In 2005, Erin Stolarski lived in a Port Chester apartment with her boyfriend Donald DeSimone, a police officer. In October, though, Donald told Erin that he wanted to break up and he asked her to leave the apartment. Despondent over the breakup, Erin (23 years old) attempted suicide on October 15, 2005 by ingesting Oxycodone and other pain relieving prescription medications that belonged to Donald.

She was rushed by ambulance to Greenwich Hospital where she was admitted for two days. Upon discharge, Erin moved back home with her parents and was referred to Family Services of Westchester (“FSW”), a non-profit agency, for outpatient social work and psychological services. She met with a clinical social worker at FSW twice – on October 19th and 26th.

On October 28, 2005, though, Erin committed suicide by shooting herself in the head with her ex-boyfriend’s gun that she obtained by entering DeSimone’s apartment with an old set of keys.

Erin’s parents sued DeSimone claiming that he was negligent in failing to properly secure his handgun when he knew or should have known of Erin’s depressed and suicidal state.

They also sued FSW alleging a failure to properly diagnose Erin as suicidal and refer her to a psychiatrist for treatment that could have avoided her suicide.

The claims against DeSimone were dismissed two years ago (Stolarski v. DeSimone – 2d Dept. 2011); however the case against FSW was allowed to continue because (as set forth in the lower court’s decision in 2009) there was an issue of fact as to whether Erin was referred to a psychiatrist and, given her history, whether another suicide attempt was reasonably foreseeable.

On the eve of trial, FSW again sought dismissal, this time claiming that even if it were determined that FSW was negligent, the pre-death conscious pain and suffering damages sought in this case would not be recoverable under New York law (and that there was insufficient evidence to support a claim for pecuniary, or economic, loss).

The lower court granted the motion, to the extent of dismissing the claim for pre-death pain and suffering damages because Erin’s depression already existed when she sought treatment from FSW and there was no evidence that FSW caused it.

On appeal, though, in Stolarski v. DeSimone (2d Dept. 2013), the pain and suffering claim has now been reinstated but limited to 10 days only – October 19, 2005 (when FSW first treated Erin) to October 28, 2005 (the date of Erin’s death).

The appellate court stated:

“… the fact that the decedent’s depression was pre-existing does not preclude the plaintiff from attempting to prove her entitlement to damages on the theory that the decedent’s condition was exacerbated by Family Services’ alleged failure to provide proper treatment.” [emphasis added]

Plaintiff argued, successfully, that there may be provable pain and suffering claims for:

  1. nine or ten days of of continued psychological pain, and
  2. Erin’s traumatic experience of lifting a gun to her head with awareness of her impending death

The appellate court agreed but, as noted above, limited the claim to those damages that were exacerbated, or made worse by, any negligence of FSW that plaintiff might prove at trial.

Inside Information:

  • The attorneys in this case argued repeatedly resulting in a court appointed referee to supervise depositions.
  • It was only a day before trial, after the jury had already been selected, that FSW made its motion attacking the legal basis for plaintiff’s damages claims.
  • The pecuniary damages claim does not appear to be significant. In opposing FSW’s motion to dismiss the pain and suffering claim, plaintiff’s attorney stated that if that claim were dismissed, the case would simply end because plaintiff structured her entire damages theory around conscious pain and suffering.