New York State Court of Claims

New York State Court of Claims

CAREY v. THE STATE OF NEW YORK, #2001-017-902, Claim No. 95949


Claimant awarded $1.257 million for psychological damages.

Case Information

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:
Tendy & Cantorby: Jonathan D. Katz, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney Generalby: Michael Rosas, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
December 24, 2001
New City

Official citation:

Appellate results:

See also (multicaptioned case)

In a decision dated September 29, 2000 (UID No. 2000-017-606)[1]
, the court found the defendant liable for the injuries suffered by claimant when a tree fell on her car on July 19, 1996. A trial was then held on the issue of damages, which will be determined in this decision.
Claimant, who was born in 1970, testified that she lived with her parents until she was 22 years old. She testified that her father was an alcoholic, but she nevertheless described him as a "good dad" who did not mistreat the family in any way (Vol. I, 16). She viewed her childhood as "without problems" and reported no mental or physical problems during her early years and prior to this incident. At the time of her high school graduation, in 1988, claimant was employed at a Video Treats store in Poughkeepsie, New York. She was promoted several times and attained major management responsibilities. Her parents moved to California in 1993 but she continued to work after graduation. Although she had been accepted to the Art Institute of Philadelphia, she elected not to go there because she loved her job at Video Treats and did not want to leave her boyfriend. She moved from her parents house at the time when they moved to California. Her boyfriend's parents were moving to Florida, so they decided to stay in New York and get an apartment together. At the time of the accident, in July 1996, claimant was still working at Video Treats, as an advertising and marketing manager, earning $16.00 per hour plus benefits.

Claimant was driving from one Video Treats location to another, on Salt Point Turnpike when the tree fell on her car. In her words:
I was moving slow in traffic. And then my car got hit by the tree, and my car stopped moving. And my windows blew out, and I don't know what happened. *** I heard – the noise was incredible. The noise – I still – it was just unbelievable, the noise of the boom and the windows exploding. The car stopped moving. I know I was jerked around a little bit, but I don't remember feeling anything at all physically, other than the stop. *** People were yelling for me to get out of the car. I got out of the car, and it was crushed and I just don't know what I was thinking. I was – I was just amazed. I don't know. I can't believe it happened. (Id., 36-37).
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 "easy" (
id., 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" (id., 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" (id., 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 the Internet.

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" (
id., 148-149)[2]. 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" (
id., 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" (
id., 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 relationship.
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[3]
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" (
id., 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" (id., 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., 261).
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" (
id., 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 something" (id., 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" (id., 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 of functioning.
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 syndrome.(id., 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" (
id., 302).
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" (
id., 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 "(
id., 331-332). On other language-based tests, he found claimant "quite impaired in her ability to repeat back lengthy information" (id., 337). 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 injuries.
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" (
id., 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" (id., 351-352). Dr. Shumsky's diagnosis was that claimant was suffering from "a mood and cognitive disorder, not otherwise specified" (id., 356). 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" (id., 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 that was"(id., 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" (
id., 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 (
id., 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 life" (id., 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., 659).
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" (
id., 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 amplification" (id., 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" (id., 742).
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]" (
id., 761-762).
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. Sadowski's[4]
and Dr. Schefflein's[5] 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" (
id., 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 claimant.

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 (
id., 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" (
id., 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 be fired..
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" (
id., 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 returned.
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 worse.

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 value.

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 $66,000.00.

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 and benefits.

Entry of judgment will be held in abeyance pending a hearing pursuant to CPLR Article 50-B.

December 24, 2001
New City, New York

Judge of the Court of Claims

[1]Court of Claims decisions are available on the court's web site:
[2]It must be noted that claimant did not testify to experiencing any of these things.
[3]This doctor's name was misspelled in the transcript, at times.
[4]Ms. Sadowski treated claimant from July through December 1998, and was not called to testify at this trial. She wrote, on August 3, 1998, that claimant "never had a good relationship with parents *** father alcoholic, verbally abusive," and on August 9, 1998, that claimant "went through most of her life cut off from feelings" (Exhibit 23).
[5]Dr. Schefflein started treating claimant on December 2, 1996 and his office notes, through September, 1997 were admitted as Exhibit "M." He did not testify at this trial.