Pre-Death Pain and Suffering

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On May 1, 2007, at 4 p.m., Jenna Vatalaro, a 19 year old college student, was driving her car westbound on Montauk Highway near its intersection with Atlantic Avenue in the hamlet of Blue Point in Suffolk County when her car was struck by a 35 foot long Suffolk County transit bus. Ms Vatalaro sustained massive injuries and was pronounced dead upon her arrival at the hospital 30 minutes later.

In the ensuing lawsuit, Jenna’s parents claimed that the bus driver crossed over the roadway’s double yellow line and was fully at fault for the crash. A Suffolk County jury agreed and a second jury awarded damages: (a) $250,000 for pre-impact terror, (b) $1,250,000 for pre-death pain and suffering, and (c) $170,000 for economic loss.

In Vatalaro v. County of Suffolk (2d Dept. 2018), the appellate court affirmed the trial judge’s reductions of damages for pre-impact terror to $50,000 and pre-death pain and suffering to $400,000.

Here are the injury details:

  • incomplete brain stem injury
  • full thickness facial lacerations
  • subarachnoid hemorrhage
  • pronounced dead at hospital after cardiac arrest at scene
Brain Stem Anatomy

The defense contended that there was no basis for any pre-death pain and suffering award because Jenna was unconscious at the scene, did not suffer, and was completely insensitive to any feeling of pain from the moment of impact until her death.

To the contrary, plaintiff’s counsel contended that the jury should award substantial pre-death pain and suffering damages because witnesses (including passersby and medical experts) testified that:

  1. Jenna was trembling inside her car immediately after impact, moved her lips like she was trying to say something, moaned responding to the calling of her name and moved her eyes (albeit underneath her eyelids),
  2. she sustained a severe degree of pain for about 10 minutes,
  3. Jenna had agonal respirations (four per minute) 10 minutes after impact and a pulse rate of about 100 15 minutes after impact, and,
  4. an incomplete brain stem injury explains how Jenna could appear to be unconscious while retaining sufficient consciousness to respond to verbal stimulation by trying to speak, moaning or increasing the movement of her eyes under her lids.

The pre-impact terror award was based upon the bus driver’s testimony that he established eye contact with Jenna for about a second. Plaintiff’s counsel argued that it was likely Jenna saw the bus bearing down upon her for longer than a second causing her to fear that death (or a grave injury) was imminent; whereas the defense argued that there was no action or indicia of Jenna’s awareness of an imminent impact with the bus.

Inside Information:

  • Although Jenna’s parents would not allow an autopsy to be conducted, there was an external post-mortem examination (by defendant’s expert pathologist) that allowed the competing medical experts to opine on matters such as the periods of time Jenna was conscious and whether and for how long she experienced any pain.
  • The defense medical expert, a retired pathologist, had been employed by the County of Suffolk at the time of the accident and was the one who preformed the post-mortem examination.
  • The jury also awarded $170,000 for the monetary loss sustained by Jenna’s parents – i.e., a portion of the income she would have earned as well as the loss of her household services. Plaintiff sought an increase in this aspect of the verdict but both the trial judge and the appellate court agreed that the amount was reasonable.

On October 26, 2009, when six year old Claudialee Gomez Nicanor was examined by her pediatrician, a test revealed that her blood had an excessive amount of glucose so she was referred to an endocrinologist in Elmhurst, Dr. Arlene Basa Mercado.

Dr. Mercado’s Office (in the basement of her sister’s house)

On October 31, 2009, Dr. Mercado examined Claudialee and diagnosed obesity and impaired tolerance of glucose. She assumed her patient was developing type 2 diabetes but failed to consider it could have been type 1 and determined that she would not respond to the administration of glucose. During the next three months, Claudialee was seen by the two doctors but no further treatment was prescribed.

On January 24, 2010, Claudialee died as a result of diabetic ketoacidosis (a serious complication of diabetes that occurs when one’s body produces high levels of blood acids called ketones).

In the ensuing medical malpractice case, plaintiff’s medical expert testified unequivocally that had Claudialee’s blood been tested on or before three days before she died, her type 2 diabetes would have been revealed and insulin would have saved her life.

After a six week trial, the Queens County jury determined that Dr. Mercado departed from good and accepted medical practice in her diagnosis, care or treatment of Claudialee and that the departure was a substantial factor in causing injury which resulted in her death. They then awarded pain and suffering damages in the sum of $400,000 (two days) plus economic damages for the monetary loss to Claudialee’s parents  in the sum of $100,000.

The estate’s counsel also sought punitive damages claiming that Dr. Mercado maliciously destroyed handwritten notes of her office evaluations of Claudialee that were recreated (after she knew she was about to be sued for malpractice) to suggest that the doctor had scheduled more timely follow-up examinations. The jury agreed that the defendant’s actions warranted the imposition of punitive damages and in a separate deliberation, the jury awarded punitive damages in the sum of $7,500,000.

On appeal in Gomez v. Cabatic (2d Dept. 2018), the defendant’s destruction of her records in an effort to evade malpractice liability was set forth in detail but the award of punitive damages was reduced to $500,000.

Inside Information:

  • The defendant did not appeal either the liability determination or the awards for pain and suffering and economic damages.
  • Dr. Mercado acknowledged that she destroyed her handwritten office notes but claimed that they were accurately and fully transcribed before being destroyed.
  • Eric Turkewitz at New York Personal Injury Law Blog, called this a case of first impression because the appellate court “upheld an award of punitive damages in a medical malpractice case – not for the conduct that led to the death, but rather, for the effort to evade liability.”

 

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 May 30, 2008, crane operator Donald Leo and laborer Ramadan Kurtaj were working at a building construction site in Manhattan. Mr. Leo was inside a crane’s cab 14 stories above East 91st Street and Mr. Kurtaj was working on the street below. Shortly before 8 a.m.,the crane tilted, rocked and then sheared off of its supporting turntable and collapsed, plummeting 200 feet striking a building and bouncing off several terraces before crash landing on the street pavement. Both Mr. Leo (30 years old) and Mr. Kurtaj (27 years old) were killed.

In the ensuing highly publicized lawsuit by the estates of both decedents. with an 11 month trial and 87 witnesses, on July 30, 2015, a Manhattan jury determined that the crane owners (James F. Lomma and his two related companies)were negligent and awarded pre-death pain and suffering damages (a)  for Mr. Leo in the sum of $15,500,000 ($7,500,000 for pre-impact terror plus $8,000,000 for pre-death pain and suffering) and (b) for Mr. Kurtaj in the sum of $31,500,000 ($7,500,000 for pre-impact terror plus $24,000,000 for pain and suffering).

Post-trial, the defendants made a motion for a substantial reduction of the damage awards; however, the trial judge issued a decision declining to reduce the awards.

On appeal, in Matter of 91st Street Crane Collapse Litigation (1st Dept. 2017), the pain and suffering awards have been reduced to $8,000,000 for Mr. Leo’s estate ($2,500,000 for pre-impact terror plus $5,500,000 for pain and suffering) and $9,500,000 for Mr. Kurtaj’s estate ($2,000,000 for pre-impact terror plus $7,500,000 for pain and suffering).

The evidence indicated that the total time from the initial crane rocking to its impact with the street was about 20 seconds and that Mr. Leo was aware of his impending death when trapped inside the crane’s cab for those 20 seconds. Witnesses from adjacent apartment buildings testified and described the “sheer look of panic and fear” on Mr. Leo’s face. They described him making a series of hand movements and putting his hands together as if praying. And, they described him as then seeming to brace himself before the crane ultimately fell off the building.

The court stated that pre-impact terror is a sub-category of conscious pain and suffering and then explained that damages for pre-impact terror are designed to compensate for the fear the decedent experienced during the interval between the moment the decedent appreciated the danger resulting in his death and the moment he sustained a physical injury as a result of the danger.

The impacts caused massive blunt impact head trauma (with near-complete decapitation) and many massive fractures to Mr. Leo’s arms and legs and almost 20 minutes of excruciating pain before he was pronounced dead at the scene.

The evidence indicated that Mr. Kurtaj heard the crane collapse and then ran and tried to warn others until about 20 seconds later when he was struck by the crane. He sustained many degloving and bone-shattering injuries and was alive and conscious while trapped under the wreckage for 20 minutes screaming and in obvious pain. He was also conscious, moaning, suffering and in pain for an additional 10 minutes while in the ambulance on route to the hospital.

At the hospital, Mr. Kurtaj was handed off to doctors who testified that he was unresponsive and, within six minutes, was administered paralytics and intubated. He was taken to the operating room two and a half hours after arriving at the hospital but he died during surgery, without ever having regained any responsiveness, approximately four hours after the crane collapse.

As to pre-impact terror claims, generally, the court cautioned that: “There must be some evidence that the decedent perceived the likelihood of grave injury or death before the impact, and suffered emotional distress as a result.” In this case, there was substantial direct evidence not only of the “inconceivable pre- impact terror” endured by both Messrs. Leo and Kurtaj but also of their post-impact pre-death conscious pain and suffering.

As to punitive damages, the jury heard evidence that Lomma had made calculated decisions over a period of months when replacing a broken crane part, used a cheap unreliable China-based distributor and failed to test the defective welds. After finding that plaintiffs were entitled to an award of punitive damages, the judge charged the jury as to the law that applies to the amount of punitive damages which were then awarded by the jury in the sum of $24,000,000 for each plaintiff. The appellate court stated that the defendant “placed profit over the safety of construction workers and the public” and agreed that punitive damages were warranted. Nonetheless, the court ordered a reduction of the punitive damages awards from $24,000,000 for each plaintiff to $8,000,000 for plaintiff Leo and $9,500,000 for plaintiff Kurtaj.

Inside Information:

  • The court’s mention that Mr. Kurtaj remained conscious and in pain for as much as three hours apparently assumes that the jury determined that fact but it did not. Several medical experts and treating physicians testified but none concluded that Mr. Kurtaj was conscious and in pain after he arrived at the hospital (where, within a few minutes, he was given paralytics). There was, though, a lone notation in the medical records by an unknown person who was not called to testify indicating that, three hours after the collapse, Mr. Kurtaj had a score of seven on the Glasgow Coma Scale.
  • The jury was shown a video depicting the extrication of Mr. Kurtaj from under the debris which took approximately 20 minutes.
  • Criminal charges were lodged against James Lomma (the  owner of the crane) and a mechanic he employed. Mr. Lomma was acquitted of all charges (the most serious of which was second-degree manslaughter) while the mechanic pled guilty to criminally negligent homicide.
  • Three other defendants settled with plaintiffs for a combined total of $3,500,000 during the trial.

 

On March 11, 2007, Elias Fasolas was operating  a Bobcat S175 skid-steer loader with a bucket attachment when a limb from a nine-foot-tall tree entered the open operator cab, crushing him against the rear and ceiling of the cab and killing him.

Mr. Fasolas was 28 years old, lived with his parents in Port Jefferson and on the day of his death had been using the Bobcat to clear ivy and brush in their yard, expand a garden there and build a shed for garden tools. The accident was  not witnessed but it was clear to all that the tree entered the cab from beneath the bucket and went under a safety bar as Elias was moving the Bobcat forward. He was pronounced dead at the scene.

In the ensuing lawsuit against the manufacturer, distributor and the company from which Elias rented the machine, Elias’s estate claimed that the Bobcat was defectively designed, unreasonably dangerous and defective because it did not incorporate  as a standard safety feature a “special applications kit” (which, with windows and a front door, would have restricted material from entering the cab). Also, they claimed the loader was defective because it was rented without adequate warnings and training for its safe use.

The Queens County jury returned a verdict  that the loader was defectively designed and rented without adequate warnings and liability was apportioned 25% to the manufacturer, 25% to the distributor and 50% to the equipment rental company. The jury then awarded damages for pre-death conscious pain and suffering in the sum of $1,000,000.

In Fasolas v. Bobcat of New York, Inc. (2d Dept. 2017), both the liability and damages determinations have been affirmed.

Plaintiff’s emergency medicine expert, Howard Schwartz, M.D., testified that in his opinion the decedent experienced conscious pain and suffering for approximately five minutes.  The defense did not present any expert testimony as to pain and suffering.

Here are the trauma details, each one of which plaintiff’s expert testified caused conscious pain:

  • initial blunt (non-penetrating) impact of tree limb to abdomen and resultant internal tearing of abdominal wall
  • laceration of liver due to tree limb pressure
  • fractures of sternum and ribs five though nine
  • small cracking of thyroid cartilage due to head positioning from head being pressed down to decedent’s chest
  • congestion in temporal and eyeball regions from increasing pressure in abdomen

Dr. Schwartz opined that each of the traumatic injuries above caused pain, some excruciating, but not death. Mr. Fasolas died as a result of the compression of his torso but, because his abdomen had only 500 milliliters of blood, the doctor concluded that cardiovascular circulation continued for as much as 10 minutes after the initial impact and that lapse into unconsciousness and death occurred five minutes earlier.

Dr. Schwartz also opined that Mr. Fasolas experienced pre-death terror since he was conscious during the five minutes the tree limb was compressing into him and there were photographs showing the position of his arm in such a manner that he concluded were indicative of the decedent trying to “remove himself from the tree.”

The jurors awarded no damages to the decedent’s parents for loss of earnings or loss of  services and the trial judge declined to charge the jury (meaning the claim was not presented to them for evaluation) as to the parents’ claim for loss of financial support. Before his death, the decedent paid significant expenses of his parents (such as their monthly mortgage payments) from the income of a diner he owned.  In declining to charge the jury as to this element of pecuniary loss, the trial judge stated that “there was no break in the chain” of the payments to the parents from the diner since its corporate stock  passed to them upon their son’s death (he was unmarried and had no children) . The appellate court upheld this ruling without comment.

Inside Information:

  • The lawsuit was brought in Queens County based upon the residence of the administrator of the decedent’s estate, his sister.

 

On December 14, 2011, Suzanne Hart was entering the elevator in the lobby of the building where she worked, at 285 Madison Avenue in Manhattan, when the elevator malfunctioned and suddenly shot upward while its doors were still open. The moving elevator struck her at about knee level causing her to fall into the elevator cab which continued to move upward, trapping Ms. Hart between the elevator door saddle and the hoist way wall. Ms. Hart was crushed and died of her injuries at the scene.

The elevator lobby at the scene shortly after the December 2011

In the complaint in the ensuing lawsuit by decedent’s father against the building manager and the elevator service and maintenance company alleging they negligently serviced the elevator, there were two damages claims. The first was for decedent’s pre-death pain and suffering; the second was for economic damages sustained by decedent’s distributees. The defendants moved for, and were granted, partial summary judgment dismissing the wrongful death cause of action (in which Ms. Hart’s father claimed he sustained financial damages as a result of his daughter’s death).

On appeal in Hart v. Transel Elevator and Electric, Inc. (2d Dept. 2017), the lower court’s decision was reversed and the wrongful death economic damages claim was reinstated. Defendants’ motion for leave to reargue the reversal, or for leave to appeal to the Court of Appeals, was denied.

Under Estates Powers and Trusts Law Section 5-4.3 and as set forth in Pattern Jury Instruction 2:320, other than damages for a decedent’s pre-death conscious pain and suffering,  the law limits damages relating to the death of an adult child to monetary injuries. A jury may not make an award for sorrow, mental anguish, injury to feelings, or loss of companionship. In deciding the amount of damages, jurors are instructed to consider the character, habits and ability of the decedent, the circumstances and conditions of her parents, and the services she would have performed and determine the monetary value to the parents. Pecuniary losses for the purposes of wrongful death damages are not limited to financial support and may include loss of services and loss of voluntary assistance.

As set forth in the court’s decision, Ms. Hart died without a spouse or children and her father was the sole distributee and the administrator of her estate (her mother died in 1992). Mr. Hart was 71 years old at the time his daughter died at the age of 41 years.  She’d been an advertising executive at a big firm, involved in business development working four days a week at an annual salary of about $130,000.

Mr. Hart testified that Suzanne gave him enormous psychological support and that while she did not provide him any financial support (he did not need it), they had an understanding that she would make financial contributions to him in the future and would take care of him in his old age. Furthermore, plaintiff noted, Suzanne had already shown she would take care of and support her parents when needed – in 1992, when her mother was suffering from breast cancer (which eventually caused her death), Suzanne took a year off from college to take care of her mother.

Inside Information:

  • The judge heard oral argument on the motion but did not issue a decision or discuss the basis for his decision.
  • Mr. Hart had been living in Florida at the time of his daughter’s death but visited with her several times a year at her home in Brooklyn and spoke with her weekly.
  • An investigation by the city revealed that several maintenance company mechanics had worked on the elevators during the morning of the accident right up to a few minutes before it and had disabled a safety switch that would stop an elevator from moving when the doors remained open. Also, they failed to place caution tape inside the elevators and to call the city’s Department of Buildings before returning the elevators to service, as required by law.

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.