Opinion
No. 114040.
2013-04-4
Daniel G. GRISTWOOD, Claimant, v. The STATE of New York, Defendant.
Lynn Law Firm, LLP, By Thomas F. Shannon, Esq., and William F. Lynn, Esq., for Claimant. Eric T. Schneiderman, Attorney General, By Bonnie G. Levy, Esq., and Ray A. Kyles, Esq., Assistant Attorneys General, for Defendant.
Lynn Law Firm, LLP, By Thomas F. Shannon, Esq., and William F. Lynn, Esq., for Claimant. Eric T. Schneiderman, Attorney General, By Bonnie G. Levy, Esq., and Ray A. Kyles, Esq., Assistant Attorneys General, for Defendant.
NICHOLAS V. MIDEY, J.
In a decision dated April 1, 2011
, this Court found the State liable to the claimant for damages caused by claimant's unjust conviction and imprisonment under Court of Claims Act § 8–b.
Gristwood v. State of New York, UID # 2011–009–109 [Ct Cl, Midey, J., April 1, 2011], Unpublished decisions and selected orders of the Court of Claims are available via the Internet at http:// www.nyscourtofclaims.state.ny.us.
A trial limited to the issue of the damages suffered by claimant has now been held, and this decision addresses that issue.
As set forth in more detail in this Court's liability decision, claimant was convicted by a jury verdict on August 20, 1996 of attempted murder in the second degree and criminal possession of a weapon in the fourth degree following a vicious assault against his wife, which occurred on January 12, 1996. Claimant was sentenced on September 27, 1996 to a term of 12 1/2 to 25 years on the attempted murder conviction, and one year on the criminal possession of a weapon conviction. The judgment of conviction was vacated in 2005 and ultimately dismissed in 2006, after another person had independently confessed to this assault. During this time, claimant had been incarcerated for over nine years.
It is acknowledged that the primary evidence upon which claimant was convicted at his criminal trial was a statement that he had signed, given after many hours of police interrogation, implicating himself in the assault upon his wife. In its liability decision, this Court found that the statement signed by claimant was not voluntarily given, and that by signing said statement, claimant had not contributed to his conviction so as to preclude him from obtaining relief from under Court of Claims Act § 8–b.
At the damages trial, claimant testified that he was born on December 2, 1966, and grew up in Central Square. He testified that he met his wife Christina during high school, and they were married in 1986. They had five children together, ranging in age from almost one to almost 10 years at the time of his conviction. He testified that at the time of his sentencing, he was 29 years of age, and that he and Christina had been married for 10 years. He testified that he had no prior criminal record.
Claimant further testified that prior to his arrest, he had been employed at Syracuse Label Co., having started working there in 1986 or 1987, at wages of approximately $4.50 to $5.00 per hour. He testified that at the time of his arrest, his hourly pay had increased to $12.75 to $13.75 per hour. Claimant also testified that prior to his arrest, he worked part-time at Burdick Mobile, an automobile repair shop, and also worked for himself in the repair of small engines.
Claimant acknowledged that he worked long and varied hours, and that his wife Christina was the primary caretaker of their children, especially since he worked the night shift at Syracuse Label (2:15 p .m. to 11:00 p.m.).
Claimant testified that following his arrest in January 1996, he was detained in the Onondaga County Justice Center until his conviction (August 20, 1996) and sentencing (September 27, 1996). He testified that after his conviction and sentencing, he was transferred to Elmira Correctional Facility, a maximum security prison, and that he spent approximately six years at this facility. He testified that he was then transferred to Gouverneur Correctional Facility, a medium security prison, for a period of six months to one year, but then was transferred to Attica Correctional Facility, another maximum security prison. Claimant testified that he spent most of the last year of his incarceration at the Onondaga County Justice Center, where he was incarcerated during the pendency of several court hearings related to his eventual exoneration and release. He was released from the Onondaga County Justice Center on August 30, 2005.
As a result, claimant spent a little more than nine years incarcerated between his conviction (August 20, 1996) and ultimate release from custody (August 30, 2005).
Claimant also described the nine years that he spent incarcerated following his conviction. He described this experience as a “living hell,”
and that he was nervous, scared, and depressed during this time. He testified that although he was not attacked or assaulted during his incarceration, he witnessed many acts of violence, and saw inmates get their face cut. He testified that while in prison, he was constantly on edge, and constantly looked over his shoulder.
Unless otherwise indicated, all references and quotations are taken from the Court's trial notes.
Claimant testified that due to his incarceration, his relationship with his young children was destroyed, and that he only saw his children approximately six times during the nine years that he was incarcerated. Under cross-examination, however, claimant admitted that he did see his children on a more frequent basis than what he had stated during his direct testimony.
Claimant also testified that when he began his sentence, he was most certainly aware that his wife had suffered severe head trauma at the hands of her assailant, and that she was not capable of caring for their children. He testified that since his wife could not care for their children, those children were eventually placed with his aunt and stepmother.
Claimant testified, however, that during his incarceration he experienced several traumatic family events. He testified that his wife obtained a divorce against him, his aunt passed away in 2002 or 2003, and his stepmother passed away in 2004. As a result, his children had to move in with a cousin with whom they resided until claimant obtained his release from incarceration on August 30, 2005.
Claimant testified that shortly after his release, he began working for Burdick Mobile as a mechanic and that he continued to work for Burdick Mobile for the balance of 2005, the entire years of 2006 and 2007, and the early part of 2008. He testified that in early 2008, he left Burdick Mobile in order to open his own business, called Gristwood General Services, which he continues to operate. He testified that in this business, he fixes cars, trucks, snow blowers, and lawn mowers, and also does some landscaping work. He testified that he also does some scrap metaling through this business as well.
Claimant testified that when he was released from prison, his relationship with his children was very strained, as he was virtually a stranger to them. He indicated, however, that over time his relationships with each of his children are growing stronger, and that he is on speaking terms with all of his children.
Gerald Gristwood, a brother of the claimant, also testified at the trial. During the time that claimant was incarcerated, Gerald Gristwood resided in Rochester, New York, where he worked for Eastman Kodak Company. He described claimant as a hard-working, devoted family man, who was a very loving parent to his five children. Gerald Gristwood testified that during claimant's incarceration, he took claimant's children to visit with him in prison, and also visited with claimant without the children on other occasions. He testified that claimant was an “angrier” person while incarcerated, with demonstrable “mood swings” that he observed during his visitations. He also testified that upon claimant's release, there was considerable tension between claimant and his children, but that this tension has lessened over time.
Daniel Gristwood, Jr., one of claimant's children, also testified at the trial. He testified that he was four years old at the time that his mother was assaulted, and therefore does not have many memories of their family life together prior to his father's arrest and conviction. He testified that he did remember visiting his father in State prison, and that these meetings were “awkward.” He testified that it was “rough” growing up without parents.
Daniel Gristwood, Jr. also testified that when his father was released from custody in 2005, he was fourteen or fifteen years of age and admitted that it was tough taking orders and being disciplined from a “stranger.”
Norman J. Lesswing, a licensed psychologist, was found qualified by the Court as an expert, and testified on behalf of the claimant. Dr. Lesswing testified that his opinions were based upon a review of records and documents, and six separate interviews and sessions with claimant. Dr. Lesswing also stated that during his sessions with claimant, he administered certain psychological tests. In addition, Dr. Lesswing indicated that he had interviewed claimant's brother, Gerald Gristwood, as well as a friend of the claimant and his criminal defense attorney.
Dr. Lesswing testified that in his opinion, claimant did not suffer from any mental health issues prior to his arrest and wrongful conviction, and that the “psychological impact” of his wrongful conviction was “catastrophic.”
Dr. Lesswing opined that claimant, as a direct result of his wrongful conviction and confinement, developed several mental health disorders. Dr. Lesswing diagnosed claimant as suffering from posttraumatic stress disorder, depressive disorder, and anxiety disorder. Dr. Lesswing also testified that claimant had developed ingrained patterns of personality maladjustment, including avoidant and paranoid traits, as well as catastrophic stressors directly related to his wrongful conviction and incarceration.
Dr. Lesswing acknowledged that it is difficult to determine exactly when claimant developed his posttraumatic stress disorder, but that the events leading to the disorder certainly began on January 12, 1996, when claimant found his wife severely injured, followed shortly by his extensive interrogation and subsequent arrest for that assault. Dr. Lesswing testified that all of these events were interwoven in claimant's situation, and that all of them led to claimant's condition.
Under cross-examination, Dr. Lesswing acknowledged that finding his wife severely beaten, as well as being interrogated and then arrested for that assault, naturally caused trauma and stress to claimant, and that as he awaited trial for this assault, he believed that claimant was suffering from major depression.
As for prognosis, Dr. Lesswing testified that claimant continues to suffer from posttraumatic stress disorder, and that his symptoms and impairments are chronic. Dr. Lesswing believes that claimant is in need of regular psychotherapy, and that with treatment, he believes that claimant will experience some improvement in his condition. Dr. Lesswing acknowledged that claimant had been opposed to either psychotherapy or antidepressant medication, but that in the past few months prior to trial, claimant had finally begun to see a therapist. Dr. Lesswing opined that claimant is in need of long-term therapy, and that such therapy could, and in all likelihood should, go on for the rest of his life. He indicated that the cost of such therapy would be $125.00 per hour on a weekly basis.
Stacy Reilly Davison, a licensed clinical social worker, testified for claimant as his treating social worker. Ms. Davison testified that she has recently begun treating claimant based upon a referral from Dr. Lesswing, and that she has met with claimant four times, on a weekly basis, prior to this trial. She testified that during her four sessions with claimant, she has observed symptoms of depression, insomnia, irritability, anger, and in general, a guarded condition.
Ms. Davison indicated that she hoped to meet with claimant on a weekly basis for the foreseeable future, and she believes that claimant could very well require lifelong treatment. She testified that she charges claimant $105.00 per session.
Daniel McGowan, Ph.D., was found qualified by the Court as an expert economist, and testified on behalf of claimant. Dr. McGowan offered testimony both as to the projected cost of future counseling, as well as to the lost earnings suffered by claimant as a result of his wrongful conviction and incarceration.
With regard to projected future counseling costs, Dr. McGowan assumed that claimant would require counseling on a biweekly basis at a cost of approximately $200.00 per session for the rest of his life, projected to be 32 years. Therefore, he calculated these costs until claimant reached the age of 77, and factored in a 3.95% increase per year. He calculated that the total amount for future counseling costs for the balance of claimant's life is $319,666.00.
Dr. McGowan also testified with regard to claimant's economic loss due to his wrongful incarceration. This economic loss relates both to claimant's lost income during his nine years of incarceration following his conviction, as well as to the impairment of his earning capacity from the time of his release until the end of his work life expectancy. Dr. McGowan's calculations with regard to lost earnings are set forth in Exhibit 4, which shows an estimated loss of earnings, including both past and future losses, of $1,536,626.00.
In determining claimant's economic loss, Dr. McGowan relied upon certain facts, as well as necessarily making certain assumptions regarding claimant's work life expectancy. Dr. McGowan relied upon claimant's date of birth of December 2, 1966 and the date of his sentence of September 27, 1996 in determining that claimant had a life expectancy at the date of sentencing of 46.4 years, with a work life expectancy of 30.6 years. Dr. McGowan also relied upon claimant's income for his last full year of employment at Syracuse Label prior to his arrest, conviction, and sentencing, and that claimant had earned $25,826.00 at Syracuse Label in 1995.
In his calculations, Dr. McGowan made an assumption that claimant's wages would have increased by 3.68% per year (which he based on the fact that from the years 1988 through 1995, claimant's income at Syracuse Label had increased at this annual rate of 3.68%) and also assumed that fringe benefits amounted to 25% of each year's income.
Dr. McGowan also acknowledged that in computing claimant's expected earnings following his release from prison, he utilized the income reported by claimant in his 2010 tax return, when he was self-employed, and that he did not consider the wages earned by claimant when he was employed by Burdick Mobile. Dr. McGowan also assumed that these post incarceration earnings would increase at 4% annually.
Bud C. Ballinger, III, Ph.D., a licensed psychologist, was qualified as an expert in psychology and testified on behalf of the State. Dr. Ballinger prepared a report (Exhibit H) based upon his review of records and documents, his review of Dr. Lesswing's report and the tests performed by him, his interview with claimant, as well as interviews from friends and relatives. In addition, Dr. Ballinger administered additional psychological tests to claimant, as more fully set forth in his report.
Based upon his interviews, his review of court documents and records, and the tests results from both Dr. Lesswing as well as his own testing, Dr. Ballinger diagnosed claimant with Posttraumatic Stress Disorder, chronic, as well as Depressive Disorder, not otherwise specified.
Although Dr. Ballinger agreed with Dr. Lesswing that claimant suffers from chronic posttraumatic stress disorder, he disagreed with Dr. Lesswing as to the traumatic events causing this condition. Dr. Ballinger opined that claimant's posttraumatic stress disorder was caused by three traumatic events, namely (1) finding his wife in a badly beaten and bloody condition after the assault against her, (2) the extensive and aggressive interrogation leading to his arrest, and (3) his wrongful conviction, subsequent incarceration and separation from his family. Dr. Ballinger testified that all three of these events worked in concert to create the posttraumatic stress disorder suffered by claimant.
Furthermore, although Dr. Ballinger agreed with Dr. Lesswing that claimant suffered from chronic posttraumatic stress disorder, he believed that this condition was treatable with counseling. Dr. Ballinger testified that in his opinion, psychotherapy could be effective in successfully treating the posttraumatic stress disorder in a much shorter period of time than the lifetime counseling recommended by Dr. Lesswing.
On the basis of this opinion, as well as Dr. Ballinger's finding that claimant is a motivated, hardworking person, Dr. Ballinger testified that he would recommend regular therapy for a period of one to one and one-half years, and then intermittently thereafter on an “as needed” basis.
Matthew C. McCabe was found qualified as an expert economist, and testified on behalf of the State. Similar to the testimony of Dr. McGowan, Mr. McCabe provided testimony not only with regard to the costs of projected psychological treatment, but also as to the lost income suffered by claimant, both past and future (see Exhibit K and accompanying charts).
Based on the testimony of Dr. Ballinger that claimant would benefit from psychotherapy over a limited period of time, Mr. McCabe projected the costs for 100 sessions of therapy at 90 minutes per session, based upon a rate of $130 per hour. Based upon Dr. Ballinger's testimony, Mr. McCabe based his calculations on the assumptions that the bulk of these sessions would occur during the first year, with less frequent sessions over the next three years, followed by additional sessions, as needed, for the balance of his life. Based on these assumptions, Mr. McCabe calculated the cost of future therapy at $20,622.00 (Exhibit K, Table 11).
Mr. McCabe also provided expert testimony with regard to claimant's lost earnings. Mr. McCabe testified that the starting base salary for his calculations was the 1995 salary which claimant earned at Syracuse Label, which was the last full year that he worked prior to his incarceration. He then projected this income for the years in which claimant was incarcerated, utilizing annual growth rate percentages for the manufacturing sector.
Mr. McCabe set forth the earnings loss suffered by claimant from September 27, 1996 (the date of his sentencing) through the date of his release (August 30, 2005) (Exhibit K, Table 1).
With regard to fringe benefits, Mr. McCabe utilized the yearly percentage of wages that an employer contributed to fringe benefits in the national manufacturing sector, as well as adding to this percentage the 6.20% that an employer was required to contribute towards claimant's social security.
Mr. McCabe therefore disagreed with certain assumptions that had been utilized by Dr. McGowan in his analysis. Specifically, Mr. McCabe indicated that his calculations had been made on a calender year basis, and that Dr. McGowan had made his annual calculations from September to September. Mr. McCabe stated that the economic data relied upon by him is compiled on a calendar year basis, and that it was therefore appropriate to also represent claimant's lost earnings on a calender year basis as well. Mr. McCabe also disagreed with the 3.68% figure used by Dr. McGowan to determine claimant's annual increase in salary, since that figure did not take into account actual economic conditions in the manufacturing section. Similarly, Mr. McCabe also disagreed with Dr. McGowan's use of a flat 25% figure for fringe benefits, as that assumption also did not accurately represent the national average for fringe benefits in the manufacturing sector.
Based upon his assumptions and calculations, Mr. McCabe concluded that claimant, had he continued with his job at Syracuse Label, suffered a loss of $332,400.00 in wages and fringe benefits, from the date of his sentencing to the date of his release (Exhibit K, Table 1).
Mr. McCabe, utilizing the same basic assumptions and calculations, also calculated claimant's expected lost earning capacity from the time that he was released from incarceration through his work life expectancy. Mr. McCabe testified that claimant's work life expectancy after being released was 15.30 years, until March 28, 2027, and that claimant's life expectancy was 72.72 years, until August 21, 2039.
Mr. McCabe testified that he calculated the post incarceration earnings that claimant would have been expected to earn, had he not been incarcerated and had he continued to work at Syracuse Label until the end of his work life expectancy. He also calculated claimant's actual and projected earnings, based upon claimant's two full years of employment at Burdick Mobile following his release from incarceration.
Based on these calculations (and as set forth on Exhibit K), Mr. McCabe concluded that claimant's potential economic loss, from the time that he was incarcerated through the end of his work life expectancy, was $765,394.00. As previously indicated, Mr. McCabe determined that $332,400.00 represented earnings lost by claimant during the time that he was incarcerated, while the balance of $432,994.00 represented claimant's economic loss for his future lost earning capacity.
DISCUSSION
Pursuant to Court of Claims Act § 8–b(6), a claimant who has been found to have been unjustly convicted and imprisoned is entitled to an award of damages “in such sum of money as the court determines will fairly and reasonably compensate him.” The amount of any such award should be determined in accordance with “traditional tort and other common-law principles” (Carter v. State of New York, 139 Misc.2d 423, 528 N.Y.S.2d 292, aff'd 154 A.D.2d 642, 546 N.Y.S.2d 648). The relevant period of time for determining damages is from the date of conviction to claimant's release from incarceration, but damages may also be awarded for “any subsequent or continuing damages shown to have proximately resulted from those incurred during said period” (id, at 429).
Any award made by the Court should provide compensation for lost wages, any physical or mental problems caused by the incarceration, pain and suffering, loss of freedom while incarcerated, separation from children, humiliation and damage to reputation (Johnson v. State of New York, 155 Misc.2d 537, 588 N.Y.S.2d 722).
In this particular matter, claimant seeks pecuniary damages for his lost wages during his incarceration, his impairment of future earning capacity after his release from incarceration, and the expenses incurred and to be incurred for the treatment of the psychological injuries suffered by him during his confinement. Claimant also seeks non-pecuniary damages for his pain and suffering incurred during his nine years of incarceration, as well as for the lasting effects of the psychological damage suffered by him.
The Court notes, with interest, that both parties, in their post-trial submissions, have made repeated references to the Baba–Ali case, and the damages decision of my esteemed and learned colleague, Hon. Melvin Schweitzer (Baba–Ali v. State of New York, 24 Misc.3d 576, 878 N.Y.S.2d 555).
As noted, Judge Schweitzer provided a comprehensive review of damages awards previously made in unjust conviction claims (see Baba–Ali, page 594, footnote 7), and these cases have been reviewed by this Court in determining a fair and reasonable compensation for the claimant. Nevertheless, the Court is aware that damages must be determined on a case-by-case basis, and that the amount of damages may vary depending upon the individual and particular circumstances of each case (Carter, 139 Misc.2d 423, 528 N.Y.S.2d 292).
The Court is well aware that the Appellate Division, Second Department, reduced the award made by Judge Schweitzer (76 A.D.3d 940, 907 N.Y.S.2d 432), and that the Court of Appeals has recently reversed the prior decision of the Court of Claims which granted summary judgment on the issue of liability in that case (19 N.Y.3d 627, 951 N.Y.S.2d 94, 975 N.E.2d 475). Nevertheless, the analysis on the issue of damages made by Judge Schweitzer, the factors considered by him in making his award, and the extensive and thorough references to prior awards (see Baba–Ali at page 594, footnote 7) were of the utmost benefit to this Court in its consideration herein.
NON–PECUNIARY DAMAGES
As mentioned above, claimant seeks damages not only for his pain and suffering while incarcerated, but also for the psychological injuries that he continues to suffer from subsequent to his release.
In this particular matter, from his conviction to his release, claimant was incarcerated for a period of nine years, the vast majority of which was spent at a maximum security facility. Clearly claimant, through his loss of liberty for nine years, also lost the fundamental right to enjoy his life, and instead faced nine years of strict confinement in a maximum security prison with a loss of all of his civil rights and liberties. This loss of liberty for nine years, in and of itself, justifies a substantial award, even though any amount awarded cannot adequately compensate claimant for his loss of freedom.
In addition, claimant also provided testimony with regard to the mental anguish suffered by him during this time. Claimant testified that at all times during his incarceration, he was nervous, scared, and depressed, and that prison life was like a “living hell.” He witnessed several violent acts committed against others while in prison, and testified that an inmate had to always be on the lookout to keep from being randomly assaulted.
Compounding this mental anguish was the realization that his five young children had been effectively deprived of their parental relationship as a direct result of his incarceration and the fact that his wife suffered severe brain damage as a result of the vicious assault against her. Furthermore, this separation from his children was even more traumatic, having occurred during their formative years, as the children ranged in age from one to ten years at the time of his sentencing. As a direct result of his incarceration, claimant was deprived of his role as father to his five children for a period of nine years. Testimony established that he rarely saw his children while incarcerated, although he did manage to speak with them by telephone on almost a weekly basis.
Claimant was also acutely aware that his wife, the mother of his children, was also unable to care for their children as a result of the severe brain damage suffered by her in the assault for which claimant had been convicted. Although claimant's aunt and stepmother obtained custody of the children, and were able to provide a safe and secure home environment for them, both passed away during his period of incarceration. Not only was claimant unable to attend the funerals of these two women who meant so very much to him, he now had to worry about the fate of his children. Fortunately, a cousin assumed physical custody of the children until claimant's release.
Finally, even though claimant's life with his wife would have been drastically changed as a result of the severe injuries suffered by her in this assault, claimant was unable to provide any comfort, care, or assistance to her due to his conviction and incarceration, and the marriage was terminated by divorce during his incarceration.
Therefore, as damages for claimant's loss of liberty, mental anguish, and loss of his relationship with his family, all as described above, this Court finds that claimant should be awarded the sum of $2,700,000.00.
Claimant also testified as to the continuing loss of enjoyment of life, as well as the continuing psychological damage, directly attributable to his nine years of incarceration. Claimant testified that his parental relationship with his children has been permanently altered due to his incarceration, and this was confirmed by the testimony of one of his children, Daniel Gristwood, Jr.Claimant also testified that his relationships with friends had been severed, and that he had developed a mistrust which prevented him from developing new friendships and relationships.
Testimony was also presented as to the psychological injuries suffered by claimant as a result of his wrongful conviction and incarceration. The Court finds it significant that both Dr. Lesswing (claimant's expert) as well as Dr. Ballinger (defendant's expert), agree that claimant suffers from posttraumatic stress disorder, as well as depressive disorder, not otherwise specified. However, these experts disagree as to the causation of these disorders.
Dr. Ballinger, the defendant's expert, testified that three separate, although related, events could have each independently been the cause of claimant's posttraumatic stress disorder. He testified that (1) the trauma of finding his wife in her bloody and beaten condition, or (2) claimant's subsequent arrest and lengthy interrogation, or (3) his conviction and subsequent incarceration could independently, or in combination, caused his condition. He testified that it was not possible to determine which of these events triggered claimant's posttraumatic stress disorder as well as the other mental disorders suffered by him.
Dr. Lesswing, claimant's expert, while acknowledging that all three events were “interwoven,” attributed claimant's posttraumatic stress disorder to the unjust conviction and the nine years of incarceration resulting from that conviction. Dr. Lesswing opined that if claimant had not been convicted and had not served nine years in prison for a crime which he did not commit, he would not have developed posttraumatic stress disorder.
After considering the testimony from both experts, as well as reviewing their respective reports, it is the opinion of this Court that the most significant factor in the development of claimant's chronic posttraumatic stress disorder was his unjust conviction, and most significantly, the nine years of incarceration that he was forced to endure for a crime that he did not commit. Although the shock of discovering his wife in her badly beaten condition and the stress of undergoing an exhausting interrogation most certainly were factors, this Court is absolutely convinced that claimant's posttraumatic stress disorder, as well as his other mental conditions, can be directly attributed to his nine years of incarceration. The Court must therefore consider claimant's mental health status in its determination of continuing non-pecuniary damages.
Accordingly, based upon this finding that the Court must consider claimant's psychological condition, together with his continued loss of enjoyment of life and his altered relationships with friends and family, the Court awards the sum of $1,920,000.00 as damages representing continuing pain and suffering.
PECUNIARY DAMAGES
A. Treatment of Post–Incarceration Psychological Issues
Both experts also disagreed as to the extent of recommended therapy for claimant to address his mental issues. Specifically, although both experts agreed that claimant will benefit from regular and frequent therapy sessions, they disagreed as to the length of such recommended treatment. Dr. Lesswing opined that since claimant's condition is chronic, claimant will in all likelihood require regular therapy sessions on an indefinite and long-term basis, potentially for the rest of his life. Even though he agreed with Dr. Lesswing that claimant was in need of immediate counseling, however, Dr. Ballinger was of the opinion that such intensive (weekly) counseling would only be necessary for a period of one year to one and a half years, and that claimant might then only require therapy on an “as needed” basis thereafter.
Having previously determined that claimant's present mental health issues are a direct result of his unjust conviction and subsequent incarceration, and after having considered the testimony of both experts, it is the finding of this Court that claimant should receive, at his option, the benefit of mental health counseling sessions to address his posttraumatic stress disorder as well as his depression disorder.
Based upon the testimony of Ms. Davison (claimant's therapist), the testimony of claimant, as well as the Court's observation of claimant's demeanor during this trial, the Court agrees with both experts that immediate and regular counseling sessions will hopefully provide meaningful and substantial benefit to the claimant in addressing his mental health issues. While the Court agrees with Dr. Ballinger that claimant in all likelihood will not require such counseling on a regular basis for the balance of his life, the Court is also of the opinion that a one to one and half year period of regular counseling is too short a time in which to make significant progress. The Court agrees with Dr. Lesswing's opinion that claimant will benefit from sessions over a longer period of time in order to address his chronic posttraumatic stress disorder. The Court, however, does not believe that claimant, a highly motivated person, will require such intensive and regular sessions on a weekly basis for the remainder of his life.
Therefore, taking into account the anticipated expenses projected by claimant's expert (Dr. McGowan) as well as from defendant's expert (Mr. McCabe) for future psychotherapeutic counseling, the Court hereby awards the sum of $100,000.00 to cover the cost of treatment for continuing psychological issues. B. Lost Earnings While Incarcerated
The parties do not contest the fact that claimant is entitled to payment for the potential earnings that he would have made had he not been incarcerated for a period of nine years. Defendant's expert, Mr. McCabe, calculated claimant's lost wages, including fringe benefits, at $332,400.00 (Exhibit K, Table 1). Claimant's expert, although he did not separately total claimant's lost earnings while incarcerated, apparently calculated claimant's lost earnings, while incarcerated, at $349,601.00 (Exhibit 4, Years 1–9).
After reviewing the respective reports, as well as the testimony provided by each economic expert, the Court finds that the calculations made by Mr. McCabe of $332,400.00 more accurately represent the earnings lost by claimant during his incarceration, and the Court hereby awards such amount to the claimant. C. Impaired Earning Capacity
With regard to lost earning potential, testimony established that shortly after his release, claimant obtained a job as a mechanic with Burdick Mobile, for whom he had previously worked part-time prior to his conviction. He worked at Burdick Mobile for approximately two years as a mechanic, until he decided to leave that employment and start his own engine repair business. Testimony established that claimant has maintained his self-employment up to the date of trial.
Although the economic experts for both parties were very close in their calculations of lost earnings during claimant's period of incarceration, there are substantial differences between the two in their respective calculations of impaired earning capacity. Claimant's expert, Dr. McGowan, calculated a total economic loss suffered by claimant of $1,536,626.00 (including claimant's loss of earnings during incarceration), while Mr. McCabe, defendant's expert, calculated claimant's total lost earnings capacity of $765,394.00 (also including claimant's lost earnings while incarcerated).
The difference between these calculations can be attributed primarily to the calculations and assumptions regarding expected post-incarceration earnings. The most significant difference between the two is that Mr. McCabe utilized the wages earned by claimant at Burdick Mobile in the two years following his release from custody to determine post-incarceration earnings, while Dr. McGowan utilized the income reported by claimant from his self-employment as his starting point in calculating expected earnings.
Furthermore, after considering the testimony from claimant, as well as the testimony from both expert psychologists, the Court finds that claimant has established, by a preponderance of the evidence, that he has suffered a diminution in his earning capacity as a direct result of his incarceration.
After a consideration of the reports submitted by each economic expert, as well as their respective testimony, it is the opinion of this Court that the actual wages earned by claimant at Burdick Mobile provide a more accurate and reliable indication of claimant's actual earnings potential following his release from incarceration. The Court further finds that other assumptions made by Mr. McCabe regarding fringe benefits and potential percentage increases in salary are also more accurate and reliable.
Accordingly, the Court finds that the total potential economic loss due to claimant's incarceration of $765,394.00, as calculated by Mr. McCabe, is the more accurate projection. Taking into account the Court's prior determination that claimant suffered lost earnings, while incarcerated, of $332,400.00, the Court hereby finds and awards the sum of $432,994.00 for impaired earning capacity.
The awards made herein can therefore be summarized as follows:
+-----------------------------------------------------------------------------+ ¦NON–PECUNIARY DAMAGES ¦ ¦¦ +--------------------------------------------------------------+-------------+¦ ¦Loss of Liberty, Mental Anguish, and loss of Family ¦$2,700,000.00¦¦ ¦Relationships while Incarcerated. ¦ ¦¦ +--------------------------------------------------------------+-------------+¦ ¦Continuing Pain and Suffering, including Post–Incarceration ¦$1,920,000.00¦¦ ¦Psychological Issues ¦ ¦¦ +--------------------------------------------------------------+-------------+¦ ¦PECUNIARY DAMAGES ¦ ¦¦ +--------------------------------------------------------------+-------------+¦ ¦Treatment of Post–Incarceration Psychological Issues ¦$100,000.00 ¦¦ +--------------------------------------------------------------+-------------+¦ ¦Lost Earnings While Incarcerated ¦$332,400.00 ¦¦ +--------------------------------------------------------------+-------------+¦ ¦Impaired Earning Capacity ¦$432,994.00 ¦¦ +--------------------------------------------------------------+-------------+¦ ¦TOTAL ¦$5,485,394.00¦¦ +-----------------------------------------------------------------------------+
The amount awarded herein shall carry interest at the rate of 9% per annum from the date of the determination of liability on April 1, 2011 (Dingle v. Prudential Prop. & Cas. Ins. Co., 85 N.Y.2d 657, 628 N.Y.S.2d 15, 651 N.E.2d 883;Love v. State of New York, 78 N.Y.2d 540, 577 N.Y.S.2d 359, 583 N.E.2d 1296). Additionally, to the extent claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act, § 11–a(2).
LET JUDGMENT BE ENTERED ACCORDINGLY.