Letter,Correspondence: xxxxxx xxxxxxxx, xxxxx xxxxxxxx v. Ronald J Tadeo, Richard Pitch, Scott Berlin, Shore Psychiatric Center, Family Psychology Of Long Island, Berlin Obgyn Associates, Janssen Pharmaceuticals, Inc. K/N/A Ortho-Mcneil-Janssen Pharmaceuticals, Inc., Zydus Pharmaceuticals Usa, Inc.

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                                MARTIN CLEARWATER & BELL                                   LLP

                                                COUNSELORS AT LAW
                                  90 MERRICK AVENUE, SUITE 401, EAST MEADOW, NY 11554
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                                                                                                NEW YORK, NY

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                                                                                                WHITE PLAINS, NY
 ANINA H. MONTE
                                                                                                ROSELAND, NJ
 PARTNER
                                                                                                ROCHESTER, NY
 DIRECT DIAL: (516) 712-3141                                                                    STAMFORD, CT
 E-MAIL: anina.monte@mcblaw.com




                                                               June 13, 2023
Via NYSCEF
Hon. C. Stephen Hackeling
Justice of the Supreme Court, IAS Part 12
Suffolk County Supreme Court
One Court Street
Riverhead, New York 11901

            Re:      xxxxxxxx, xxxxxx V. RONALD J. TADEO, M.D., ET AL.
                     Index No.     026910/2012
                     MCB File No.  00033-087918

Dear Honorable Justice Hackeling:

        As Your Honor is aware our office represents the interests of the defendants, Ronald J.
Taddeo, M.D. s/h/a Ronald J. Tadeo, M.D. and Shore Psychiatric Center, in the above-referenced
matter.

        I write to advise the Court of an objection I will be placing on the record prior to the closing
arguments in this case. It is my intention to raise this objection based upon what I believe Mr.
xxxxxxx will assert is proper and just compensation for the damages in this case. This letter and
objection is based upon the representations made by Mr. xxxxxxx during our in camera discussions
on this case, in addition to comments made during voir dire. I have a good faith basis to believe
that in his closing argument Mr. xxxxxxx will refer to improper anchoring and a suggestion of a
jury award that is far greater than the sustainable amount for the alleged damage of cleft lip and
cleft palate.

       As the Court is aware, noneconomic damages are highly subjective and inherently
unpredictable. There is no standard measurement of pain and suffering or “even a conception of
those damages or what they represent.” Dan B. Dobbs, Law of Remedies 8.1(4), at 383 (2d ed.
1993). Consequently, juries can be significantly influenced by a figure given to them by plaintiffs’
counsel. In the late 1950s and 1960s, plaintiffs’ lawyers began employing this controversial,
though now ubiquitous, practice, routinely asking jurors to award an extraordinary amount for pain
and suffering. See, xxxxxx H. King, Jr., Counting Angles and Weighing Anchors: Per Diem
Arguments for Noneconomic Personal Injury Tort Damages, 71 Tenn. L. Rev. 1, 13 (2003). An
“anchor” provided by plaintiffs’ counsel establishes an arbitrary, but psychologically powerful

AHM/le
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baseline for jurors struggling with assigning a monetary value to pain and suffering. See, Id. at 37-
40.

        Jurors may accept the suggested amount or “compromise” by negotiating it upward or
downward. While any category of damages can be influenced by anchoring, the practice has the
greatest impact with respect to noneconomic damages, since pain and suffering is the least
susceptible to quantification. See, Don Rushing, et al., Anchors Away: Attacking Dollar
Suggestions for Non-Economic Damages in Closings, Def. Counsel J. 378, 381 (July 2013).

        New York has experienced an upward trend in pain and suffering awards as a result of
anchoring tactics. See, Timothy R. Capowski & John F. Watkins, CPLR §5501(c) Review in the
Age of Summation ‘Anchoring’ Abuse, N.Y.L.J., June 26, 2019. However, urging juries to return
extraordinary sums for pain and suffering is improper because these damages are intended to
“restore the injured party, to the extent possible, to the position that would have been occupied had
the wrong not occurred.” McDougald v. Garber, 73 N.Y.2d 246, 253-54 (1989) (citation omitted).
As the Court of Appeals has recognized, awards for pain and suffering rest on “the legal fiction
that money damages can compensate for a victim’s injury.” Id. at 254 (quoting, Howard v. Lecher,
42 N.Y.2d 109, 111 (1977)). Courts know that money cannot replace a lost limb or remove a
disability, but award damages “in [an] effort to right the wrong.” Id.

        The purpose of the award of damages is to “compensate the victim, not to punish the
wrongdoer.” Id. The Court of Appeals’ “willingness to indulge this fiction comes to an end,
however, when [an award for noneconomic loss] ceases to serve the compensatory goals of tort
recovery.” Id. Valuing pain and suffering by the amount that a juror would accept to trade places
with the plaintiff is one measure long recognized as excessive. See, e.g., Liosi v. Vaccaro, 35
A.D.2d 790 (1st Dep’t 1970). Moreover, any award that is intended to punish a tortfeasor for his
or her conduct or deter similar actions in the future ceases to be compensatory. See, Sharapata v.
Islip, 56 N.Y.2d 332, 335 (1982). Punitive damages are warranted only for “wrongful conduct that
goes beyond mere negligence.” Chauca v. Abraham, 30 N.Y.3d 325, 331-32 (2017). Such damages
are rightly subject to substantive and procedural constitutional safeguards. See, e.g., BMW of N.
Am., Inc. v. Gore, 517 U.S. 559, 575-83 (1996) (providing constitutional guideposts for evaluating
whether a punitive damage award is excessive); See also, Victor E. Schwartz & Leah Lorber,
Twisting the Purpose of Pain and Suffering Awards: Turning Compensation Into “Punishment,”
54 S.C. L. Rev. 47, 49 (2002) (predicting that without proper oversight by courts, plaintiffs’
counsel will use pain and suffering awards to punish a defendant without the safeguards applicable
to punitive damage awards).

        CPLR §4016 permits an attorney to suggest that the jury award a particular amount of
compensation. However, requesting an amount that cannot possibly be sustained under CPLR
§5501(c) as “reasonable compensation” is improper and unduly prejudicial. In the face of the
1980s financial crisis that led to spiraling insurance premiums, Mario Cuomo’s “Governor’s
Advisory Commission,” chaired by former Court of Appeals Judge Hugh Jones, drafted a report
of recommendations and observations that ultimately led to the enactment of CPLR §5501(c). The
Jones Commission recognized that jurors are inclined to award ever-higher amounts to compensate
for a person’s pain and suffering: [a]ll of us are moved by the pain and anxiety that most people
who suffer more than minor injuries go through. Our natural tendency is to want to help. Inasmuch
as there is no objective way to value these harms, our inclination is to err on the high side. Over


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time, this tendency gathers its own momentum, a momentum which has no natural curbing force.
Particularly in an era where the existence of insurance is commonly assumed, so that the defendant
is not expected to bear most of the loss, the urge to provide the most assistance possible becomes
nearly irresistible. Donlon v. City of New York, 284 A.D.2d 13, 15 (1st Dep’t 2001) (quoting, Hugh
R. Jones, Insuring Our Future—Report of the Governor’s Advisory Commission on Liability
Insurance, Apr. 7, 1986, at 85).

         As the Court of Appeals recently noted, the Jones Commission found that the expansion of
tort liability in New York State led to insurance prices that businesses could not afford, and that
courts had been blind to “the health of the risk-spreading mechanism that American society . . .
developed to assure that compensation is in fact available for those who are entitled to receive it.”
Artibee v. Home Place Corp., 28 N.Y.3d 739, 751 (2017) (quoting Insuring Our Future at128).
The Commission observed that ‘the ends of justice are subverted when insurance is unavailable at
an affordable price.” Id. (quoting Insuring Our Future at 128). While the $250,000 “hard cap” on
noneconomic damages proposed by the Jones Commission was not adopted, the legislative
compromise that followed was the rejection of the deferential common law “shocks the
conscience” standard and the enactment of CPLR §5501(c). The replacement—that “deviates
materially” formulation—was specifically enacted to stop the upward spiral of awards by
“tightening the range of tolerable awards.” Donlon, 284 A.D.2d at 16 (quoting, Gasperini v. Center
for Humanities, 518 U.S. 415, 425 (1996)).

        CPLR §5501(c) sought to decrease uncertainty as to the value of injuries and increase
fairness to similarly situated plaintiffs and defendants, and to facilitate settlements and reduce the
strain on judicial resources. See, Gasperini, 518 U.S. at 423-25; Consorti v. Armstrong World
Industries, Inc., 72 F.3d 1003, 1009-10, 1013 and n.10, 1014-16 (2d Cir. 1995), vacated on other
grounds, 518 U.S. 1031 (1996).

        Those objectives are not served when plaintiffs’ counsel, with increasing frequency, urge
juries to award amounts for pain and suffering that are well beyond the permissible range of
“reasonable compensation” established by the appellate courts of New York pursuant to CPLR
§5501(c). As no objective formula assigning a monetary value to pain and suffering exists,
achieving an evenhanded, fair, and predictable system requires courts to use their authority under
CPLR §5501(c) to “exercise responsibility to keep jury awards within limit.” Consorti, 72 F.3d at
1009. Alternatively, “[w]hen courts fail to exercise the responsibility to curb excessive verdicts,
the effects are uncertainty and an upward spiral. One excessive verdict, permitted to stand,
becomes precedent for another still larger one.” Id. at 1010.

        Accordingly, it is respectfully requested that the Court apply the standard of CPLR
§5501(c) to constrain abusive anchoring tactics and to address the subjective, unpredictable nature
of pain and suffering awards. In New York, CPLR §5501(c) provides courts with the primary
means for keeping pain and suffering awards in a predictable and fair range. The Court should
apply the approach set forth in that law to preclude the plaintiff’s attorney in this case from
suggesting that the jury award an artificially high amount for pain and suffering, which is well
outside the range established by New York Courts in medical malpractice cases. Mr. xxxxxxx has
indicated he will base his jury demand upon the Topamax litigation and the awards issued therein.
That litigation was not in New York and not a medical malpractice, but rather a Pharmaceutical



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case, which, while it involved the same drug at issue, demonstrated a far different set of
circumstances, standard of law, and factual scenario.

        When plaintiffs’ attorneys suggest amounts never before sustained as “reasonable” in New
York courts, they mislead jurors. Worse, defense counsel has no way of rebutting this, and cannot
even present the jury with the sustainable range based on case law, which is (a) not evidence before
the jury; and (b) a legal, not factual, argument, and thus not properly presented to a jury in any
event. The result is a paradox: plaintiffs’ counsel is free to suggest any number to the jury, as long
as that number is not specifically tied to any precedent. This undermines the goals of CPLR
§5501(c), which sought to arrest the upward spiral of pain and suffering awards by tethering them
to precedent.

        To be clear, on behalf of the defense I am not asking the court to issue a blanket ruling
preventing counsel from making a suggestion to the jury for pain and suffering, as this is expressly
authorized by CPLR §4016(b). Rather, I am suggesting that the Court constrain anchoring tactics
via the key language of CPLR §4016(b)—which only permits suggesting a level that constitutes
“appropriate compensation” to a jury, not a wildly inflated amount that cannot be sustained on
appeal. In addition, “appropriate compensation” for pain and suffering must be consistent with
CPLR §5501(c), which indicates that an award will not be sustained if it “deviates materially from
what would be reasonable compensation” based on a comparative approach to analogous cases.

            I thank you for your consideration herein.

                                                         Very truly yours,

                                                         MARTIN CLEARWATER & BELL LLP



                                                         Anina H. Monte
CC:         All Parties Via NYSCEF




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