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L.G. v. Mogen Circumcision Instruments

June 25, 2010

L.G., A MINOR, BY AND THROUGH HIS PARENTS AND NEXT FRIENDS, DROR GERGES AND SIVAN GERGES; DROR GERGES, INDIVIDUALLY, FATHER OF L.G., A MINOR; AND SIVAN GERGES, INDIVIDUALLY, MOTHER OF L.G., A MINOR, PLAINTIFFS,
v.
MOGEN CIRCUMCISION INSTRUMENTS, LTD., DEFENDANT.



The opinion of the court was delivered by: Marilyn D. GO United States Magistrate Judge

REPORT AND RECOMMENDATION

GO, United States Magistrate Judge

Plaintiffs Dror Gerges and Sivan Gerges bring this product liability action on behalf of themselves and their infant son. The Honorable Jack B. Weinstein granted plaintiffs' motion for entry of default judgment and referred the motion to me to report and recommend on the issue of damages. See ct. doc. 19.

FACTUAL BACKGROUND

Plaintiffs commenced this action against defendants Mogen Circumcision Instruments, Ltd. ("Mogen") and Daniel J. Krimsky on October 30, 2006. See Complaint ("Compl.") (ct. doc. 1). Plaintiffs subsequently settled their claims against Mr. Krimsky. Mogen failed to file an answer or otherwise appear.

On December 16, 2004, defendant Krimsky performed a Jewish ritual circumcision on plaintiff L.G., an eight day old male infant, using a Mogen clamp, designed, manufactured, distributed and sold by defendant Mogen. See Compl. at ¶¶ 3, 8. During the circumcision, a significant portion of L.G.'s glans penis was severed. Id. at ¶ 9.

L.G. was taken to the emergency room at West Boca Medical Center, Boca Raton, Florida and examined by Dr. Charles E. Flack, M.D., a pediatric urologist. Declaration of Charles E. Flack, M.D. dated June 19, 2008 (ct. doc. 31) at ¶ 3. Dr. Flack found that all of L.G.'s penile shaft skin was missing and the glans penis was completely severed. Id. He concluded that the glans had been pulled into the jaws of the clamp during the circumcision resulting in the amputation. Id. Under general anesthesia, Dr. Flack re-covered the shaft with the skin remaining in the specimen and re-anastomosed the glans penis using a micro-surgical technique. Id. at ¶ 4. However, the operation was not a complete success. Id. at ¶ 5. Over the next two weeks, part of the glans became necrotic and black. Id. Dr. Flack removed the necrotic tissue, including much of the skin on the shaft. Id. As a result, L.G. no longer has a glans penis. Id. at ¶ 6. Dr. Flack anticipates that when L.G. is older, he may need to release the penile shaft skin and perform a skin graft in order for L.G. to have the best penile function possible under the circumstances. Id. Although Dr. Flack projects that L.G. will be able to have sexual intercourse and reproduce, the sexual experience will not be the same as if he had a glans penis. Id.

Dr. Joseph Shrand, a child and adolescent psychiatrist, opines that L.G. is "greatly at risk for both internalizing and externalizing psychiatric disorders." Declaration of Joseph Shrand, M.D. dated May 29, 2008 ("Strand Decl.") (ct. doc. 28) at ¶ 2; Psychiatric Consultation Report at 4 (attached to Strand Decl.) Such internalizing disorders include chronic depression and anxiety disorders which could result in phobic avoidance of society, severe depression and risk of suicide. Psychiatric Consultation Report at 4. He could also manifest externalizing disorders causing him to become angry and aggressive. Id. Throughout his development, L.G. and his parents will require psychiatric counseling. Id.

The instructional brochure accompanying each Mogen clamp states that there is "NO injury to glans possible, because of beveled under edge and narrow aperture." Compl. at ¶ 25; Pls.' Sec. Supp. Mem., Exh. A (ct. doc. 34). However, by the end of 1996, at least three cases of glanular amputation using the Mogen clamp had been reported in the medical literature. In 1996, an article in the journal Pediatrics stated that one physician had reported a case of glanular amputation using the Mogen clamp and that "[t]he company producing this clamp refused to accept a report of this occurrence or reveal whether they had knowledge of similar occurrences." See Strimling, B.S., "Partial Amputation of Glans Penis During Mogen Clamp Circumcision," 97 Pediatrics 906-07 (1996) (attached to Pls.' Sec. Supp. Mem. as Exh. B). Another article published in 1996 reported a number of glanular reattachments following circumcisions, including one in which the Mogen clamp was used. See Sherman, J., et al., "Circumcision: Successful Glanular Reconstructions and Survival Following Traumatic Amputation,", 156 The Journal of Urology, 842-44 (August 1996) (attached to Pls.' Sec. Supp. Mem. as Exh. C). A third article published in 1996 noted that "[a] few cases of inadvertent partial glans amputation during Mogen circumcision have been reported." Reynolds, R.D., "Use of the Mogen Clamp for Neonatal Circumcision, 54 American Family Physician 177-182 (1996) (attached to Pls.' Sec. Supp. Mem. as Exh. D).

On August 29, 2000, the United States Food and Drug Administration issued a warning concerning the potential for injury from use of the Mogen clamp. See "Potential Injury from Circumcision Clamps," U.S. Food and Drug Administration, Rockville, MD 20857, Aug. 29, 2000 (attached to Sec. Supp. Mem. as Exh. E). The notice stated that "the clamp may allow too much tissue to be drawn through the opening of the device, thus facilitating the removal of an excessive amount of foreskin and in some cases, a portion of the glans penis."

DISCUSSION

I. Legal Standards Governing Default

A default constitutes an admission of all well-pleaded factual allegations in the complaint, except for those relating to damages. Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992); Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir. 1981). A default also effectively constitutes an admission that damages were proximately caused by the defaulting party's conduct: that is, the acts pleaded in a complaint violated the laws upon which a claim is based and caused injuries as alleged. Greyhound, 973 F.2d at 159. The movant need prove "only that the compensation sought relate to the damages that naturally flow from the injuries pleaded." Id.

The court must ensure that there is a reasonable basis for the damages specified in a default judgment. In determining damages not susceptible to simple mathematical calculation, Fed. R. Civ. P. 55(b)(2) gives a court the discretion to determine whether an evidentiary hearing is necessary or whether to rely on detailed affidavits or documentary evidence. Action S.A. v. Marc Rich and Co., Inc., 951 F.2d 504, 508 (2d Cir. 1991) (quoting Fustok v. Conticommodity Serv, Inc., 873 F.2d 38, 40 (2d Cir. 1989)). The moving party is entitled to all ...


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