Opinion
# 2016-041-506 Claim No. 119173
05-26-2016
EON SHEPHERD v. THE STATE OF NEW YORK
EON SHEPHERD Pro Se HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Ray A. Kyles, Esq. Assistant Attorney General
Synopsis
Inmate medical malpractice claim is dismissed after trial where claimant failed to establish through competent medical proof his medical condition or conditions, the standard of medical care to which he was entitled by reason of those conditions, that defendant provided him with medical care that fell short of the obligatory standard of care it owed him in addressing those conditions and that any such failure proximately caused the claimed injuries and damages; bailment portion of claim is dismissed where claimant failed to prove his lost personal property cause of action by a preponderance of the credible evidence.
Case information
| UID: | 2016-041-506 |
| Claimant(s): | EON SHEPHERD |
| Claimant short name: | SHEPHERD |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 119173 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | FRANK P. MILANO |
| Claimant's attorney: | EON SHEPHERD Pro Se |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Ray A. Kyles, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | May 26, 2016 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Eon Shepherd (claimant), an inmate at all relevant times at Clinton Correctional Facility (Clinton) and at Five Points Correctional Facility (Five Points), filed a claim on November 17, 2010, and trial of the claim was conducted on March 17, 2016. The claim presents two causes of action - - one alleges that "due to the State's negligence claimant's legal and personal property was lost/destroyed and monies taken out claimant's account without his consent," and the other alleges medical malpractice in "failing to provide claimant with effective, adequate, meaningful medical care."
Claimant's Medical Malpractice Cause of Action
Claimant's trial proof in support of his medical malpractice cause of action was imprecise, conclusory, and scattershot. It ranged from allegations that defendant failed to properly treat claimant's eyes for blurry vision and light sensitivity, to allegations that defendant failed to properly treat him for back pain and that defendant failed to sufficiently provide him with a back brace to allegations that defendant further failed to sufficiently provide him with a knee brace.
To sustain a cause of action for medical malpractice, a claimant must prove, generally through expert medical opinion testimony, two essential elements: (1) a deviation or departure from accepted practice, and (2) that such departure was a proximate cause of claimant's injury (Carter v Tana, 68 AD3d 1577, 1579 [3d Dept 2009]).
Conclusory allegations of medical malpractice, unsupported by competent evidence establishing its essential elements, are insufficient to state a prima facie case. Through a medical expert, it must be shown that defendant deviated from the standard for good and acceptable care in the locality where the treatment occurred and that the deviation was the proximate cause of the injury (Torns v Samaritan Hosp., 305 AD2d 965, 966 [3d Dept 2003]; Yamin v Baghel, 284 AD2d 778, 779 [3d Dept 2001]; Bracci v Hopper, 274 AD2d 865, 867 [3d Dept 2000]).
"Where medical issues are not within the ordinary experience and knowledge of lay persons, expert medical opinion is a required element of a prima facie case" (Wells v State of New York, 228 AD2d 581, 582 [2d Dept 1996], lv denied 88 NY2d 814 [1996]; see Tatta v State of New York, 19 AD3d 817 [3d Dept 2005], lv denied 5 NY3d 712 [2005]; Trottie v State of New York, 39 AD3d 1094 [3d Dept 2007]).
The fact that claimant proceeded pro se does not excuse the need for expert medical opinion to demonstrate a deviation from the applicable standard of care (Duffen v State of New York, 245 AD2d 653, 653-654 [3d Dept 1997], lv denied 91 NY2d 810 [1998]).
Claimant was the only trial witness. No expert medical proof was provided. Claimant failed to establish through competent medical proof his medical condition or conditions, the standard of medical care to which he was entitled by reason of those conditions, or that defendant provided him with medical care that fell short of the obligatory standard of care it owed claimant in addressing those conditions. Accordingly, the claimant's cause of action founded in medical malpractice must, and does, fail.
Claimant's Lost Personal Property Cause of Action
Claimant's second cause of action alleges that defendant lost or destroyed certain personal possessions of his as he was transferred between facilities, and that defendant improperly deducted monies from his inmate account. Claimant's lost personal property cause of action covers several different dates, alleging that defendant lost or destroyed claimant's personal possessions on a number of occasions. As a result, claimant lodged several administrative grievance claims.
Claimant alleges a cause of action based upon a bailment transaction. "To establish a prima facie case of negligence in a bailment transaction, claimant must demonstrate that his property was deposited with the defendant and the defendant failed to return it. . . . Once claimant meets his burden, there is a rebuttable presumption that the defendant is negligently responsible for the loss, and defendant must come forward with proof explaining the loss. . . . The measure of recovery for the loss of bailed property is fair market value, which can be established by evidence of the original purchase price less a reasonable rate of depreciation" (Amaker v State of New York, UID No. 2006-032-511[Ct Cl, Hard, J., Aug. 14, 2006]; see Claflin v Meyer, 75 NY 260 [1878]; Weinberg v D-M Rest. Corp., 60 AD2d 550 [1st Dept 1977]; Board of Educ. of Ellenville Cent. School v Herb's Dodge Sales & Serv., 79 AD2d 1049, 1050 [3d Dept 1981]; Miceli v State of New York, 179 Misc 2d 424, 428-429 [Ct Cl 1998]). These principles are embodied in DOCCS regulations at 7 NYCRR 1700.7 (Directive 2733) which provides at relevant part as follows:
This and other decisions of the Court of Claims may be found at the Court's website: www.nyscourtofclaims.state.ny.us.
"(b) Property last in control of the department. When an inmate's property was last in the control of the department or its agents, and the department fails without good explanation to deliver it in to the inmate or the inmate's designee in the same condition as when received by the department, then there is a rebuttable presumption that the department is negligently responsible for the loss.
(1) To rebut the presumption of negligence, the reviewer must determine that all department staff who had a duty to protect the inmate's property carried out their duties in an acceptable way. If that is not shown or if it is shown that the department's staff failed to meet their responsibilities, then the department will be deemed to have been negligent."
Claimant's cause of action for lost personal property fails in its entirety, due to both procedural infirmities and to a failure of proof.
Several of claimant's inmate grievances were prosecuted and administratively exhausted more than 120 days prior to the service and filing of Mr. Shepherd's claim, in violation of Court of Claims Act § 10 (9). These grievances, and their infirmities, were the subject of trial testimony and are, in part, further memorialized in trial Exhibits 7, 10 and 11.
The Court notes, to no practical or legal effect or consequence, that some of the papers represented at trial to be contained within Exhibit 10 were improperly included as part of Exhibit 11. The Court left unchanged Exhibits 10 and 11, as they were submitted to the Court. --------
Beyond these procedural infirmities, claimant's lost property cause of action fails as a matter of proof, for a variety of reasons. Initially, none of the proof at trial documents either the cost to acquire the possessions claimant alleges defendant lost or destroyed, or documents the fair market value of the items at the time of their loss. The closest claimant came to valuing his possessions at the time of their acquisition was a single trial reference to the claimed values being his "recollection." Beyond that, there is no proof for the overwhelming majority of items claimed lost or destroyed concerning the age or condition of the items at the time of loss.
Next, in one instance ("medical records"), claimant duplicates his inmate claim in more than one grievance. In certain other instances, claimant failed to document proof of possession or ownership of his lost possessions.
Finally, beyond a lack of specificity or detail, certain of claimant's trial testimony and of his documentary evidence as to the value of his possessions lacked credibility. For example, in his grievance claim forms, claimant valued his lost internal complaint/grievance paperwork at $300, valued four lost books at $580, valued 14 lost magazines at $448, valued ten lost pictures (described in his claim as "photos of deceased girlfriend and dad") at $1,000, and valued lost Kings County and Richmond County police reports at $500 each.
With regard to the loss of claimant's photographs, 7 NYCRR 1700.8 (a) (3) provides that: "[i]t is not possible to evaluate the 'sentimental value' of items such as personal photographs, writings, mementos, or the 'artistic value' of personal artwork or handicrafts. Such items can only be evaluated for their intrinsic value unless there is some proof of actual market value such as an appraisal of a painting." Although I do not doubt the sentimental value of claimant's photographs, the law does not permit me to compensate claimant for such a loss.
Lastly, Exhibit 8 purports to be letters detailing transcript costs claimant asserts he incurred to replace lost legal transcripts. Defendant objected to its admission at trial upon foundational grounds, and the Court reserved. Subsequent to trial, as permitted by the Court, defendant made additional foundational objections and a hearsay objection to admission of Exhibit 8. Defendant's objections to Exhibit 8 are well stated and they are now granted. Exhibit 8 is not received into evidence.
Even had Exhibit 8 been received, it would have had no probative or persuasive effect in determining the claim. The trial record is devoid of any proof concerning the utility of or use to which such transcripts would or could be put. Claimant presented no evidence that the lost transcripts related to any ongoing legal matter or that he had any other intended use for the transcripts. This is particularly noteworthy given trial testimony indicating that claimant had been a state prison inmate since 1996.
7 NYCRR 1700.8 (a) (4) states, in full, as follows:
"Lost legal papers often have no value. If records in a criminal case are lost when there is no further right of appeal and no further use for them, then the records have no more than 'sentimental value,' that is, no value. If the lost legal papers can still be used, for example, in a pending or future legal proceeding, then the loss may be compensated by either replacing the papers or paying the reasonable cost to reproduce them. If an inmate can obtain replacement copies for no cost, then the lost papers have no value. If an inmate claims that there is a cost to reproduce the lost papers, then the inmate should produce an estimate for the cost to reproduce the lost papers, which normally should not exceed the cost shown in the bill for the original papers."
As Judge Schaewe stated in Spears v State of New York (UID No. 2011-044-009 [Ct Cl, Schaewe, J., Oct. 25, 2011][internal citations omitted]), "If legal work can still be used in pending or future proceedings, the fair market value is the cost to replace or reproduce it (see 7 NYCRR 1700.8 [a] [4]). If the legal work is of no use, the Court may consider it to be of only sentimental value and award nothing or the Court could award a modest amount for lost archival-type materials."
Even assuming that defendant is responsible for the loss of certain items of claimant's personal property, the complete absence of any credible evidence of the reasonable value of any such property at either the time of acquisition or at the time of loss precludes the Court from awarding even nominal damages for any such loss.
The claimant has failed to prove his lost personal property cause of action by a preponderance of the credible evidence including a failure to prove by a preponderance of the credible evidence that defendant ever improperly deducted monies from his inmate account.
The claim is, in all respects, dismissed.
All motions not previously decided are hereby denied.
Let judgment be entered accordingly.
May 26, 2016
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims