Malmberg v. United States of America

Filing 191

AMENDED MEMORANDUM-DECISION and ORDER: Amends 189 MDO. The total award of damages due Plaintiff is corrected due to a mathematical error in the calculation. Amended award: $22,372,011.09. The Clerk shall amend the judgment accordingly.. Signed by Senior Judge Frederick J. Scullin, Jr on 2/6/2020. (bjw, )

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

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

UNITED STATES OF AMERICA,
Defendant.
______________________________________________
APPEARANCES

OF COUNSEL

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

ROBERT B. NICHOLS, ESQ.

HANCOCK ESTABROOK, LLP
100 Madison Street, Suite 1500
Syracuse, New York 13202
Attorneys for Plaintiff

ALAN J. PIERCE, ESQ.

OFFICE OF THE UNITED
STATES ATTORNEY
James Hanley U.S. Courthouse
& Federal Building
100 South Clinton Street
Syracuse, New York 13261-7198
Attorneys for Defendant

WILLIAM F. LARKIN, AUSA
KAREN FOLSTER LESPERANCE, AUSA

SCULLIN, Senior Judge

AMENDED MEMORANDUM-DECISION AND ORDER1
I. BACKGROUND
Plaintiff commenced this action on September 15, 2006, seeking to recover damages for
injuries he sustained in November 2004 during the course of an anterior cervical disectomy and
fusion procedure at the Syracuse VA Medical Center. After bench trials on liability and damages,
this Court concluded that the Government was liable for Plaintiff's injuries and awarded him
$4,468,859.91 in damages. See Dkt. No. 146 ("Malmberg I"). Both parties appealed various
aspects of this award.
In Malmberg v. United States, 816 F.3d 185 (2d Cir. 2016) ("Malmberg II"), the Second
Circuit vacated the damages award and directed this Court to reconsider whether Plaintiff should be
permitted to amend the ad damnum clause in his complaint to increase the amount of damages
requested and to explain its rationale for awarding $2 million in damages for Plaintiff's past and
future pain and suffering.
After remand, this Court denied Plaintiff's motion to increase the ad damnum clause and
concluded that, in light of its decision concerning the ad damnum clause,
there [was] no reason for the Court to address how the $2.5 million
award for past pain and suffering compares to awards in cases
involving plaintiffs with comparable injuries because, even if the
Court were to find that comparable cases warranted an increase, any
such increase would be limited to a maximum of $511,320. . . .
See Dkt. No. 171, Memorandum Decision and Order dated April 13, 2018, at 19 n.3 ("Malmberg
III").
Both parties appealed. On appeal, both parties contested whether this Court had clearly
1

The Court is issuing this "Amended Memorandum-Decision and Order" to correct a
mathematical error in the calculation of damages.
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erred in denying Plaintiff's request to increase the ad damnum from $6 million to $25 million. The
Second Circuit concluded that this Court had erred and, therefore, reversed that aspect of this
Court's judgment and remanded for this Court "to determine anew the damages owed to [Plaintiff],
taking into account an increased ad damnum of $25 million, which fixes the ceiling on the
maximum recoverable damages." See Dkt. No. 182, Mandate ("Malmberg IV"), at 6.
On appeal, Plaintiff also argued, and the Government agreed, that this Court had failed to
explain sufficiently its award for past and future pain and suffering. See id. Therefore, the Second
Circuit "vacate[d] this aspect of the damages award" and instructed this Court "to consider whether
its initial pain and suffering award complies with New York law and to explain the basis for its
decision." See id. at 7. The Second Circuit also instructed this Court to "take into account, among
other things, awards in comparable cases." See id.
Finally, on appeal, the Government contended, and Plaintiff did not dispute, that this Court
"failed to correctly offset the damages award by the amount of disability payments [Plaintiff] has
received under 38 U.S.C. § 1151." See id. The Second Circuit agreed and, therefore, "vacate[d] this
aspect of the damages award and direct[ed] [this] Court to offset the final award by the amount of
§ 1151 benefits that [Plaintiff] receives through the date of any amended judgment entered on
remand." See id.
Pending before the Court are the parties' submissions addressing the issues that the Court
must decide in light of the Second Circuit's August 15, 2019 Mandate, Malmberg IV, which
reversed in part, vacated in part, and remanded this matter for further proceedings consistent with
that Mandate.

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II. DISCUSSION
"'Although there is no precise rule for determining damages for pain and suffering, a trier of
fact is bound by a standard of reasonableness.'" Davis v. Yisrael, No. 16 CV 1574 (LMS), 2019 WL
2098151, *2 (S.D.N.Y. May 14, 2019) (quoting Battista v. United States, 889 F. Supp. 716, 727
(S.D.N.Y. 1995) (citing Paley v. Brust, 21 A.D.2d 758 (1st Dep't 1964))). "'[A] review of jury
awards and settlement amounts in recent New York cases involving comparable injuries suffered
under comparable circumstances, while not binding, provides helpful guidance to the court in
determining a reasonable range for the value of non-economic damages to be awarded in this case.'"
Id. (quoting Robinson v. United States, 330 F. Supp. 2d 261, 295-96 (W.D.N.Y. 2004)); (citing
Marcoux v. Farm Serv. & Supplies, Inc., 290 F. Supp. 2d 457 (E.D.N.Y. 2003) (explaining that
"[a]ssigning dollar amounts to pain and suffering is an inherently subjective determination")
(citations omitted); Berroyer v. United States, 990 F. Supp. 2d 283, 309 (E.D.N.Y. 2014) ("The
Court also recognizes that the facts of each case are different and there may be case-specific
variables that reasonably lead to a higher or lower amount in damages.")).
In their papers, the parties referred to more than twenty cases. The Court has reviewed all of
those cases, as well as several others, to guide its decision regarding the amount of damages to
award Plaintiff. In addition, to take inflation into account, the Court has converted the awards in
those cases to 2019 Dollars using the US Inflation Calculator.2
After reviewing the relevant cases, the Court has compiled a table of representative cases
that present a reasonable range of awards for non-economic damages in cases in which the injuries
2

According to this Calculator, through January 2020, the latest Consumer Price Index is
256.974 and the Inflation Rate is 2.3%. See www.usinflationcalculator.com (last visited January
28, 2020).
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that the plaintiffs suffered are similar to the injuries that Plaintiff suffered in this case. These cases
provide helpful guidance to the Court in determining the appropriate amount of damages for past
and future pain and suffering to award in this case.

Case Name

Year of Award

Injuries

Award

2019 Dollars
(December
2019)

Saladino v.
Stewart &
Stevenson Servs.,
Inc., No. 01-CV7644 (SLT)
(JMA), 2011 WL
284476
(E.D.N.Y. Jan.
26, 2011), aff'd
sub nom
Saladino v. Am.
Airlines, Inc.,
500 F. App'x 69
(2d Cir. 2012)

2011; upheld by
2d Cir. 2012

quadriplegic (37
year old male at
time of accident)
(by time of
verdict, injury 11
years ago and life
expectancy of 24
years)

$5 million (past
pain and
suffering); $10
million (future
pain and
suffering)

$5,682,807.34
(past)
$11,365,614.68
(future)
Cumulative rate
of Inflation:
13.7%
Total award:
$17,048,422.02

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Case Name

Year of Award

Injuries

Award

2019 Dollars
(December
2019)

Barnhard v.
Cybex Int'l, Inc.,
89 A.D.3d 1554
(4th Dep't 2011)

2011

quadriplegic

on appeal, reduce
award to $3
million (past
pain and
suffering); $9
million (future
pain and
suffering) remittitur
(maximum
amounts jury
could have
awarded)

$3,409,684.40
(past)

$4.5 million
(past pain and
suffering (injured
in 2003)); $7.5
million (future
pain and
suffering (age 44
when judgment
entered))

$5,343,429.96
(past)

McMillan v. City
of New York,
Nos. 03-CV6049, 08-CV2887, 2008 WL
4287573
(E.D.N.Y. Sept.
17, 2008)

2008

quadriplegic

$10,229,053.21
(future)
Cumulative rate
of Inflation:
13.7%
Total award:
$13,638,737.61

$8,905,716.59
(future)
Cumulative rate
of Inflation:
18.7%
Total award:
$14,249,146.55

Coniker v. State
of New York,
2002 WL
32068270 (N.Y.
Ct. of Claims
2002)

2002

quadriplegic; 23
years old at time
of accident in
1992

$1 million (past
pain and
suffering - 9
years); $2.5
million (future
pain and
suffering 30
years)

$1,421,106.17
(past)
$3,552,765.43
(future)
Cumulative rate
of Inflation:
42.1%
Total award:
$4,973,871.60

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Case Name

Year of Award

Injuries

Award

Auer v. State of
New York, 289
A.D.2d 626 (3d
Dep't 2001)

2001

quadriplegic;
accident
occurred in 1990
when she was 18

found award of
$750,000 for
future pain and
suffering
inadequate and
raised to $1.5
million (38
years)

Brown v. City of
New York, 275
A.D.2d 726 (2d
Dep't 2000)

2000

dove off pier,
struck head,
rendered him
quadriplegic;
brother rendered
pentaplegic

$1 million (past
pain and
suffering); $3
million (future
pain and
suffering) remittitur for
both

2019 Dollars
(December
2019)

$2,166,584.75
Cumulative rate
of Inflation:
44.4%
$1,484,651.57
(past)
$4,453,954.70
(future)
Cumulative rate
of Inflation:
48.5%
Total award:
$5,938,606.27

Driscoll v. New
York City Transit
Auth., 262
A.D.2d 271 (2d
Dep't 1999)

1999

quadriplegic, 19
years old

$900,000 (past
pain and
suffering); $1.1
million (future
pain and
suffering) remittitur

$1,381,100.24
(past)
$1,688,011.40
(future)
Cumulative rate
of Inflation:
53.5%
Total award:
$3,069,111.64

In 2014, when the Court issued its first Memorandum-Decision and Order related to
damages in this case, the Court awarded Plaintiff $500,000 for past pain and suffering (10 years)
and $1,500,000.00 for future pain and suffering (26 year life expectancy). Now, approximately 5.5
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years later, the past pain and suffering award should account for 15.5 years and the future pain and
suffering should be based on 20.5 year life expectancy. Furthermore, the Court's 2014 decision was
based in part on the limit of the ad damnum clause which was $6,000,000. After the Second
Circuit's mandate in Malmberg IV, the ad damnum is now $25,000,000.
After reviewing the relevant case law, the Court finds that it would be reasonable to award
Plaintiff damages for past pain and suffering in the amount of $7,500,000 and damages for future
pain and suffering in the amount of $10,500,000. The Court comes to this conclusion based, in
large measure, on the thorough analysis of the court in Saladino v. Stewart & Stevenson Servs., Inc.,
No. 01-CV-7644 (SLT) (JMA), 2011 WL 284476 (E.D.N.Y. 2011), aff'd sub nom Saladino v. Am.
Airlines, Inc., 500 F. App'x 69 (2d Cir. 2012), which this Court finds persuasive. In that case, the
trial court noted that "[b]oth federal and state courts have long acknowledged that, in contrast to
economic damages, awards for pain and suffering 'do not lend themselves as easily to computation,'
In re Joint Eastern and Southern Dist. Asbestos Litig., 9 F. Supp. 2d 307, 311 (S.D.N.Y. 1998), and
a precise measure is simply 'impossible,' Braun v. Ahmed, 127 A.D.2d 418, 424, 515 N.Y.S.2d 473
(2nd Dep't 1987)." Saladino, 2011 WL 284476, at *3. "In truth, '[a]ssigning dollar amounts to pain
and suffering is an inherently subjective determination.'" Id. (quoting Marcoux, 290 F. Supp. 2d at
478).
In reaching its decision on non-economic damages in that case, the Saladino court noted
that, "[i]n several recent cases, New York courts ha[d] sustained pain and suffering awards to
paralysis victims of at least $10 million and up to $17.5 million." Id. at *6. The court further
explained that it was "'not trying to ascertain an average award based on comparable cases," but
instead [was] trying 'to assess what amount is the highest amount of compensation allowable based
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on the evidence, that would not deviate materially from reasonable compensation.'" Id. (quoting
Okraynets, 555 F. Supp. 2d at 429 (quotation marks omitted)).
In particular, the court compared the plaintiff's award to that of the plaintiff in Tenuto v.
Lederle Labs., No. 1134/81, 2010 WL 625223 (N.Y. Sup. Feb. 17, 2010) (Table), in which the trial
court had sustained an aggregate pain and suffering award of $17.5 million to a plaintiff who
contracted contact polio from his infant daughter after she had received a vaccination. The court
explained that, as with the plaintiff, "Mr. Tenuto's injuries 'cost him his job, his marriage, and the
loss of enjoyment of life. He lives in a small handicapped accessible apartment [and] uses a
wheelchair to get around.'" Id. (quoting [Tenuto, 2010 WL 625223] at *16). The court also noted
that, in Tenuto, "[t]he court [had] sustained the award in part because Mr. Tenuto had waited 30
years for his day in court [while] Mr. Saladino was injured nearly 11 years ago and ha[d] a life
expectancy of 24 years." Id. Furthermore, the court explained that, although Mr. Tenuto was a
permanent paraplegic, "Mr. Saladino's injuries had left him a quadriplegic incapable of caring for
himself in any way." Id. Therefore, the court concluded that the aggregate award of $15 million for
pain and suffering, which was less than the award to Mr. Tenuto, was not excessive. See id.
The Saladino court also compared the plaintiff's injuries to those of the plaintiffs in the
following cases: Miraglia v. H & L Holding Corp., 5 Misc. 3d 1021(A), 799 N.Y.S.2d 162 (Sup.
Ct., Bronx Cty., 2004), involving a 45-year-old construction worker who became a paraplegic after
suffering injuries when he fell into a trench and became impaled on a rebar, in which the appellate
division had reduced his award to $5 million for past and $5 million for future (35 years) pain and
suffering; Bissell v. Town of Amherst, 56 A.D.3d 1144, 867 N.Y.S.2d 582 (4th Dep't 2008), in
which "the court approved an award of $3 million for approximately five years of past pain and
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suffering and $7 million for 32.7 years of future pain and suffering for a plaintiff who experienced
incontinence, sexual dysfunction, chronic excruciating pain, and had no motor function below his
knees"; Ruby v. Budget Rent-A-Car Corp, 23 A.D.3d 257, 806 N.Y.S.2d 12 (1st Dep't 2005), in
which the plaintiff "was rendered a paraplegic at the age of 25, suffering complications like chronic
pain, incontinence, psychological effects, and loss of sexual function" and, in which, "[t]he appellate
court reduced the jury award to $2 million for past pain and suffering and $8 million for future pain
and suffering based on a life expectancy of 44.6 years"; and Okraynets v. Met. Transp. Auth., 555 F.
Supp. 2d 420 (S.D.N.Y. 2008), in which the plaintiff "was injured when he fell from a wall and
equipment landed on him," rendering him "a paraplegic and suffered from infection, incontinence,
chronic pain, loss of sexual function, and other associated conditions, some requiring surgery";
"use[d] a wheelchair and perform[ed] self-catheterization and bowel disimpactation multiple times a
day"; "court reduced jury award to an aggregate of $10.5 million, based in part on a life expectancy
of 39 years." Saladino, 2011 WL 284476, at *7.
After reviewing these cases, the Saladino court explained that, "[i]n sum, a review of these
New York cases leads this Court to conclude that $15 million for pain and suffering does not
deviate materially from reasonable compensation." Id. at *8.

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Case Name

Year of Award

Injuries

Award

2019 Dollars

Tenuto v. Lederle
Labs., No.
1134/81, 2010
WL 625223
(Sup. Ct.,
Richmond Cty.,
Feb. 17, 2010)
(Table)

2010

permanent
paraplegic;
physical
condition will
degenerate
greatly; award 30
years after injury;
life expectancy
20 years

$12 million (past
pain and
suffering); $5
million (future
pain and
suffering)

$14,069,248.27
(past)
$5,862,186.78
(future)
Cumulative rate
of Inflation:
17.2%
Total award:
$19,931,435.05

Bissell v. Town
of Amherst, 56
A.D.3d 1144
(4th Dep't 2008)

Okraynets v.
Met. Transp.
Auth, 555 F.
Supp. 2d 420
(S.D.N.Y. 2008)

2008

2008

paralysis,
incontinence of
bladder and
bowel, able to
perform some
hygienic care for
self; award 5.25
years after injury;
life expectancy
32.7 years

$3 million (past
pain and
suffering); $7
million (future
pain and
suffering)

paraplegia,
condition, if
progressed, could
lead to
quadriplegia;
award 2 years
after injury; 39
years life
expectancy

$2.5 million
(past pain and
suffering); $8
million (future
pain and
suffering)

$3,562,286.64
(past)
$8,312,002.16
(future)
Cumulative rate
of Inflation:
18.7%
Total award:
$11,874,288.80
$2,968,572.20
(past)
$9,499,431.03
(future)
Cumulative rate
of Inflation:
18.7%
Total award:
$12,468,003.23

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Case Name

Year of Award

Injuries

Award

2019 Dollars

Miraglia v. H &
L Holding Corp.,
5 Misc. 3d
1021(A) , 799
N.Y.S.2d 162
(Sup. Ct., Bronx
Cty., 2004)

2007

paraplegia; life
expectancy 35
years

$5 million (past
pain and
suffering); $5
million (future
pain and
suffering)

$6,165,104.03
(past)
$6,165,104.03
(future)
Cumulative rate
of Inflation:
23.3%
Total award:
$12,330,208.06

Ruby v. Budge
Rent-A-Car
Corp., 23 A.D.3d
257 (1st Dep't
2005)

2005

paraplegia,
associated
complications,
constant and
severe pain; life
expectancy 44.6
years

$2 million (past
pain and
suffering); $8
million (future
pain and
suffering)

$2,618,095.24
(past)
$10,472,380.95
(future)
Cumulative rate
of Inflation:
30.9%
Total award:
$13,090,476.19

Based on its review of all of these cases, particularly the injuries of the plaintiffs, the Court
finds that, given the severity of Plaintiff's injuries, an award of $7,500,00.00 for past pain and
suffering and $10,500,000.00 for future pain and suffering is an award that "does not deviate
materially from reasonable compensation." Saladino, 2011 WL 284476, at *8.

III. CONCLUSION
Having reviewed the entire file and in accordance with the Second Circuit's August 15, 2019
mandate, see Dkt. No. 182, the Court hereby
ORDERS that the total award of damages due to Plaintiff is $22,372,011.09, calculated as
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follows:
Baseline starting point (Dr. Reagles' Scenario #2)
Future medical care (that the court subtracted out
in its original decision)
"Generic medical services" (that the Court subtracted
out in its original decision)
Minus: § 1151 benefits at $7,131/month that
Plaintiff has received
to August 2016) ($667,857)
August 2016 to February 2019 (43 mos.)
($306,633)
Past pain and suffering
Future pain and suffering

$4,156,537.00

$ (974,490.00)
$ 7,500,000.00
$10,500,000.00

Total

$22,372,011.09

$1,176,191.33
$

13,772.76

and the Court further
ORDERS that Plaintiff is entitled to post-judgment interest on the entire award at the
appropriate federal rate pursuant to 28 U.S.C. § 1961; and the Court further
ORDERS that the Clerk of the Court shall amend the judgment in this case to reflect the
total amount of damages due to Plaintiff consistent with this Memorandum-Decision and Order.

IT IS SO ORDERED.

Dated: February 6, 2020
Syracuse, New York

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