Rivera v. Home Depot U.S.A, Inc.
Filing
120
OPINION AND ORDER:For the reasons stated above, the Court GRANTS plaintiffs motion for summary judgment at ECF No. 104 in the amount of $6,593,495.00. The Court DENIES plaintiffs motion for summary judgment as to the excess Surgical Costs (in t he amount of $713,776.00). As a consequence of this Opinion & Order, the only remaining issues in this case are: (1) whether plaintiff is entitled to recover economic damages for the potential surgical interventions; and (2) the quantum of pain and suffering damages that plaintiff is entitled to recover. On March 30, 2018, the parties submitted a Joint Pretrial Order (JPTO) requesting a total of [s]ix to seven (6-7)days for trial. (See ECF No. 113.) That exceeds the amount of time the Cou rt has available for a trial commencing as currently scheduled on April 9, 2018. Given that the remaining issues in this case are relatively narrow, and given that in any event they must be tried before a jury, the Court believes this action can and should proceed expeditiously before Magistrate Judge Ona T. Wang. Accordingly, the parties are directed to inform the Court whether they consent to this Court referring trial on all remaining issues to Magistrate Judge Wang at or before the final pretrial conference (FPTC) currently scheduled for Wednesday, March 4, 2018 at 1:00 p.m. The Court would also refer decision on the pending motions in limine at ECF Nos. 106 and 107. If the parties do not agree to proceed before Magistrate Judge Wang , they are directed to appear for the currently scheduled FPTC and should be prepared to discuss revised estimates of time for witness testimony on the remaining issues. The Clerk of Court is directed to close the motions at ECF Nos. 104 and 108. (Signed by Judge Katherine B. Forrest on 4/3/2018) (jp)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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DANIEL RIVERA,
:
Plaintiff,
:
:
-v:
:
HOME DEPOT U.S.A. INC.,
:
Defendant and Third-Party Plaintiff,
:
:
:
-v:
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BRYAN’S HOME IMPROVEMENT CORP.,
:
Third-Party Defendant.
:
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KATHERINE B. FORREST, District Judge:
USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
dDOC #: _________________
DATE FILED: April 3, 2018
16-cv-7552 (KBF)
OPINION & ORDER
Currently pending before the Court is plaintiff’s motion for summary
judgment on the issue of economic damages. (ECF No. 104.) For the reasons stated
below, that motion is GRANTED in part and DENIED in part.
I.
BACKGROUND
A.
The Incident
For purposes of the pending motion, the Court assumes the parties’
familiarity with the facts underlying this action.1 In short, plaintiff Daniel Rivera
(“Rivera” or “plaintiff”) was gravely injured on August 22, 2015 when he was
electrocuted after falling from a ladder at a construction site in Yonkers, New York.
Home Depot U.S.A. Inc. (“Home Depot”) was the general contractor at the
construction site, and Bryan’s Home Improvement Corp. (“BHIC”) was the
subcontractor and plaintiff’s direct employer.
1
The Court refers the reader to its previous Opinion & Order at ECF No. 70 for further explanation.
B.
Litigation History
The Court also assumes the parties’ familiarity with the history of this
litigation and the Court’s various rulings thus far. As relevant to the pending
motion, those rulings include the following:
On February 27, 2018, the Court denied BHIC’s motion for summary
judgment on the issue of “grave injury,” concluding that BHIC had failed
to demonstrate that Rivera did not suffer a “grave injury” as a matter of
law. (ECF No. 69.)
On February 28, 2018, the Court granted plaintiff’s partial motion for
summary judgment, concluding that Home Depot had violated N.Y. Lab.
Law §§ 240(1) and 241(6). (ECF No. 70.)
During an in-person conference held March 2, 2018, and for the reasons
set forth on the record, the Court granted Home Depot’s oral motion on
the issue of “grave injury,” concluding that Rivera had suffered a “grave
injury” pursuant to N.Y. Workers’ Comp. Law § 11. (ECF No. 74.)
During an in-person conference held March 6, 2018, and for the reasons
set forth on the record, the Court granted Home Depot’s motion for
contractual and common-law indemnification. (ECF No. 79.) In doing so,
the Court noted that “the only remaining issue in this action is the
quantum of damages that plaintiff is entitled to recover.”
2
On March 8, 2018, the Court denied BHIC’s motion for reconsideration of
its March 6, 2018 decision regarding common-law indemnification.2 (ECF
No. 82.)
As a result of these rulings, it has been established that BHIC is liable for the
provable economic and non-economic damages resulting from plaintiff’s injury. On
March 16, 2018, the parties attended a settlement conference before Magistrate
Judge Ona T. Wang, but were unable to reach a resolution on the issue of damages.
(ECF No. 97.) Subsequently, on March 20, 2018, this Court set a trial date of April
9, 2018. (ECF No. 99.)
C.
Claimed Economic Damages
On March 23, 2018, in accordance with a briefing schedule established by the
Court, plaintiff moved for summary judgment on the issue of economic damages.
(ECF No. 104.) BHIC opposed that motion on March 30, 2018. (ECF No. 111.)
Plaintiff relies principally on two expert reports in support of his motion for
summary judgment: (1) Dr. Harold Bialsky’s “Life Care Plan/Vocational
Assessment” dated November 8, 2017 (the “Bialsky Report”) (ECF No. 104-3 at pp.
17-51); and (2) Dr. Ronald E. Missun’s “Medical Care Cost Summary” dated
November 15, 2017 (the “Missun Report”) (ECF No. 104-5 at pp. 6-20.) It is
undisputed that both experts were properly disclosed and both reports were
exchanged within the designated discovery window.
The Court also vacated a portion of its February 28, 2018 decision holding that Home Depot had
violated 12 NYCRR § 23-1.13(b)(3) in order “to avoid unnecessary confusion.” (ECF No. 82 at 3-4.)
The Court’s decision to vacate that narrow portion of its previous decision did not affect the ultimate
conclusion that Home Depot violated N.Y. Lab. Law § 241(6).
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Dr. Bialsky, relying on (1) a review of certain medical records, reports,
procedures, and evaluations, (2) an in-person interview, (3) recommendations made
by one of Rivera’s treating physicians (Dr. Jose Colon), and (4) his own experience
and expertise, created a comprehensive Life Care Plan “designed to meet the needs
of Daniel Rivera through his Life Expectancy” of 79 years of age.3 (See generally
Bialsky Report.) In sum, Dr. Bialsky concluded that Rivera’s future medical and
related costs (the “Life Care Costs”) would fall between $5,941,518.93 and
$7,078,306.21.4 (Id. at 20.) Those costs5 are broken down as follows:
Home care (home health aide) – $3,066,000 to $3,942,000;
Routine medical costs (e.g., pain management needs) – $2,210,400;
Prescription medications – $60,212.29 to $72,577.01;
Physical therapy – $338,400.00 to $451,200.00;
Wheelchair and related items (including a wheelchair accessible van) –
$240,483.12 to $372,255.20; and
Mobility aids, home furnishings, and aids for independent living –
$26,023.52 to $29,874.00.
The life expectancy used by Dr. Bialsky was derived from the 2014 version of the United States Life
Tables contained in Vol. 66, No. 4 of the National Vital Statistics Reports.
4 The actual listed recommendation in Dr. Bialsky’s report is $5,941,528.61 to $7,078,296.53.
However, that recommendation appears to contain a basic arithmetic error. Specifically, Dr. Bialsky
appears to have inadvertently included the high-end estimated charge for the “Hand Held Shower”
in the low-end aggregate recommendation, and the low-end estimated charge for same in the highend recommendation. The Court relies on the itemized cost estimates provided by Dr. Bialsky, not
the miscalculated aggregate recommendation.
5 In many cases (e.g., for the home health aide and other goods/services), Dr. Bialsky provided a lowend and high-end estimate based on different providers/manufacturers. Further, in some cases (e.g.,
for one medication and physical therapy), Dr. Bialsky provided low-end and high-end estimates
based on different frequencies.
3
4
Dr. Bialsky also provided an estimate of costs for potential future surgical
interventions (the “Surgical Costs”) totaling $713,776. (Id. at 22-30.) The Surgical
Costs are contained in an entirely separate section of the Bialsky Report from the
aforementioned Life Care Plan, and are broken down as follows:
Cervical fusion surgery – $269,596.00
Lumbar fusion surgery – $318,639.00; and
Left knee replacement surgery – $125,541.00.
Finally, Dr. Bialsky concluded that “within a reasonable degree of vocational
probability, Mr. Rivera has sustained a total loss of earnings from the time of the
August 22, 2015 incident, and over the remainder of his work life expectancy.” (Id.
at 35.) Dr. Bialsky did not provide an estimate of damages for the loss of Rivera’s
expected earnings. Adding together the Life Care Costs and the Surgical Costs, Dr.
Bialsky’s report provides an economic damage range of $5,941,518.93 to
$7,792,082.21.
Using Dr. Bialsky’s figures6, Dr. Missun calculated the present value of
Rivera’s future medical and related needs as either $6,593,495.00 (excluding
Surgical Costs) or $7,307,271 (including Surgical Costs). (See Missun Report at 820.) As such, the excess present value of the Surgical Costs is $713,776.00.
As previously noted, Dr. Bialsky provided a low-end and high-end estimate for certain expected
costs (thereby producing a range). In such cases, Dr. Missun used the average of the two estimates
in calculating present value. Accordingly, Dr. Missun’s figures are not technically a “range,” but
rather two distinct projections with the only difference being inclusion of Surgical Costs. As
discussed infra, BHIC has not challenged Dr. Missun’s methodology or sought to preclude the
Missun Report.
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5
II.
LEGAL PRINCIPLES
A.
Summary Judgment Standard
Summary judgment may be granted when a movant shows, based on
admissible evidence in the record, “that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). The moving party bears the burden of demonstrating “the absence of
a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
A fact is considered “material” when its resolution “might affect the outcome of the
suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). Further, a dispute is considered “genuine” when “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Id.
In reviewing a motion for summary judgment, the Court construes all
evidence in the light most favorable to the nonmoving party, and draws all
inferences and resolves all ambiguities in its favor. Dickerson v. Napolitano, 604
F.3d 732, 740 (2d Cir. 2010). The Court's role is to determine whether there are any
triable issues of material fact, not to weigh the evidence or resolve any factual
disputes. Anderson, 477 U.S. at 248-49.
That said, the nonmoving party must actually offer “concrete evidence from
which a reasonable juror could return a verdict in [its] favor.” Id. at 256; see also
Scott v. Harris, 550 U.S. 372, 380 (2007) (holding that “[w]hen the moving party has
carried its burden under Rule 56(c), its opponent must do more than simply show
that there is some metaphysical doubt as to the material facts.” (quoting
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Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)).) It
is insufficient for the nonmoving party to “merely assert[] that the jury might, and
legally could, disbelieve” certain evidence and/or testimony introduced by the
moving party. Id. at 256-57 (holding that although the moving party bears the
burden, the nonmoving party “is not thereby relieved of his own burden of
producing in turn evidence that would support a jury verdict.”); see also Fed. R. Civ.
P. 56(e).
B.
Damages
Under New York law, it is well established that economic damages (such as
future medical expenses) must be established with “reasonable certainty.” See, e.g.,
Huff v. Rodriguez, 45 A.D.3d 1430, 1433 (4th Dep’t 2007); Pouso v. City of New
York, 22 A.D.3d 395, 397 (1st Dep’t 2005); Tassone v. Mid-Valley Oil Co., Inc., 5
A.D.3d 931, 932 (3d Dep’t 2004). This standard “does not require mathematical
accuracy or absolute certainty or exactness, but only that the loss or damage be
capable of ascertainment with reasonable certainty.” Reichman v. Warehouse One.
Inc., 173 A.D.2d 250, 252 (1st Dep’t 1991); see also E.W. Bruno Co. v. Friedberg, 28
A.D.2d 91, 94 (1st Dep’t 1967).
Pursuant to this standard, “an award for future medical expenses may not be
based upon mere speculation.” Faas v. State, 249 A.D.2d 731, 732 (3d Dep’t 1998);
see also Fiederlein v. N.Y. City Health & Hosp. Corp., 56 N.Y.2d 573, 574 (N.Y.
1982) (“Mere conjecture, surmise or speculation is not enough to sustain a claim for
damages.”) With regards to damages for future surgeries, New York courts have
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shown a clear disinclination to award damages when the actual need for surgery is
unknown or indefinite. See, e.g., Hernandez v. New York City Transit Auth., 52
A.D.3d 367, 369 (1st Dep’t 2008) (holding that jury’s award of $30,000 for ankle
operation within five years was speculative when plaintiff’s witness did not say
plaintiff needed such surgery in that timeframe); Stylianou v. Calabrese, 297
A.D.2d 798, 799 (2d Dep’t 2002) (setting aside award of damages for future surgery
where “plaintiff’s physician failed to state a basis” for his opinion that plaintiff
would require such surgery); Faas, 249 A.D.2d at 732 (affirming lower court’s
decision not to award damages for future shoulder surgery when claimant’s
orthopedic surgeon “failed to offer a definite opinion with regard to the need for
surgery”).
III.
DISCUSSION
Rivera argues, in sum, that because BHIC has failed to introduce any
affirmative evidence to refute, contradict, or undermine the Bialsky or Missun
reports, he is entitled to summary judgment as to all claimed economic damages
(e.g., the Life Care Costs and Surgical Costs). (See Pl.’s Mem. of Law, ECF No. 1041 at 7 (“Plaintiff has provided this Court with a concrete, admissible and
quantifiable roadmap as to the specific economic damages suffered sufficient to
establish a prima facie case of economic damages of $7,307,271.00.”).) Put another
way, Rivera argues that there is no genuine dispute of material fact as to any of the
damages reflected in the Bialsky or Missun reports.
8
BHIC, in a less than two-page opposition (lacking any citations to the record),
has advanced two primary arguments: (1) the Bialsky Report is not supported by
sufficient medical evidence; and (2) in any event, the quantum of economic damages
must be decided by a jury. (See generally BHIC Mem. of Law, ECF No. 111.) But
for the following reasons, BHIC’s argument is unavailing.
First, BHIC has not moved to exclude the Bialsky or Missun reports under
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).7 Thus, despite
BHIC’s repeated protestation that the Bialsky Report is not supported by sufficient
medical evidence, there is no basis for this Court to exclude the Bialsky Report (or
the Missun Report) for purposes of the pending motion for summary judgment. It is
not immediately clear to the Court why BHIC chose not to challenge the Bialsky or
Missun reports (instead focusing significant attention on excluding evidence of
quantitative electroencephalography8), but that is the reality of the situation. Both
reports are effectively uncontested for purposes of the present motion.
Similarly, BHIC’s motion to strike the affidavits of Dr. Bialsky, Dr. Jose
Colon, Dr. Paul Ratzker, or Dr. Missun is entirely unhelpful to its case. (See ECF
Nos. 108, 111-1.) The Court need not and does not rely on any of those affidavits—
which were signed after the expert discovery period closed and submitted in
BHIC makes passing note of its apparent belief that Bialsky’s opinions regarding future medical
needs are “outside his areas of expertise.” (BHIC Mem. of Law at 1.) But BHIC has chosen not to
actually challenge the Bialsky Report or its contents on summary judgment. The Court will not
construe the conclusory half-sentence contained in BHIC’s opposition memorandum as a legitimate
Daubert motion.
8 BHIC has challenged the findings of Dr. Richard J. McAlister and Dr. Omowunmi Osinubi. (ECF
No. 107-5.) Neither of those findings are referenced in the Bialsky Report, nor do they appear to
have been considered by Dr. Bialsky in fashioning the relevant Life Care Plan. (See Bialsky Report
at 3-4.)
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connection with plaintiff’s motion for summary judgment—to conclude that the
Bialsky and Missun reports are admissible and uncontested. And it makes no
difference that the Bialsky Report cites recommendations made by Dr. Colon, who
was never disclosed as an expert. (See ECF No. 111-1 at 2.) Dr. Colon was one of
Rivera’s treating physicians, and the Court has considered him as a percipient
witness in this case, his most recent affidavit (which the Court has ignored in ruling
on this motion) notwithstanding.
Second, and most importantly, BHIC has introduced absolutely no
affirmative evidence to contradict any of plaintiff’s expert recommendations or
calculations. See Anderson, 477 U.S. at 256 (holding that on summary judgment,
the nonmoving party must offer “concrete evidence from which a reasonable juror
could return a verdict in [its] favor.”) Furthermore, though BHIC argues that “[t]he
jury should be permitted to hear the testimony of the plaintiff and plaintiff’s experts
and weigh their demeanor and credibility and evaluate the evidence,” BHIC has
failed to proffer even one potential trial argument (or cross-examination strategy)
that tends to contradict plaintiff’s claimed damages.9 It is not the Court’s job to
guess at what BHIC might argue at trial, or to fashion potential lines of crossexamination out of whole cloth (and speculate as to their effectiveness) just to help
BHIC defeat summary judgment. And even if the Court did so, that would not
In his affidavit dated March 30, 2018, Michael P. De Carlo argues in a conclusory fashion that
“[t]here is no medical evidence in the record to support” plaintiff’s claimed medical and related
needs. But that, of course, is incorrect. The Bialsky Report, which specifically references thirty-six
separate medical records, concluded that Rivera was likely to incur the cited medical costs over the
course of his life. BHIC has done absolutely nothing to contradict any of the recommendations made
in the Bialsky Report (or any other report introduced by plaintiff).
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change the fact that on summary judgment, a nonmoving party may not “merely
assert[] that the jury might, and legally could, disbelieve” certain evidence and/or
testimony introduced by the moving party. Anderson, 477 U.S. at 256-57.
If BHIC has specific reasons why any of plaintiff’s claimed future expenses
are inapplicable or unreasonable, it should have presented those arguments to the
Court on summary judgment. But it has not, and the Court is left with a situation
in which BHIC has: (1) failed to produce any expert or fact evidence tending to
contradict plaintiff’s claimed damages; and (2) failed to provide even a preview as to
any colorable argument that might be raised at trial or on cross-examination.
There is simply no basis for the Court to find a “genuine dispute as to any material
fact” sufficient to defeat summary judgment as to plaintiff’s asserted Life Care
Costs. Accordingly, plaintiff’s motion for summary judgment as to the Life Care
Costs (in the amount of $6,593,495.00) must be GRANTED.
Plaintiff’s asserted Surgical Costs, however, require special consideration. As
previously noted, an award of future medical expenses cannot be based on
conjecture, surmise, or speculation. See Fiederlein, 56 N.Y.2d at 574. Even though
BHIC has done nothing to contradict plaintiff’s need for cervical fusion, lumbar
fusion, or left knee replacement, plaintiff has also not done enough to demonstrate
his affirmative need for such surgeries. Here, the Surgical Costs calculated by Dr.
Bialsky are contained outside his designated Life Care Plan, and nowhere in his
report does Dr. Bialsky actually state Rivera is likely to need such surgeries (the
Life Care Plan, in contrast, was specifically “designed to meet the needs of Daniel
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Rivera through his Life Expectancy”). Further, Rivera has not directed the Court to
any other expert report stating that such surgeries are medically necessary or likely
to occur. Accordingly, Rivera’s motion for summary judgment as to the Surgical
Costs (in the excess amount of $713,776.00) must be DENIED.
The way that this case has been litigated by BHIC is, quite frankly,
mystifying. Many, if not all, of the Court’s adverse rulings thus far could have been
avoided had BHIC actually engaged in expert discovery, properly moved to exclude
plaintiff’s damages experts, or made a more serious effort to oppose plaintiff’s
various dispositive motions (particularly this one). But despite the large amount of
liability it now faces, BHIC has made the strategic decision to do none of those
things.
IV.
CONCLUSION
For the reasons stated above, the Court GRANTS plaintiff’s motion for
summary judgment at ECF No. 104 in the amount of $6,593,495.00. The Court
DENIES plaintiff’s motion for summary judgment as to the excess Surgical Costs
(in the amount of $713,776.00).
As a consequence of this Opinion & Order, the only remaining issues in this
case are: (1) whether plaintiff is entitled to recover economic damages for the
potential surgical interventions; and (2) the quantum of “pain and suffering”
damages that plaintiff is entitled to recover. On March 30, 2018, the parties
submitted a Joint Pretrial Order (“JPTO”) requesting a total of “[s]ix to seven (6-7)
12
days” for trial. (See ECF No. 113.) That exceeds the amount of time the Court has
available for a trial commencing as currently scheduled on April 9, 2018.
Given that the remaining issues in this case are relatively narrow, and given
that in any event they must be tried before a jury, the Court believes this action can
and should proceed expeditiously before Magistrate Judge Ona T. Wang.
Accordingly, the parties are directed to inform the Court whether they consent to
this Court referring trial on all remaining issues to Magistrate Judge Wang at or
before the final pretrial conference (“FPTC”) currently scheduled for Wednesday,
March 4, 2018 at 1:00 p.m. The Court would also refer decision on the pending
motions in limine at ECF Nos. 106 and 107.
If the parties do not agree to proceed before Magistrate Judge Wang, they are
directed to appear for the currently scheduled FPTC and should be prepared to
discuss revised estimates of time for witness testimony on the remaining issues.
The Clerk of Court is directed to close the motions at ECF Nos. 104 and 108.
SO ORDERED.
Dated:
New York, New York
April 3, 2018
_____________________________________
KATHERINE B. FORREST
United States District Judge
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