Opinion
# 2018-029-073 Claim No. 126320
08-01-2018
DEBORAH A. PASCOE, ON BEHALF OF THE ESTATE OF ROBERT J. PASCOE, JR. AND DEBORAH A. PASCOE v. THE STATE OF NEW YORK
MAINETTI, MAINETTI & O'CONNOR, P.C. By: Kevin C. Harp, Esq. BARBARA D. UNDERWOOD, ATTORNEY GENERAL By: J. Gardner Ryan, Assistant Attorney General
Synopsis
In a wrongful death claim arising from a vehicular accident on January 15, 2015, after the court found the deceased driver and defendant State of New York each 50% liable, a damages trial was held on June 12, 2018. The court found a total economic loss of $1,695,137, awarded claimant executrix 50% of the total amounting to $847,568.50 (past-$127,824 and future-$719,744.50), and directed the Clerk to stay the judgment pending completion of a CPLR Article 50-B hearing.
Case information
| UID: | 2018-029-073 |
| Claimant(s): | DEBORAH A. PASCOE, ON BEHALF OF THE ESTATE OF ROBERT J. PASCOE, JR. AND DEBORAH A. PASCOE |
| Claimant short name: | PASCOE |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 126320 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | STEPHEN J. MIGNANO |
| Claimant's attorney: | MAINETTI, MAINETTI & O'CONNOR, P.C. By: Kevin C. Harp, Esq. |
| Defendant's attorney: | BARBARA D. UNDERWOOD, ATTORNEY GENERAL By: J. Gardner Ryan, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | August 1, 2018 |
| City: | White Plains |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Deborah Pascoe filed a claim for wrongful death as the executrix of the estate of her deceased husband Robert J. Pascoe, Jr. and individually. Mr. Pascoe died from injuries he sustained on January 15, 2015, when the automobile he was driving collided with a New York State Department of Transportation truck on I-84. After a bifurcated trial addressing the issue of liability only, the court found defendant 50% liable, and the deceased driver 50% liable (see Pascoe v State of New York, UID No. 2017-029-076 [Ct Cl, Nov. 21, 2017]). A trial limited to the issue of damages was held on June 12, 2018.
Claimant testified on her own behalf and called one additional witness, economist James Lambrinos, Ph.D., an expert in the area of economics and statistics. Defendant did not call any witnesses. The following claimant's exhibits were admitted into evidence: supplemental expert witness disclosure (Exh. 2); decedent's W-2 forms for 2011 - 2014 (Exh. 3); claimant's bank account statements showing checks payable to Discovery Benefits, Inc., for COBRA (Exh. 4); and the expert's report on economic losses (Exh. 5). The following defendant's exhibit was admitted into evidence: economic data questionnaire (Exh. A). The bill of particulars was admitted as court exhibit 1. The trial transcript was not ordered and the parties did not submit post-trial written summations.
Dr. Lambrinos was accepted as an expert economist in the area of economic losses. He testified that he formulated his opinions after reviewing the deceased's W-2 forms for 2011-2014, a completed questionnaire with economic data for the deceased and claimant, certain professional publications and reports, and government websites and reports. He also spoke with claimant. Mr. Lambrinos was provided with information about: Mr. and Mrs. Pascoe's background; the deceased's employment history, earnings and some fringe benefits; and claimant's employment and income. Information on the deceased's healthcare premium contribution was not available. He reviewed canceled checks reflecting claimant's monthly payments under COBRA after her husband's death. He assigned 20% of what she was paying as the deceased's premium contribution, which he testified was normal. The loss was the difference between what she was paying and what he had been paying.
In estimating claimant's economic loss, Dr. Lambrinos assumed several facts: decedent was born October 10, 1960 and died January 15, 2015; he was married and had no children at the time of his death; he had been employed by IBS (International Business Systems) for ten years, and he was working as a Director - Electronic Data Interchange; and he had an Associate's Degree. He provided claimant's attorney with a report on economic loss, an updated report dated April 3, 2018 (Exh. 2), and a final updated report dated June 11, 2018 (Exh. 5).
The State's attorney objected to admission of the supplemental report as untimely expert disclosure. The court overruled the objection. It was determined that the supplemental report contained a minor deviation from the prior two reports that had been timely provided to the State's attorney. The only change from the second report from April 3, 2018 (Exh. 2) was the amount of baseline earnings to reflect a de minimus change upward of approximately $4,300 annually.
Dr. Lambrinos determined that decedent's annual income at the time of his death was $136,716, which was an average over three years (2011 - 2013). He referred to the number as a conservative "starting point," because the decedent's past earnings were not adjusted for inflation and the 2014 earnings were not factored in. The witness determined that the decedent had a life expectancy of 25.4 years to age 80.7, and a work life expectancy of 8.8 years to age 64.1. The witness applied an annual inflation in earnings rate of 2.74% for future years, which he estimated from the past 20 years of data taken from the website for the U.S. Bureau of Labor Statistics.
For claimant, Dr. Lambrinos determined that she has a life expectancy of 30.6 years to age 83.6, and a work life expectancy of 8 years. Based on her verbal representations, he determined that she had earned roughly $9,000 in 2015, and $10,000 in 2016 and in 2017.
There are four tables attached to the expert's June 11, 2018 Report (Exh. 5). Table I breaks down his finding of a $2,306,867 total net household income and benefits assuming Mr. Pascoe had not been killed, and that claimant lives until 2046, the last year of her life expectancy. Beginning with the year 2016, Dr. Lambrinos uses an annual income of $136,716 for Mr. Pascoe and $10,000 for claimant. He then: deducts what Mr. Pascoe would have paid for health insurance, his 401(k) plan, and personal consumption; adjusts for inflation; and adds anticipated social security benefits on retirement at age 64.1 for him, and 61 for her.
Table II breaks down Dr. Lambrinos' finding of a $856,154 total net household income and benefits, with Mr. Pascoe dying in the 2015 accident, and claimant living until 2046. Table II shows claimant beginning to receive social security survivor benefits in 2028, when she turns 66, the anticipated age of her full retirement.
Table III breaks down Dr. Lambrinos' finding of $297,765 as the value of Mr. Pascoe's household services if he had lived for his full life expectancy. Dr. Lambrinos determined the net hours of household work that would have been done by the deceased, by subtracting the hours of work done only for the deceased's benefit from the total number of hours. Using a study called "The Dollar Value of a Day," he valued the hours at the scheduled minimum wage increases, and thereafter by an assumed 2% annual increase, which he explained was lower than the rate of inflation in the Consumer Price Index.
The expert did not provide a number for, or explain, either in his report or at trial, the "total hours" and the hours of work done only for decedent's benefit.
The witness found claimant's total economic loss of $1,748,478 according to the following formula:
Net Income-No Death Net Income-Death Net Household Services Total
$2,306,867 - $856,154 + $297,765 = $1,748,478
At the request of claimant's counsel, Dr. Lambrinos determined, as a hypothetical, what the net household income and benefits would be if Mr. Pascoe had worked until age 70. The findings are reflected in Table IV. There is no evidence that Mr. Pascoe would have, or could have, worked until the age of 70. Based on the record, the age 70 hypothetical is highly speculative and will not be considered by the court.
On cross-examination, Dr. Lambrinos identified four factors for assessing work life expectancy: education, age, employment status, and gender. He relied on the economic data questionnaire (Exh. A) in determining the statistical average. The questionnaire asks for five years of earnings, primarily to address the inconsistent income of hourly workers, but he used only four as the information for 2014 was inadequate. He did not consider the deceased's health. He assumed that the amount deducted from the deceased's salary for healthcare was 20% of the amount paid monthly by claimant for COBRA after her husband died. He did not check with the employer about the actual numbers. He also used an economic average to determine the rate of consumption that was not specific as to the deceased.
As to claimant's work life expectancy, Dr. Lambrinos did not consider marital status. As to her earnings, he did not have any documents to support her oral representations that she had earned about $10,000 a year for two years. She said she was an office worker and he did not inquire further about her work or her employment history. The expert assumed she was earning minimum wage, and adjusted for wage inflation going forward.
Claimant, Deborah Pascoe, testified that she was 56 at the time of trial. Her husband worked for IBS, which is based in California. His work involved making peer to peer systems for computers. He had a home office, where he worked remotely at least 60 hours a week. He also had an office in Rochelle Park, New Jersey. Prior to working with IBS, he worked for about 12 years doing the same work at a company named JGI, which IBS purchased. He traveled on occasion. She and her husband had planned to move to the Florida Keys when he retired.
At the time of her husband's death, claimant was not working. She then became employed at RSS (Rehabilitation Support Services) as an hourly employee. She received a total of $10,000 "and change" during the prior year. She testified to being on Medicaid for the past year. She has no intention of retiring. There is a mortgage on their home. With help from her brother, she takes care of her parents, who live about ten minutes away from her home.
On cross-examination, claimant testified that her husband was 6 feet tall and weighed about 230 pounds. She was not aware that he suffered from any cardiovascular problems. She denied he used recreational drugs. After defense counsel asked claimant if she was aware that the autopsy found a metabolite for cocaine in her husband's blood, claimant's counsel objected. A colloquy ensued, during which defense counsel asked the court to admit the autopsy report, arguing its relevance to the deceased's work life expectancy because it would show he suffered from various conditions. The court denied admission of the autopsy report, noting for the record that it was not qualified to extrapolate work life expectancy from the results, which required expert testimony that defendant did not provide.
Claimant rested, and defendant rested without calling any witnesses.
As the Second Department explained in Klos v New York City Transit Auth.,
"In a wrongful death action, an award of damages is limited to fair and just compensation for the pecuniary injuries resulting from the decedent's death to the persons for whose benefit the action is brought (see, EPTL 5-4.3) [. . .]. The standard by which to measure the value of past and future lost earnings is the decedent's gross income at the time of death [. . .], and the standard by which to measure the value of past and future loss of household services is the cost of replacing the decedent's services" (240 AD2d 635, 637 [2d Dept 1997], lv dismissed 91 NY2d 846 [1997]; see Keenan v Molloy, 137 AD3d 868, 871-872 [2d Dept 2016]).
The court recognizes that claimant's expert Dr. Lambrinos is a well-qualified and experienced economist who is a prolific author and is currently a professor of economics at Clarkson University. He is also experienced as an expert witness, and defendant did not present expert testimony of its own to controvert Dr. Lambrinos' findings. Nevertheless, the court is not required to "wholly adopt the opinion of an expert, even though uncontradicted" (Halvorsen v Ford Motor Co., 132 AD2d 57, 63 [3d Dept 1987], appeal denied 71 NY2d 805 [1988] [jury, as fact-finder, not required]). Indeed, the fact-finder "is not required to accept an expert's opinion to the exclusion of the facts and circumstances disclosed by other testimony and/or the facts disclosed on cross-examination" (Curry v Hudson Val. Hosp. Ctr., 104 AD3d 898, 900 [2d Dept 2013], quoting Zapata v Dagostino, 265 AD2d 324, 325 [2d Dept 1999]).
Since claimant called the only expert at trial, and defendant did not challenge his conclusions to any significant extent, the court accepts the expert's pro forma computational findings based on a work-life expectancy of 64.1 years, corrected for computational errors. The court will also adjust the total economic loss to correct for the expert's miscalculation of the amounts claimant paid and, the expert assumed, would continue to pay for COBRA into the future.
The minor computational errors were made in Table I, which shows Mr. Pascoe's anticipated net household income for the years 2016 through 2046, if he had lived. Dr. Lambrinos was one dollar off in his totals of Mrs. Pascoe's earnings and Mr. Pascoe's social security, and $998 off in his total of Mr. Pascoe's personal consumption amount.
Incorrect Total Correct Total
Her Earnings: $ 86,024 $ 86,025
His Social Security: $675,643 $675,644
The expert then increased the expected household income by an amount equal to the total of all COBRA payments he assumed Mrs. Pascoe would avoid if her husband had lived, minus what he would have paid for health insurance until his retirement at 64.1. The court is constrained to accept the expert's formula for determining health insurance payments (20% of the COBRA payments), but not his calculation of the total amount of COBRA payments she would have avoided, which is contrary to the evidence of claimant's actual payments. Copies of claimant's checks admitted as Exh. 4 show that she made monthly COBRA payments in increasing amounts starting December 10, 2015, and ending with her last payment on July 25, 2017. After that, according to claimant's testimony, she was on Medicaid. The total amount claimant actually paid for COBRA was $12,829.67, and the evidence shows she stopped paying for COBRA after July 2017. The difference between $12,829.67 and 20% of that number - $2,565.93 - is $10,263.74, as opposed to the $63,604 Dr. Lambrinos calculated.
Claimant's COBRA Payments (Exh. 5)
8 months @ $635.99 = $ 5,087.92
5 months @ $639.05 = $ 3,195.25
7 months @ $649.50 = $ 4,546.50
TOTAL $12,829.67
Less 20% ($2,565.93) = $10,263.74
Adding these corrected numbers to the remaining amounts in Table I, the total net household income without the passing of Mr. Pascoe amounts to $2,253,526.
His Earnings $1,340,343 +
401(k) Plan $ 40,210 +
Health Insurance $ 10,264 +
(rounded up)
Her Earnings $ 86,025 +
His Social Security $ 675,644 +
Her Social Security $ 456,041 =
Total Household Income $2,608,527
Personal Consumption Amount $ 355,001 =
Net Household Income and
Benefits Without Passing $2,253,526
Taking the net household income of $2,253,526, the remaining calculation using Dr. Lambrinos' numbers in Tables II and III is straightforward:
Net Household Income and
Benefits Without Passing $2,253,526
Household Income With Passing $ 856,154 +
Household Services $ 297,765 =
TOTAL ECONOMIC LOSS $1,695,137
Dr. Lambrinos did not provide any calculations or testimony distinguishing between past and future economic losses. However, using his unchallenged assumptions and the evidence presented at trial, the court finds that past losses amount to $255,648 (rounded down), and future losses amount to $1,439,489. These amounts are derived from the 2016 and 2017 values provided by Dr. Lambrinos in Tables I - III, except for the adjustment to health insurance described above. The economic losses for all of 2016 and 2017 are included because the Tables contain only annual values. Although the accident was on January 15, 2015, the court cannot reliably determine an amount of total economic loss for 2015 (excepting the first COBRA payment) because Dr. Lambrinos did not calculate or testify about economic losses for the remaining eleven and a half months of that year. Summary of Damages Award
TOTAL PAST ECONOMIC LOSS $ 255,648
TOTAL FUTURE ECONOMIC LOSS $1,439,489
Since decedent was found 50% at fault for the accident, the court awards claimant individually and as executrix of decedent's estate 50% of the total award of $1,695,137, amounting to $847,568.50 for her economic loss (past - $127,824, future - $719,744.50). In addition, to the extent claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act §11-a(2).
All motions upon which the court reserved decision at trial are hereby denied.
All objections upon which the court reserved determination at trial are now overruled.
Because the amount of future damages exceeds $250,000, a structured judgment is required pursuant to CPLR 5041(e). Accordingly, the Clerk of the Court is directed to stay the entry of judgment in accordance with this decision until a hearing is held pursuant to CPLR Article 50-B. The court will contact the parties to schedule said hearing. For the purposes of CPLR Article 50-B, the court encourages the parties to agree upon the attorneys fee calculation and 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 proposed order directing judgment in writing conforming to the requirements of CPLR Article 50-B within 120 days of the filing date of this decision.
August 1, 2018
White Plains, New York
STEPHEN J. MIGNANO
Judge of the Court of Claims