that you felt would be appropriate?
A

Yes.

Q
And as a result of that, did he come up with a revised plan which you had
a chance to review line by line, sir?
A

Yes.

Q
And I’m hopefully I’m going to save the Court, maybe make the Court
please rather than go through each and every one of those entries, did you
conclude, sir, in your opinion that the plan for Mr. Malmberg that was drawn up
by Dr. Reagles was, in fact, a reasonable one?
A

Yes.

See Dkt. No. 138 at 119; see also Dkt. No. 139 at 18-19.

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However, on cross examination, Defendant’s counsel identified some items from Dr.
Reagles’ report that Plaintiff will not need. 10 First, the VA already provides psychiatric care.
Q
Yes, sir, are you aware of that, that Mr. Malmberg is satisfied with the
care and treatment he’s receiving from Dr. Thompson?
A

He has expressed that it is helpful to him.

See id. at 125-26.
According to Scenario #2 of Dr. Reagles’ LCP, the yearly cost of psychiatric care is $320
dollars, multiplied by 26 years is $8,320 for the duration of Plaintiff’s life expectancy. 11 See
Dkt. No. 97-3 at 61.
Second, in reference to home health care with a price tag of $5,000 per evaluation, Dr.
Hunsinger admitted that this service was already being provided to Plaintiff free of charge.
A
I believe that Mr. Malmberg will need someone who helps to coordinate
and plan his care. Dr. Reagles is the first life care planner I was ever exposed to.
I didn’t know that that specialty existed. So –
Q

I’m sorry go ahead, Doctor.

A

Well, the services of planning for care are essential.

Q
And he’s getting those services now through what’s called HBPC homebased primary care, that organization is providing those services to him, currently;
is that correct?
A

Yes.

Q

That’s free of charge?

10

Prior to subtracting services that the VA provides free of charge, the Court finds that Dr.
Reagles’ Scenario #2 is the most reasonable baseline – i.e., the rational monetary starting point –
for the FTCA damages award. See infra.
11

Plaintiff requires periodic psychiatric evaluation to assess (a) the relative utility of
psychopharmacological agents and modify prescriptions as necessary, including adding new
prescriptions; and (b) the nature and severity of Plaintiff’s emotional response to his disablement,
characterized most prominently by depression, and to evaluate the potential utility of personal
counseling and other interventions, e.g., antidepressants.
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A

Yes.

See id. at 126.
According to Dr. Reagles’ LCP, the life care planner re-evaluation costs $5,000 per
evaluation, which is required every three to five years. Assuming the most liberal frequency of
every three year, then three divided into 26 equals 8.667, and multiplied by $5,000 equals
$43,333.33. See Dkt. No. 97-3 at 62.
In addition to the medications that the VA provides free, a dietician and nutritionist from
the HBPC, palliative physical activity, 12 and assistive technology consultation 13 are provided
free of charge. Therefore, the Court will subtract the cost of these items from the total FTCA
award.
First, medications, in accordance with Dr. Reagles’ Scenario #2, cost $18,131 yearly.
See Dkt. No. 97-3 at 66. This sum multiplied by 26 years equals $471,406. Second, a
dietician/nutritionist has an initial cost of $90 dollars, then counseling that costs $1,430, per year.
See Dkt. No. 97-3 at 68. Therefore, the calculation is $90 + ($1,430 x 26), which equals
$37,270. Third, the price tag on palliative physical activity consists of a joining fee ($38), an
ongoing facility fee ($410), an ongoing locker rental ($84), and a personal trainer ($1,080). See
id. at 69. The total yearly amount, $1,612, is then multiplied by 26 years to equal $41,912.
Further items that Plaintiff will have at his disposal from the VA include wounds
management supplies ($3,172), urinary incontinence supplies ($367,198), bowel incontinence
12

Palliative physical activity is conducted in lieu of ongoing physical therapy. It is carried out
within the auspices of a sports medicine facility or health club to maintain range of motion,
muscle tone, strength and endurance, including periodic sessions with a personal trainer to be
sure Plaintiff is using the equipment properly and addressing issues amenable to exercise.
13

Assistive technology consultation includes periodic monitoring of technology adaptations
(adaptive and assistive devices) and their utility. This consultation provides technical assistance
in the selection, procurement, initiation, maintenance, and effective utilization of all technology
devices.
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supplies ($14,924), a vanilla boost (no price given on Dr. Reagles’ LCP Scenario #2), case
management services ($121,056), and a spinal injury support group ($67,600). See id. at 129132. Thus, the Court will subtract the cost of these items as well, which are set forth in Dr.
Reagles’ LCP Scenario #2, from the total FTCA award.
However, as discussed below, because the record indicates that the VA does not provide
the following integral services free of charge – that is, skilled registered nurses ($2,514,720) and
home health aide services ($681,408) 14 – those items will not be offset from the final FTCA
award.

F. Whether there is reasonable certainty that the VA will provide Plaintiff with home
health aides in the future
Plaintiff states that both Dr. Hunsinger and Dr. Reagles decided that Plaintiff “needs the
assistance of home health aides three hours a day, seven days a week” until he reaches the age of
62. See Dkt. No. 143 at 14. At age 62, the projection required “home health care aides 18 hours
a day, seven days a week.” See id. Plaintiff asserts that “any suggestion that [he] would
automatically receive the necessary free home health aides as specified in the life care plan free
from the [Defendant] is simply not accurate.” See id. at 16. Rather, Plaintiff contends that
“there is certainly no guarantee or reasonable certainty that [he] will receive throughout his
lifetime the needed aides and services that Dr. Hunsinger testified will be necessary.” See id. at
17.
Defendant states that with regard to home health aide services, Plaintiff “has expressed
no recent dissatisfaction with those services.” See Dkt. No. 144 at 17. Therefore, there is no
need to cease with the services that the VA provides.
14

The Hospice Association of America (“HAA”) provides the home health aide services. They
are not employees of the VA and therefore, in essence, they are contract employees.
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Although the record reflects that the VA has provided home health aide services to
include skilled registered nurses to come to Plaintiff’s home, it does not show a continual and
concrete schedule upon which Plaintiff can depend in the future. Admittedly, the record does not
reflect that the services have been subpar or deficient in any way. However, because the record
demonstrates that the skilled nurses who come to Plaintiff’s house are not actually staffed and
paid for by the VA, the VA does not directly provide care for Plaintiff. Rather, the HAA
provides the services. Consequently, these HAA contract employees caring for Plaintiff at home
are too attenuated from, and not under the control of, the VA administration.
Therefore, the Court will not offset the costs of skilled registered nurse services
($2,514,720), and home health aides ($681,408), which are not provided for or covered directly
by the VA.

G. Whether Defendant’s evidence should be precluded if it was not evidence approved by
Dr. Hunsinger
Plaintiff contends that Dr. Reagles only finalized his life care plan after Dr. Hunsinger,
Plaintiff’s primary physician, made some changes “commensurate with the expectations of what
[Plaintiff] would need in the future.” See Dkt. No. 143 at 18. Plaintiff contends that the
alternative life plan that Dr. Stickney provided is “totally lacking in foundation.” See id. at 19.
Plaintiff asserts that Dr. Stickney did not talk to a physician in this case. See id. Plaintiff argues
that both defense counsel and Dr. Stickney knew that a “vocational rehabilitation expert” was not
qualified to express an opinion on his future medical needs. See id. Defendant did not address
this argument in its submissions. See Dkt. No. 144.
The Federal Rules of Evidence set forth the standard for admissibility of expert
testimony: “A witness who is qualified as an expert by knowledge, skill, experience, training, or

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education may testify in the form of an opinion or otherwise if: (a) the expert’s scientific,
technical, or other specialized knowledge will help the trier of fact to understand the evidence or
to determine a fact in issue . . . .” Fed. R. Evid. 702. The trial judge is to act as a “gatekeeper”
with respect to expert testimony to ensure that such testimony is both relevant and reliable. See
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589-91 (1993). This rule applies not only to
scientific knowledge, but also to technical or other specialized knowledge. See Kumho Tire Co.,
Ltd. v. Carmichael, 526 U.S. 137, 141 (1999). The determination as to the relevance and
reliability of such evidence is committed to the sound discretion of the trial court. See id. at 158.
Daubert sets forth specific factors, such as “testing, peer review, error rates, and
‘acceptability’ in the relevant scientific community,” which the trial court may consider in
determining reliability. Kumho, 526 U.S. at 141. However, the Daubert test is flexible and its
“list of specific factors neither necessarily nor exclusively applies to all experts or in every case.”
Id. To this end, the Supreme Court has more generally explained that trial courts should “make
certain that an expert . . . employs in the courtroom the same level of intellectual rigor that
characterizes the practice of an expert in the relevant field.” Id. at 152.
Furthermore, the trial judge must insure that the expert’s opinion is based upon “more
than subjective belief or unsupported speculation . . . . Proposed testimony must be supported by
appropriate validation – i.e., ‘good grounds,’ based on what is known.” Daubert, 509 U.S. at
590. Expert testimony is reliable where it has “a traceable, analytical basis in objective fact . . .
.” Bragdon v. Abbott, 524 U.S. 624, 653 (1998) (citing General Elec. Co. v. Joiner, 522 U.S.
136, 144-45, 146, 118 S. Ct. 512, 518, 519, 139 L. Ed. 2d 508 (1997)). Finally, it is within the
trial court’s discretion to craft reasonable criteria to be used to determine reliability in a
particular case and whether the proposed testimony meets those criteria. See Kumho, 526 U.S. at

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158 (decision to exclude expert evidence within trial court’s discretion where based on “failure
to satisfy either Daubert’s factors or any other set of reasonable reliability criteria”).
An expert witness testifying about future damages “’must possess the requisite skill,
training, knowledge or experience to ensure that [the] opinion rendered is reliable.’” Smith v.
M.V. Woods Construction Co., Inc., 309 A.D.2d 1155, 1156 (4th Dep’t 2003) (citing Daum v.
Auburn Mem. Hosp., 198 A.D.2d 899, 899 ([4th Dep’t ] (1993)). A vocational rehabilitation
expert is not qualified “to express an opinion on . . . future medical expenses.” Id. Future
medical expenses are within the expertise of an economist, but only to the extent that the opinion
supports specific cost assessments. See Strangio v. N.Y. Power Auth., 275 A.D.2d 945, 946-47
(4th Dep’t 2000). If an expert’s opinion is not properly founded, damages based on that opinion
are against the weight of evidence. See Smith, 309 A.D.2d at 1157.
The record demonstrates that Dr. Reagles and Dr. Stickney, both “vocational
rehabilitation experts,” laid sufficient foundation to offer testimony before the Court. Further,
Dr. Reagles, who has the same qualifications as Dr. Stickney, expressed an opinion as to
Plaintiff’s future medical needs. The testimonies of both life care planners were reliable and
relevant. Therefore, the Court finds that Dr. Stickney’s plan was based on a proper foundation.

H. Whether Plaintiff is entitled to a monetary award that both compensates him for his
injury suffered along with his pain and suffering
Plaintiff asserts that he is entitled “to recover monetary damages for his pain and
suffering, including loss of enjoyment of life, from the time that he was injured until his death.”
See Dkt. No. 143 at 20. Plaintiff argues that in determining the amount of pain and suffering,
“the Court may properly consider the effect of the injuries on [Plaintiff’s] capacity to lead a
normal life.” See id. Plaintiff provides the Court with cases for “guidance and assistance”

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involving other plaintiffs that were rendered quadriplegic. See id. at 22. 15 Additionally, Plaintiff
provides the Court with other cases that do not involve a quadriplegic plaintiff as well. 16 Lastly,
Plaintiff, citing CPLR 4111, contends that New York law regarding damages requires each
verdict to be itemized. See id. Plaintiff desires that the Court create two awards. First, an award
for pain and suffering from the date of the injury, November 4, 2004, to the date of the verdict.
See id. Second, an award for pain and suffering from the date of verdict until Plaintiff’s life
expectancy. 17 See id.
Defendant concurs that “a plaintiff is entitled to a sum of money that will justly and fairly
compensate him for those losses proximately caused by negligence, to restore him to the position
he would have been in had the wrong not occurred.” See Dkt. No. 144 at 24. Defendant “does
not dispute that [Plaintiff] suffered serious injuries as the result of his surgery on November 4,
2004.” See id. at 28-29. Defendant asserts that awards and judgments for pain and suffering
based on quadriplegia vary from $500,000 to $1,490,000. See id. Further, Defendant states that
the “amount of the award to be made by this Court must reflect a deduction for the total amount

15

See Saladino v. American Airlines, Nos. 11-754(L), 11-907(CON), 11-1330(XAP), 2012 WL
4902633 (2d Cir. Oct. 17, 2012) (a $15 million dollar award did not deviate materially from
reasonable compensation); see Barnhard v. Cybex Int’l, Inc., 55 A.D.3d 1348 (4th Dep’t 2008)
(award of $3 million for past pain and suffering and $9 million for future pain and suffering); see
Savillo v. Greenpoint Landing Assocs., New York Co. Index 114418/07, 2011 N.Y. Slip Op
31950, 6/6/11) (award of $10 million for past pain and suffering and $25 million for future pain
and suffering); see McMillan v. City of New York, No. 03-CV-6049, 08-CV-2887, 2008 WL
4287573 (E.D.N.Y. 2008) (award of $4 million for past pain and suffering and $7.5 million for
future pain and suffering).
16

See Cruz v. Long Island R.R. Co., 22 A.D. 3d 451 (2d Dep’t 2005); Miraglia v. H&L Holding
Corp., 36 A.D. 3d 456 (1st Dep’t 2007); Bissell v. Town of Amherst, 56 A.D. 3d 1144 (4th Dep’t
2008); see Ruby v. Budget Rent-A-Car-Corp., 23 A.D. 3d 257 (1st Dep’t 2005); Okraynets v.
Metro. Transp. Auth., 555 F. Supp. 2d 420; Tenudo v. Lederle Labs., # 1134/81, 2010 WL
625223 (N.Y. Sup. Feb. 17, 2010) (Table) (F.N.3), 26 Misc.3d 1225 (Sup. Ct. 2010).
17

As noted, Plaintiff’s life expectancy, according to Dr. Reagles, is 26 years.
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of 38 U.S.C. § 1151 benefits paid to plaintiff as of the date of judgment.” See id. at 30. 18
However, Defendant contends that Plaintiff “will have future medical care expenses but not to
the extent claimed by Dr. Reagles.” See id. In sum, Defendant avers that “[a] comparable award
range for pain and suffering would be between $500,000 and $1,500,000, less the offset required
by 38 U.S.C. § 1151.” See id.
An award of damages for future pain and suffering must be reasonably certain. Future
medical expenses must be established to a reasonable degree of medical certainty. Courts
determine damages in FTCA actions according to the law of the state in which the tort occurred.
See Richards v. United States, 369 U.S. 1, 11 (1962). Generally, under New York law, a
plaintiff may recover his loss of earnings, medical expenses, and mental and physical pain and
suffering. See N.Y. Jur. 2d Damages § 57, at 102-03 (1984).
There is no precise rule for determining pain and suffering, and a trier of fact is bound by
a standard of reasonableness in light of all the evidence. See Paley v. Brust, 21 A.D.2d 758, 758,
250 N.Y.S. 2d 356, 357 (1st Dep’t 1964). Courts may award “fair and just compensation for any
injuries proximately caused by the negligence of the Government’s employees.” Goldstein v.
United States, 9 F. Supp. 2d 175, 188 (E.D.N.Y. 1998). “[P]rior verdicts may guide and
enlighten the court and, in a sense, may constrain it.” Senko v. Fonda, 53 A.D. 2d 638, 639, 384
N.Y.S. 2d 849, 851 (2d Dep’t 1976) (citation omitted); see also, Corbin v. Grand Union Co., No.
96 CIV. 4626, 1997 WL 739583, *10 (S.D.N.Y. Nov. 26, 1997) (examining New York cases to
determine appropriate compensation for past and future pain and suffering).
When considering future pain and suffering, any award of damages must be reasonably
certain. See Furey v. United States, 458 F. Supp. 2d 48, 56 (N.D.N.Y. 2006) (citation omitted);
18

Through April 30, 2013, Plaintiff has received $382,617.00 in 38 U.S.C. § 1151 benefits and,
moving forward, will receive monthly benefits under 38 U.S.C. § 1151 in the amount of $7,131.
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Delano, 859 F. Supp. 2d at 506 (citation omitted). Consequences which are contingent,
speculative, or merely possible are not proper to consider in ascertaining the damages. See
Strohm v. New York, L.E. and W. R.R. Co., 96 N.Y. 305, 306 (1884). “It is not enough . . . even
that they are likely to so develop.” Id. The reasonable certainty test applies to worsening
conditions. See Streng v. Frank Ibert Brewing Co., 50 A.D. 542, 544 (2d Dep’t 1900).
Section 4111 of the CPLR governs the need for an itemized verdict in a medical
malpractice case
In all actions seeking damages for medical . . . malpractice . . . the court shall
instruct the jury that if the jury finds a verdict awarding damages it shall in its
verdict specify the applicable elements of special and general damages upon
which the award is based and the amount assigned to each element, including but
not limited to medical expenses . . . loss of earnings, impairment of earning
ability, and pain and suffering. In all such actions, each element shall be further
itemized into amounts intended to compensate for damages to be incurred in the
future. In itemizing amounts intended to compensate for the total amount of
damages for each such item. In itemizing amounts intended to compensate for
future pain and suffering, the jury shall return the total amounts of damages for
future pain and suffering and shall set forth the period of years over which such
amounts are intended to provide compensation. In itemizing amounts intended to
compensate for future economic and pecuniary damages other than in wrongful
death actions, the jury shall set forth as to each item of damage, (i) the annual
amount in current dollars, (ii) the period of years for which such compensation is
applicable and the date of commencement for that item of damage, (iii) the
growth rate applicable for the period of years for the item of damage, and (iv) a
finding of whether the loss or item of damage is permanent.
N.Y. C.P.L.R. § 4111
Here, the record is clear that Plaintiff has suffered the following:
1. He has lost the ability to stand, walk, or use his legs.
2. He has very limited use of his hands, and what he has is diminishing as time passes.
3. He suffers from daily uncontrollable spasms in which his legs uncontrollably bounce
around.
4. He has incontinence of urine requiring multiple self-catheterizations daily causing
spillage of urine, periodic urinary tract infections, and repeated soling of his clothes and
bedding.
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5. He has bowel incontinence resulting in accidents in which he soils his clothes and
bedding.
6. He has had significant long-standing decubitus ulcers which he will be at risk for all of
his life.
7. He has frequent bouts or episodes of constipation and diarrhea and abdominal pain.
8. He has significant daily physical pain requiring daily pain medications to help partially
control his pain.
9. The medications he takes affect his ability to concentrate and impact his ability to remain
alert.
10. He has loss of sexual function.
11. He has significant psychological issues because of all of his physical disabilities.
Psychological problems include frequent nightmares, constant fear of having “accidents”
concerning his bladder and his bowel resulting in his being fearful of leaving his home,
being fearful of getting fat and not being able to operate his wheelchair, even though as
the Court knows, he has been unable to eat as any normal person would do, being
consumed by his disabilities, and ongoing depression.
12. He has lost his independence and must rely on others for many of the most basic needs.
13. He has difficulty maneuvering his wheelchair even in his own home and is forced to deal
with accessibility problems on a daily basis.
14. He has to face the daily multiple issues that a catastrophically injured person experiences
that able-bodied individuals often do not appreciate and ignore.
See Dkt. No. 143 at 21-22.
Prior similar cases should be a basis for the Court’s damages award. See Goldstein, 9 F.
Supp. 2d at 188. As evidenced above, the significant changes to Plaintiff’s life are severe and
real. They are not, in any sense, mere speculation. Unequivocally, Plaintiff’s injuries are
permanent, devastating, and catastrophic. The range in New York is normally between $500,000
and $1,500,000 dollars for a pain and suffering award. Therefore, the Court will award Plaintiff
$500,000 for past pain and suffering and $1,500,000 for future pain and suffering.

I. Whether Plaintiff is entitled to an award for future medical-related costs
Plaintiff argues that “there is properly a claim for future medical-related costs associated
with [his] catastrophic injuries.” See Dkt. No. 143 at 28. Plaintiff states that, if the Court were
to accept Dr. Reagles’ life care plan, then the only remaining determination is whether to follow
Scenario #1 or Scenario #2. See id. Further, Plaintiff asserts that the “calculations done by Dr.
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McGowan are supported by the evidence” and “should be adopted by the Court in making an
appropriate award for future medical-related costs[.]” See id.
Defendant addresses pecuniary damages, including “medical expenses, lost earnings, and
the cost of care.” See Dkt. No. 144 at 24. Defendant asserts that Plaintiff “makes no claims for
lost earnings.” See id. For future medical expenses, Defendant states that Mr. Stickney’s LCP
contains eleven categories of future care needs. 19 See id. at 25. With regard to the cost of care,
Defendant states that “follow-up care, therapeutic modalities, wheelchair accessory/maintenance,
aides for independent function, and potential surgeries/procedures may be considered costs of
medical care/need to which plaintiff may be entitled to an award” whether or not Veterans
Affairs provides them. 20 See id. Defendant argues that all home health aide services (H/HHA)
are provided by independent contractors, not Department of Veterans Affairs employees. See id.
at 26. Defendant contends that “any modifications required to make [Plaintiff’s] home more
wheelchair accessible are covered by the Department of Veterans Affairs grants.” 21 See id. at 27.

19

Dr. Stickney’s eleven categories include (1) follow-up care, (2) therapeutic modalities, (3)
mobility needs, (4) wheelchair accessory/maintenance (5) diagnostic evaluations, (6) medication,
(7) aides for independent function, (8) transportation needs, (9) supply description, (10)
home/facility care recommendation, and (11) potential surgeries/procedures. However,
Defendant argues that five of these categories consist of “generic medical expenses” that the
Veterans Administration already provides free of charge and, therefore, should be stricken from
Plaintiff’s total compensation. See Dkt. No. 144 at 25.
20

Defendant cites what Mr. Stickney’s LCP included: (1) Follow-up care – psychologist, onetime cost $6,336; (2) therapeutic modalities – physical therapy, occupational therapy, and health
club membership – annual cost of $962.15; (3) wheelchair accessory maintenance – backpack
and protective gloves – annual cost of $84.31; (4) aides for independent function – medi alert
call button, one-time cost of $55.00, and (5) potential surgeries/procedures – a one-time cost for
contractual release of $4,383 and annual costs of bowel impaction treatment and miscellaneous
hospitalizations of $1,952.30.
21

Defendant states that Plaintiff is eligible for a special adaptive housing grant of $64,960 to
assist with his adaptive housing needs and, additionally, entitled to $5,600 for bathroom and
home modifications.
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Further, Defendant states that Plaintiff has “failed to establish with reasonable certainty that he
will remain in his current home.” See id. Defendant contends that “any separate award for
housing modifications would not be justified.” See id. Defendant contends that the Court should
use either Scenario #1 or Scenario #2 of Dr. Stickney’s LCP. Present value for Scenario #1 is
$233,825. See id. at 28. Present value for Scenario #2 is $221,927. See id.
As with a pain and suffering award, reasonable certainty applies to future medical
expenses. See Askey v. Occidental Chem. Corp., 102 A.D. 2d 130, 137 (4th Dep’t 1984). If a
plaintiff is seeking future medical expenses as an element of consequential damages, he must
establish with a degree of reasonable medical certainty through expert testimony that he will
incur such expenses. See id.; Ivory v. Int’l Bus. Machs. Corp., 2012 WL 5679778, *3-*4 (N.Y.
Sup. Ct. Broome Cnty. Nov. 15, 2012).
First, the record indicates that the testimony of both Dr. Reagles and Dr. Stickney were
given with reasonable certainty, along with the forensic economists who verified the LCPs.
Second, the Court disagrees with Plaintiff’s assertion that the only way to make him whole is to
disassociate completely and detach from any service that the VA can provide, especially those
which he is currently using and are free-of-charge. Third, the Court will adopt Dr. Reagles’ Life
Care Plan (“LCP”), Scenario #2, dated June 28, 2011, which was last revised March 2012.
Therefore, the starting sum for a future medical award is $4,156,537, the amount calculated in
Dr. Reagles’ Scenario #2. 22

J. Renewal of Plaintiff’s motion to amend the ad damnum clause

22

This is the amount before offsetting prior VA benefits, VA services which are free-of-charge,
and adding the two pain and suffering awards.
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Plaintiff contends that the Court has now had an opportunity “to hear and see various
experts testify” and this constitutes new evidence of Plaintiff’s deterioration that was not
reasonably foreseeable. See Dkt. No. 143 at 30. Plaintiff argues that if his primary care
physician could not have predicted his level of deterioration, then certainly he could not have
reasonably foreseen it. See id. at 31. Thus, Plaintiff contends that the Court “now has sufficient
evidence to appreciate how unfair and illogical it would be to not grant the renewal of the motion
to raise the ad damnum clause.” See id. Plaintiff contends that it is now clear that “the original
claim for $6,000,000 was grossly inadequate.” See id. Plaintiff argues that the Court “has
discretion to increase the amount of damages requested in the ad damnum clause, even when
motion is made after verdict.” See id. at 32-33.
Plaintiff states that
[t]he bottom line is [he] has already been victimized once by the Government, and
there is simply no logical reason to victimize [him] a second time because of his
lawyer’s inadvertent moderation and his inability to be able to foresee any more
than his treating physician’s ability to foresee the future deterioration of [his]
medical condition and the associated increased medical-related needs and costs
associated with those needs or that the Courts are now approving larger awards
for pain and suffering that in 2006 would have been considered as excessive.
See id. at 33.
The Defendant states that the Court previously addressed this argument. See Dkt. No.
144; see Malmberg v. United States, No. 5:06-CV-1042 (FJS/TWD), 2012 WL 4953091
(N.D.N.Y. Oct. 15, 2012).
When a plaintiff seeks to amend his ad damnum clause to increase the amount he sought
in his administrative complaint, a court may not substitute the liberal pleading requirements of
Rule 15 of the Federal Rules of Civil Procedure for the narrower requirements of § 2675(b). See
O’Rourke v. E. Air Lines, Inc., 730 F.2d 842, 856 (2d Cir. 1984), abrograted on other grounds

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by Salve Regina Coll. v. Russell, 499 U.S. 225 (1991) (citation omitted). 28 U.S.C. § 2675(b)
provides that
(b) Action under this section shall not be instituted for any sum in excess of the
amount of the claim presented to the federal agency, except where the increased
amount is based on newly discovered evidence not reasonably discoverable at the
time of presenting the claim to the federal agency, or upon allegation and proof of
intervening facts, relating to the amount of the claim.
28 U.S.C. § 2675(b).
It is well-established that “ ‘[t]he burden of establishing . . . “newly discovered evidence”
or “intervening facts” . . . rests on the claimant plaintiff.’ ” Lowry v. United States, 958 F. Supp.
704, 710 (D. Mass. 1997) (quotation and other citations omitted). In canvassing the case law to
determine the meaning of “newly discovered evidence” and “intervening facts,” the Lowry court
noted that the general theme was foreseeability. See id. at 711. Thus, if the condition was
reasonably foreseeable at the time the plaintiff filed his administrative claim, the court will not
allow him to increase the ad damnum clause. See id. Furthermore, courts will only allow an
increase in the ad damnum clause if the plaintiff was reasonably diligent in attempting to
discover those facts that were discoverable before filing his administrative claim. See id.
In O’Rourke, the Second Circuit stated that
[t]he FTCA, as a statute waiving immunity, must be complied with strictly. . . . If
plaintiff were allowed to amend his ad damnum clause based upon the minimal
showing he made in the district court, we would, in effect, be substituting the
liberal pleading requirements of Federal Rule of Civil Procedure 15 for the
narrower requirements of § 2675(b). This we may not do.
O’Rourke, 730 F.2d at 856.
Here, the Court previously denied Plaintiff’s motion to amend the ad damnum clause.
See Malmberg v. United States, No. 5:06-CV-1042 (FJS/TWD), 2012 WL 4953091 (N.D.N.Y.
Oct. 15, 2012). There is no evidence from the record, specifically in reviewing the transcript of

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the damages trial, that Plaintiff should be able to change the specific amount of damages he
claims. In fact, there is enough in the record to determine (1) the total amount of the FTCA
award; (2) the offset for prior VA benefits, the § 1151 (or § 351 payments); (3) the offset for
services that the VA provided free-of-charge; (4) the offset for those medical services/goods that
Dr. Stickney found as “generic” medical services; and (5) enough facts and precedent to guide
the Court in determining amounts for past pain and suffering and future pain and suffering.
For the above-stated reasons, the Court denies Plaintiff’s motion to amend the ad
damnum clause.

K. Final Calculation
(1) Baseline starting point is $4,156,537 (Dr. Reagles’ Scenario #2)
(2) The prior VA benefits (“§ 1151 benefits”) are subtracted out (“offset”). From the record,
the starting point is April 30, 2013. Thus, proceeding forward,
a. 8 months in 2013; therefore, 8 x $7,131 = $57,048
b. 8 months in 2014; therefore, 8 x $7,131 = $57,048
i. Total = $114,096
c. Prior benefits received before April 30, 2013 = $382,617
d. Total = $496,713
i. Therefore, $4,156,537 - $496,713 = $3,659,824
(3) The future medical care / benefits provided by the VA are subtracted out.
a. $8,320 (psychiatric care)
b. $43,333.33 (life care planner re-evaluation)
c. $471,406 (medications)
d. $39,520 (dietician/nutritionist)
e. $41,912 (palliative physical activity)
f. $3,172 (wounds management supplies)
g. $367,198 (urinary incontinence supplies)
h. $14,924 (bowel incontinence supplies)
i. $121,056 (case management supplies)
j. $67,600 (spinal injury support group)
i. Total = $1,176,191.33
ii. Therefore, $3,659,824 - $1,176,191.33 = $2,483,632.67
(4) The “generic medical services,” according to Dr. Stickney, are subtracted out.
a. $6,336 (follow-up care – psychologist, one-time cost)
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b. $962.15 (therapeutic modalities – physical therapy, occupational therapy, and
health club membership – annual cost)
c. $84.31 (wheelchair accessory maintenance – backpack and protective gloves –
annual cost)
d. $55.00 (aides for independent function – medi alert call button, one-time cost)
e. $4,383 (potential surgeries/procedures – a one-time cost for contractual release)
f. $1,952.30 (potential surgeries/procedures – annual costs of bowel impaction
treatment and miscellaneous hospitalizations)
i. Total = $13,772.76
ii. Therefore, $2,483,632.67 - $13,772.76 = $2,469,859.91
(5) The two pain and suffering awards are added
a. Total = $2,000,000 ($500,000 for past pain and suffering and $1,500,000 for
future pain and suffering)
i. Therefore, $2,469,859.91 + $2,000,000 = $4,468,859.91
(6) Final total = $4,468,859.91

IV. CONCLUSION
Accordingly, for the above-stated reasons, the Court hereby ORDERS that the Clerk of
the Court shall enter judgment in favor of Plaintiff in the total amount of $4,468,859.91 as set
forth in this Memorandum-Decision and Order and close this case, and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order on the parties in accordance with the Local Rules.
IT IS SO ORDERED.

Dated: August 21 , 2014
Syracuse, New York

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