MILANO BY MILANO v. Freed

• Decision Date: 19 June 1991
• Docket Number: No. CV-90-4298 (ADS).,CV-90-4298 (ADS).
• Citation: 767 F. Supp. 450
• Parties: Michael Christopher MILANO, an infant, by his parents and natural guardians, Christopher MILANO and Jeanne Milano, and Christopher Milano and Jeanne Milano, individually, Plaintiffs, v. Jay A. FREED, Marvin A. Lieber, Arnold W. Scherz, Mitchell Kleinberg and Stephanie Citerman, individually and doing business as Freed, Lieber, Scherz, Kleinberg and Citerman, a partnership, Richard Silvergleid, Manhasset Diagnostic Imaging, P.C. and Alan D. Rosenthal, Defendants.
• Court: U.S. District Court — Eastern District of New York

767 F. Supp. 450

Michael Christopher MILANO, an infant, by his parents and natural guardians, Christopher MILANO and Jeanne Milano, and Christopher Milano and Jeanne Milano, individually, Plaintiffs, v. Jay A. FREED, Marvin A. Lieber, Arnold W. Scherz, Mitchell Kleinberg and Stephanie Citerman, individually and doing business as Freed, Lieber, Scherz, Kleinberg and Citerman, a partnership, Richard Silvergleid, Manhasset Diagnostic Imaging, P.C. and Alan D. Rosenthal, Defendants.

No. CV-90-4298 (ADS).

United States District Court, E.D. New York.

June 19, 1991.

Kramer & Kramer, New York City by Edward C. Kramer, for plaintiffs.

Rossano, Mose, Hirschhorn & Corleto, P.C., Garden City, N.Y. by Gregory J. Volpe, for defendants Richard Silvergleid and Manhasset Diagnostic Imaging, P.C.

Bower & Gardner, New York City by Henry Z. Schaub, for defendant Alan D. Rosenthal.

Heidell, Pittoni, Murphy & Bach, P.C., New York City by Bruce F. Gilpatrick, for defendants Jay A. Freed, Marvin A. Lieber, Arnold W. Scherz, Mitchell Kleinberg, Stephanie Citerman and Freed, Lieber, Scherz, Kleinberg & Citerman.

MEMORANDUM AND ORDER

SPATT, District Judge.

This medical malpractice action, filed in the United States District Court on the basis of diversity of citizenship, raises the issue of whether the plaintiff is bound by a New York State law, enacted in 1976 in response to the perceived crisis in the insurance industry, which precludes pleading a specific monetary amount of damages in a complaint in a medical malpractice action.

I. BACKGROUND

The plaintiffs allege that the defendants' untimely diagnosis of neuroblastoma caused plaintiff Michael Christopher Milano, at the time less than six months old, to become paralyzed and unable to use his bladder without a catheter.

The complaint was filed in the United States District Court on December 13, 1990. Subject matter jurisdiction was based on diversity of citizenship (see 28 U.S.C. § 1332). The complaint alleges three causes of action: (1) a malpractice cause on behalf of infant Michael Christopher Milano; (2) lack of informed consent; and (3) the parents' cause for loss of services and medical expenses. The first and second claims seek recovery of $20,000,000 each; the third claim seeks $7,000,000.

Defendants Richard Silvergleid and Manhasset Diagnostic Imaging, P.C. (the "defendants") move (1) to strike "the plaintiffs' Complaint as defective in that it contains a specific prayer for monetary relief in derogation of New York Civil Court rules Section 3017"; and (2) to strike the plaintiff's third cause of action because it is untimely.

II. THE MOTION TO STRIKE THE COMPLAINT

The defendants move to strike the ad damnum clause in the complaint on the basis of N.Y. CPLR § 3017(c), which provides in relevant part as follows:

"in an action for medical or dental malpractice ..., the complaint, counterclaim, cross-claim, interpleader complaint, and third party complaint shall contain a prayer for general relief but shall not state the amount of damages to which the pleader deems himself entitled. If the action is brought in the supreme court, the pleading shall also state whether or not the amount of damages sought exceeds the jurisdictional limits of all lower courts which would otherwise have jurisdiction."

In contrast to CPLR § 3017(c), Rule 8 of the Federal Rules of Civil Procedure provides as follows:

"(a) Claims for Relief. A pleading which sets forth a claim for relief, whether an original claim, counterclaim, crossclaim, or third party claim, shall contain (1) a short and plain statement of the grounds upon which the court's jurisdiction depends, unless the court already has jurisdiction and the claim needs no new grounds of jurisdiction to support it, (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for judgment for the relief the pleader seeks. Relief in the alternative or of several different types may be demanded." (Fed.R.Civ.P. 8 Emphasis supplied.)

"In diversity cases, federal procedural rules apply where they `cover the point in dispute,' Hanna v. Plumer, 380 U.S. 460, 470, 85 S.Ct. 1136, 1143, 14 L.Ed.2d 8 (1965), at least where no conflicting state rule `would substantially affect ... primary decisions respecting human conduct,' id. at 475, 85 S.Ct. at 1146 (Harlan, J., concurring), and perhaps where no such state rule serves important state interests, Byrd v. Blue Ridge Cooperative, Inc., 356 U.S. 525, 536-40, 78 S.Ct. 893, 900-02, 2 L.Ed.2d 953 (1958)." (Simpson v. Pittsburgh Corning Corp., 901 F.2d 277, 283 2d Cir.1990 emphasis supplied, cert. dismissed, ___ U.S. ___, 111 S.Ct. 27, 111 L.Ed.2d 840 1990; see also Morse v. Elmira Country Club, 752 F.2d 35, 38-39 2d Cir.1984 since there is a specific federal rule governing service of process, the federal rule applies in a diversity case, irrespective of whether or not it comports with state law; Cargill, Inc. v. Sabine Trading & Shipping Co., Inc., 756 F.2d 224, 229 2d Cir.1985 "Where there is no contrary federal rule, it is appropriate to apply state procedure in diversity cases".)

In the Court's view, pleading the amount of damages in an ad damnum clause in a medical malpractice action brought in the federal court is a procedural matter governed by Fed.R.Civ.P. 8.

The requirements for pleading the amount of damages is procedural (cf. Stern v. General Electric Co., 924 F.2d 472, 476 n. 6 2d Cir.1991 "Although the requirement that a shareholder derivative plaintiff allege fraud or bad faith is a matter of state law, the Federal Rules of Civil Procedure govern the degree of particularity with which such an allegation must be made in a federal complaint"); the mere contents of the ad damnum clause neither affects "primary decisions respecting human conduct" (Hanna v. Plumer, 380 U.S. 460, 475, 85 S.Ct. 1136, 1146, 14 L.Ed.2d 8 1965 Harlan, J., concurring), nor causes forum shopping or the inequitable administration of justice. (Compare Alisandrelli v. Kenwood, 724 F.Supp. 235, 242 S.D.N. Y.1989 plaintiff moved in limine for an order that any judgment he recovers for damages in excess of $250,000 not be "structured" pursuant to N.Y. CPLR Article 50-B; court noted that no Federal Rule of Civil Procedure required the entry of a lump sum (as opposed to a structured) judgment, and held that "because failure to apply the state statute would substantially affect the enforcement of a state right, invite forum shopping and the inequitable administration of the law, and undercut the strong state interest in moderating insurance premiums while assuring fair and adequate compensation to injured persons, the state law will be applied".)

Moreover, while the significance of whether or not a state procedural rule is "outcome determinative" has been "substantially eroded" by the Hanna v. Plumer decision—since "`it is difficult to conceive of any rule of procedure that cannot have a significant effect on the outcome of a case'" (Hansen v. Harris, 619 F.2d 942, 962 n. 8 2d Cir.1980 quoting C. Wright, Handbook of the Law of Federal Courts 273 1976, reversed on other grounds, 450 U.S. 785, 101 S.Ct. 1468, 67 L.Ed.2d 685 1981; see also Hanna v. Plumer, supra, 380 U.S. at 475, 85 S.Ct. at 1146 Harlan, J., concurring)—the Court nonetheless finds that the ad damnum clause is not "outcome determinative." An important result of CPLR § 3017(c) is the effect it has on the summation of plaintiff's counsel —that is, the permissible scope of plaintiff's counsel's remarks to the jury concerning monetary damages. In this regard, the Court notes that there is a divergence of view as to the effect of CPLR § 3017(c). (Compare Braun v. Ahmed, 127 A.D.2d 418, 515 N.Y.S.2d 473, 478 2d Dept.1987 "we conclude that counsel in a medical malpractice action may argue a lump-sum figure based upon the evidence. Counsel is, however, circumscribed by the pleadings and may not argue a figure which cannot be considered reasonable" with Garcia v. City of New York, 569 N.Y.S.2d 27, 28 1st Dept.1991 "Here the trial court adopted the more liberal approach of permitting plaintiff to suggest a reasonable figure to the jury, but correctly denied the right to make any reference to the level of damages demanded in the pleadings, in contravention of CPLR 3017(c)" and Bagailuk v. Weiss, 110 A.D.2d 284, 494 N.Y.S.2d 205, 206 3rd Dept.1985 it was "highly improper" for plaintiff's counsel to suggest to jury during summation "several large specific sums of money as awards for pain and suffering" and damages for annual lost earnings). The New York Court of Appeals has yet to resolve this issue. (See McDougald v. Garber, 73 N.Y.2d 246, 538 N.Y.S.2d 937, 942 n. *, 536 N.E.2d 372, 377 n. * 1989).

Similarly, while the Second Circuit recently stated that "perhaps" a state rule serving an important state interest could override a federal rule of procedure, the state interest in enacting CPLR § 3017 would not be emasculated by allowing Fed. R.Civ.P. 8 to govern the pleadings in a diversity action. (See Bechard v. Eisinger, 105 A.D.2d 939, 481 N.Y.S.2d 906, 908 3rd Dept.1984 "the purpose of this stricture is, in part, to curb the effect of exaggerated demands for damages which could be read to the jury and thereby bias them towards making excessive awards"; but see Braun v. Ahmed, supra, 515 N.Y.S.2d at 479 CPLR § 3017(c) was intended solely "to reduce publicity concerning exaggerated ad damnum demands".)

In Horn v. The Greenwood Rehabilitation Center, Inc., (Allfeds Library) 1984 WL 531 (S.D.N.Y.1984), Judge Haight addressed the effect of CPLR § 3017(c) in a diversity action, and found that CPLR § 3017(c) was a rule of procedure, inapplicable in a federal diversity action. He held as follows:

"Defendant Chu's fourth affirmative defense states `the Complaint violates § 3017(c) of the CPLR.' Section 3017(c) requires that complaints in medical malpractice actions not state the specific amount of damages requested.

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