Memorandum of Facts and Law 6
Affirmation in Opposition, with Exhibit 7
Reply Affidavit, with Exhibit 8
Reply Memorandum of Law 9
In this claim, claimant seeks to recover damages arising from medical
malpractice and negligent medical care involving several procedures for the
surgical insertion and subsequent surgical removal of a spinal cord stimulator
at the State University of New York Health Science Center, Syracuse, New York.
Following a bifurcated trial on liability, this Court, in a Decision dated
September 26, 2001, found the State fully liable to claimant for medical
malpractice. Subsequently, this Court then scheduled a trial limited to the
issue of damages to commence on September 9, 2002.
After the trial was scheduled, claimant was apparently examined by her experts
(Dr. Kenneth W. Reagles and Christopher G. Gharibo, M.D.). A Life Care Plan was
prepared by Dr. Reagles and submitted to Daniel A. McGowan, who calculated the
costs of this plan over claimant's life expectancy. The projected future costs
of the Life Care Plan as calculated by Dr. McGowan, exceeded the amount
originally sought in this claim, and therefore claimant's counsel advised
State's counsel that an application would be made to increase the ad
The matter was then conferenced with Chambers, at which time State's counsel
advised the Court that he would need substantial time to adequately prepare the
State's defense, based upon the significant and unanticipated issues and costs
contained in claimant's supplemental disclosures. Defendant's counsel also
advised the Court that it would be necessary for the State to retain its own
experts to respond to this disclosure. Defendant also requested an additional
deposition of the claimant, as well as an interview of claimant by the State's
vocational rehabilitation expert.
Based upon the concerns raised at this conference, this Court, by letter dated
August 13, 2002, adjourned the damages trial until such time as all of the
additional discovery was completed. To date, a new date for the trial on
damages has not yet been scheduled by this Court.
With regards to the instant application, it is well settled that pursuant to
CPLR Rule 3025(b), leave to amend pleadings shall be freely given. Furthermore,
a motion to increase the ad damnum clause, whether made before or after
trial, should generally be granted if there is no prejudice to the defendant
(Loomis v Civetta Corinno Construction Corp., 54 NY2d 18, rearg
denied 55 NY2d 801). In this particular claim, the damages trial has been
adjourned by the Court, without date, in order to ensure that defendant be given
a full and fair opportunity to review the supplemental disclosure provided by
claimant, to complete additional discovery (including a supplemental deposition
of claimant), and to give defendant's experts ample time to prepare their own
reports for trial. It is the opinion of this Court that any potential prejudice
to the defendant in the defense of this claim has been eliminated by the
adjournment of the damages trial.
Furthermore, and although it is stating the obvious, regardless of the amount
claimed, claimant still has the burden to establish her entitlement to these
damages at trial.
For all of the above reasons, it is hereby
ORDERED, that Motion No. M-65742 is hereby GRANTED; and it is further
ORDERED, that claimant's application to increase the ad damnum clause of
Claim No. 95825 to four million, five hundred thousand dollars ($4,500,000.00)
is hereby granted.