Police officers arrived at the scene and asked claimant if she
was hurt and she said no. She then called her friend Allison and told her that
she could not babysit that evening, as had been planned. Meanwhile, the
officers had called her boyfriend, Steve, who came to the scene. She stated
that he held her for a long time and she told him that she wasn't hurt. They
then went to a convenience store to buy film and returned to the accident scene
and took photographs, after which they went to the salvage yard where her car
had been taken to take more photographs.
Claimant advised that while they were at the salvage yard, her leg began to
hurt. After they returned home, her leg became more bothersome and her neck and
jaw got stiff so she went to the Vassar Hospital emergency room. There, she was
given a cervical collar and pain medication and sent home. She began to feel
worse over the weekend: she couldn't sleep, got dizzy and began to shake. She
also stated that, soon after the accident, she began getting headaches. As time
went on, her dizziness and shaking got worse and, in early November, became much
worse. She testified that she couldn't sleep – waking up every five
minutes – couldn't eat or hold down liquids, and was afraid that she was
going to die because the shaking was so bad. Sometime in 1997, she left her job
at Video Treats because, she testified, her health situation was so bad she
could not continue. She was "afraid to leave her house" and "stayed home and
cried". Eventually she found a job at an Allstate insurance office in May
1998, which required her to complete a one-month course, which she described as
, 94), at the Harrington School of Insurance and then pass the test to
obtain her New York State salesperson's license. Claimant stated that she had
some good days at Allstate, some days when she would arrive late or leave early,
and a few times when she had "really bad panic attacks at the office"
, 54). She eventually left Allstate because the agent there "would
start being really mean to me, saying cruel things like it's all in my head"
, 55). She then went to work for a day-care center, but was unable
to report for work on time consistently because of the headaches and panic
attacks so she was asked to leave after a few months.
During periods of unemployment Steve supported the Claimant. Although they had
become engaged in December 1996, they never did marry and at some point prior to
her leaving the day-care center, he moved out of their apartment. Claimant
thereafter worked at a Victoria's Secret store during the 1998 holiday season,
at the same time she was employed with Allstate. She said that things there
were the same as at the other places – she came in late, called in sick
and left early. That was her last job. She was eventually evicted from her
apartment because she couldn't pay the rent and she went to live with a friend
Adam in Ohio, whom she met on the Internet. She receives $246.00 biweekly from
workers compensation and she asserted that she is still unable to work because
most days she can't even get out of bed and when she does she just sits and
shakes and cries.
On April 16, 1999, claimant went to the St. Francis Hospital emergency room,
where she was diagnosed as suffering from "depression" (Ex. 5) and directed to
make an appointment with the hospital's mental health clinic. She had recently
got a tattoo, which she claimed was for the purpose of identification in case
she killed herself, although defense counsel elicited that she got the tattoo
while on a trip to Texas visiting a boyfriend, Shane, who she had also met over
On cross-examination, claimant stated that she had begun therapy with Dr.
Dolores Capuani, a psychologist, after her accident, that she continued this
therapy biweekly for months, maybe a year, but that she discontinued the therapy
because the doctor was not helping her. She then began seeing a social worker
– Myrna Sadowski – and she related that she discussed her
relationship with Steve as well as her feeling that she had experienced a lot of
growth since the accident. Claimant indicated that she spent much time
discussing her feelings about her family, and the fact that she resented her
mother for staying with her father despite his drinking, during the five months
that she saw Ms. Sadowski during 1998. She also told her that she was looking
forward to Steve moving out, because they were not together romantically anymore
and his leaving would be better for her emotionally, and that she was interested
in elementary education and hoped to own a bridal shop someday. Claimant also
indicated that she had seen a psychiatrist, Dr. Schefflein, from the time of her
accident in 1996 through early in 2000.
Upon inquiry from defense counsel, claimant admitted that when she applied for
the job at Allstate, she had stated that she left the job with Video Treats
because there was no more room for advancement there; she stated at trial that
she was "as high up on the ladder as I could go at Video Treats" (Vol I, 91).
Asked why she left Allstate, claimant stated that the agent who ran the office
told her that things weren't working out because of her frequent lateness, but
added that she wasn't making enough money there to support herself, after Steve
had moved out. She stated that she had no food for herself and was arrested for
stealing pet food from a supermarket.
Dr. Shirley Lapidus, a clinical psychologist, testified on behalf of the
claimant. She first saw claimant on April 23, 1999, and continued to see her
until she moved to Ohio, and finally on October 31, 2000. Dr. Lapidus testified
that after her first visit with the claimant, she formed a working diagnosis of
post-traumatic stress disorder with depression and anxiety, as the result of
claimant having "recurrent thoughts and dreams and nightmares about the
accident, that passing the area where the accident happened was still quite
difficult and upsetting for her, that talking about it, recalling it, reporting
it was almost like repeating the experience over again for her" (
. She stated that
claimant complained of being depressed, sleeplessness, weight gain, crying
episodes and mood swings. And she evaluated claimant as suffering from
anxiety, evidenced by shaking, crying, panic attacks and difficulty
concentrating, and agoraphobia, the inability to leave the safety of her home.
As she treated claimant, she noticed that her jaw trembled and she suspected
that such might be the result of a neurological problem. She stated that the
accident had caused claimant to lose her independence and strong work ethic.
Moreover claimant's work ability was limited and she was not optimistic as to
her future. She stated claimant's social relationships were limited, with poor
judgment and an inability to manage her own life and affairs. Claimant would
need psychotherapy indefinitely. She stated claimant could "get jobs but not
keep them", while she wanted to work.
Dr. Lapidus did not feel that anything about claimant's life prior to her
accident, and particularly her father's alcoholism, had any relationship to the
symptoms she was exhibiting, because the picture that claimant had related to
her was of "somebody who was functioning well, who was competent, who was living
independently, who was supporting herself, who had [a] good mature close
relationship with somebody who knew how to be intimate in a healthy way, who had
friends, had interests, had goals and plans for herself, and did not seem to be
in anyway impinged upon by that part of her history" (
, 155). The doctor's opinion was that claimant's problems were the
result of the traumatic experience of having the tree fall on her car, although
she could not "clearly say to what extent what is neurological, and to what
affect (sic) extends post-traumatic stress disorder" (id.
, 156). Dr.
Lapidus testified that it was "very hard to envision the kind of situation that
Darlene could work in" (id., 159) given her condition, and she was not
optimistic that this would change in the future.
On cross-examination, asked what consultation she had with claimant's treating
psychiatrist, Dr. Schefflein, she indicated that he had sent her a very brief
letter and she also spoke with him on the telephone. She did not see any of his
records, other than the letter. He told her about his treatment of claimant,
which involved medication, but Dr. Lapidus "did not take note of that because
I'm not really too involved in the medication aspect of treatment" (
, 181). Asked about claimant's ability to obtain an insurance
salesperson's license, requiring a 105-hour course, the doctor opined that such
would be very difficult for her: "I just can't imagine that she could do that in
the way a normal person could" (id.
, 215). The doctor opined that
claimant would have to have put much more effort into the class than other
people would. Dr. Lapidus did not know that claimant had obtained her license
and was employed as an insurance salesperson: "I knew she had a job, but I
didn't know what" (id.
, 214). She was asked about the two relationships
that claimant had since breaking up with Steve, one lasting 1 ½ years and
the second, involving Adam, who she moved to Ohio to live with in July 2000, and
she offered the opinion that the relationship with Adam was "doomed" because she
did not feel that claimant had the ability to sustain a long-term
The testimony of Dr. Paul Garson, a board-certified forensic psychiatrist who
examined claimant on two occasions, November 13, 1997 and August 12, 1999, was
received via videotape. He stated that in connection with his evaluation of
claimant, he reviewed five sets of records: a report from Dr. Paul Schefflein,
claimant's treating psychiatrist, dated May 3, 1997; notes from Dr. Dolores
Capuani, her treating psychologist, a chiropractor's report, a neurological
evaluation from a Dr. Frontera
dated December 30, 1996 and neurological evaluations from a Dr. Rosenthal dated
July 19 and August 19, 1996. Dr. Garson stated that claimant told him that she
tried to return to work at Video Treats about 10 days after her accident, and
did for a period of time, but that two weeks after the accident she started to
develop a fear of driving, anxiety and fear of being alone. She reported to him
that, as of November 1996, she had started to have panic attacks –
"overwhelming episodes of anxiety" – lasting 10 to 15 minutes and
characterized by dizziness, shortness of breath and feelings of unreality (Vol.
II, 252-253). She reported difficulty sleeping, because of pain or anxiety,
dependence on her fiancee, and reduced sexual desire, which the doctor thought
might be attributable to the medication she was taking, Paxil (20 mg./day) an
anti-depressant sometimes used for panic attacks, and Clonipan (0.5 mg./day,
which the doctor characterized as a fairly low dose), a tranquilizer.
According to Dr. Garson, claimant's cognitive abilities appeared fairly normal,
but her attention span and concentration skills were impaired. His diagnosis
was "generalized anxiety disorder with panic attacks or panic disorder" (
, 259). Addressing the aspect of diagnosis referred to as "global
assessment of functioning," Dr. Garson indicated that, prior to the accident,
claimant was "functioning at 100, which is the best you can get" (which
evaluation was based on the claimant's own statement, since Dr. Garson did not
see her until over a year after the accident), but that when he saw her, she was
functioning at a level of 50, meaning that "she was having serious or moderate
symptoms, and they were impairing her social and occupational functioning"
, 260). The doctor's opinion was that the change was totally related
to the accident, because claimant had no prior psychiatric history, because the
time frame relative to the accident was logical and because "there's no reason
at all to think that there was any other cause" (id.
Dr. Garson felt, in November 1997, that claimant's then present prognosis was
good, although he also felt that she should continue her medication and should
have more intensive counseling and therapy. He saw her again in August, 1999
when he was asked by the insurance company to address three questions: (1) was
there any progress in claimant's condition or was she regressing? (2) was there
a possibility of mild traumatic brain injury? and (3) was claimant totally
disabled from working? Claimant related to him that she had symptoms of
overwhelming anxiety, that she had been functioning very poorly, and that she
"hasn't been able to return to work as a manager. She's tried to work at
another facility, though she *** wasn't functioning well and got into some
difficulties there, and had to be let go" (
, 263). She related to him that her depression was so severe that at
one point she became suicidal and was brought to St. Francis Hospital: "They
wanted to hospitalize her, but she refused to be hospitalized" (id.
Claimant also told him that she had lost her fiancee, she was having financial
difficulties and she was depressed. Dr. Garson testified that he was concerned
and that "When you see a *** person who you thought would respond well, but
didn't, you start to get concerned, and you always ask yourself, are you missing
, 265). He started to think that possibly claimant had
suffered from some minimal brain damage that was responsible for her
symptomology. He stated that he "saw difficulty in the way she organized
herself, the way she responded to questions. She had to be redirected. She
couldn't concentrate. She would frequently break down into tears when
discussing the events around her life (while).....wringing her hands. At that
time, her face was red and blotchy, and she had a constant tremor of her chin"
, 266). He thought she had fair judgment but was sometimes
illogical, did not understand the cause of her illness, and had difficulties
with her medication, questioning the treatment. He diagnosed her at that time
as suffering from major depression, with anxiety, agoraphobia and episodes of
panic attacks, and he thought that post-concussion syndrome should be ruled out.
Claimant also reported chronic pain in her neck and back. He concluded that
her level of functioning had dropped to 30 to 40 out of 100, a level that would
justify hospitalization, but claimant did not want to be hospitalized. His
opinion was that claimant "was unemployable. She couldn't get a job anywhere.
She had failed at one job. Her other job, which was of a high level –
high functioning level, was unattainable for her, and she was getting to the
point where probably she might not even be able to be retrained to a very
minimal level of functioning. Socially, because she wasn't able to get out of
the house much and feared everything *** she couldn't meet anyone *** and
functionally, she wasn't functioning well" (id.
, 274). His assessment
was that claimant's prognosis was now very poor. "If a patient with mild
traumatic brain injury doesn't improve in two years, they're not going to
improve ***I would be concerned over the next couple of years if her depression
doesn't improve, she'll become suicidal and might end her life" (id.
275-276). He concluded that claimant would never improve to her previous level
On cross-examination, Dr. Garson indicated that he had asked claimant about her
family history and he could not recall if she told him that her father was an
alcoholic but did recall that she did not state that she had a poor relationship
with her parents. He then testified that if he had known of claimant's father's
history of alcoholism, "I would have put that in [presumably in his notes or
reports] if I had known about it"
, and he indicated that such a history would have been "vaguely" relevant to his
assessment of the causes of claimant's symptoms, but that "when we find out
there is an organic injury to the brain, then things that happened 30 years ago
become much less significant than what happened a week ago" (id.
286-287). He was asked if his evaluation would have been affected had he known
that Ms. Sadowski had written in her notes that claimant had childhood traumas,
the doctor responded that such would not be relevant to his evaluation of
claimant's symptoms because "it's very clear in this incident, especially after
the second evaluation, and the neuro-psychological testing, we see that there
really real is brain damage, and that was the cause of the incident [sic], that
she does have a cognitive deficit, and a mild post-concussion
, 293). He was then asked if he had concluded that claimant
had brain damage, and he responded that he had not. His opinion in this regard
was somewhat obscure. He later stated, on cross-examination, that in order to
evaluate whether a person was suffering from post-concussion syndrome, more
testing than he had done would be required.
Dr. Garson did not know if claimant was driving at the times when he saw her;
his impression was that she was avoiding going out and he stated he would be
surprised if she was doing "recreational driving" (which he defined as driving
that had no purpose) as opposed to "driving because she had to get someplace"
Defense counsel inquired as to the basis for Dr. Garson's initial evaluation
(1997) of claimant's prognosis as good. The doctor stated that her cognitive
functions were intact, there was no evidence of brain injury, her judgment was
fair as to social and financial matters, her intelligence seemed normal and her
adaptive capacities seemed excellent. He found, at that time, that her
disability was moderate, partial and temporary. She was able to give him an
accurate account of the accident as well as of her symptoms. This was, of
course, before his finding in August of 1999 that claimant had "worsened in many
ways" as above set forth.
With respect to claimant's medication, Dr. Garson testified that claimant told
him that she did not like to take medication and that she tried to minimize what
she was taking.
Dr. David Shumsky, a rehabilitation neuropsychologist to whom claimant was
referred by Dr. Lapidus, testified on claimant's behalf. He first saw claimant
on October 13, 1999, at which time she reported symptoms including "fatigue,
chronic headaches, dizziness, numbness and tingling in various parts of her
body, loss of balance, impaired vision and hearing, pain in her neck, low back,
head and left knee, tinnitus, ringing in her ears and sensitivity to noise".
She reported that "sounds tended to blur together, and she had problems with
sense of directionality of sounds. *** her cognitive symptoms included problems
with recent recall, concentration,.....following directions, initiating and
completing activities at home and at work, and difficulty doing simple
arithmetic. And her emotional symptoms included panic attacks, rapid mood
swings, social isolation, frequent crying spells, depression, a weight gain of
40 pounds, insomnia, fear of driving, and agoraphobia" (
, 327-328). Dr. Shumsky felt that her symptoms were consistent with
a closed head injury and he recommended that she undergo a complete
neuropsychological evaluation, which he conducted on five occasions from March
through June, 2000.
Dr. Shumsky described, at length, the testing that he performed and the
conclusions he drew from the results. Based on his IQ testing, he found a
variability in claimant's functioning consisting of a higher result on the
verbal IQ portion compared with her visual motor functioning. This made the
doctor "suspicious that there's something going on in the way of, in this case,
brain injury, although there are other issues – other reasons why people
can perform at different levels *** This is an abnormal profile. We would not
expect to see a range of scores with that much difference "(
, 331-332). On other language-based tests, he found claimant "quite
impaired in her ability to repeat back lengthy information" (id.
Dr. Shumsky stated that claimant told him, spontaneously, that on a word
association test she "was using visual imagery to recall the words" (id.
346). He did indicate that using visual memory to compensate with impaired
verbal memory was something that he typically hears from patients with head
Speaking of his findings on a personality inventory evaluation, Dr. Shumsky
referred to "significant elevations in a number of areas *** [suggesting] that
she tends to overemphasize her physical problems, and make herself look perhaps
worse than she is" (
, 350) as the result of her severe anxiety. In fact, he suggested
that the level of anxiety and depression exhibited by claimant "raises questions
as to the validity of the cognitive testing because when someone has such a high
level of anxiety/depression, they're really not able to focus very well on the
task at hand," and that "[b]ecause of the high levels of depression/anxiety, I
don't feel comfortable making a very definitive diagnosis, at this point, about
– about the brain injury, although I continue to be suspicious of it"
, 351-352). Dr. Shumsky's diagnosis was that claimant was suffering
from "a mood and cognitive disorder, not otherwise specified" (id.
The former evaluation was based on his findings that claimant had "problems with
depression and anxiety and post-traumatic stress, but [she did not] formally
meet one of those – one of the more limited diagnostic criteria"
, 364), and the latter conclusion was based on the test results that
indicated some impaired cognitive functioning, but because "so many of the
specific symptoms of anxiety and depression would also appear as symptoms of an
organic brain disorder, I'm really not comfortable calling it an organic brain
disorder *** I'm not saying whether it is specifically organic brain damage or
whether it's perhaps secondary to some other factors" (id.
, 368-369). He
recommended further testing when claimant's mood disorder was under better
control, and he felt that claimant "was not able to function at a sufficient
level to function on the job with that very high level of depression and anxiety
and the functional problems that I found cognitively" (id.
, 370). Asked
in this regard about claimant's ability to obtain her insurance sales license
and function in an insurance office, Dr. Shumsky stated: "we know that with
great effort, she's able to learn material and memorize, although she's weak in
that area, but with a great deal of effort and by staying really on one thing
– which I talked about before – if she's on one thing, maybe she can
get through it," and then acknowledged "I don't know the requirements of the
particular test that she was taking, so I don't know, you know, how difficult
, 372-373). This was the test that claimant described as
"easy" (Vol. I, 94).
Dr. Shumsky's opinion was that the symptoms exhibited by claimant were the
result of the subject accident, an opinion that was the result of the history
she gave him and her school records, which indicated that she functioned well as
a child and up through the date of the accident. He later stated that he had no
evidence that she was cognitively impaired prior to the accident, and that it
was therefore his "hypothesis that her anxiety and depression were a direct
reaction to the accident" (
, 411). When defense counsel asked him if he would have considered,
had he been aware of it, that claimant's father was an alcoholic and that she
had problems with her parents resulting from the alcoholism, he replied that it
was something he would liked to have known.
Dr. Shumsky made clear that, although the reason for claimant's referral to him
was to determine whether there was a physical injury component to any of the
symptoms that she reported, he saw no evidence confirming any injury to the
brain or any other physiologic abnormality. He also testified, upon inquiry
from defense counsel, that if claimant had been prescribed psychotropic
medication but not taking it, or taking less than had been prescribed, such
could affect the results of the tests he administered.
Defendant presented two medical witnesses – Dr. Steven Boksenbaum, a
board-certified neuropsychologist and Dr. Mark Tarle, a board-certified
psychiatrist. Dr. Boksenbaum, who holds a Ph.D in clinical psychology and has
treated hundreds of brain-injured patients, examined the claimant on October 31,
2000, for about six to seven hours and concluded that she did not suffer a
traumatic brain injury, based on the results of her CT scan, MRI, EEG, hearing
tests and auditory-evoked potential tests, all of which were normal, a normal
neurological examination by Dr. Frontera, as well as the reports of multiple
psychiatric examinations, all of which indicated no evidence of brain injury.
He also administered a number of neuropsychological tests, finding "multiple
irregularities, inconsistencies in atypical performances that spoke against the
presence of a mild traumatic brain injury" (Vol. IV, 648). On one test,
claimant indicated that she suffered from particular symptoms – putting
her clothes on backwards, hearing voices and laughing for no reason – that
"are not typical of the profile following a mild traumatic brain injury (
, 650). He also administered a test aimed at ascertaining claimant's
ability to sustain her attention over time, upon which she performed extremely
poorly, much more poorly than would be expected in the case of a mild brain
injury and not consistent with claimant's ability to follow directions and
sustain her attention throughout the day of testing. He testified that claimant
indicated that she suffered from complaints "which would be considered to be
severe regarding her symptomology, and yet she was able to function in everyday
, 651). He described a whole battery of specific tests on
which claimant performed in an anomalous and inconsistent fashion and
particularly in a manner that was not consistent with an injury to her brain.
He stated, with respect to the test results and addressing the question of
whether the subject accident could be the cause of claimant's depression and
anxiety, that "in the absence of a mild traumatic brain injury, it would be most
uncommon to see someone who, after such an event would, in effect, be so
incapacitated in her life" (id.
Dr. Boskenbaum testified that claimant did not tell him of her father's
alcoholism or of any marital discord involving her parents and also did not tell
him that she had been employed since the accident. He stated that her work
history indicated that she was capable of performing at a higher level than
indicated by some of her test scores. Dr. Boskenbaum did agree that claimant
suffered from anxiety and depression at levels that would be consistent with
impaired functioning, but he felt that, while she was experiencing a significant
amount of psychological stress, she was "slightly exaggerating" her symptoms,
not necessarily in an effort to maximize her gain in this action, but as a way
to obtain help. He opined that the symptoms that she expressed in the testing
would impair her ability to function normally, if those symptoms were accurately
portrayed rather than exaggerated, but since he concluded that there was "clear
evidence, that she was at least slightly exaggerating" her symptoms, he could
not offer an opinion as to her ability to function in everyday situations.
Dr. Tarle, a forensic psychiatrist, examined claimant on February 15 and March
16, 2000. He found claimant to be "friendly, engaging, not paranoid not angry
or menacing but also sad and anxious in terms of her emotional demeanor" (
, 738). He thought it quite significant that she displayed "symptoms
amplification" throughout her interview, which he explained as "an expansion of
symptoms or creation of new symptoms that an individual might have that they
present to an examiner. So – as opposed to a clinical evaluation, where
you're seeing a patient for treatment, who's coming to you for specific anxiety
or depression, who is usually very clear and specific about what they're
experiencing, in a forensic setting, it's very common to see symptom
, 739). He found that claimant described to him "the
type of symptoms one would only see in a person who has severe mental illness
*** [and] the type of symptoms you don't really see in any form of mental
illness, but had an artificial quality [as well as symptoms] you don't see ***
in a functioning individual who could get in a car, follow directions and get to
your office" (id.
, 739-741). He described an emotional lability, where
sometimes claimant appeared focused and other times not, to a degree not seen
except in severely mentally ill persons. He also described, along with genuine
anxiety and sadness, "a certain amount of role enactment going on," a phenomenon
that occurs in people who have experienced repeated forensic and psychiatric
examinations where they "begin to learn what the doctor is looking for *** [and]
take on a certain role of their perception of a mentally ill person"
Dr. Tarle also concluded that claimant had clearly made a decision to exclude
certain things from the examination — she described her childhood as being
idyllic (his word), with a very good and close relationship with her mother and
father, and denied that there was any family history of depression, alcoholism
or abuse. He then stated that after the interview, he did a second reading of
some of the records with which he had been provided, and discovered that the
picture of claimant's childhood as reflected in the notes of Ms. Sadowski, was
not at all like what she told him, including her father's alcoholism and an
abusive relationship between her mother and her father.
Dr. Tarle's opinion was that claimant's "symptoms of anxiety and depression
preexisted the accident with the tree falling on her car based on the history
that she did not give me at the time of the examination of an alcoholic father,
chronic family turmoil, and references in her past psychiatric records of a
chronic sense of numbing and anxiety over her lifetime and that "the more likely
process is that you have a preexisting condition, which may have been triggered
by the tree incident, but the childhood issues speak volumes[;] [t]he tree
speaks a footnote *** [t]o describe the chronic depression and anxiety that she
has related to the people who have treated her, the overwhelming evidence points
to her childhood, not the single episode on the Thruway [sic]" (
On cross-examination, claimant's counsel strongly challenged Dr. Tarle's
depiction of claimant's childhood as traumatic and his conclusion that she was
deceptive with him in this regard. Dr. Tarle insisted, nevertheless, that he
directly asked claimant if any member of her family was an alcoholic and she
answered in the negative, and he indicated that his conclusion as to the
traumatic nature of claimant's childhood came from his reading of Ms.
and Dr. Schefflein's
notes. He did agree that
claimant suffered from major depression and anxiety disorder, but he asserted
that with the right treatment her condition should improve. This Court feels
that Dr. Tarle's reliance on the claimant's childhood problems of an alcoholic
father and early family problems are not substantiated by either the record or
the other medical and psychological professionals who testified and so has given
a lesser weight to this testimony.
Three persons with whom claimant worked were called as witnesses, one by the
claimant and two by the defendant. Claimant called Janet Scribani, who worked
with claimant for six years at Video Treats. She testified that, in 1996,
claimant was responsible for five locations, going from store to store to make
sure things were running correctly. She described claimant as a respected
supervisor who worked at least 40 hours per week prior to the subject accident
and had no health or emotional problems that the witness was aware of.
According to Ms. Scribani, claimant returned to work about one week after her
accident in July 1996. She stated that claimant seemed "sore", at first, "but
then it seemed to get progressively worse. Her having breaking (sic) down at
work crying, shaking, and then not being able to complete her full day's work.
She would have to leave and then come and go at all different hours and say I
can't do this no more. I've got to go and she'd start crying" (Vol. III,
506-507). She testified that things got worse, that claimant's weekly hours
were reduced from 40 to 20, but after awhile even that became too much. Ms.
Scribani testified that she witnessed several panic attacks, where claimant
would stutter, shake and start crying, and would have to leave. According to
Ms. Scribani, claimant stayed at Video Treats for about a year after the
accident, but never returned to her pre-accident level of functioning.
Nancy Schneider owns the Allstate agency where claimant was employed from April
1998 through January 1999. As claimant testified, she was required to take a
course and obtain her State license in order to work at the agency. Ms.
Schneider testified that claimant's duties included answering the phone,
receiving payments, making new policy quotes and writing new policies. She
described the pre-licensing course as a 105-hour course involving "lots of
study" about "boring insurance" (Vol. IV, 707). She described claimant as
"energetic" and "very eager to learn" (
, 709). She "caught on quickly. She did well. She was a whiz at
the computer because Allstate has their own programs. So – I mean *** it's
pretty detailed, but she picked it up really fast" (id.
). She also
described claimant as having a talent for decorating and stated made some
decorative items at home for the office.
Ms. Schneider testified that, in January 1999, claimant told her that she had
received an offer of a better position elsewhere and, on one day's notice, she
left the agency. While she was there, the number of hours she worked each week
varied from 15 to 37 (except for one week where she worked 6 hours), working
most of the time about 30 hours per week. Ms. Schneider indicated that claimant
also took unpaid vacation time, and she remembered that she took three trips to
Texas. She stated that she saw claimant have a panic attack and cry. Also
claimant had trouble working with other employees, one of whom left because of
On cross-examination by claimant's counsel, Ms. Schneider stated that she knew
that claimant was having problems and seeing a therapist. She knew that
claimant had broken up with her fiancé, Steve, and recalled that it was
"a really, really hard time for her" when that happened, at least in part
because they continued to share their apartment after the breakup and he was
seeing someone else, and it was "horrible" for her, having to cancel her wedding
arrangements under such circumstances (
, 722). She also recalled that claimant's father was sick and her dog
was dying and that it was generally a very tough time for claimant. She
remembered seeing claimant cry sometimes in the office, when she spoke with
Steve, and she remembered witnessing her having a panic attack. She stated that
claimant had come to work and said that she hadn't slept, and had taken some
medication. She called a friend of hers who also had experienced panic attacks
and had her speak to claimant to calm her down.
Ms. Schneider described a problem that claimant had with another employee at
the office, Michelle Mead. She stated that the two did not care for each other
and that one of the causes of the problem was that Ms. Mead had taken the
licensing test twice, and failed it, and then claimant took it and "sailed right
through it" (
, 728) and that Ms. Mead felt inferior to claimant. The result of
what the witness described as a "personality problem there with the two of them"
was that Ms. Mead quit (id.
, 729). Towards the end of November 1999, Ms.
Schneider hired another employee, named Heather, whom she described as
"dynamite" and very experienced and it was her impression that claimant felt
threatened by Heather and thought that she was going to replace her (id.
731). Although Ms. Schneider denied that she ever had any intention of letting
claimant go – she stated that she really needed two people – she
thought that claimant left the agency because she thought that she was going to
Patrice Schiavo was the store manager at the Victoria's Secret location where
claimant worked from November 21 through December 11, 1998. She would typically
work a four-hour shift, scheduled around the time she was working at the
insurance agency. Ms. Schiavo described her as an "excellent worker *** she was
very aggressive" (
, 623). On December 11, 1998, claimant had started working at 6 p.m.,
and had requested a break at 7:15, which Ms. Schiavo initially refused but
eventually agreed to, and claimant left and never returned. During the short
period that claimant worked at the store, Ms. Schiavo had no problems with her,
describing her as highly motivated, and noticed nothing unusual about her
behavior until she left without notice and never
Susan Bradley, claimant's younger sister, testified on her behalf. She
indicated that, although her father was an alcoholic, he was never abusive and
that the only type of conflict she remembered was ordinary domestic bickering.
She did not consider her childhood to be traumatic. According to Ms. Bradley,
claimant was always an outgoing and fun person but after the accident she became
a different person – moody, difficult, weepy and not strong. She seems
angry and upset often, and every time Ms. Bradley sees her she seems
On cross-examination, Ms. Bradley acknowledged that claimant and her father
clashed often because she was very upset that he drank. Although she did
occasionally socialize with her sister, she characterized the relationship as
not close. Claimant told her that the reason she left Victoria's Secret was
that she wanted to eat pizza with her co-workers but was told she had to work
the floor, which she resented, so she walked out. She did not know why claimant
left the Allstate job, or the job at the Montessori School (which claimant had
described as a day-care job).
The picture obtained by this Court as a result of the testimony, exhibits
received in evidence and post trial memoranda is one of a pretty, energetic,
engaged young woman with a good personal and social identity whose life was
forever changed by the incident of July 1996. While she may have been more
fragile than she outwardly appeared, the defendant takes the claimant as she is
and pays damages accordingly.
As to the question of damages, claimant called Dr. Andrew Weintraub, an
economist with a Ph.D from Rutger's University (his report is Claimant's Exhibit
19 in evidence). He testified that claimant had a work expectancy of 27.3 years
as of the date of the incident. He projected her lost future wages including
lost wages and benefits as $1,044,720.00. Discounted by 6% to present value of
$518,831.00. The State economist Dr. Thomas Fitzgerald computed claimant's lost
wages and benefits at $1, 076,000.00 but did not discount them to present
This is no doubt that claimant suffered a severe economic loss as a result of
this incident. She had earned $22,000.00 in 1996, $13,000.00 in 1997, $9,000.00
in 1998 and $3,500.00 in 1999. She earned no income in 2000 and thereafter.
She has a workers' compensation lien and medical expenses of over
On the basis of the aforesaid, the claimant is entitled to an award for past
pain and suffering in the sum of $125,000.00 and an award for future pain and
suffering in the sum of $500,000.00. As and for past lost wages claimant is
entitled to an award of $132,000.00 and $500,000.00 for loss of future wages
Entry of judgment will be held in abeyance pending a hearing pursuant to CPLR