United States District Court, S.D. New York
OPINION & ORDER
KATHERINE B. FORREST, DISTRICT JUDGE.
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.
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 plaintiffs
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.”
• 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 plaintiffs 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.
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 costs
[5] 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) -
...