New York State Court of Claims

New York State Court of Claims

WOOTEN v. THE STATE OF NEW YORK, #2001-013-501, Claim No. 93933, Motion No. M-61266


State found liable in wrongful death claim brought by decedent's estranged wife. Decedent died of congestive heart failure while incarcerated at Cayuga Correctional Facility. Court dismissed claim for pain and suffering on the grounds of timeliness but concluded that State's medical malpractice caused decedent's death. Court's decision discusses the status of an estranged wife and out-of-wedlock children as distributees. Damages awarded for loss of support, lost household services, loss of parental support and guidance and funeral expenses.

Case Information

TINA WOOTEN, Individually and as Administratrixof the Estate of JAMES A. WOOTEN, Deceased
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Attorney General of the State of New York
BY: EDWARD F. McARDLE, ESQ. Assistant Attorney General
Third-party defendant's attorney:

Signature date:
February 27, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


James Wooten (Decedent) died of congestive heart failure in the early morning hours of May 2, 1994. He was serving a prison term at the Cayuga Correctional Facility (Cayuga), a medium security facility operated by Defendant's Department of Correctional Services. In this timely filed claim,[1]
Tina Wooten, Claimant, acting as administrator of Decedent's estate, alleges that Defendant's medical malpractice and neglect at the facility precipitated Decedent's death. A unified trial took place on March 6, 7 and 20, 2000, at the Court of Claims in Syracuse.
Decedent was born on November 15, 1948 and was incarcerated in November 1993 (
see, Exhibits 10, 13 and A). Although he was then only 45, he was not a healthy man. Claimant, who married Decedent in 1981 and lived with him until 1990, testified that Decedent had suffered heart attacks in 1986 or 1987 and in late 1989 or early 1990. Donna Strohl, who lived with Decedent from 1990 until his incarceration and allegedly bore him a son, testified that Decedent had open heart surgery in 1991 and that he was a smoker (see also, Exhibit A at 29 [indicating Decedent had coronary bypass surgery in 1990]). In March 1992, after Claimant sued Decedent for spousal support, the Common Pleas Court of Carbon County, Pennsylvania, found that Decedent's heart condition had made it impossible for him to return to his former occupation as a construction worker following his open- heart surgery (see, Exhibit 32).
Defendant was well aware of Decedent's health problems. A November 17, 1993 entry in the chart Defendant maintained for Decedent stated that he suffered from heart disease and had had two myocardial infarctions (Exhibit A at 1). A reception nursing assessment at the Elmira Correctional Facility (Elmira) dated November 10, 1993 stated that he was then under treatment for coronary heart disease and had a prescription for nitroglycerin tablets (Exhibit A at 6). Elmira's reception records also indicated that Decedent had tested positive for exposure to tuberculosis (Exhibit A at 6). Elmira also performed a baseline electrocardiogram (EKG) on Decedent on November 22, 1993, apparently as part of Defendant's routine intake procedure (
see, Exhibit A at 22). The EKG results were "borderline" (id.).
On December 13, 1993, the medical staff at Elmira responded to an emergency sick call at Decedent's cell. They found him lying on the floor, complaining of "heavy chest pain," numbness in his left arm and cold feet (Exhibit A at 16). His pulse was irregular (
id.). Decedent was carried to the infirmary on a stretcher and then transported to the Arnot Ogden Medical Center (id.). He arrived in the emergency room complaining of "severe chest pain w/radiation to R jaw & numbness L arm" which was not relieved even after four nitroglycerin tablets (Exhibit A at 27 and 29). The medical history taken at Arnot Ogden indicated that both of his parents had a history of heart disease and that he was still smoking a half pack of cigarettes per day (Exhibit A at 30).
An EKG revealed a "normal sinus rhythm with some non specific T-wave flattening" (Exhibit A at 31). The examining physician concluded that "[t]he etiology of the patient's problem is not clear at this time," but that a pulmonary embolism might explain some of Decedent's symptoms (Exhibit A at 32). He ordered a lung scan, repeat cardiac enzymes and EKG's to rule out a pulmonary embolism or other serious problems (Exhibit A at 32). He had blood tests done which revealed that Decedent had a cholesterol reading of 242 (Exhibit A at 20).

Arnot Ogden performed four EKG's over the course of Decedent's stay and then discharged him on December 17 (Exhibit A at 33, 37-40). The discharge summary stated that Decedent was suffering from hemophilus influenza and bronchitis, that the hospital had ruled out myocardial disease, that his condition had "improved dramatically" and that his discharge prognosis was "excellent" (Exhibit A at 33-34).

In early January 1994, Decedent transferred from the Elmira Correctional Facility to the Cayuga Correctional Facility. Elmira's outgoing medical note, dated January 7, 1994, stated "NEEDS FOLLOW-UP Heart disease" (Exhibit A at 14). Cayuga's initial medical assessment and chart review noted Decedent's two heart attacks, quadruple bypass surgery in 1990, and that he appeared "pale" but had no present medical complaints (Exhibit A at 6, 13).

After his arrival at Cayuga on January 10, 1994, Claimant visited sick call on January 14, January 18 and January 20 complaining of chest and sinus congestion (Exhibit A at 11-13). He also asked, on January 20, 1994, for a medical excuse to wear a mask or a towel over his mouth when he was outside because he was having difficulty breathing (Exhibit A at 12). The nurses who saw Claimant on those dates gave him cold medication and arranged for him to be evaluated by a doctor on January 21 (Exhibit A at 11-13). The doctor prescribed Reflex, an antibiotic and gave Decedent medical clearance for the mask (Exhibit A at 11).

Apparently, the antibiotics did not have the desired effect. On February 3, 1994, Decedent returned to sick call complaining that his cough and cold symptoms had not gone away (Exhibit A at 10). The examining nurse gave him cough medicine and wrote a note asking whether his prescription ought to be changed. One of the facility's physicians, Dr. Trabout, responded "no, probably viral," which apparently resolved the issue (
id.). Two weeks later, on February 16, Dr. Buterazi authorized a refill of Decedent's nitroglycerin medication, which he was instructed to take "as needed" for chest pain (id.).
Decedent returned to sick call again on March 7, 1994 complaining of a head and chest cold and that he "hurts all over" (
id.). The nurse who examined him treated him with cold medicine. Two days later, the staff performed another EKG on Decedent. The March 9 EKG report (Exhibit A at 23) noted abnormalities that were "consistent with anterior infarct[ion]/age undetermined," and "consistent with inferior infarct, age undetermined." There is no indication that the Cayuga medical staff did anything to evaluate the abnormalities. By any standard, this EKG was of very poor quality and most assuredly difficult to read.
On May 1, 1994 at 11:30 p.m., Defendant's employees found Decedent lying on the floor of his cell. The medical records reported that he was "pulseless, breathless," and that the nurse was unable to obtain a blood pressure reading (Exhibit A at 9). The nurse initiated CPR and notified the emergency rescue team. Unfortunately, efforts to resuscitate Decedent failed. He was pronounced dead on May 2, 1994 at 12:45 a.m. at Cortland Memorial Hospital (Exhibit A at 8).

An autopsy revealed that Decedent expired from congestive heart failure (Exhibit 17). Dr. Janice E. Ross, the forensic pathologist who performed the autopsy, testified that Decedent's heart was enlarged to one and one-third to one and one-half its normal size. The enlargement suggested that his heart had been working too hard for some time. There were two areas of scarring from myocardial infarcts which indicated that Decedent had had heart attack(s) at least 30 days prior to his death. There was also edema and congestion in his lungs, and congestion of his liver and spleen. Dr. Ross explained that the edema indicated that Decedent's heart was failing as a pump, causing blood to congest his organs. Although Decedent's heart failure was an acute event, the congestion suggested that his heart had been failing for days, months or even years prior to his death.

Claimant's expert was Dr. Robert B. Alperin, a board certified doctor of internal medicine from Brooklyn, New York. He testified that there was no evidence that Defendant or the emergency rescue team departed from the standard of care in connection with its efforts to save Decedent, or that Arnot Ogden misdiagnosed Decedent's condition during his December 1993 hospitalization. However, Dr. Alperin believed that the medical staff at Cayuga mismanaged Decedent's condition after he transferred there in January 1994.

He explained that the March 9, 1994 EKG showed "significant changes" from the November and December 1993 EKG's. It revealed an inferior and anterior wall infarct which was not previously visible. This, Dr. Alperin opined, meant that there had been a change in Decedent's cardiac status following the last Arnot Ogden EKG on December 14, 1993. The Cayuga medical staff should have conducted a "full examination" of Decedent when it received the March 9 EKG results. This should have included listening to his heart and lungs, conducting a stress test and transferring him, if necessary, to an outside hospital for evaluation.

Aside from the abnormal March 1994 EKG, Decedent did not present with classic symptoms of heart failure between December 1993 and May 1994. But taking into account his history of heart disease, his lingering symptoms of chest congestion, his positive tuberculosis test, his smoking and his breathing difficulties, Dr. Alperin believed that Defendant should have ordered a chest x-ray. Presumably, an x-ray would have revealed Decedent's enlarged heart and the congestion in his lungs and liver that Dr. Ross observed during her autopsy. According to Dr. Alperin, these conditions were consistent with a chronic condition, which, he believed, developed in the weeks and months after Decedent's December 1993 hospitalization.

In Dr. Alperin's opinion, Decedent would not have died on May 2, 1994 if he had received proper evaluation and treatment after the March 9 EKG. Congestive heart failure, once it is identified and controlled with medication, "is something you can live with for a long period of time." And a heart transplant can further extend the life of a patient who no longer responds to medication.

In response to my questioning, Dr. Alperin acknowledged that Decedent was experiencing tremors when Defendant administered the March 9 EKG. However, he said the tremors would not have produced the abnormal EKG readings. Nothing in the record refutes this testimony.

John Dmytrenko, a registered nurse at Cayuga, explained the facility's procedures in 1994 for providing medical care to inmates. An inmate who wanted medical attention could be seen by a registered nurse on any Monday, Tuesday, Thursday or Friday by completing a sick call slip. The facility also provided emergency sick call 24 hours a day, seven days a week. While every inmate sick call request was supposed to be honored, it was the nurses who would decide whether an inmate should be seen by a physician. Inmates who are over the age of 40 would typically get an annual EKG. Inmates like Decedent, who had a history of heart disease, would receive an EKG every six months. Those who reported to sick call complaining of chest pain would receive an EKG immediately. While acknowledging that Decedent had chest pain on March 7, Nurse Dmytrenko said that it was not clear whether that was the reason for the March 9 EKG.

Nurse Dmytrenko was not sure who administered the March 9 EKG. However, he was accustomed to reviewing the reports generated by the off-site testing laboratory. He agreed that the EKG showed abnormalities. "Anterior infarct" and "inferior infarct" meant that walls of the heart had "basically stopped functioning." Such abnormalities, he testified, should have been brought to a physician's attention by the person performing the EKG. He admitted that there is no indication in the ambulatory health record that the EKG technician advised a physician of the abnormal EKG result or that Decedent was seen by a doctor after the March 9 EKG. However, he explained that facility policy also called for a doctor to sign off on all EKG's, and in this instance, Dr. Trabout signed off on Decedent's March 9 EKG.

Dr. Trabout is a clinical physician at the Cayuga Correctional Facility. He is board certified in internal medicine and has been employed by the Department of Correctional Services since 1988. He testified that the symptoms Decedent presented when he reported to sick call in January through March 1994 were "typical cold symptoms... which were treated appropriately with over-the-counter medications." None were "classic" heart disease symptoms such as chest pain, nausea, dizziness or shortness of breath. Dr. Trabout confirmed that the only way an inmate can see a doctor is if a nurse decides that his condition is serious enough to warrant it. If an EKG is ordered, it would not be unusual for a doctor to review the test results without physically examining the inmate. He did not see Decedent on February 3 before deciding that Decedent's respiratory complaints were "probably viral" and he believed that Dr. Buterazi renewed Decedent's nitroglycerin prescription on February 16 without examining Decedent.

Dr. Trabout assumed that the medical staff ordered the March 9 EKG because of Decedent's history of heart disease. He testified that he signed off on the EKG but "wouldn't want to hang my hat on it because it's a very poor quality tracing..." However, he agreed with the lab-generated report that the EKG showed anterior and inferior wall infarcts of indeterminate age. He saw no need to order another EKG or to evaluate Decedent further. The March 9 EKG, while abnormal, was consistent with Decedent's past history of heart attacks. Decedent's previous complaints of chest pain, in December 1993, had proved to be bronchitis and, according to Dr. Trabout, Decedent had not complained of chest pain since his arrival at Cayuga. Dr. Trabout believed that the onset of Decedent's congestive heart failure was sudden and came without warning.

On cross-examination, Dr. Trabout acknowledged that he never examined Decedent during the five months he was incarcerated at Cayuga. He never looked at the December 1993 EKG's or compared them to the March 9 EKG. He was not sure that he asked for or reviewed any of the records from Decedent's December hospitalization. He agreed that the four December 1993 EKG's (Exhibit A at 37-40), unlike the March 9 EKG, provided no clear evidence of a previous myocardial infarction. But this did not mean, Dr. Trabout said, that Decedent had had a heart attack between December 1993 and March 9, 1994. Although the absence of classic heart attack symptoms led Dr. Trabout to take no action after the March 9 EKG, he admitted at trial that 40% of patients who die from heart attacks exhibit no symptoms prior to death, and that the number one risk factor for a heart attack is a history of prior attacks.[2]

The State has a duty to provide reasonable and adequate medical care to its inmates (
Auger v State of New York, 263 AD2d 929; see also, Powlowski v Wullich, 102 AD2d 575, 587). It may be cast in liability for injuries that result because its physicians fail to use ordinary and reasonable care or to exercise their best judgment in applying the knowledge and skill ordinarily possessed by practitioners in the field (Hale v State of New York, 53 AD2d 1025, lv denied 40 NY2d 804; Jacques v State of New York, 127 Misc 2d 769, 771). But the State is not liable for a mere mistake in professional judgment made after careful examination of the patient (see, Schrempf v State of New York, 66 NY2d 289, 295; Sciarabba v State of New York, 182 AD2d 892, 893-894).
The evidence here satisfies me that there was no "careful examination" of Decedent. Dr. Trabout's assessment of Decedent's condition after the March 9 EKG departed from the standard of care. I find that he acted without a reasonable basis when he assumed that the EKG abnormalities stemmed from Decedent's earlier heart attacks. Dr. Alperin's testimony convinced me that a reasonable exercise of professional medical skill, at a minimum, called for a comparison of the March 9 EKG to Decedent's earlier EKG's, given Decedent's past medical history. Such a comparison would have revealed a deterioration in Decedent's heart condition and would have pointed to the need for a further workup, which, I am persuaded, would have disclosed that Decedent was suffering from chronic congestive heart failure and in need of prompt medical attention and medication. Based upon Dr. Alperin's testimony, I find that Decedent would not have succumbed to congestive heart failure had he been properly diagnosed and treated in March 1994. The failure to fully evaluate the March 9 EKG, to assess the abnormalities, and to treat Decedent's condition proximately caused his death (
see, Metzen v United States, 19 F3d 795; Kernall v United States, 558 F Supp 280, affd 729 F2d 1444). Defendant was 100% at fault.
Two questions must be addressed before turning to the damage portion of the decision: (1) which legal theories were timely asserted, and (2) who are the distributees entitled to benefit from the judgment.

Defendant concedes that the claim is timely to the extent it seeks to recover damages for wrongful death (
see, Court of Claims Act §10[2]; EPTL 5-4.1[1]; Murphy v Jacoby, 250 AD2d 826, lv dismissed 92 NY2d 1046). But it urges that Claimant's action for conscious pain and suffering is barred because Claimant failed to serve and file her claim in a timely fashion.
To comply with the statute of limitations, a personal representative must commence a claim for conscious pain and suffering within two and one-half years of when the malpractice claim accrued or, if the limitation period has not already expired, within one year after the patient's death, whichever is later (
see, Marlowe v DuPont deNemours & Co., 112 AD2d 769; Murphy v Jacoby, supra; Barnes v County of Onondaga, 103 AD2d 624, 630, affd 65 NY2d 664; CPLR 210, 214-a). To satisfy the time limitations of Section 10 of the Court of Claims Act, the personal representative must file and serve a claim or serve a notice of intention within 90 days of when the underlying medical malpractice claim accrued (see, Pelnick v State of New York, 171 AD2d 734, 735; Barrett v State of New York, 161 AD2d 61, 64, affd 78 NY2d 1111; DeFilippis v State of New York, 157 AD2d 826, 827-828; Kaplan v State of New York, 152 AD2d 417). There is no question here that Claimant asserted her conscious pain and suffering claim more than 90 days after Decedent's death. It is therefore untimely.
Defendant preserved this defense in its timely answer (
see, Court of Claims Act §11(c); Verified Answer ¶¶12-13; 22 NYCRR 206.7[a]). However, Claimant argues that Defendant has waived the defense or is estopped from asserting it because it did not raise the defense in a timely motion. I disagree.
The 120-day limitation for bringing a motion for summary judgment following service of the note of issue does not apply to motions to dismiss for lack of subject matter jurisdiction (
see, CPLR 3211[a][2], [e]; CPLR 3212 [a]; Siegel, Practice Commentaries [McKinney's Cons Laws of NY, Book 7B, CPLR C3211:8, at 18-19]). Although there may be exceptional situations where the State is estopped from relying upon the time limitations of the Court of Claims Act as an affirmative defense (see, People of the State of New York v Abbott Manor Nursing Home, 70 AD2d 434, affd 52 NY2d 766), this is not such a case. As soon as she received the answer, Claimant was on notice of Defendant's timeliness objection, an objection Defendant had the right to raise by motion "at any subsequent time" (CPLR 3211[e]). The conscious pain and suffering claim is dismissed; only the wrongful death claim survives.
This brings me to the second legal issue raised by Defendant: who are Decedent's distributees? Defendant here argues that the claim ought to be dismissed because neither Claimant, Decedent's estranged wife, nor Ms. Strohl's son, James Ronald Benjamin Wooten (the Infant Wooten), are Decedent's distributees.

A wrongful death action may be commenced and maintained only if a decedent is "survived by distributees" (EPTL 5-4.1, 5-4.4;
see, Greco v Kresge Co., 277 NY 26, 31; see also, Meroni v Holy Spirit Assn. for Unification of World Christianty, 119 AD2d 200, 207). "A distributee is a person entitled to take or share in the property of a decedent under the statutes governing descent and distribution" (EPTL 1-2.5). The term encompasses the decedent's "spouse" (see, EPTL 4-1.1), unless the surviving husband or wife is disqualified for one of the reasons enumerated in EPTL 5-1.2(a). It also includes the decedent's "issue," including children born out of wedlock, provided there is evidence sufficient to establish a paternal relationship under EPTL 4-1.2 (EPTL 4-1.1, 4-1.2[a][2], 5-4.5).
Defendant urges that Claimant was disqualified under Subdivisions (4) and (5) of EPTL 5-1.2[3]
because Decedent and Claimant separated prior to his death and because Claimant abandoned Decedent. I disagree.
Subdivision 4 of Section 5-1.2 requires "[a] final decree or judgment of separation" rendered before the deceased spouse's demise. There was no evidence of such a decree or judgment here. The mere fact that the parties were living apart from one another at the time of Decedent's death did not render them legally separated for purposes of Subdivision 4 (
see, Matter of Winkler, 112 Misc 2d 932).
Subdivision 5 is also inapposite. It requires an abandonment of the deceased spouse by the surviving spouse which continues until the time of death. To challenge a spouse's status as a distributee on the grounds of abandonment, "more must be shown than a mere departure from the marital abode and a consequent living separate and apart" (
Matter of Riefberg, 58 NY2d 134 [citing Matter of Maiden, 284 NY 429]; Matter of Rose, 15 AD2d 983). The challenging party must also establish "that the abandonment was unjustified and without the consent of the other spouse" (Matter of Riefberg, supra; Matter of Ruff, 91 AD2d 814). That showing was not made here. To the contrary, in the decree from the Court of Common Pleas, the Court found that Claimant "was justified in leaving Defendant because of his marital misconduct" (Exhibit 32 at 3). Accordingly, I conclude that Claimant is a distributee within the meaning of the wrongful death statute.
As described above, the Infant Wooten may be treated as a distributee only if there is sufficient proof of paternity (
see, EPTL 4-1.2[a][2]). The parties agree that the New York wrongful death statute governs the question of Defendant's liability. But to show that the Infant Wooten is Decedent's son, Claimant relies in part upon the law of Pennsylvania, the state of domicile for Claimant, the Infant Wooten, and the Infant's mother, Donna Strohl, and the place where Decedent resided before his incarceration.
I conclude that New York law governs Infant Wooten's distributee status under the New York wrongful death statute (
see, Restatement [Second] of Conflicts of Laws, §177, comment c).[4] But, I believe that the outcome would be the same under the law of either jurisdiction.
The standards for establishing paternity under the two jurisdictions are comparable. Under the Estates, Powers and Trust Law, a non-marital child is the legitimate child of his father where,
inter alia "paternity has been established by clear and convincing evidence and the father of the child has openly and notoriously acknowledged the child as his own" (EPTL 4-1.2[a][2][C]). Similarly, the Commonwealth of Pennsylvania provides:
(c) Child of father - For purposes of descent by, from and through a person born out of wedlock, he shall be considered the child of his father....

(2) If during the lifetime of the child, the father openly holds out the child to be his and receives the child into his home, or openly holds the child out to be his and provides support for the child which shall be determined by clear and convincing evidence. [or]

(3) If there is clear and convincing evidence that the man was the father of the child, which may include a prior court determination of paternity.

[20 Pa Cons Stat. §2107]

I conclude that the evidence of paternity was clear and convincing and satisfies the requirements of the New York statute.

Donna Strohl, who cohabited with Decedent at the time the Infant was conceived, testified that Decedent was the father of the Infant Wooten. Decedent is identified on the Infant Wooten's birth certificate as the child's father (
see, Exhibit 11). A visiting list changes form from the Cayuga (Exhibit 1 at 2), which bears Decedent's signature, requests that the Infant Wooten, who is described as Decedent's son, age three weeks, be added to Decedent's visiting list. Another visiting list change form from Cayuga (Exhibit 1 at 3) asks that Ms. Strohl, "Fiancee/Mother of my child" be added to Decedent's list of visitors.
Decedent also wrote letters to Ms. Strohl[5]
about the Infant while Decedent was incarcerated. In one letter, dated December 8, 1993, he described looking at sonogram pictures of "our son" sent to him by Ms. Strohl, discussed the child's expected name and its spelling, pondered whether the child would look like him or Ms. Strohl, and expressed remorse that he would not be there to "watch our son pop into the world" (see, Exhibit 1, December 8, 1993 letter at 3). Ms. Strohl also testified that the Social Security administration was paying benefits to her on behalf of her son as a survivor of Decedent (see, Exhibit 34 at 3). To obtain these benefits, she said, she had to provide (1) a certified copy of the Infant Wooten's birth certificate; (2) blood test results which showed that the blood types of the Infant Wooten and Decedent were consistent with a father-son relationship; and (3) letters from 25 witnesses attesting to the fact that Decedent acknowledged the Infant Wooten as his son.
Although Defendant argues that this proof did not satisfy EPTL 4-1.2(a)(2), it has not offered any evidence to refute the claimed relationship.

This brings me to the issue of damages. The testimony of Claimant and Ms. Strohl established that Decedent held a variety of positions during his adult life. He was a life insurance agent from about 1980 to 1984, a postal worker in the mid-1980's, and then he had his own construction business. Ms. Strohl testified that he worked in several construction and construction related jobs in 1990-1991 before becoming a box runner (lead generator) for a telemarketing company. His income tax returns reveal that he had wage income of $14,438.00 in 1990 and $10,100.00 in 1989. In 1988, he had wages of $6,088.00 and business income of $13,799.00. He did not, apparently, file income tax returns in 1991-1993; however, the Carbon County support decrees indicate that he earned $870.00 in 1992 and expected to gross $300.00 bi-weekly with USA Marketing while working part time in 1993.

Decedent was also drawing disability benefits of $80-90 month for Viet Nam related post-traumatic stress disorder, according to Claimant. Ms. Strohl testified that he also had begun to receive Social Security benefits beginning in 1993 for partial disability related to his heart condition.

To quantify damages, Claimant called, Kenneth W. Reagles, a specialist in vocational rehabilitation and Professor Emeritus of Rehabilitation Services at Syracuse University. He has testified approximately 30 to 40 times about pecuniary loss issues in wrongful death cases.

Based upon Decedent's earnings for 1988-1993, Professor Reagles estimated that Decedent had an annual earning capacity of $17,609.00 per year, including fringe benefits, as a telemarketer, construction estimator or sales person. Factoring in 3% annual inflation, Professor Reagles calculated that Decedent's past lost earnings would have been $72,812.00 if he had been released from prison on his parole eligibility date of March 20, 1995 and been employed beginning in April 1995. Assuming that Mr. Wooten would have worked an additional 11.5 years, until he was 62.8 years old, and factoring in 3% annual inflation, Professor Reagles calculated Decedent's future lost earnings to be $270,302.00.

Professor Reagles also calculated the loss Decedent's distributees allegedly suffered as a result of being deprived of household services that would have been performed by Decedent had he lived. He estimated that Decedent would have performed about 12 hours of such services per week, which he valued at $10.07, yielding an annual value of $6,284.00. Assuming a release date of April 1995, he calculated past lost household services damages to be $31,418.00. With an annual "appreciation rate" of 2.5% factored in, the total value of future lost household services to age 70 was $148,256.00, according to Professor Reagles. After deducting 21.7% to reflect Decedent's own personal consumption of earnings and household services, Professor Reagles arrived at a loss to distributees of $57,012.00 in past lost income, $211,646.00 in future lost income, $24,601.00 in past lost household services and $116.296.00 in future lost household services, for a total pecuniary loss of $409,555.00.

On cross-examination, Professor Reagles acknowledged that Decedent's conditional release date (as opposed to his parole eligibility date) was September 20, 1996 and that his maximum expiration date was March 20, 1998. He also said that he had been unaware when he compiled his lost earning calculations that Decedent's annual income had dropped to $870.00 in 1992, or that Decedent was earning only $300.00 on a bi-weekly basis in 1993. In response to my question, he agreed that Decedent had not been performing any household services for Claimant since the two separated in 1990.

The essence of a cause of action for wrongful death is that the distributees' reasonable expectancy of future assistance or support by the Decedent was frustrated by the Decedent's death (
Gonzalez v New York City Housing Auth., 77 NY2d 663, 668). Loss of support, voluntary assistance and possible inheritance, as well as medical and funeral expenses incidental to death are injuries for which damages may be recovered (Gonzalez v New York City Housing Auth., supra; Parilis v Feinstein, 49 NY2d 984, 985; Brown v Horn, 179 AD2d 1073, 1074). In the case of an infant, an award may also be made for loss of parental support and guidance (Sand v Chapin, 238 AD2d 862, 863-864).
A determination of what is fair and just compensation requires consideration of a variety of factors, including the decedent's age, relationship to the person seeking recovery, earning capacity, life expectancy, health and intelligence, and the number and circumstances of distributees (
Brown v Horn, supra; Franchell v Sims, 73 AD2d 1, 5-6). Evaluation of the Decedent's earning capacity requires consideration of his present earnings and earnings history and potential for advancement, while the value of non-wage related services and support may be calculated from the increased expenditures required to continue the services the Decedent previously provided, as well as compensable losses of a personal nature, such as loss of guidance (Gonzalez v New York City Housing Auth., supra, at 668).
Based upon my review of the evidence, I find that the distributees sustained past wage related loss of support of $24,000.00, measured at the rate of $12,000.00 per year over the period of 2.0 years from the maximum expiration date of Decedent's sentence, March 6, 1998, through the date of trial. I find that the distributees sustained future wage related loss of support of $138,000.00 ($12,000.00 per year times 11.5 years), yielding a total wage related pecuniary loss of $162,000.00. I find that $2,000.00 per year is an approximate measure of the loss of household services that the Infant sustained because of Decedent's death. Total past household services damages are $4,000.00. Future household services damages from the time of trial through 2015, the year that the Infant will reach age 21, total $34,000, for an aggregate loss of household services damages of $38,000.00. I found no evidence that Claimant sustained any loss of household services damages.

I also award $10,000.00 for past, and $125,000.00 for future, parental support and guidance losses sustained by the Infant Wooten as a consequence of his father's death. Although Decedent was incarcerated at the time of the Infant's death, the evidence satisfies me that he would have been actively involved in his son's life following his release from prison. He had a three-year relationship with Ms. Strohl, the Infant's mother, and lived with her before he was imprisoned. He also corresponded extensively with her during his confinement (
see, Exhibit 1). Ms. Strohl testified that he had a very good relationship with her other children. He taught them to swim and bowl and helped them with homework. Claimant similarly testified that Decedent was a "nurturing step father" who took her daughter fishing and roller skating, that he continued to visit her daughter following the couples' estrangement, and that he wrote to her daughter from prison. I am convinced he would have been similarly involved in his son's life upon his release from prison.
I find that funeral expenses were $3,167.28 (
see, Exhibit 9).
Based upon the foregoing, he Clerk of the Court is directed to enter judgment in favor of Claimant as follows:

Past Loss of Wage Related Support $ 24,000.00
Future Loss of Wage Related Support $138,000.00
Past Household Services Damages $ 4,000.00
Future Household Services Damages $ 34,000.00
Funeral Expenses $ 3,167.28
Past Lost Parental Support and Guidance $ 10,000.00
Future Lost Parental Support and Guidance $125,000.00
TOTAL $338,167.28

Judgment will be held in abeyance pending a hearing pursuant to CPLR Article 50-B, which hearing will be scheduled by the Court as soon as practicable.

All other motions not heretofore ruled upon are denied.

February 27, 2001
Rochester, New York

Judge of the Court of Claims

  1. [1]Claimant Tina Wooten filed her claim and personally served it on an assistant attorney general on April 30, 1996, four days after she received Limited Letters of Administration and less than two years after Mr. Wooten's death (see, Court of Claims Act §10[2]).
  2. [2]Defendant offered Dr. Trabout as both a fact witness and an expert witness. Before trial, Claimant moved to strike Defendant's expert designation on the grounds that it was untimely (M-61266). I reserved decision on that motion and on all objections made by Claimant to any expert opinions offered by Dr. Trabout. I now grant Claimant's motion and sustain her objections to Dr. Trabout's opinion testimony as to whether the care Defendant provided comported with the standard of care. In any event, permitting Dr. Trabout's expert opinions would not have affected the outcome of this claim. His opinions were, in my opinion, self-serving. I would have afforded them no weight.
  3. [3]EPTL 5-1.2. Disqualification as surviving spouse.
(a) A husband or wife is a surviving spouse within the meaning, and for the purposes of... 5-4.4, unless it is established satisfactorily to the court having jurisdiction of the action or proceeding that:

(4) A final decree or judgment of separation, recognized as valid under the law of this state, was rendered against the spouse, and such decree or judgment was in effect when the deceased spouse died.
(5) the spouse abandoned the deceased spouse, and such abandonment continued until the time of death.
  1. [4]This is primarily a question of interpretation of the term "distributees" under New York's wrongful death statute. It is not a case where the law of the child's domicile recognizes all children as legitimate or where there has been a filiation determination entitled to full faith and credit or recognition as a matter of comity (see, Matter of Watts, 106 Misc 2d 35). The issues here are (1) whether there are any decedents on whose behalf the personal representative was entitled to bring a claim, and (2) the scope of the pecuniary losses suffered by those beneficiaries, an issue that necessarily requires identification of the persons who fit the definition of distributees under the statute (see, Small v Motor Vehicle Accident Indemnification Corp., 185 Misc 2d 664; Kingsley v Bast-Hatfield, Inc., 188 AD2d 957). I express no opinion as to whether New York or Pennsylvania law should control the distribution of damages (see, Anderson v Sam Airlines, 939 F Supp 167; Matter of Caccamo, 71 Misc 2d 391; Matter of Layden, 92 Misc 2d 353).
  2. [5]The contents of the letters are inadmissible hearsay on the issue of whether Decedent was the father, but are admissible on the issue of whether Decedent openly acknowledged that he was the child's father (see, M. Martin, D. Capra and F. Rossi, New York Evidence Handbook §8.2.1).