Loss of Parental Guidance

On May 10, 2007, Ivan Hernandez Morales, then 21 years old, was killed in a work-related accident when a private garbage truck lurched backward and he was pinned and crushed against a dumpster in a driveway off 37th Street in Astoria. Mr. Morales was employed  as a helper on the truck owned by his employer Crown Container Co. and operated by a coworker.

In the ensuing lawsuit to recover damages for pain and suffering and wrongful death, plaintiff asserted claims against Crown, related companies and its driver.  In the midst of trial, the Crown defendants settled with plaintiff for the sum of $1,550,000 plus the waiver of the workers compensation lien of about $150,000. The only defendant remaining at trial was Advanced Fleet Maintenance, Inc. which serviced the truck’s transmission six months before the accident (and had been brought into the case by Crown as a third-party defendant).

The Kings County jury found that Advanced was 49.5% liable for the accident after trial evidence demonstrated that after servicing and inspecting the truck, it allowed the truck to leave its facility without a required functioning neutral interlock system. Crown was found to be 49.5 % at fault and the driver 1% at fault.

The jury awarded pre-death pain and suffering damages in the sum of $3,000,000 ($1,000,000 for pre-impact terror and $2,000,000 for conscious pain and suffering).

In Vargas v. Crown Container Co., Inc. (2d Dept. 2017), the liability verdict was affirmed but the pain and suffering damages award was reduced to $1,000,000 ($250,000 for pre-impact terror and $750,000 for conscious pain and suffering).

As indicated in the court’s decision, the medical examiner (who performed the autopsy) testified as an expert for the plaintiff that Mr. Morales sustained multiple rib fractures and internal injuries that resulted in his death one or two minutes after impact. Here are additional facts that were adduced regarding the claims for pre-impact terror and conscious pain and suffering:

  • the impact caused blunt trauma to the head and massive crush injuries of the torso including a ruptured diaphragm, fractured sternum, eight rib fractures, an arm fracture and lacerations of the abdominal wall, liver (almost torn in half) and spleen
  • the truck driver held Mr. Morales in his arms at the scene and said: “His eyes were watching me. He was moving his arms.”
  • EMS arrived 10 minutes after impact at which point Mr. Morales was not breathing and had no pulse. He was pronounced dead upon his arrival at a hospital.
  • the defense expert emergency medicine physician opined that the decedent had no time to appreciate that the truck was approaching him and therefore did not suffer any pre-impact terror. Furthermore, the expert opined that the impact and injuries caused massive internal bleeding, the result of which would have been an immediate loss of consciousnesses (since blood flow to the brain is required for consciousness)

Mr. Morales was survived by his wife and their two year old son and the jury awarded loss of parental guidance damages in the sum of $3,000,000 ($2,000,000 past – seven years, $1,000,000 future – 16 years). The appellate court reduced the loss of parental guidance damage award to $1,000,000 ($650,000 past, $350,000 future).

The jury also awarded and the appellate court affirmed loss of earnings damages in the sum of  $1,208,000 ($168,000 past – seven years, $1,040,000 future – 16 years).

Inside Information:

On January 29, 2013, at about 7:30 p.m., Juan Estevez was attempting to cross Sunrise Highway at its intersection with Henry Street in Freeport when he was struck by a left turning vehicle. Mr. Estevez, 64 years old,  sustained massive injuries in and about his head, ribs and sternum. He was pronounced dead at the hospital three hours later after resuscitation efforts failed. He was divorced, retired, lived alone and survived by three adult sons.

Scene of Accident
Scene of the Accident

In the ensuing lawsuit by the decedent’s estate against the driver, a Nassau County jury determined that both the driver and the decedent were at fault for the accident (the driver 22% and the decedent 78%) but that the estate was not entitled to any damages at all for pre-impact terror, pre-death pain and suffering or loss of parental guidance.

In Estevez v. Tam (2d Dept. 2017), the jury verdict was affirmed. The only damages issue on appeal was loss of parental guidance as plaintiff did not challenge the verdict as to either pre-impact terror or pre-death pain and suffering.

Mr. Estevez’s sons were 34, 40 and 44 years old at the time of trial and they testified regarding the tight knit family bond they had with their father and that they talked to him often and strongly relied upon him frequently for guidance. The defendant noted, though, that (a)  each of the sons lived on his own with their own families, (b)  each was self-sufficient (there was no evidence that their father gave them any financial support) and, (c) the sons offered no specific testimony or evidence that they relied upon their father for counsel or guidance. While it appears the appellate court acknowledged that there was some evidence of loss of parental guidance, the court nonetheless affirmed the verdict awarding nothing for this damage claim because the jury was entitled to weigh the testimony on this issue and determine for itself which version preponderated.

As to liability, the defendant claimed he could not have avoided the impact because the decedent was wearing dark clothing, walking outside the crosswalk and against the light (which he and his passengers all testified was green for him and red for pedestrians)  and ran into the side of his car (the driver’s side mirror was knocked off during the incident). He never saw Mr. Estevez before impact and had no indication a pedestrian was involved until he exited his car.

About 18 months before trial, defendant moved for summary judgment dismissing the claims for pre-impact terror and pre-death pain and suffering. The judge denied the motion and allowed the claims to be resolved by a jury at trial in  part because of a statement from the driver that the decedent “looked conscious” at the scene and an affidavit from a passenger that the decedent was moving his left hand while on the ground before taken away by ambulance.

At trial, the renowned pathologist Michael Baden, M.D., testified as an expert for  the defense. He stated that the decedent suffered brain damage and lost consciousness when the car hit him and that any body movement at the scene was not voluntary. The coroner who performed the autopsy testified for the estate and opined that Mr. Estevez experienced a moment of pre-impact terror as well as pre-death conscious pain and suffering. The jury credited the defense expert, awarded nothing for these elements of plaintiff’s claim and the findings were not appealed.

Inside Information:

  • There was some testimony that the decedent babysat a granddaughter on occasion but no testimony that the girl’s father incurred any costs in retaining a replacement babysitter (which could have formed the basis for a loss of services claim).
  • There was a $150,000 settlement offer that was rejected. In summation, plaintiff’s attorney asked the jury to award $900,000 –  $600,000 for the estate’s financial losses, $100,000 for pre-impact terror and $200,000 for pre-death pain and suffering.

 

 

 

On October 29, 2006, a woman was found dead on the road four feet from the curb of a bus stop on the Henry Hudson Parkway service road at West 236th Street in the Bronx. There were tire marks across her back and she’d sustained crush induced fractures of her arms, face, pelvis, shoulder and skull indicating that she was rolled over by a vehicle over her pelvis and then her head.

Several hours later police investigators discovered blood and tissue underneath a bus that had stopped at the site at about the time of the incident. It was determined that the bus had struck the decedent, 51 year old Bronx resident and part-time home health aide Rachel Levy (although the bus driver was unaware he’d struck anyone and there were no eyewitnesses).

In the ensuing lawsuit by Ms. Levy’s survivors against the transit authority and its bus driver, a verdict was rendered finding the driver fully at fault and awarding $950,000 in damages as follows:

  1. $300,000 to the decedent’s estate for pre-death conscious pain and suffering,
  2. $100,000 to the decedent’s daughter, Miriam Oates, for her loss of nurture, care and guidance (future – five years) and
  3. $550,000 to the decedent’s mother, Hadassah Levy, for her loss of custodial services ($150,000 past – 6 1/2 years, $400,000 future – 10 years).

In Oates v. New York City Transit Authority (1st Dept. 2016), both the liability and damages awards were affirmed.

Here are the injury and damages details:

  • Pain and Suffering:  Plaintiff’s expert forensic pathologist opined that Ms. Levy died due to multiple blunt force crush injuries of her head, chest, pelvis and upper extremities and that she suffered two to five seconds of conscious pain and suffering from the time she was struck by the bus to the time she lost consciousness and succumbed to her injuries. He broke the time period down to the pre-impact phase (the few seconds before impact when Ms. Levy recognized she would be hit, the impact phase (when the bus hit her, propelled her, knocked her down and began to run over her) and the post-impact phase (once the bus finished rolling over Ms. Levy when her entire body experienced total shock before no longer responding to her environment). The defendants’ expert opined that Ms. Levy died instantly, without pain or suffering and that it was impossible to say if or how long Ms. Levy was conscious at the time of or after impact.
  • Loss of Nurture, Care and Guidance: Ms. Oates, 40 years old at trial, left her mother’s home after college when she married and moved to North Carolina. Se continued to rely upon her mother for nurture, care, guidance and advice (especially regarding her own young daughter) via frequent phone calls and visits to New York several times a year.
  • Loss of Custodial Services: Hadassah Levy, 77 years old at trial, lived with her daughter (the decedent), was disabled, suffered from several health conditions (e.g., severe rheumatoid arthritis, back issues, eye disease and sleep apnea) and she required daily household and medical assistance. The decedent provided her mother with daily custodial services including grocery shopping, cleaning, laundry, cooking, driving and keeping track of medications.

Inside Information:

  • The five judge appellate panel split 3-2 in favor of affirming the verdict and the defendants have exercised their right (by virtue of the split decision) to seek review from the state’s highest court, the Court of Appeals. We will report on any significant further developments as they occur.
  • Decedent’s family refused an autopsy on religious grounds.
  • New York’s wrongful death laws allow for an award of pecuniary damages (e.g., loss of custodial services) to a decedent’s distributees. Estates, Powers and Trusts Law Section 4-1.1 provides that where a person is survived by a child and a parent, the child is the sole distributee. Therefore, decedent’s daughter was her only distributee but defense counsel never objected to the prosecution of the claim for decedent’s mother until after the trial so the appellate court deemed the objection waived and allowed the award to stand.

UPDATE:

On November 17, 2016, the Court of Appeals affirmed the intermediate appellate court’s order discussed above. New York’s high court stated: ” … legally sufficient evidence supported the jury’s findings of negligence and entitlement to damages for decedent’s conscious pain and suffering.”

 

 

On January 24, 2004, Col. (retired) William Gardner sustained fatal injuries when the vehicle he was driving struck and vaulted over an interstate highway’s snow-covered barrier in Syracuse and fell to the street below. We discussed the ensuing lawsuit in previous articles, here and here. In Gardner v. State of New York (4th Dept. 2015) almost all of the damages findings have been affirmed on appeal.

At the damages trial (judge only, no jury), the total award was $3,569,985 which included:

  1. $1,122,150 for loss of financial support for the decedent’s two teenage sons
  2. $1,365,500 for the boys’ loss of inheritance
  3. $825,000 for the boys’ loss of parental guidance
  4. $250,000 for pre-impact terror
  5. $0 for pre-death pain and suffering

The appellate court affirmed the awards for pre-impact terror (based on the testimony of another driver who saw Col. Gardner’s car as he lost control, hit the snowbank and that it took “several seconds” to fall to the street below), loss of parental guidance and future loss of financial support but reduced by $323,000 the awards for past loss of financial support because that’s all the evidence supported. Additionally, the appellate court rejected claimants’ contention that the trial judge erred in using a personal consumption rate of 45% (their expert used a rate of 28.5% while defendant’s used a rate of 95%).

The affirmed parental loss of guidance awards in the sums of $350,000 ($300,000 past – 9 years, $50,000 future – 3 years) for Brandon (28 years old at trial) and $475,000 ($425,000 past – 9 years, $50,000 future – three years) for Ryan (24 years old at trial)  were based upon the testimony of the sons about how involved and supportive their father was in their lives as well as testimony from their mother (to whom Gardner was married for 14 years before they divorced four years before his death) and several of Col. Gardner’s friends. The trial judge specifically noted that the evidence was clear that there was a strong bond between father and sons, Col. Gardner was a role model for them and his advice and guidance would have continued as his sons graduated college and began their careers. The appellate court noted that the children were teenagers but that  courts may even award damages to financially dependent adults.

The trial judge declined to make any award at all for pre-death physical pain and suffering because, even though Col. Gardner may have lived for a short time after impact (as much as a minute or two), “there is no evidence he was conscious upon impact or had some level of awareness of his pain.” This ruling was not appealed.

The defendant appealed trial judge’s periodic method of payment (but not the amount) of the $1,365,000 award for loss of inheritance but the appellate court ruled that CPLR 5041 , the statute requiring a lump sum present value for certain awards, is not applicable in this case.

 

 

 

 

 

 

On December 2, 2009 at about 7 p.m., a woman was walking across the street at the intersection of Avenue U and East 71st Street in Brooklyn. A city bus driver had stopped for a red light before turning right onto Avenue U when his bus struck and killed the pedestrian, 65 year old Virginia McKibbin.

A pedestrian crosses the street in front of a city bus at a downtown crosswalk, Wednesday, July 29, 2009, in Des Moines, Iowa. Responding to a stubborn spate of buses hitting pedestrians, the Des Moines bus system will require drivers to honk every time they turn. And because all of the accidents happened when buses were turning left, drivers now have new routes that allow only right-hand turns downtown. (AP Photo/Charlie Neibergall)

In the ensuing lawsuit against the bus driver and owner, on December 20, 2012,  a Kings County jury apportioned fault for the accident 75 % to the driver and 25% to the pedestrian.

The jury then awarded pecuniary damages to the decedent’s three adult daughters in the sum of $1,200,000 (10 years) but awarded zero for pre-impact terror and zero for conscious pain and suffering.

In Keenan v. Molloy (2d Dept. 2016), the appellate court:

  1. affirmed the jury’s verdict awarding zero damages for pre-impact terror and zero damages for conscious pain and suffering, and
  2. reduced the pecuniary damages award to the principal sum of $600,000 (i.e., $800,000 reduced by 25% for comparative fault).

Under New York law, pecuniary damages may be awarded to a decedent’s children for their monetary losses caused by their parent’s death.  Jurors may not make any award for sorrow, mental anguish, injury to feelings or for loss of companionship. Among the considerations jurors are charged with considering in this regard are (a) the earnings a decedent would have spent in the future for the care and support of her children and (b)  the value of the intellectual, moral and physical training, guidance and assistance their mother would have given them had she lived.

The appellate court determined that $800,000 for pecuniary damages is reasonable in this case based upon the testimony of Ms. McKibbin’s three daughters (who were 39, 42 and 45 years old at the time of trial) as to their loss of parental guidance. All four lived close to one another in Brooklyn, shared Sunday dinners every week and spent a great deal of other time together each week (along with the daughters’ three young children). There was significant unrebutted testimony about how close the daughters and grandchildren were with the decedent, how she provided them all with counseling especially during difficult times and how Ms. McKibbin was “the glue that held their family together.”

There was also evidence that the decedent spent a great deal of time caring for her grandchildren, babysitting for them, cooking for them, having weekend sleep-overs and helping to teach and care for her special needs grandson.

In a post-trial decision, the presiding judge characterized the nature and quality of the relationship between Ms. McKibbin and her family as “exceptional and significant” and stated that her every day involvement with her family could easily support the jury’s $1,200,000 award for loss of parental guidance and support.

Emotional pain and suffering damages for a decedent’s pre-impact terror may be awarded when there is proof that between the moment a decedent realized she was going to be gravely injured and die and the moment she sustained a physical injury:

  • she was aware  of the danger that caused her death,
  • she was aware of the likelihood of grave injury or death, and
  • she suffered emotional distress as a result of her awareness of her impending grave injury or death.

In this case, the defense argued successfully that there should be no award for pre-impact emotional distress because (a) a scream that the bus driver heard at the time of impact may have come from someone other than the decedent and (b) Ms. McKibbin was likely rendered unconscious immediately upon impact. Plaintiff contended that because the accident occurred without witnesses (the bus had no passengers), the only person who could have screamed was the decedent.

Pre-death pain and suffering damages (distinct from emotional distress damages for pre-impact terror) may be awarded for pain and suffering during such time as a decedent was conscious from the moment of injury to the moment of death.

Here, the defendants argued successfully that no award at all should be made as to this aspect of damages because, as opined by their expert trauma physician,  Ms. McKibbin lost consciousness on impact. Plaintiff’s expert opined that when Ms. McKibbin was being run over by the bus “she knew what was happening to her” and she “could feel pain” but he did not offer any opinion as to whether she was conscious when found moments later in the street (“I don’t know.”). A passerby testified  that while Ms. McKibbin was on the ground he heard very shallow breathing, like a small gasp for air, but the defense expert testified that a person exhibiting such so-called agonal breathing who sustained massive trauma like Ms. McKibbin did in this case generally would be unconscious.

Ms. McKibbin was found unconscious by ambulance personnel and confirmed dead on arrival at the hospital 30 minutes after the accident.

Inside Information:

  • Ms. McKibbin had worked for 20 years in a title insurance office earning about $42,000 in her last full year of work in 2008.
  • There was substantial testimony from the daughters about the financial assistance their mother gave to them and their children from time to time for things like rent, utility bills and divorce proceedings. There was no accompanying documentary evidence to support those claims and the only specific testimony in this regard was from one of the daughters who testified that her mother gave her about $1,250 per month.
  • In his summation, plaintiff’s counsel, Christopher Meagher, asked the jury to award $1,000,000 for pecuniary damages sustained by the decedent’s three adult daughters (two divorced, one never married) who, he said, lived in a solar system that revolved around their mother. Exercising their prerogative, the jury determined that this item of damage exceeded counsel’s request.
  • With the 25% reduction for comparative fault, the jury’s award was reduced to $900,000. While the appellate court then reduced the gross award to $800,000 – with the result being a net award of $600,000 – the award remains quite significant and at the high end of such awards to adult children in New York wrongful death cases.

 

 

In 2002, Ciciline Reid was a 49 year old grandmother who worked seven days a week as a home health aide. On July 28th, she  presented to the Montefiore Medical Center emergency room complaining of swelling on the side of her neck and pain on swallowing that was diagnosed as a sore throat and gland infection. She was administered intravenous antibiotics, her condition improved and she was discharged after four days.

Montefiore Med Ctr

Unfortunately, Ms. Reid’s symptoms persisted and after several doctor visits over the next four months, she ended up in the hospital again on December 7, 2002  and was diagnosed with lymphoma (a cancer of the lymphatic system).

NYEE

For the next two years, Ms. Reid underwent aggressive treatment and despite complete (but only three or four months) remission, the cancer relapsed and she died from the disease on January 11, 2005.

In the ensuing lawsuit, medical malpractice claims were made against the hospital and three physicians for failing to diagnose the lymphoma when Ms. Reid first presented to the hospital in July.

Plaintiff’s expert oncologist testified that a biopsy of an abnormally enlarged lymph node seen on a CAT scan in plaintiff’s neck should have been performed promptly upon plaintiff’s initial treatment at the hospital and that it would have revealed the lymphoma.

The trial in Bronx County concluded on December 6, 2012, after the judge charged the jurors as to the law and then they returned a verdict as to liability specifically finding that:

  1. plaintiff had lymphoma as of July 28, 2002
  2. the hospital, through its physicians, was negligent in not diagnosing lymphoma until November 15, 2002, and
  3. the physician remaining as a defendant (two others had been voluntarily dismissed by the plaintiff before trial) was not negligent

The jury also addressed damages and awarded the sum of $2,400,000 for plaintiff’s pre-death pain and suffering.

Here is the actual verdict sheet completed by the jurors.

The hospital appealed both the liability finding and the damages award. In Reid v. Bharucha (1st Dept. 2015), the malpractice verdict against the hospital was affirmed but the appellate court reduced the pain and suffering award to $2,000,000.

As indicated in the decision, the pain and suffering award was for “one year of additional cancer treatment.” There was evidence that had the lymphoma been diagnosed in July it would then have been Stage I or II with about an 85% prognosis for survival but that because it was not diagnosed until November it was by then Stage  IV with the “worst prognosis.”

Ms. Reid underwent an eight cycle chemotherapy regimen  with each cycle repeated every three weeks. She would have needed that in either event.

Her cancer remained in remission for almost a year but her expert oncologist testified that had she been diagnosed with lymphoma in July or August, she would have had “an overwhelmingly better response and prolonged remission ….”

Additional treatment following the chemotherapy was needed (which plaintiff’s expert testified could have been avoided had the earlier diagnosis been made) including:

  • bone marrow and stem cell transplants
  • immunotherpay
  • additional sessions of high dose chemotherapy with 10 additional hospital admissions
  • splenic infarction (tissue death)
  • increased and additional unremitting pain and suffering requiring a morphine pump, Fentanyl patches and other powerful narcotic medicines

The jury also awarded damages for medical expenses, loss of earnings and loss of parental guidance (regarding Ms. Reid’s two adult children). These awards were addressed in a post-trial decision and in the appellate court decision as follows:

  • Medical Expenses – $450,000 affirmed
  • Loss of Earnings – $60,000 (reduced by the trial judge from $1,200,000)
  • Loss of Parental Guidance – $10,000 to each child (reduced from $50,000 each)

Inside Information:

  • After the jury began its deliberations, defense counsel offered $750,000 to settle the case. The offer was rejected.
  • The medical expenses award was in the amount of the lien asserted for the items paid before Ms. Reid’s death. Defense counsel argued, unsuccessfully, that because the malpractice did not cause the cancer this award should have been reduced to reflect only those items that related to the additional one year of cancer treatment that was necessary due to the delayed diagnosis.

We discussed the nearly $15,000,000 damages award in the fatal motor vehicle crash case of 28 year old Jason M. Rhoades in an article published on December 3, 2013, here. As we predicted, the defendant appealed arguing that the loss of parental guidance awards were excessive and that the loss of inheritance awards were improper.

Last week, the appellate court ruled in Grevelding v. State of New York  (4th Dept. 2015) and held that the loss of parental guidance awards were excessive but that the loss of inheritance awards were reasonable and proper.

In addition, the court rejected the defendant’s argument that the entire damages award should have been reduced by an apportionment of some liability on the basis of decedent driver’s comparative fault.

The loss of parental guidance awards for the decedent’s son Luke (two years old at the time of his father’s death, 11 at trial) in the sum of $2,000,000 ($900,000 past – 9 years, $1,100,000 future – 7 years) were reduced by $600,000 and now stand at $1,400,000 ($500,000 past , $900,000 future).

The loss of parental guidance awards for the decedent’s daughter Amelia (two months old at the time of her father’s death, 9 at trial) in the sum of $2,200,000 ($900,000 past – 9 years, $1,300,000 future – 9 years) were reduced by $700,000 and now stand at $1,500,000 ($500,000 past, $1,000,000 future).

While the loss of parental guidance award reductions are significant, the modified awards remain among the highest allowed by the appellate courts in New York. The judges were apparently influenced by substantial testimony that Mr. Rhoades was by all accounts an exemplary father who came home every day at 5:30 p.m. and took over responsibility for his two young children and that he and his son were “inseparable.”

The $1,603,306 awards of damages for loss of inheritance were based upon expert testimony projecting (1) a savings rate of 2% of Rhoades’ income and (2) an investment growth rate of 8.2%.

The defense argued on appeal that the loss of inheritance awards should be vacated because they were duplicative of the $8,728,980 awarded to decedent’s spouse and children for their loss of his past and future income, support and household services. The court rejected that argument since it has long been held and is routinely explained to juries by trial judges that the monetary damages to a decedent’s distributees (here, his wife and two children) include both the portion of decedent’s earnings he would have spent in the future for their care and support and the amount if any that would have been inherited by them.

Inside Information:

  • Neither party appealed with regard to the issues of the amounts of damages awarded for pre-impact terror ($250,000) or loss of income, support and household services ($8,728,980).
  • Mr. Rhoades suffered the tragic death of both of his parents when he was 17 years old. Thereafter, he lived by himself in an apartment while he finished high school. Then, he completed a bachelor’s degree at Syracuse University in less than three years and an MBA at LeMoyne College in just one year, all while holding down jobs in the telecommunications industry.
  • The issue of damages in the wrongful death case of Gardner v. State of New York, involving another fatal motor vehicle crash at the same site just 36 hours after this accident  (about which we also wrote in our December 3, 2013 article), is the subject of an appeal set for oral argument in the 4th Department on December 7, 2015.

 

 

On Wednesday June 18, 2008, Nam Yoon Lee woke up with stabbing pain on the right side of his stomach. He went with his wife to the emergency room at a hospital in Queens where morphine was administered, tests led to a diagnosis of gallbladder disease and a plan was made to surgically remove his gallbladder (a cholecystectomy).

Mr. Lee, 60 years old, was admitted to the hospital’s surgery service and, in advance of the surgery, he was NPO (no food, intravenous fluids and antibiotics only). For unknown reasons, and with horrible consequences, Mr. Lee’s surgery never took place. Over the next several days, his NPO status was maintained and Mr. Lee’s hunger and thirst progressed into great pain and then breathing itself became difficult. He feared he was dying. His fears were justified.

On Sunday June 22nd, Mr. Lee developed sepsis (because of the negligent failure to remove his infected gallbladder), went into full cardiac arrest and died at about 4 p.m. that day after attempts to revive him failed. He is survived by his then 56 year old wife, Young Sook Lee and his then 29 year old daughter, Jae Yon Lee.

Laparoscopic surgery to remove a gallbladder is relatively simple and should have been performed on Mr. Lee:

A lawsuit was filed on behalf of Mr. Lee’s estate against the hospital and three physicians. Defendants conceded liability and on December 23, 2011, after 18 days of trial, a Queens County jury heard the case and rendered a verdict for $7,579,560:

  • $5,000,000 for pre-death pain and suffering (from 6/18/08 through 6/22/08)
  • $336,000 for past economic loss to decedent’s wife and daughter (from 6/22/08 to the date of the verdict)
  • $2,243,560 for future economic loss to decedent’s wife and daughter

The trial judge ordered a reduction of the pain and suffering award to $3,750,000.

Now, in Lee v. New York Hospital Queens (2d Dept. 2014), the appellate court has affirmed the $3,750,000 pain and suffering award as well as the $2,243,560 future economic loss award while reducing the past economic loss award to $250,000. The total affirmed award stands at $6,243,560.

As set forth in the court’s opinion, the substantial pain and suffering award was based upon evidence that from the time of Mr. Lee’s admission to the hospital until his death four days later he complained of pain, discomfort, hunger, difficulty breathing and feeling that he was dying. Here are additional injury details:

  • continuing inflammation of gallstones causing fevers, chills, sharp pain and sickness
  • extreme anxiety due to daily delays of gallbladder surgery
  • shivering, wheezing, shortness of breath and whole body shakes (rigors) starting about 12 hours before death (as systemic sepsis developed)
  • screaming, saying “I feel like I’m dying” and I am in “so much pain” (about two hours or so before death)
  • critical oxygen deprived state requiring a rapid response team which found Mr. Lee violent and in need of physical restraint
  • intubation an hour before death with medication that left him paralyzed for about four minutes, aware of the tube down his throat which made him gag, unable to speak and produced conscious suffering and terror
  • when the paralytic medication wore off, Mr. Lee became able to move and he reacted by thrashing and pulling out the tube; his brain then succumbed to oxygen deprivation and he was aware he was asphyxiating for four more minutes until he was unconscious and went into cardiac arrest

The $2,243,560 affirmed award for future economic loss was based upon the claim that a licensed practical nurse was needed to care for Mr. Lee’s daughter, Jae, over the course of the 19 years of Mr. Lee’s life expectancy before he died. Jae was 32 years old at the time of trial but was unable to live on her own due to mental disabilities that, among other things such as epilepsy induced seizures and schizophrenia, left her with an IQ of an eight year old child. Mr. Lee had been her primary caregiver. At the time of trial, Jae was living at Hope House, which is for people who are mentally retarded and disabled, but her mother wanted her to return home and expert psychiatric testimony indicated that home-care with a nurse would be best.

Inside Information:

  • Mr. Lee had worked part-time as a salesman earning about $12,000 a year but apparently failed to pay income taxes after 2007. In his closing argument, defense counsel accused plaintiff of lying under oath based upon the amount alleged for lost earnings in the bill of particulars and suggested that Mr. and Mrs. Lee “committed fraud” and that the lawsuit was an opportunity to “get rich” provided plaintiff can “get the jury to go along with this.”
  • Defendants’ concession of liability was the subject of an intense dispute (as to which of the three doctors were conceding and what facts as to liability, if any, could be brought out at trial) and caused the trial judge to say to defense counsel “I will not allow this farce to continue…. I have never in my life experienced such a farce ….”
  • Mr. Lee was also survived by an adult son who was the administrator of his estate but no individual claim was made on his behalf.

 

On January 23, 2004, Jason Rhoades sustained fatal injuries when the vehicle he was driving slid across the roadway over a bridge on Interstate 81 in Syracuse, struck a snowbank packed against the concrete barrier guard at the edge of the bridge, and his car vaulted off the bridge to the road below.

Thirty-six hours later, William Gardner also sustained fatal injuries when he drove along the same roadway, struck the same barrier, vaulted over the snow-covered concrete barrier and fell to the street below.

Scene from Trial Exhibit

Jason Rhoades was married to Isabelle Rhoades and the father of their two young children (two year old Luke and two month old Isabella) when he died at the age of 28. He had been elected East Syracuse mayor at the age of 24 and was a director of communications products and information technology at Cornell University earning $142,424 a year.

William Gardner was married for 14 years to Cynthia Gardner before they divorced in 2000.  He was the father of their two children (19 year old Brandon and 15 year old Ryan) when he died at the age of 50. He had served in the United States Air Force for 25 years attached to the space program before retiring in 2001 as a full colonel. Then, he worked as a project manager in space technology at Jet Propulsion Laboratory at California Institute of technology in Pasadena, California earning $155,584 a year (plus an Air Force pension of $45,454 a year).

Each of the families asserted claims against the State for personal injuries and economic damages for wrongful death. In both matters, the Court of Claims judge in Syracuse (Diane L. Fitzpatrick) found that the State was not liable for these single car accidents and she dismissed the lawsuits after trial; however in each case, the judge’s decision on liability was reversed by the appellate court.

In both Grevelding v. State of New York (4th Dept. 2012) [Peter Grevelding is the named claimant as he was the executor of the estate of Mr. Rhoades, his nephew] and Gardner v. State of New York (4th Dept. 2010), liability against the State was imposed by the appellate court because the State, by its plowing methods, created the snowbank which constituted a dangerous condition and was a substantial cause of the accident.

New trials were ordered to determine the amount of damages. The damages trials were held in 2012 and 2013 and the judge’s decisions in each of those damages trials have now been handed up.

In the decision following the damages trial in Grevelding (Court of Claims 9/30/13), damages were awarded in the total sum of $14,797,888 and in the decision following the damages trial in Gardner (Court of Claims 11/19/12), damages were awarded in the total sum of $3,569,985. Both cases are still pending, with collateral source and so-called Article 50-B hearings required and appeals expected from all parties.

Each of the cases involved substantial economic damages (as well as claims for pre-death personal injury and loss of parental guidance).

In Grevelding, the economic damages were $10,347,888, as follows:

  • Funeral Expenses – $15,602
  • Loss of Income, Support and Household Services – $8,728,980
  • Loss of Inheritance – $1,603,306

In Gardner, the economic damages were $2,494,985, as follows:

  • Funeral Expenses – $6,985
  • Loss of Financial Support – $1,122,500
  • Loss of Inheritance – $1,365,500

The pre-death personal injury claims in each case were hard fought and involved gruesome evidence.

In Grevelding, the judge awarded $250,000 for pre-impact terror based on testimony from witnesses and several experts for both sides, including the county coroner who examined Mr. Rhoades. He opined that Mr. Rhoades lived for one to two minutes struggling to breathe after the impact fractured his neck and  before he died in his vehicle due to asphyxiation. Dr. Michael Baden, world renowned formed New York City Medical Examiner, testified for the defense. He agreed with claimant’s position that the cause of death was multiple blunt force trauma however he contended that Mr. Rhoades did not asphyxiate but was rendered immediately unconscious from the injuries to his brain and lungs.

The judge declined to make an award for pre-death physical pain and suffering finding that although Mr. Rhoades may have lived, breathing and heart beating for a moment or two after impact, there is “no direct  or circumstantial evidence that he was conscious.” Nonetheless, she awarded the $250,000 for pre-impact terror based on her inference that Mr. Rhoades, “as he approached the top of the snowbank without stopping,” likely endured “more than two seconds” of acute fear of death or serious harm.

In Gardner, the judge also awarded $250,000 for pre-impact terror. She based the award on the testimony of another driver who saw Col. Gardner’s car as he lost control, hit the snowbank and fall to the street below. The judge concluded that “several seconds” transpired from the moment Col. Gardner’s car hit the median barrier, left the bridge railing and landed on the street below. In this case, too, the judge declined to make any award at all for pre-death physical pain and suffering because, even though Col. Gardner may have lived for a short time after impact (as much as a minute or two), “there is no evidence he was conscious upon impact or had some level of awareness of his pain.”

The parental loss of guidance awards were substantial in both cases and involved poignant testimony about the relationships between and among the deceased fathers and their children.

In Grevelding, the judge awarded $2,000,000 ($900,000 past – 9 years, $1,100,000 future –  7 years) for Luke (11 years old at trial) plus $2,200,000 ($900,000 past – 9 years, $1,300,000 future –  9 years) for Amelia (2 years old at trial). These awards were based upon the testimony of several witnesses who described Mr. Rhoades’ “enveloping love for his children and daily involvement in their care and development,” as well as the expert testimony from a psychologist with a doctorate in human development and family studies who discussed the impact of the loss of a father on his children.

In Gardner, the judge awarded $350,000 ($300,000 past – 9 years, $50,000 future – 3 years) for Brandon (28 years old at trial) plus $475,000 ($425,000 past – 9 years, $50,000 future 3 years) for Ryan (24 years old at trial). These awards were based upon the testimony of the sons about how involved and supportive Col. Gardner was in their lives as well as testimony from their mother and several of Col. Gardner’s friends. The judge specifically noted that the evidence was clear that there was a strong bond between father and sons, Col. Gardner was a role model for them and his advice and guidance would have continued as his sons graduated college and began their careers.

Inside Information:

  • So-called loss of parental guidance damages are deemed recoverable in New York by virtue of Estates, Powers and Trusts Law Section 5-4.3. While the statute merely refers to “pecuniary injuries resulting from the decedent’s death,” the courts have for more than one hundred years held that the word “pecuniary” includes injuries arising to children from the loss of a parent, who owes them a duty of nurture, and of intellectual, moral and physical training.
  • In Gardner, the defense urged a modest award, if any, for loss of parental guidance, contending that “Brandon and Ryan had already substantially received the benefit of their father’s advice and guidance before he died, during the most important formative years of their development.”

UPDATE: Some of the damages awards were modified in the October 9, 2015 appellate court decision in Grevelding v. State of New York, discussed here.

 

 

On June 18, 2005, Luisa Sanchez was walking across 163rd Street in the Bronx when the 28 year old woman was struck by a city sanitation truck.

Ms. Sanchez was found by the truck driver lying in the street behind his truck. She was bleeding from her ears, nose and the back of her head and she was uncommunicative. She’d sustained blunt trauma to her head resulting in a subdural hematoma and brain contusions.

Several emergency surgical procedures were performed to try to relieve the intracranial brain pressure but Ms. Sanchez lapsed into a coma from which she never emerged and died from her injuries 10 months later after several bouts of pneumonia and the onset of sepsis (severe infections).

A lawsuit was brought by the decedent’s mother on behalf of Ms. Sanchez’s five year old daughter seeking damages for pre-death pain and suffering, loss of parental guidance and other economic losses.

The city claimed that its driver was not negligent because Sanchez crossed in the middle of the street and there were two posted signs at the site prohibiting pedestrians from crossing.

On February 11, 2010, a jury determined that both parties were negligent (the city driver 30%, Sanchez 70%) and assessed $870,000 in damages (before apportionment) as follows:

  • $245,000 past medical expenses (agreed to by both sides)
  • $150,000 for future lost earnings (13 years)
  • $325,000 for loss of parental guidance (13 years) and
  • $150,000 for loss of household services (13 years)

The trial judge issued a lengthy decision upholding the verdict.

Plaintiff successfully appealed the  refusal to award any pain and suffering damages arguing that there was evidence (from first responders at the scene) that, for at least 10 minutes, Ms. Sanchez was somewhat conscious and experienced pain.

In Sanchez v. City of New York (1st Dept. 2012), the appeals court held that Ms. Sanchez  "showed some signs of consciousness, if not awareness" and experienced "some level of pain and suffering during her interludes of consciousness." This was enough to require an award for pre-death pain and suffering and the judges determined that $400,000  is the minimum acceptable amount under the facts of this case.

The appellate court also addressed additional elements of damages as follows:

  • affirmed the $325,000 loss of parental guidance award (on appeal, plaintiff had argued for an increase to $1,500,000)
  • increased the lost earnings award to include $77,000 for the period before death
  • increased the future loss of household services award from $150,000 to $300,000

Parental guidance damages are meant to compensate a child for the economic loss of a parent’s nurture and care as well as the physical, mental and intellectual training by a parent. Under New York law, damages are not recoverable for a child’s sorrow, mental anguish or loss of parental companionship.

The award for loss of household services, in this case, is intended to compensate Ms. Sanchez’s daughter for the value of her mother’s services (such as laundry, cooking, cleaning and shopping). Plaintiff’s expert economist, Alan Leiken, Ph.D., testified that the value of such services through the daughter’s 21st birthday, would be $345,000.

The total award as modified by the appellate court now stands, before apportionment, at $1,496,000 (an increase of $626,000); however, because of the 70/30 liability split, plaintiff’s actual recovery will be $449,000.

  Inside Information:

  • Plaintiff’s attorney conceded that the decedent was negligent. In his closing argument, counsel stated that the jurors would be correct in assigning 15% of the fault to plaintiff.
  • Defense counsel suggested to the jury that if they found any liability on defendant’s part then $75,000 would be appropriate for pre-death pain and suffering. Plaintiff’s attorney asked for $750,000.
  • Plaintiff asked the jury  for $2,000,000 for loss of parental guidance while defense counsel suggested $150,000.
  • During trial, plaintiff rejected a settlement offer of $500,000.