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Brown v. State

New York State Court of Claims
Jan 2, 2015
# 2014-009-104 (N.Y. Ct. Cl. Jan. 2, 2015)

Opinion

# 2014-009-104 Claim No. 108961

01-02-2015

LINDA M. BROWN as Administratrix of the Estate of WAYNE BROWN v. THE STATE OF NEW YORK

LaDUCA LAW FIRM, LLP BY: Anthony J. LaDuca, Esq., Of Counsel. THE PALMIERE LAW FIRM BY: Norman Andrew Palmiere, Esq., Of Counsel. HON. ERIC T. SCHNEIDERMAN Attorney General BY: Edward F. McArdle, Esq., Assistant Attorney General, Of Counsel.


Synopsis

The court awarded damages in the amount of $3,085,955.50 in claim No. 108961 and $3.963.292.00 in claim No. 110037.

Case information

UID:

2014-009-104

Claimant(s):

LINDA M. BROWN as Administratrix of the Estate of WAYNE BROWN

Claimant short name:

BROWN

Footnote (claimant name) :

Defendant(s):

THE STATE OF NEW YORK

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

108961

Motion number(s):

Cross-motion number(s):

Judge:

NICHOLAS V. MIDEY JR.

Claimant's attorney:

LaDUCA LAW FIRM, LLP BY: Anthony J. LaDuca, Esq., Of Counsel. THE PALMIERE LAW FIRM BY: Norman Andrew Palmiere, Esq., Of Counsel.

Defendant's attorney:

HON. ERIC T. SCHNEIDERMAN Attorney General BY: Edward F. McArdle, Esq., Assistant Attorney General, Of Counsel.

Third-party defendant's attorney:

Signature date:

January 2, 2015

City:

Syracuse

Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

2014-009-105


Decision

In a Decision dated October 3, 2011, this Court directed the entry of an Interlocutory Judgment holding the defendant 100% liable for the injuries and wrongful death of Wayne Brown (claim No. 108961) as well as the personal injuries suffered by Linda M. Brown (claim No. 110037) in a motor vehicle accident which occurred on April 27, 2003 at the intersection of New York State Route 350 and Paddy Lane in the Town of Ontario, Wayne County. The damages phase of these two claims (previously consolidated for purposes of discovery and trial) has now been conducted.

Linda M. Brown as Administratrix of the Estate of Wayne Brown v State of New York, claim No. 108961, UID No. 2011-009-112, Linda M. Brown v State of New York, claim No. 110037, UID No. 2011-009-113, Ct Cl, Midey, J., October 3, 2011. The Decision followed a determination by the Appellate Division, Fourth Department, that modified a prior judgment of this Court, remitting both claims for a determination as to the issue of proximate cause (79 AD3d 1579). Unpublished decisions and selected orders of the Court of Claims are available via the Internet at http://www.nyscourtofclaims.state.ny.us.

At this trial, claimant Linda M. Brown presented her own testimony, as well as the testimony of certain first responders to the accident, her daughter Melissa Brown, and John Gorczyca, M.D., her treating orthopedic physician. Voluminous medical records and numerous photographs were also received into evidence, along with transcripts of the deposition testimony of Joseph L. Carbone, M.D. (Exhibit 67) and Frank R. LaMar, Jr., D.D.S. (Exhibit 68), other treating physicians of claimant, and that of Keith Cologgi, a first responder (Exhibit 72). In addition, claimant presented the testimony of William C. Blanchfield, Ph.D., whose report was received into evidence (Exhibit 20). Finally, claimant also presented the testimony of Kenneth W. Reagles, a specialist in vocational rehabilitation and lifecare planning, whose lifecare plan for claimant was also received into evidence (Exhibit 76).

Unless otherwise specified, all references to "claimant" throughout this decision are to Linda M. Brown.

Defendant presented the testimony of Daniel G. DiChristina, M.D., who conducted an independent medical examination of claimant, and his report was received into evidence (Exhibit B).

The essential facts regarding this accident have previously been set forth in this Court's initial Decision on liability (see Footnote #1). This accident occurred when Wayne Brown (hereinafter referred to as "decedent"), who was operating a motorcycle with his wife, Linda M. Brown as a passenger, collided with a pickup truck, operated by one Henry S. Friend, at the intersection of Route 350 and Paddy Lane. Decedent died approximately one hour after the accident from injuries suffered in the accident, while claimant survived after suffering life-threatening injuries which required lengthy hospitalization, multiple surgeries, and intense rehabilitation.

In decedent's claim (claim No. 108961), claimant seeks damages for her husband's conscious pain and suffering and pre-impact terror, as well as asserting claims under wrongful death for lost wages, loss of household services, and loss of guidance, nurture and training for his children. In her individual claim (claim No. 110037), claimant seeks damages for past and future pain and suffering, future medical expenses, past and future lost wages, and the loss of her ability to perform household services.

Each of these claims, and the items of damages sought in each claim, will be addressed separately.

CLAIM NO. 108961

DECEDENT'S CONSCIOUS PAIN AND SUFFERING, including pre-impact terror and contemporaneous awareness of wife's injuries.

As previously stated, decedent was operating his motorcycle, with his wife as a passenger, on State Route 350 in the Town of Ontario when he collided with a pickup truck traveling east on Paddy Lane which had failed to yield the right of way. The police report (Exhibit 9) and the accident reconstruction report (Exhibit 10) prepared by Wayne County Sergeant Stephen Sklenar established that decedent had applied his brakes in an attempt to avoid the collision, and that the motorcycle had left approximately 50 feet of skid marks prior to its impact with the pickup truck. Sergeant Sklenar had noted in his accident reconstruction report (Exhibit 10) that tire and scrape marks on the pavement had come from decedent's motorcycle, and that the marks were "consistent with the motorcycle operator anticipating the pickup truck's actions and applying a rear brake to avoid the collision" (Exhibit 10, page 4). This evidence establishes, to the satisfaction of the Court, that decedent saw the pickup truck prior to the collision, that he took steps in an attempt to avoid the collision by applying his brake, and that as a result, he experienced several seconds of pre-impact terror, upon realizing that he and his wife would be unable to avoid a serious and life-threatening collision. Pre-impact terror is a compensable component of decedent's pain and suffering prior to his death, and therefore will be considered by this Court in determining reasonable compensation (Lang v Bouju, 245 AD2d 1000 [3d Dept 1997]).

Testimony from first responders also established that decedent, although suffering from severe injuries, was conscious immediately after the accident.

Dawn Heintzelman, an off-duty emergency medical technician, happened upon the accident shortly after it occurred. She believes that she was the first person on the scene with any emergency medical training. She observed that decedent had obvious injuries to his legs, hands, and torso, but that he was trying to move so she attended to him. She testified that during the course of the next five to ten minutes, decedent repeatedly inquired about his wife, and that he tried to move and turn his head in attempts to locate her. Ms. Heintzelman testified that she was on the scene and with decedent for approximately 15 to 20 minutes before other emergency personnel arrived.

As previously stated, a transcript of the deposition testimony of Keith Cologgi was received into evidence (Exhibit 72). Mr. Cologgi was a volunteer at the Lincoln Fire Department and he responded to the emergency call. He testified that after arriving at the scene, and although he could not identify it as that of decedent, he heard a man's voice say "don't worry about me, take care of my wife" two or three times within several minutes of each other. He believed that these words came from one of the accident victims, although he was unable to identify that voice as that of decedent.

Joan Stark, a paramedic who responded to the accident as a volunteer with the Ontario Volunteer Emergency Squad, also testified at trial. She testified that when she arrived at the accident scene, approximately 10 minutes after receiving the emergency call, she observed decedent to be conscious and talking, and at times shouting. Ms. Stark testified that she first attended to claimant, since she was unconscious, and appeared to be more seriously injured than decedent. Ms. Stark testified that after claimant was placed with Mercy Flight, she then attended to decedent, who then was being placed into an ambulance. She testified that the ambulance left the scene immediately after she got into the vehicle, approximately 45 minutes after the accident had occurred. She testified that she remained with decedent in the ambulance for the approximate 15 minute ride to Rochester General Hospital. Ms. Stark testified that initially, decedent was conscious and able to respond to questions, even though he had suffered numerous injuries including massive chest trauma, fractured ribs, facial injuries, a fractured pelvis, and severe bleeding and bruising.

Ms. Stark testified that during the ambulance ride to the hospital, she checked decedent's vital signs on three different occasions approximately five minutes apart. When they left the accident scene, she stated that decedent was conscious and that his vital signs were normal for the first ten minutes or so of the ride. She testified that decedent was conscious until they were approximately five to seven minutes away from the hospital, when his condition rapidly deteriorated and decedent became unresponsive. As they entered the hospital, decedent went into full cardiac arrest, approximately one hour after the time of the accident.

The testimony from these first responders, together with decedent's medical records from Rochester General Hospital (Exhibit 2) and the report of the Monroe County Coroner (Exhibit 4) all establish to the satisfaction of this Court that decedent suffered multiple severe injuries in this accident, and that he was conscious and in extreme pain and suffering for approximately one hour after the accident, until he succumbed to these injuries. The testimony from the first responders establish that decedent was in extreme pain, but that he was also aware and concerned about the condition of his wife, and that he was aware that she had been severely injured in this accident.

Accordingly, based upon the testimony and the exhibits referred to herein, the Court hereby awards claimant Linda Brown, as Administratrix of the Estate of Wayne Brown, the sum of $550,000.00 as reasonable compensation for decedent's conscious pain and suffering, including decedent's pre-impact terror.

WRONGFUL DEATH CAUSE OF ACTION

Claimant also seeks damages for wrongful death in accordance with EPTL 5-4.3 (a), which provides that damages should be awarded for the "fair and just compensation for the pecuniary injuries" resulting from decedent's death.

In a wrongful death claim, damages that may be recovered, include lost wages, loss of household services, and funeral expenses. Additionally, claimant seeks damages for loss of guidance, nurture and training for the children (Gonzalez v New York City Hous. Auth., 77 NY2d 663 [1991]). In determining the amount of damages, the Court must consider decedent's earning potential, including past and future earnings, and potential for advancement, as well as decedent's age, health, life expectancy, character, and the circumstances of the distributees, including their number, age, and health (Johnson v Manhattan & Bronx Surface Tr. Operating Auth., 71 NY2d 198 [1988]). Since any wrongful death action contains unique factors relating to the above considerations, each case must be examined on its own merits (DeLong v County of Erie, 89 AD2d 376 [4th Dept 1982] affd 60 NY2d 296 [1983]).

In this particular matter, decedent was born on May 29, 1959, and was 43 years and 11 months old at the time of his death. His wife Linda was born on December 7, 1962, and they had two children: Matthew, born October 30, 1987, and Melissa, born December 12, 1992. Therefore, at the time of the accident, Matthew Brown was 15 years of age, and Melissa Brown was 10 years of age.

I. LOSS OF INCOME

At the time of his death, Wayne Brown was employed by Morrison Excavating, where he had worked for five years prior to his death. Tom Morrison, the operator of Morrison Excavating, testified that he had known decedent before he hired him, that he liked him, and that he hired him when decedent's family dairy farm closed, where decedent had worked since he was a teenager. Mr. Morrison testified that decedent worked full-time, 12 months a year, and that he put in approximately 50 hours per week up to the date of his death. He stated that decedent was a hard worker who got along with everybody and was a very good worker who could work independently, without supervision. Decedent could operate heavy equipment and was well liked by both fellow employees and customers. Mr. Morrison testified that Mr. Brown was a very good employee, that his future with his company was secure, and that he would have continued to employ him had he lived.

Under cross-examination, Mr. Morrison testified that a W-2 form from 2001 showed that decedent was paid $33,723.00, and another W-2 form showed that decedent earned $29,684.00 in 2002. Mr. Morrison did not produce or have available any records of fringe benefits, nor any record of decedent's hourly salary over the years.

William Blanchfield, Ph.D., was qualified as claimant's economic expert, and testified with respect to decedent's wage loss since his death in April 2003. Dr. Blanchfield also prepared a written report, which was received into evidence (Exhibit 20).

Dr. Blanchfield testified that he relied upon decedent's 2002 W-2 form, showing earnings of $30,587.00, as the foundation for his opinion with regard to decedent's lost income. He also considered decedent's earnings history, including W-2 statements and tax returns from 1992 through 2003 (Exhibits 6 and 7), as well as his interview with claimant Linda Brown.

Dr. Blanchfield testified that in determining lost wages, he considered the employer's mandatory contribution to the social security trust fund of 7.2%. He also factored in a 2.8% increase each year based upon the average historical inflation rate between 1991 and 2011. Dr. Blanchfield testified that he also utilized a personal consumption rate of 32.3% for the decedent, which he testified was based upon the Journal of Forensic Economics (Fall 2002).

Dr. Blanchfield projected a work life expectancy for decedent through age 65, and testified that this assumption was based on studies made in 2007 by the Organization for Economic Cooperation and Development Data. He testified that these studies were the most current studies available for work life expectancy, and that they are routinely accepted as reliable by other forensic economists.

Under cross-examination, defendant specifically questioned his decision to project a work life expectancy through age 65, rather than basing it upon life tables provided by the New York State Pattern Jury Instructions (PJI), which projects a work life expectancy of 61 years of age. Dr. Blanchfield responded that the work life expectancy tables provided by PJI are no longer practical under current economic conditions, and that based upon decedent's work history and his current retirement age before becoming eligible to receive full SSI benefits (66 years, 8 months), decedent was much more likely to have remained employed through age 65 than retiring at age 61.

Dr. Blanchfield concluded that based upon his projections and assumptions, Mr. Brown's total pecuniary loss from lost wages and SSI benefits from his date of death (April 27, 2003) through age 65 was $611,726.00 and $65,058.00, respectively, totaling $676,784.00. He apportioned this amount between past and future loss of wages and benefits, and calculated that decedent's past lost wages and SSI benefits totaled $245,220.00, and future lost wages and SSI benefits totaled $431,564.00, for a total amount of lost wages and SSI benefits of $676,784.00.

Although defendant questioned some of the assumptions utilized by Dr. Blanchfield in making his projections (such as the assumed rate of inflation and work life expectancy), the Court hereby accepts the analysis and calculations made by Dr. Blanchfield. Accordingly, the Court hereby awards claimant the sum of $245,220.00 for past lost wages and fringe benefits, and sum of $431,564.00 for future lost wages and benefits, for a total of $676,784.00.

II. LOSS OF HOUSEHOLD SERVICES

Claimant Linda Brown testified that her husband was extremely helpful with household chores, and that he performed many household activities. She testified that decedent was extremely handy and maintained both the home and vehicles. She also testified that her husband prepared family dinners throughout their marriage, since he usually was the first to get home from work.

Dr. Blanchfield also provided testimony as to the value of the loss of these household services resulting from Mr. Brown's death. Based upon his interview with claimant, as well as her testimony, and also relying upon his review of economic studies, he opined that the typical male spouse contributes 16 hours per week or 800 hours annually to household services. Based upon an hourly rate of $10.00 per hour, Dr. Blanchfield calculated the value of decedent's loss of household services to his wife, from the date of trial to the age of 70, to be $175,972.00 (Exhibit 20).

Dr. Blanchfield did not perform any calculations in attempting to determine the value of the past loss of household services, and confined his calculations and testimony to the future loss of such services. Claimant, however, has requested that this Court also award damages for past loss of services, from decedent's death through the time of trial. Utilizing the same assumptions relied upon by Dr. Blanchfield (800 hours per year at $10.00 per hour), claimant requests an award for past household services in the amount of $77,333.00, for the 9.6 years between decedent's death and trial.

Loss of household services is valued by determining the cost of replacing decedent's services (Klos v New York City Tr. Auth., 240 AD2d 635 [2d Dept 1997] lv dismissed 91 NY2d 846 [1997]). Although claimant did not produce any receipts to support her testimony regarding her husband's contributions, there is no requirement that claimant produce actual expenditures to support the valuation made by her expert, and proof of costs for such services incurred is not necessary in a wrongful death action (Mono v Peter Pan Bus Lines, Inc., 13 F Supp 2d 471, 480 [S.D.N.Y. 1998]; Phelan v State of New York, 11 Misc 3d 151, 170, n. 25 [Ct Cl 2005]; Horton v State of New York, 50 Misc 2d 1017 [Ct Cl 1966]).

In this particular matter, it is abundantly clear from the testimony that decedent was very involved with household and vehicular maintenance, and also assisted with meal preparation and household chores. Furthermore, the Court accepts the assumptions made by Dr. Blanchfield with regard to the number of hours contributed (800 hours annually) and the hourly rate ($10.00 per hour), and finds such assumptions to be very reasonable.

Accordingly, the Court hereby awards the sum of $175,972.00 for the future loss of household services, pursuant to the calculations and testimony of Dr. Blanchfield. Although Dr. Blanchfield did not provide any calculations or testimony with regard to past loss of household services, since the Court has accepted his assumptions the Court hereby finds that claimant is entitled to, and is hereby awarded, the sum of $77,333.00 for the past loss of household services.

III. LOSS OF CARE, GUIDANCE, AND NURTURING

Claimant also seeks damages for the loss of care, guidance, and nurturing which would have been provided by decedent to their two children, Matthew and Melissa Brown. When their father died, Matthew Brown was 15 years old and in the 10th grade, and Melissa Brown was 10 years old and in the 4th grade.

At trial, claimant testified that her husband was a considerate and patient parent to their children, and that he was intimately involved in their care and development. She testified that she and her husband shared responsibility for raising their children, and tried to provide a healthy and active environment for their children. She testified that her husband helped the children with their schoolwork, and, when necessary, was the disciplinarian in the family.

Melissa Brown, the daughter of claimant and decedent, also testified at trial. She testified that although she was only 10 years old when her father died, she did have fond memories of him. She described her father as an outgoing, friendly, helpful and responsible person, who took care of the house and yard, and often prepared the family dinners.

Melissa Brown also testified that she had a close relationship with her father, and that they would watch TV together, that he would make sure that her chores were satisfactorily completed, and that she would often talk to him about her problems and daily activities.

Melissa Brown testified that her father helped her with her sporting activities, and that he would drive both her and her brother to team practices for various sports, and that he always attended their games. She testified that her father loved the outdoors, and that they spent a lot of time together pursuing outdoor activities.

Melissa testified that she obviously misses her father, and that her father's death has changed her life in several different ways. She testified, for instance, that she stopped playing sports completely, because it was something that they always did together. She also testified that she lost the sense of security that her father provided her, and that she is now fearful of losing other people that she loves.

As stated above, Matthew Brown was 15 years of age when his father died. Although he did not testify at trial, both his mother and sister testified that he also had a strong and loving relationship with his father. As mentioned above, Melissa Brown testified that her father took them to their practices for various sporting activities, and that he was always present at their games. She also testified that her father coached Matthew's baseball teams for several years. Linda Brown testified that her husband spent a lot of time with her son at a dairy farm where they performed many chores together and engaged in other outdoor activities.

It is well established that grief, sadness, loss of affection, and loss of companionship cannot be compensated by money damages under the wrongful death statute (Gonzalez v New York City Hous. Auth., 77 NY2d 663 [1991]). However, in determining pecuniary loss, a court may consider the loss of the pecuniary advantage from a parent's care and nurturing, and physical, moral, and intellectual training (DeLong v County of Erie, 89 AD2d 376, 386 [4th Dept 1982], affd 60 NY2d 296 [1983]).

Testimony in this case has established to the satisfaction of the Court that both children suffered a significant loss in parental guidance, nurturing, care, and moral and intellectual training as a result of their father's death. It is apparent to this Court that decedent was closely involved in the care, guidance, and upbringing of his children, and that he was intimately involved in their daily lives. Based on the evidence presented, there is nothing in the record to suggest that this close relationship with both children would not have continued. The Court therefore finds that both Matthew and Melissa Brown have suffered, and will continue to suffer, the loss of their father's care and guidance.

Therefore, based upon the evidence presented, the Court hereby awards claimant, as Administratrix of her husband's estate, the sum of $250,000.00 for Matthew Brown, and the sum of $350,000.00 for Melissa Brown for their past loss of decedent's parental care and guidance. The Court also awards claimant, as Administratrix the sum of $350,000.00 for Matthew Brown and $650,000.00 for Melissa Brown for their future loss of parental care and guidance.

IV. BURIAL EXPENSES

At trial, the funeral bill for decedent was entered into evidence (Exhibit 5) showing a total expense of $5,616.50. The parties stipulated to this item of damages, including a burial plot charge of $250.00 (Exhibit 70), and the Court therefore awards the sum of $5,866.50 for burial expenses.

CLAIM NO. 110037

Claimant also instituted a claim seeking damages for the personal injuries suffered by her in this same accident. As set forth at trial and in claimant's posttrial brief, claimant seeks damages for past and future pain and suffering, future medical expenses, past and future lost wages, and the future loss of ability to perform household services. Each of these items will be addressed separately herein.

Claimant testified that prior to the accident, she was employed as a shipping supervisor for Bosch Security Systems, and was very active at her employment. She testified that she and her family pursued an active lifestyle, participating in physical activities such as snowmobiling, softball, bowling, volleyball, and walking. She testified that prior to the accident, she was in excellent health, with no physical limitations, problems or ailments.

Claimant testified that she does not have any independent recollection of the accident, but that she suffered multiple and painful injuries requiring multiple surgeries and a lengthy hospitalization. She testified that while hospitalized she was extremely depressed, because she was in severe pain, she could not move, and she could not talk since she had a tube inserted in her throat. Claimant testified that she was hospitalized from April 27, 2003 through June 3, 2003, during which time she underwent numerous surgeries to repair the multiple fractures suffered in the accident.

Claimant testified that when she was released from Strong Memorial Hospital, she was transferred to Fairport Baptist Home, a rehabilitation center, since she required constant attention and needed to undergo physical therapy. She resided at this home from June 3 to July 17, 2003.

Claimant testified that upon her release from Fairport Baptist Home, she was discharged to her parents' home, since she still required constant attention and assistance, and that she was unable to care for her children. Claimant testified that finally, in October 2003, she returned to her home with her children.

Claimant testified that she is now working 40 hours per week. She further testified that although she is not currently taking any prescription medication, she must take ibuprofen constantly throughout the day to relieve her constant pain.

Claimant also provided testimony with regard to the multiple injuries suffered in this accident, as well as the many corrective surgeries that she has to undergo.

Specifically, claimant testified that she suffered a broken left leg and fractures in her left foot in the accident, both of which required surgery. She testified that she was unable to stand on her left leg and was on crutches for two years after the accident, until she had surgery in 2005, when a rod was inserted in her leg. She testified that as a result of the accident and surgery, she now has a left leg which is shorter than her right leg.

Claimant testified that she also underwent reconstructive surgery on her left foot in 2005, but that she is still unable to move the big toe on her left foot.

Claimant testified that following the surgeries, she was eventually able to walk without crutches, but with considerable pain and an altered gait. She testified that the uneven gait led to right hip replacement surgery in 2010.

Claimant testified that she also suffered a fractured pelvis and a fractured back in the accident, and as a result she is unable to sit or stand for any lengthy period of time.

Claimant testified that she also suffered multiple facial injuries. She testified that she had several broken front teeth, and lost six permanent teeth as a result of the accident. She testified that she underwent surgery to remove the broken teeth in 2004 and was fitted for a bridge, and up until that time her diet was limited to soft foods. Claimant testified that she also suffered a broken jaw which prevented her from fully opening her mouth and that it still is not properly aligned. Claimant testified that she also suffered a broken nose and nerve damage in her facial area, resulting in a tingling sensation on the right side of her face. She also testified that she has ringing in her ears, and that her balance has been affected as a result of the injuries suffered in the accident.

Claimant also presented the testimony of John Gorczyca, M.D., an orthopedic surgeon who treated claimant at Strong Memorial Hospital. In addition to testifying as a treating physician, Dr. Gorczyca was also qualified by the Court and testified as an expert witness. As a result, Dr. Gorczyca provided testimony not only with respect to the surgeries that he performed, but also as to the other serious injuries suffered by claimant in this accident.

Dr. Gorczyca testified that claimant had suffered numerous life-threatening injuries, and that even after her surgeries, immediately after the accident, she remained "at high risk" and that she could easily have died as a result of the injuries suffered by her in this accident. She suffered a severe loss of blood, requiring multiple transfusions, and multiple serious physical injuries over virtually her entire body. Based upon his examination of claimant's medical records and exhibits, Dr. Gorczyca testified as to these specific injuries.

Unless otherwise indicated, all references and quotations are taken from the Court's trial notes.

Dr. Gorczyca testified that claimant suffered multiple facial fractures, including fractures to her upper mouth and jaw which he described as a "Le Fort" fracture. This fracture was corrected by wiring her jawbones together during surgery on May 6, 2003, and her mouth remained closed through May 24, 2003. Dr. Gorczyca testified that claimant's multiple facial fractures caused damage to her facial nerves and sinuses. Dr. Gorczyca opined that claimant's complaints of ringing in her ears, loss of balance, numbness in her face, and migraine headaches are all likely attributable to her head and facial injuries. He testified that claimant's dental records established that she underwent dental surgery in 2004 to remove pieces of her broken teeth, and that she continued to have dental work performed throughout 2004 and 2005.

Dr. Gorczyca testified that the medical records established that claimant suffered multiple rib fractures, as well as a fractured sternum. Dr. Gorczyca also testified that claimant suffered spinal fractures, which began to cause claimant significant pain starting in early 2009, with the pain radiating into her buttocks and leg. Dr. Gorczyca testified that he ordered a CT examination and myelogram of her lumbar spine, which showed bulging discs, atrophy, and bone spurs, all attributable to the fractured vertebra suffered in the accident. He concluded that the arthritis and pain in claimant's lower back, and her lost range of motion, were all attributable to the accident.

Dr. Gorczyca testified at length with regard to the pelvic fracture sustained by claimant in this accident. Dr. Gorczyca testified that on April 28, 2003, the day after the accident, claimant was still in critical condition and suffering from a continuing loss of blood. Surgery on her pelvis was performed, involving a closed reduction with temporary external fixation, and the placement of a right femoral traction pin to maintain pelvis alignment. Dr. Gorczyca testified that two days later, he performed surgery to complete the repair of claimant's pelvic, including removal of the external fixation device and traction pin.

Dr. Gorczyca also testified that in early 2010, he performed hip replacement surgery on her right hip, due to significant arthritis and degenerative changes, which were causing claimant a great deal of pain. He testified that this surgery was successful, and that it helped reduce claimant's level of pain, although she still is unable to sit or stand for long periods of time. This testimony was consistent with claimant's testimony that she requires a seat cushion and back cushion on her chair at work, and that she needs to frequently get up from her chair to move around. Dr. Gorczyca testified that the hip replacement surgery was medically necessary and was a direct result of the accident. He further opined that based upon claimant's age and life expectancy, she in all likelihood would require two further hip surgeries in her lifetime.

Dr. Gorczyca testified that claimant suffered open comminuted fractures of her left tibia and fibula in the accident. Shortly after the accident, claimant underwent several surgical procedures to repair the tibia-fibula fractures. On April 27, 2003, the fracture was debrided, but the surgeon could only partially complete the internal fixation of the fractures, due to claimant's continuing blood loss. On April 29, claimant underwent further debridement of the open fractures, and on May 6, 2003, internal fixation was completed, together with further debridement. These fractures were not further addressed for approximately two years following the accident, and during this time claimant required crutches to assist her with walking. Claimant finally underwent reconstructive surgery in May 2005, leaving her with a left leg which was 3/4 of an inch shorter than her right leg. Following the surgery, claimant underwent physical therapy for approximately two months. According to claimant, the surgery helped reduce, but not eliminate, the significant pain and throbbing in her left leg.

Dr. Gorczyca also testified with respect to the multiple fractures that claimant suffered to her left foot, including a talus fracture, navicular fracture, and fifth metatarsal fracture. As a result of these injuries, claimant had to wear a walking boot on her left foot for approximately two years following the accident, until she had surgery in November 2005 performed by Dr. Gregory Finkbeiner. In this surgery, Dr. Finkbeiner fused one of the joints in her foot and removed the other joints. Following the surgery, claimant suffered from swelling and discomfort in the foot, and also underwent physical therapy for approximately two months.

In addition to Dr. Gorczyca's testimony, a transcript of the testimony of Dr. Joseph L. Carbone, a Board Certified Podiatrist, was received into evidence (Exhibit 67). Dr. Carbone testified that as a result of the surgery by Dr. Finkbeiner, claimant suffered a permanent loss of use of every joint in her left forefoot, and that the removal of the joints resulted in loss of bone and shortening of the foot. Dr. Carbone stated that the left forefoot is unable to flex and cannot absorb pressure, and that the pressure is then transferred, resulting in the constant foot pain complained of by claimant. Dr. Gorczyca concluded that the combination of injuries to her hip, spine, left leg, and left foot have all contributed to a loss of range of motion, and that claimant will continue to suffer discomfort and pain from walking or standing. Additionally, Dr. Gorczyca concluded that kneeling, bending and crouching will also cause pain to claimant. Dr. Gorczyca did acknowledge, under cross-examination, that the multiple fractures suffered by claimant are healed, and, in essence, the multiple surgeries endured by claimant were as successful as could be expected.

Dr. Gorczyca also opined that claimant's complaints of irritable bowel syndrome and loss of bladder control were also related to the injuries suffered by her in this accident.

Daniel DiChristina, M.D., an orthopedic surgeon, performed an Independent Medical Examination (IME) of claimant in September 2012. His IME report was admitted into evidence (Exhibit B), and Dr. DiChristina was qualified and testified as defendant's expert medical witness. Based upon his examination, Dr. DiChristina made an assessment of claimant's level of permanent impairment. Dr. DiChristina testified that this assessment was based upon the AMA Guide to Evaluation of Permanent Injury, and stated that this guide is reasonably relied upon by orthopedic surgeons in determining levels of impairment (portions of the AMA Guide were received into evidence as Exhibit C). Dr. DiChristina made specific assessments of claimant's level of impairment resulting from her various orthopedic injuries. These findings and assessments are summarized as follows:

Dr. DiChristina found a 0% impairment of claimant's thoracic spine, concluding that there were no significant findings or impairments related to any injuries or fractures suffered by claimant. With regard to her lumbar spine, Dr. DiChristina determined that claimant had suffered a 5% impairment resulting from a transverse process fracture.

With regard to the injury to claimant's pelvis, Dr. DiChristina concluded that claimant had a 3% impairment of the whole person resulting from this injury.

As for the injury to claimant's right hip, and the resulting hip replacement surgery, Dr. DiChristina concluded that claimant had suffered a 15% impairment of the whole person. Although this 15% impairment was noted in Dr. DiChristina's IME report, at trial Dr. DiChristina amended his report and testified that 7% of the impairment was the result of a pre-existing condition, and therefore claimant had suffered an 8% impairment of the whole person as a direct result of the injury caused by the accident.

With regard to the fractures of claimant's left ankle, Dr. DiChristina concluded that claimant suffered a 6% impairment, and similarly that claimant suffered a 6% impairment as a result of the injuries and fractures to her left foot.

Based on these assessments, and taken as a whole, Dr. DiChristina concluded that claimant sustained a 25% impairment of the whole person as a result of the injuries suffered by her in the accident.

In his IME Report, Dr. DiChristina determined that claimant suffered a 31% impairment of the whole person, but amended that conclusion at trial to 25% based upon his determination that claimant had pre-existing damage to her right hip.

Dr. DiChristina agreed with claimant that she is no longer able to engage in such physical activities as running, softball, tennis, biking, and hiking. He testified, however, that claimant is able to walk unassisted, and is capable of performing sedentary work and can attend to the activities and requirements of normal daily living.

Dr. DiChristina also testified that claimant's medical condition was stable, and that he did not anticipate any future changes to her physical condition. He also concluded that claimant's work life expectancy, based upon her current responsibilities as a customer service representative, was not adversely affected.

PAIN AND SUFFERING

It is readily apparent, and without dispute, that claimant suffered numerous severe and life-threatening injuries in the accident of April 27, 2003. Based upon the testimony provided at trial by first responders and medical providers, the Court finds it remarkable that claimant survived this crash.

Claimant suffered numerous fractures, and had to undergo multiple surgeries over several months following the accident to address and repair these fractures and other injuries suffered by her in the accident. Following the surgeries, claimant also endured a painful and lengthy rehabilitation process. Medical records establish that claimant was hospitalized at Strong Memorial Hospital until June 3, 2003, almost one and one-half months following the accident, and then was transferred to Fairport Baptist Home for rehabilitation until July 16, 2003, when she was discharged to her parents' home since she still required assistance and personal care. She did not return to her own home until approximately three months later, in October 2003.

Claimant was airlifted to Rochester General Hospital immediately after the accident, but shortly thereafter was transferred to Strong Memorial Hospital.

As established by the testimony and medical records, and in no particular order of significance, claimant suffered numerous facial and dental injuries, including the loss of six teeth and a "Le Fort" fracture, as well as permanent scarring and nerve damage. She suffered multiple rib fractures and fractures of her lumbar spine, a fractured sternum, a fractured pelvis, a fractured left leg (left tibia and fibula), and multiple fractures in her left foot requiring the removal of virtually every joint in her left forefoot. As stated above, all of these fractures, and the necessary corrective surgeries, caused severe pain and required extensive and painful rehabilitation. She also suffered pulmonary contusions and a right pneumothorax. Obviously, these injuries and surgeries have left claimant with permanent scarring over all parts of her body. Also, as a result of the surgeries on her left leg, that leg is now 3/4 of an inch shorter than her right leg.

Additionally, in 2010 claimant underwent a complete hip replacement, due to degenerative changes, arthritis, and severe pain in her right hip and the Court finds this surgery was also attributable to the injuries suffered by her in the accident.

Dr. DiChristina, defendant's expert who performed an IME, substantiated, to a great extent, the injuries testified to by claimant and her medical expert. Unlike Dr. Gorczyca, however, Dr. DiChristina quantified his findings and testified that claimant had suffered a 25% impairment of the whole person as a result of the multiple injuries suffered by claimant.

The Court notes, however, that DiChristina's evaluation was limited to the orthopedic injuries suffered by claimant, and did not take into consideration the multiple facial and dental injuries suffered by her, including the loss of six teeth, as well as continual ringing in her ears, loss of balance, and nerve and sinus damage.

It is evident to this Court that claimant has made a most remarkable recovery from the serious and life threatening injuries suffered by her in this accident. The Court is singularly impressed that claimant has sufficiently recovered from her injuries to the point where she has been able to return to work (although in a different position) and is able to live independently. That being said, however, claimant continues to suffer on a daily basis from the permanent and lasting effects caused by this accident. Claimant testified that she continues to suffer constant pain, and even though she is not currently taking any prescription medication, she begins each day with a daily dose of ibuprofen. Although she has returned to work at her previous employer, she is now limited to a sedentary line of work, and she requires both seat and back cushions to ease her pain. Claimant is unable to sit or stand for any long period of time, and she must constantly get up from her desk and move around.

Expert testimony established that the injuries to her left foot and left leg have severely limited her range of motion in her left foot, and have also resulted in a shorter left leg, which affects her balance and ability to walk. As a result, she has suffered a huge, significant loss in her enjoyment of life, as she is unable to participate in any sort of physical activity, including walking and running. Claimant's injury to her hip and pelvic area, which ultimately led to hip replacement surgery, has also caused her continual pain and suffering, and has limited her range of motion as well. Furthermore, Dr. Gorczyca opined that claimant can anticipate at least one, if not two, additional hip replacement surgeries over the course of her lifetime, and that such surgeries and rehabilitation will result in additional pain and suffering to claimant.

The Court also accepts claimant's testimony that she continues to experience pain and suffering from the facial and dental injuries suffered by her in the accident. As established at trial, claimant suffered the loss of six permanent teeth, and also testified that her top and bottom teeth are now improperly aligned, creating difficulties for her in eating. She has established that she continues to suffer from nerve and sinus damage, and has a continuous ringing (tinnitus) in her ears, and that she suffers from migraine headaches on a regular basis.

Although each case is unique and must be considered on its own merits, this Court, in determining an appropriate award for both past and future pain and suffering, has extensively reviewed case law for guidance in making this award, including those cases cited by the parties in their respective posttrial submissions (see, for example, De La Cruz v New York City Tr Auth, 11 Misc 3d 1086(A); affd 48 AD3d 508 [2d Dept 2008]; Hernandez v Ten Ten Co., 102 AD3d 431 [1st Dept 2013]; Schmidt v State of New York, UID No. 2009-013-505, [Ct Cl, Patti, J., Aug. 19, 2009]; Quackenbush v State of New York, UID. No.2012-013-028 [Ct Cl, Patti, J., June 19, 2012]; Lopez v State of New York, UID No. 2007-010-030 [Ct Cl, Ruderman, J., Aug. 8, 2007]).

Accordingly, after careful consideration, the Court hereby awards claimant the sum of $1,200,000.00 for past pain and suffering, and the sum of $2,250,000.00 for future pain and suffering.

FUTURE MEDICAL EXPENSES

Based upon the extent and permanency of the many injuries suffered by her, claimant seeks damages for the anticipated costs of future medical care to address these injuries. In this regard, claimant relied upon the testimony of Dr. Kenneth Reagles, who was found qualified by the Court as an expert in vocational rehabilitation and lifecare planning. Dr. Reagles had prepared a lifecare plan for claimant, which was received into evidence (Exhibit 76). In this lifecare plan, Dr. Reagles set forth the need for future medical expenses and treatments, including periodic evaluations, therapeutic modalities, and adaptive equipment and assistive devices. Dr. Reagles also set forth in this report the present day costs for the separate components in each category. Dr. Reagles also prepared and submitted an addendum to this report, dated October 5, 2012, and a second addendum dated December 11, 2012, both of which were received into evidence (Exhibits 77 and 73, respectively). Dr. Reagles stated that his analysis was based upon interviews and/or correspondence with both claimant and her treating physicians, as well as his experience in the field of rehabilitative medicine.

With respect to periodic evaluations, Dr. Reagles included the need for future orthopedic evaluations, evaluations by her family physicians, podiatric evaluations, and radiological imaging and radiological studies (x-rays, CT's, MRI's, bone density scans, and nerve conduction studies). Dr. Reagles opined that with regard to therapeutic modalities, claimant would require future medications (both prescription and over-the-counter), corticosteroid injections, physical therapy, orthotic devices and shoes (and shoe insert orthotics), and a heating pad. As to future adaptive equipment and assistive devices, Dr. Reagles stated that claimant would require a reacher, a shower/bath transfer bench, a hand-held shower unit with grab bars, a portable seat cushion, and a sock aid (to assist her with putting on and removing her socks).

Dr. Blanchfield, qualified by the Court as claimant's economic expert, testified with respect to the future costs of these medical care components recommended by Dr. Reagles. Dr. Blanchfield prepared a report which was received into evidence (Exhibit 66), in which he projected the costs of future medical care, based upon claimant's life expectancy of 82 years. Dr. Blanchfield concluded that the present day costs of the projected care recommended by Dr. Reagles in his lifecare plan (Exhibit 76), as outlined above, is $180,000.00.

In addition to the lifecare plan prepared by Dr. Reagles (Exhibit 76) and the economic report by Dr. Blanchfield (Exhibit 66), claimant also seeks recovery for other future medical expenses which were not included or considered in these reports.

In an Addendum, dated October 5, 2012 (Exhibit 77), Dr. Reagles addressed the fact that claimant had stopped taking a prescribed medication for the treatment of her migraine headaches because her insurance carrier had denied coverage and she could not otherwise afford it. Dr. Reagles determined that the present annual cost for this medication (Maxalt) was $1,827.00 per year. Although not included in Dr. Blanchfield's report, claimant seeks to recover the future costs of the Maxalt over claimant's lifetime. Claimant has requested that this Court award the sum of $88,341.00 for the future cost of the Maxalt, based upon claimant's 32 years of life expectancy and increasing the annual cost by 2.8% per year.

In his report, Dr. Blanchfield had relied upon an annual increase of 2.8%, which is the growth rate determined by the United States Department of Labor for therapeutic modalities.

In his "Second Addendum" dated December 11, 2012, Dr. Reagles determined the present day cost of hip replacement surgery, based upon testimony of Dr. Gorczyca that claimant, in the future, would require at least one and possibly two hip replacement surgeries, in addition to the hip replacement surgery that was performed in 2010. Dr. Gorczyca based his opinion on claimant's life expectancy of 34.4 years at the time of her 2010 surgery, and his opinion that a hip replacement normally lasts anywhere from 12 to 15 years.

Based on his testimony, Dr. Reagles, in his "Second Addendum" (Exhibit 73) calculated the present costs for hip replacement surgery, including surgery ($56,806.00), post-surgery analgesic medications ($349.00) and post-surgery outpatient physical therapy ($3,096.00) for a total cost, in present day dollars, of $60,251.00.

Although future costs for the hip replacement surgery (either one surgery or two surgeries) were not calculated or included in Dr. Blanchfield's report, claimant requests an award for two future hip replacement surgeries, based upon the present day costs set forth by Dr. Reagles in his Second Addendum.

Additionally, a transcript of the deposition testimony of Frank La Mar, Jr., DDS., a dental restoration specialist, was received into evidence (Exhibit 68). Dr. La Mar recommended that claimant undergo dental implant surgery to replace the six permanent teeth lost by her in this accident. Dr. La Mar believed that the implants were a far better treatment option for claimant over the partial bridge unit that was provided to her following the accident. Dr. La Mar prepared a treatment plan for claimant, including present day pricing (Exhibit 43). The total cost associated with this treatment plan of six dental implants is $33,350.00.

This dental treatment plan was not included by Dr. Reagles in his lifecare plan, nor in his two addenda which he had prepared. As a result, the cost associated with this treatment plan was not considered by Dr. Blanchfield in his report.

The testimony and medical reports have more than adequately established that claimant suffered multiple severe and life-threatening injuries in this accident, and that these injuries, whether considered separately or in combination, have left claimant with many after-effects that will require constant and periodic medical attention for the rest of her life. The Court has reviewed both the testimony from Dr. Reagles as well as his report (Exhibit 76) and finds that the different elements of his lifecare plan are reasonable and well-founded, and that it is reasonable to expect that claimant will find it necessary to avail herself of the periodic evaluations, therapeutic modalities, and adaptive equipment and devices set forth in his plan. The Court further finds that the projected future costs calculated by Dr. Blanchfield are reasonable as well. Therefore, the Court accepts Dr. Blanchfield's calculations and awards claimant the sum of $180,000.00 for the costs of future medical care and treatment set forth in the lifecare plan of Dr. Reagles.

Additionally, the Court further finds that claimant should be awarded the sum of $88,341.00, representing the lifetime expected costs of the Maxalt drug for treatment of her migraine headaches. The Court also accepts the deposition testimony of Dr. La Mar with regard to the need for, and expense of, six dental implants and awards claimant the sum of $33,350.00 for that cost, as determined by Dr. La Mar. With regard to the cost of expected hip replacement surgery, the Court accepts Dr. Gorczyca's testimony that claimant can reasonably expect to undergo future hip replacement surgery, based upon the expected life use of a hip replacement and claimant's own life expectancy. However, the Court finds that although claimant can certainly expect to undergo one future hip replacement surgery, an additional hip replacement surgery, as requested by claimant, is too speculative and the need for such has not been established. Accordingly, the Court awards the sum of $60,251.00, representing the cost of one hip replacement surgery and subsequent post-surgery care.

Accordingly, the Court awards the total sum of $361,942.00, representing the total costs of claimant's future medical care and treatment.

LOST WAGES

At the time of the accident, claimant was the supervisor of the shipping department at Bosch Security Systems, where she had been employed for well over 20 years. After the accident, claimant was unable to work for the remainder of 2003, and was only able to return to work in August 2004 on a part-time basis. Additionally, and as previously set forth herein, claimant underwent two additional corrective surgeries in May and November, 2005, both of which caused her to miss substantial time at work during her recuperation.

Based on the testimony from claimant, her medical records and the employment and income tax information provided (Exhibits 7 and 8), it is readily apparent to this Court that the time missed from employment in the years 2003, 2004, and 2005 is directly attributable to claimant's recuperation from the injuries suffered by her and the resulting surgeries. Accordingly, the Court finds that the lost wages sought by claimant of $12,651.00 (2003), $24,590.00 (2004), and $12,605.00 (2005), are all directly attributable to the injuries suffered by her in this accident. Therefore, the Court hereby awards claimant the sum of $49,846.00, representing the total amount of past wages lost by her.

Claimant also seeks damages for future lost wages, contending that the injuries suffered by her have reduced her earning capacity and have diminished her work life expectancy.

Claimant testified that when she did return to work at Bosch Security Systems, she was unable to physically perform the duties required of her in her prior position as supervisor of the shipping department. She was fortunate in that she was able to assume a different position at Bosch Security Systems, as a customer service representative, a sedentary position that did not have the physical requirements of her prior position. Nevertheless, she testified that due to her injuries, she must use both a back and seat cushion at work, and must get up quite often simply to move around.

Claimant acknowledged that when she returned to work, however, her prior position as supervisor of the shipping department was no longer available, since the shipping department had been relocated to Lancaster, Pennsylvania.

Claimant acknowledged that she is now employed full-time as a customer service representative, and has been able to perform the duties required of her, although with some difficulties, in this position.

Dr. Reagles, in both his lifecare plan (Exhibit 76) and his testimony, stated that claimant's physical capacity is substantially reduced, and that she has a limited and diminished ability to perform such activities as standing, walking, sitting, lifting, climbing, kneeling, crouching, and stooping, as well as a limited ability to carry, push and pull objects. Based upon these limitations, as well as the chronic pain that claimant endures in her right hip and lower left leg and foot, Dr. Reagles concluded that claimant's work life expectancy has been reduced by between 40 and 60 percent.

Dr. Blanchfield testified that the normal work life expectancy of a 50 year old woman (claimant's age at the time of the damages trial) was 15 years, assuming that a woman would work until the age of 65. Dr. Blanchfield testified that he based this assumption as to work life expectancy on data provided by the Organization of Economic Cooperation and Development.

Based upon Dr. Reagles' opinion that claimant had sustained a 40 to 60 percent reduction in her work life expectancy, and utilizing further assumptions as to claimant's wages, annual wage increased, and fringe benefits, Dr. Blanchfield concluded that as a direct consequence of her reduced work life expectancy, claimant would lose $389,518.00 in wages and $38,952.00 in SSI benefits, for a total loss of $428,470.00 (see Dr. Blanchfield report, Exhibit 66).

Defendant did not present any economic testimony with regard to future lost wages, but rather relied upon the testimony of its medical expert, Dr. DiChristina, who opined that claimant's work life expectancy had not been adversely affected by her injuries. It was Dr. DiChristina's opinion that the injuries suffered by claimant did not prevent her from performing her duties and job requirements as a customer service representative, and that such injuries would not limit her ability to perform those duties in the future.

As this Court has previously stated, claimant has made a most remarkable recovery from the injuries sustained by her in this accident. To her credit, claimant has sufficiently progressed from a long and obviously painful rehabilitation period to the point where she has been able to return to work with her prior employer. Although this Court is of the opinion that claimant is not in sufficient physical condition to work in her prior position, the Court is of the opinion that claimant is fully capable of working, and continuing to work, in her new position as a customer service representative. The Court agrees with Dr. DiChristina's assessment that her injuries have not prevented, and will not prevent her in the future from attending to her duties in this position. As such, the Court finds that Dr. Reagles' opinion as to the diminishment of claimant's residual work life expectancy, and Dr. Blanchfield's assumptions and calculations regarding future lost wages, are entirely too speculative and have not been accepted.

Accordingly, the Court makes no award for future lost wages.

REDUCED CAPACITY TO PERFORM HOUSEHOLD SERVICES

Dr. Reagles also testified that as a result of her injuries, claimant's physical condition has reduced her ability to perform normal, everyday household chores, and that she is no longer able to perform the same level and number of chores as she was able to do prior to the accident.

Based upon his "disability checklist" (Exhibit 78), Dr. Reagles concluded that claimant, prior to the accident, performed approximately 20 hours per week of household services. After considering the permanent nature of her injuries, Dr. Reagles concluded that claimant sustained a 40% reduction in her ability to perform these household services.

In his report (Exhibit 66) and testimony, Dr. Blanchfield, utilizing a rate of $10.00 per hour for household services, determined that claimant's 40% reduction in her ability to perform household services resulted in a future loss of $101,504.00 through age 70.

This Court must once again state what it has previously noted several times in this decision - that claimant has made a most remarkable recovery from the multiple, severe injuries suffered by her in this accident. Even with this remarkable recovery, however, claimant still suffers from the lasting effects of her injuries, with particular reference to the injuries to her right hip, lower left leg, and left foot. She has testified, and the Court accepts such testimony that she suffers chronic pain in these areas, leading to chronic fatigue which has substantially affected her physical capacity and endurance. While this Court does not believe that such limitations have affected her ability to perform her employment related duties (see above), the Court realizes that the rigors of daily life are much more difficult to overcome, and that claimant's ability to perform normal, everyday household chores, now and in the future, has been substantially limited by her injuries. The daily activities of maintaining a household are much more physically demanding than those duties required of claimant's sedentary position at her employment. It is obvious to this Court that claimant cannot perform her household duties to the extent that she was able to prior to the accident, and it is reasonable to expect that the chronic pain and fatigue which she suffers on a daily basis will prevent her from fully performing such activities in the future.

Therefore, even though claimant did not present any documentary evidence to support her claim that she had a diminished ability to perform household services, the Court accepts the opinion of Dr. Reagles, and the calculations made by Dr. Blanchfield, and hereby awards claimant the sum of $101,504.00 for the future loss of these services.

SUMMARY

The damages awarded in each claim can be summarized as follows:

CLAIM NO. 108961

Conscious Pain and Suffering $550,000.00

Wrongful death:

I. Loss of Income:

A. Past $245,220.00

B. Future $431,564.00

II. Loss of Household Services:

A. Past $77,333.00

B. Future $175,972.00

III. Loss of Care, Guidance and Nurturing:

A. Matthew Brown

1. Past $250,000.00

2. Future $350,000.00

B. Melissa Brown:

1. Past $350,000.00

2.Future $650,000.00

IV. Burial Expenses: $5,866.50

Total Wrongful Death Award (I, II, III, IV) $2,535,955.50

TOTAL (CLAIM NO. 108961) $3,085,955.50

CLAIM NO. 110037

Pain and Suffering:

A. Past $1,200,000.00

B. Future $2,250,000.00

Future Medical Expenses: $361,942.00

Past Lost Wages: $49,846.00

Reduced Capacity for Household Services: $101,504.00

TOTAL (CLAIM NO. 110037) $3,963,292.00

Since the amount of future damages exceeds $250,000.00, a structured judgment is required pursuant to CPLR 5041(e). Accordingly, judgment in each claim will be held in abeyance pending a hearing pursuant to CPLR Article 50-B, which will be scheduled as soon as practicable. The Court encourages the parties to agree upon an attorney's fee calculation and the discount rate to be applied and to formulate a structured settlement of their own (CPLR 5041[f]). In the event the parties fail to reach agreement, each party shall submit a separate proposed order directing judgment in writing in each claim conforming to the requirements of CPLR Article 50-B within 120 days of service of this Decision upon them by the Clerk of the Court.

A hearing will thereafter be scheduled at the mutual convenience of the parties and the Court.

The amount awarded with respect to the wrongful death aspect of claim No. 108961 shall carry interest in accordance with EPTL § 5-4.3. All other amounts awarded in both claim No. 108961 and claim No. 110037 shall carry interest from the date of determination of liability on October 3, 2011 (see, Dingle v Prudential Prop. & Cas. Ins., Co., 85 NY2d 657; Love v State of New York, 78 NY2d 540). All interest calculations shall be determined pursuant to the aforementioned Article 50-B hearing.

Any motions not heretofore ruled upon are hereby denied.

Any filing fee paid by claimant may be recovered pursuant to § 11-a(2) of the Court of Claims Act.

January 2, 2015

Syracuse, New York

NICHOLAS V. MIDEY JR.

Judge of the Court of Claims


Summaries of

Brown v. State

New York State Court of Claims
Jan 2, 2015
# 2014-009-104 (N.Y. Ct. Cl. Jan. 2, 2015)
Case details for

Brown v. State

Case Details

Full title:LINDA M. BROWN as Administratrix of the Estate of WAYNE BROWN v. THE STATE…

Court:New York State Court of Claims

Date published: Jan 2, 2015

Citations

# 2014-009-104 (N.Y. Ct. Cl. Jan. 2, 2015)