Rivera v. Home Depot U.S.A, Inc.

          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) - ...