By Decision filed May 18, 2000, Judge Andrew P. O'Rourke found the defendant to
be solely responsible for the two-vehicle automobile accident of October 23,
1994 which resulted in Clifford and Jessica Bogen's injuries and the death of
Mary Bogen. This Decision deals only with the issue of damages.
The claim sets forth six causes of action: (1) the decedent's estate seeks
recovery for medical, hospital and funeral expenses, as well as the pecuniary
loss to the distributees caused by the death of Mary Bogen; (2) damages for the
conscious pain and suffering of the decedent; (3) damages for the injuries
sustained by Clifford Bogen (decedent's husband); (4) damages for the injuries
sustained by Jessica Bogen (decedent's daughter); (5) a claim by the decedent's
husband for loss of his wife's services, society and consortium; (6) damages to
Clifford as a result of the loss of his daughter's (Jessica) services, society,
companionship and love and also for expenses incurred for Jessica's future
Under Estates, Powers and Trusts Law (EPTL) § 5-4.3(a), damages for
wrongful death are limited to "fair and just compensation for the
injuries resulting from the decedent's death to the persons for
whose benefit the action is brought" (emphasis supplied). The Courts of this
State have strictly adhered to the statutory restriction that recovery be
limited to pecuniary or economic losses (see, Carrick v Central Gen.
, 51 NY2d 242). Thus, neither the grief suffered by survivors nor the
loss of the decedent's companionship is compensable (see, Liff v
, 49 NY2d 622; see also, Turano Practice Commentaries, McKinney's
Consol Laws of NY, Book 17B, EPTL § 5-4.3, p. 439).
In fashioning a wrongful death award in accordance with the statute, the Court
may consider evidence of the "reasonable expectancy" of financial support, gifts
and inheritance that would have inured to those on whose behalf the claim was
filed had the decedent lived (
Loetsch v New York City Omnibus Corp.
, 291 NY 308). Factors
traditionally considered by the courts include "the age, health and life
expectancy of the decedent at the time of the injury; the decedent's future
earning capacity and potential for career advancement; and the number, age and
health of the decedent's distributees" (Johnson v Manhattan & Bronx
Surface Tr. Operating Auth.
, 71 NY2d 198, 203-204). The value of the
decedent's past and future lost earnings may be measured by his or her gross
income at the time of death (id.). Reasonable funeral expenses may also be
recovered in the suit (see, EPTL § 5-4.3[a]).
Since its first wrongful death statute, New York has steadfastly restricted
recovery to "pecuniary injuries" or injuries measurable by money, and denied
recovery for grief, loss of society, affection, conjugal fellowship and
Gonzalez v New York City Housing Auth.
, 77 NY2d 663; Liff v
). Where, as here, the claim is filed on behalf of
the decedent's child, pecuniary injuries may also include the loss of parental
nurture and care and the loss of physical, moral and intellectual training that
could have been expected from the parent, had he or she been alive (Kenavan v
City of New York
, 120 AD2d 24, affd 70 NY2d 558; Plotkin v New York City
Health & Hosps. Corp.
, 221 AD2d 425). In the State of New York, a
parent has a legal duty to support his or her children until the child reaches
the age of 21 (see Social Services Law § 101).
The evidence adduced at trial established that the decedent, Mary Bogen, was
born on January 10, 1959 (see Exh. 1) and at the time of her death had a life
expectancy of 46.7 years (see Pattern Jury Instructions, Appendix A, Table A).
The uncontroverted testimony of Jessica and Mr. Bogen was that Mrs. Bogen was an
active, healthy, devoted mother who created a nurturing and structured home
environment for her daughter, Jessica. The testimony established that Mrs.
Bogen brought Jessica to Girl Scout meetings and a baton twirling club, that she
read to Jessica on a nightly basis and helped Jessica with her homework. The
testimony further established that Mrs. Bogen was the guiding force of Jessica's
moral development as decedent and Mr. Bogen were of different religious faiths
and they agreed Jessica would be raised in Mrs. Bogen's faith. The evidence
established that Jessica regularly attended church with her mother, but since
her mother's death she is not receiving the same moral guidance and has stopped
attending church. Mr. Bogen stated that he does not feel qualified to continue
Jessica's religious education. Jessica also became more withdrawn and feared
for the life of her father.
Based upon the foregoing, the Court concludes that Jessica has suffered the
loss of her mother's nurture and care and her established course of
intellectual, moral and physical guidance, which undoubtedly would have
continued beyond the time Jessica reached the age of majority. The love a
mother has for her child is difficult to quantify and impossible to replace.
The Court recognizes that the untimeliness of her mother's death has devastated
what was Jessica's secure and happy childhood. The Court awards Jessica the sum
of $450,000 for past loss of parental care and guidance (see,
Kubecka v State of New York
, Claim No. 81781, filed July 14, 1998,
Silverman, J.). As to future loss of parental care and guidance, the Court
awards Jessica $800,000 (see, Bryant v New York City Health and Hosps.
, 250 AD2d 797; see also, Paccione v Greenberg
, 256 AD2d
We turn now to the pecuniary loss of lost income and household services of the
decedent. Mr. Bogen testified that Mrs. Bogen had graduated from high school
and had received her Bachelor's Degree from the State University of New York at
Stoney Brook; that prior to her death she had worked as a secretary at various
businesses and that she worked with a computer. Regarding Mary's work history,
Mr. Bogen stated that from the time they were married in 1983 until Jessica was
born in 1986, Mary was employed full-time as a secretary; that Mary remained
home with Jessica for six months and then started to take some part-time
"off-the-books" jobs. In 1989 when Jessica was three, Mary began full-time
employment as a secretary at Pepsico. In 1993 Pepsico restructured and Mary's
position was changed to a part-time executive secretary position and she was
laid-off from her job about three to four months prior to the accident. The
evidence established that at the time of her death, Mrs. Bogen was four months
pregnant (see Exh. 2). Mr. Bogen stated that while he does not believe that he
and Mary had a specific discussion regarding the issue of her return to work
after the baby was born, he believed Mary would return to work as she did after
Jessica was born, i.e. part-time for awhile and then full-time. Mr. Bogen
further testified that Mary also worked in the home; that she performed all the
household chores, including doing the laundry, the marketing, cleaning the
house, cooking, taking care of Jessica - including transporting her to her
various activities and also handled the family's finances, i.e. paying the bills
and making sure the family did not overspend. Mr. Bogen stated that his wife
was frugal with money.
Claimant called as an expert witness David Kennett, a Professor of Economics
and Director of International Studies at Vassar College. Professor Kennett
testified that he has taught Economics since 1975 and has been Chairperson of
the Economics Department on two occasions. His
was received into evidence as Exhibit
Professor Kennett testified that he established three categories of loss as a
result of Mrs. Bogen's death - lost wages, lost benefits and the loss of the
household services that she provided the family. The witness stated that the
Bogens had a lifestyle based upon two incomes; in making his calculations he
assumed Mrs. Bogen would not return to work until the child she was pregnant
with was five years old and attended school and she would stay in the Executive
Secretary/Administrative Assistant field and that her labor market was Dutchess
County, not Westchester County. He did not assume any promotion, new occupation
or seniority raise and he increased her salary by 4.8% per year, which he stated
is the average wage increase per year from 1946 to 2000; he also assumed Mrs.
Bogen would retire at age 65. The witness stated that he prepared three
different schedules projecting the anticipated loss of income and value of Mrs.
Bogen's household services and ultimately the economic loss to the estate as a
result of her death. The first schedule (Exh. 14) was prepared assuming Mrs.
Bogen would return to work full-time in the year 2000 and work full-time until
her retirement in 2024 at the age of 65. The second schedule (Exh. 15) assumes
Mrs. Bogen would return to part-time employment in the year 2000 and work
part-time until 2005 and then work full-time until retirement. The third
schedule (Exh. 16) assumes that Mrs. Bogen would return to work as a part-time
employee in the year 2000 and work part-time until retirement in 2024.
Professor Kennett stated his opinion with a reasonable degree of economic
certainty that scenario 2 (Exh. 15) was the most likely scenario to have
developed had Mrs. Bogen lived. In addition to lost wages per year, Professor
Kennett determined a yearly amount of lost fringe benefits. In calculating his
schedules, the witness assumed that when decedent worked part-time she would not
receive a very generous benefits package. He stated, that using his most likely
scenario (Exh. 15), part-time work for five years, then full-time work, Mrs.
Bogen's total lost wages is $1,458,779 and the total lost fringe benefits is
$423,409 for total lost compensation of $1,882,188. The witness further
testified that in determining the value of Mrs. Bogen's household services, he
used as a guideline a Survey Study of Income Dynamics and determined that the
average amount of time a woman who does not have a job outside the home spends
working on household chores is 33 hours per week and that the average amount of
time a woman who does have a job outside the home spends working on household
chores is 20.8 hours per week. In performing his calculations, Professor
Kennett stated that he determined that the hourly wage for such services was
$14.95 per hour plus benefits and that he increased the amount by 4.8% per year,
as he did Mrs. Bogen's out-of-home income. Again, using the witness' most
likely scenario, the value of Mrs. Bogen's work in the home totaled $860,241 for
a combined total economic loss of $2,742,429 from 1994 to 2024 (see Exh.
Professor Kennett also testified that in determining the actual loss to the
estate, one has to estimate the amount of her income Mary would have spent on
herself during her lifetime for food, clothes and the like; that he used a study
that showed one's own consumption to be 14.3% for someone in the Bogen's income
level of $70,000 to $80,000; that the consumption amount must be subtracted from
the total economic loss to determine the loss to the Estate of Mrs. Bogen.
Again, using his most likely scenario, the witness determined Mrs. Bogen's own
consumption would be $459,275 and that the total loss to the estate as a result
of her death was $2,283,154 (see Exh. 15).
On cross-examination, the witness stated that Mr. Bogen's projected income for
1994 was $32,000. He admitted that he had no basis for assuming the Bogens'
joint income for the years 1994 through 1997 would be $70,000 to $80,000 and
thus, no basis for the 14.3% consumption rate he used for Mrs. Bogen for those
years. He further stated that the average underlying inflation rate since 1946
is about 4% per year, thus the real increase in wages is about .7 or .8 percent
per year rather than his "nominal" increase of 4.8%.
The State did not present any expert economic testimony. The trier of fact is
not compelled to accept the conclusion of an expert even when the opposing party
does not call an expert on the issue or otherwise leaves the conclusion
Preston v Young
, 239 AD2d 729; Galimberti v Carrier Indus.
The Court finds, based upon the preponderance of the evidence adduced at trial,
that Professor Kennett's scenario 2 is the most realistic and the Court finds
that Mrs. Bogen would have returned to work part-time in the year 2000 and
full-time in the year 2005 and would have retired in the 2024 at age 65.
However, the Court does not believe that a secretary's salary, even one employed
by a huge international corporation, would increase at the levels computed by
claimant's expert. At some point, the salary of any position reaches a level,
above which it becomes economically non-viable for a company to pay. In effect,
the value of a secretarial position, however skilled, will, at some point "top
out". Professor Kennett omits this economic fact of life when he assumes a
secretary will earn $103,619 in 2024 (see Exh. 15). Thus, we have made
corrections we deem necessary to adequately compensate the decedent's estate for
the loss of past and future wages and fringe benefits. The Court has also made
adjustments it deems necessary to arrive at a reasonable computation for the
loss of Mrs. Bogen's household services, as we are not bound by the economist's
testimony as to the value of decedent's household services (see,
Baker v Sportservice Corp.
, 175 AD2d 654). We, therefore, find that the
distributees suffered past lost wages and benefits of $11,400 and past lost
value of household services of $132,900 and future lost wages and fringe
benefits of $835,355 and future lost household services of $494,000. The
amounts awarded by the Court for past and future lost wages and fringe benefits
include a deduction made by the Court for claimant's personal consumption. No
evidence was submitted at trial regarding medical or hospital costs for Mrs.
Bogen or for funeral expenses. Therefore, no award is made for these
The second cause of action seeks recovery for the decedent's conscious pain and
suffering prior to her death. The death certificate (Exh.1) and the autopsy
report (Exh. 2) both established that Mrs. Bogen was pronounced dead at 4:13 pm
on October 23, 1994. The claim alleges that the accident occurred at 3:18 pm on
the same date. Claimant failed to present any evidence that Mrs. Bogen was
conscious after the accident or that she suffered any pain prior to her death.
Therefore, the second cause of action is dismissed.
The third cause of action seeks damages for the injuries sustained by claimant,
Clifford Bogen. The evidence adduced at trial established that as a result of
the accident, Mr. Bogen sustained a fractured left clavicle, a fractured right
big toe, a fracture of the left little finger, a fractured septum, a left
pneumothorax and multiple lacerations to his face (see Exh. 5). After the
accident, Mr. Bogen stated he was in extreme pain and had difficulty breathing;
that he was taken to Vassar Brothers Hospital in Poughkeepsie by ambulance. He
was discharged from the hospital on October 27, 1994 (see Exh. 5, Hospital
Record - Discharge Summary). While at the hospital, a chest tube was inserted
to remove the air from his chest and re-inflate his lung. Surgery was performed
by Dr. Celestino Sepulveda, a plastic surgeon, to remove glass from claimant's
face and to stitch multiple lacerations on his face, lip and eyebrow. Dr.
Sepulveda also set claimant's fractured septum.
Dr. Sepulveda testified that claimant has a 4½ centimeter avulsion of the
eyebrow and a 3½ centimeter laceration in the cheek area. He also stated
that he removed about 20 pieces of glass from claimant's face. The doctor
stated that claimant's surgery was a success; that claimant does not look
disfigured. However, his nose is not straight and some scars are visible. On
cross-examination, the doctor admitted that the surgery results were about as
good as he could have expected.
Claimant testified that he had a splint put on his pinky finger and had to wear
a shoulder harness for the fractured clavicle for approximately six weeks.
Claimant also testified that he attended physical therapy sessions for two to
three weeks to regain strength in his shoulder. Claimant's treating orthopedic
surgeon, Dr. William Kwock, testified that claimant's shoulder was placed in a
"figure 8 brace" (Court's trial notes) and that approximately six weeks after
the accident he suggested that claimant start physical therapy to "loosen and
strengthen" the shoulder. Dr. Kwock opined that claimant's left shoulder did
not regain its pre-injury strength and that this is a permanent condition. On
cross-examination, Dr. Kwock stated that the injury does not interfere with
claimant raising his arm above shoulder level, only interferes with him when he
performs work above the shoulder level. Claimant further stated that he did not
receive any physical therapy for his pinky or his toe and that since the
accident, his right big toe now bends to the right.
Claimant testified that at the time of the accident he was a cabinet maker for
a modular home company and that following the accident he found it very
difficult to lift heavy objects above his shoulder, which were part of his
everyday job duties. He stated he was out of work from October, 1994 until
March, 1995 when he was cleared to go back to work. However, his employer was
unable to hold his job for him.
Based upon the preponderance of the credible evidence adduced at trial, the
Court finds that claimant suffered a fractured left clavicle, right big toe,
left pinky finger and septum, as well as facial lacerations and a left
pneumothorax. While claimant established that he did not work from October 23,
1994 until March, 1995 as a result of his injuries, there was no evidence
presented as to lost wages. Therefore, no award can be made for past lost
wages. For past pain and suffering the Court awards claimant $150,000. The
evidence established that only the injuries to claimant's shoulder and toe are
permanent, with the injury to the shoulder being the most serious. Therefore,
on this cause of action, the Court also awards claimant $25,000 for future pain
and suffering, for a total of $175,000.
The fourth cause of action seeks damages for the injuries sustained by Jessica
Bogen. At the time of the accident Jessica was eight years old. The evidence
adduced at trial established that as a result of the accident Jessica sustained
a fractured left elbow, the loss of four upper front teeth, injuries to her
face, a concussion and a fracture of the alveolar bone (see Exh. 8, St. Francis
Hospital Record). Dr. Kwock testified that he treated Jessica in the Emergency
Room at St. Francis Hospital; that he performed a closed manipulative reduction
of Jessica's left elbow and placed it in a long arm cast (see Exh.8). Jessica
testified that while at the hospital she received stitches in her bottom lip.
Dr. Kwock stated that he removed the cast from Jessica's arm on November 23,
1994, that the healing process was satisfactory and that he last treated Jessica
on December 9, 1994 when he recommended she go to physical therapy. He stated
he found the elbow had progressed nicely and that a satisfactory result had been
achieved. On cross-examination, the witness stated that Jessica's elbow had
healed, that the bones were of normal length and that there was no continuing
disability with regard to her left elbow.
The evidence established that as a result of the accident Jessica lost her four
upper front teeth, the maxillary central and lateral incisors; that she has
suffered an inability to properly bite, chew and swallow (see Exh. 10). The
evidence also established that Jessica uses a retainer with false teeth because
she cannot be fitted for permanent false teeth until after the age of 18, when
she stops growing. Part of her orthodontic treatment included braces and
orthodontic bands which Jessica testified were painful. Jessica stated that she
is reluctant to smile because of her retainer and the fact that the false teeth
are smaller than her real teeth. She also stated that other children make fun
of her small teeth and retainer. She also testified that for three years there
were no false teeth in front and the braces went across her other upper teeth so
people could see her four teeth were missing.
Jessica testified that she went to the school counselor who referred her to
Esther Ganz. Ms. Ganz is a Licensed Professional Counselor in the State of New
Jersey and Jessica stated she has been seeing Ms. Ganz on a regular basis since
January, 1999 and plans to continue to see her.
Claimant offered into evidence as Exhibit 12 and Court Exhibit 1 (respectively)
the video-tape and accompanying transcript of the examination before trial of
Ms. Ganz. The State objected to all portions of Ms. Ganz' testimony where she
offered her opinion as to the psychological and/or psychiatric makeup of Jessica
following the accident. The State objects to the testimony on the basis that
Ms. Ganz has not been qualified as an expert in psychology or psychiatry. In
opposition, claimant's counsel asserts that he is offering the testimony to
establish that Jessica suffered emotional trauma as a result of the accident.
Counsel relies on
Karasik v Bird
(98 AD2d 359, 362) wherein the Appellate Division, First
Department stated that a witness may testify as an expert if it is shown that
he/she is skilled in the field or profession to which the subject relates and
such skill was acquired from study, experience or
Judge Smith in his dissenting opinion in
Price v NYCHA
(92 NY2d 553, 562-563) stated:
"The guiding principle is that expert opinion is proper when it would help to
clarify an issue calling for professional or technical knowledge, possessed by
the expert and beyond the ken of the typical juror" (
De Long v County of Erie
, 60 NY2d 296, 307). The expert "should be
possessed of the requisite skill, training, education, knowledge or experience
from which it can be assumed that the information imparted or the opinion
rendered is reliable" (Matott v Ward
, 48 NY2d 455, 459). The expert's
opinion cannot be founded upon speculation or supposition (id., at
A witness's qualification to testify as an expert rests in the discretion of
the trial court and its determination will not be disturbed in the absence of
serious mistake, an error of law of abuse of discretion (
Werner v Sun Oil Co.
, 65 NY2d 839; Meiselman v Crown Hgts. Hosp.
285 NY 389).
At her deposition, Ms. Ganz stated that she has a Master's Degree in Education
in the field of counseling human development and is a certified specialist for
the mentally ill and chemically addicted, as well as certified as a counselor
for alcohol and drug abusers (see Court Exh.1, Pg. 4). The witness stated that
she has worked in this field for 17 years, spending 9 of those years in private
practice (id. at Pg. 15). On cross-examination, the witness stated that she
also has a Bachelor's Degree in Education and is not a licensed psychologist (id
at Pg. 27). Ms. Ganz further testified that in counseling Jessica, she does not
call upon her particular expertise as a Certified Alcohol and Drug Counselor
(id. at Pgs. 27-28).
The Court finds, based upon the testimony adduced at the deposition, that Ms.
Ganz' testimony regarding Jessica's diagnosis and prognosis went far beyond her
training and experience and rendered an opinion regarding Jessica's mental and
emotional status. No foundation was established demonstrating Ms. Ganz's
qualification to engage in such an activity. From her testimony, it appears
that Ms. Ganz did not have any formal training in psychology or the behavioral
sciences which would qualify her to diagnosis Jessica's mental state or offer a
prognosis as to her future mental state. Therefore, the State's motion to
strike that portion of Ms. Ganz's testimony regarding her opinion as to
Jessica's psychological and/or psychiatric makeup, upon which the Court reserved
opinion at trial, is now granted and the testimony is stricken as the Court
finds the witness is not qualified as an expert in that
Based upon the preponderance of the credible evidence adduced at trial,
the Court finds that Jessica Bogen suffered a fractured left elbow, a fractured
alveolar bone, the loss of four upper front teeth, facial injuries and a
concussion. For past pain and suffering, the Court awards Jessica Bogen
Mancusi v Miller Brewing Co.
, 251 AD2d 265) and $100,000 for future pain
and suffering associated with the loss of her four upper front teeth for a total
The fifth cause of action seeks recovery for Clifford for the loss and
impairment of his spouse's services, society and consortium. The Appellate
Division, Third Department, in
Sand v Chapin
(238 AD2d 862, 864) stated: "this State does not recognize
a ‘common-law cause of action on behalf of the surviving spouse for
permanent loss of consortium due to the wrongful death of his or her marital
partner' " (see, Liff v Schildkrout
, 49 NY2d 622, supra
see also, Gonzalez v New York City Housing Auth.
, 77 NY2d 663). Further,
the Court of Appeals in Liff
at 634) stated that a widow's
loss of consortium is limited to reflect the loss of consortium during the
period of decedent's conscious pain and suffering. Here, there was no proof
adduced as to the length of decedent's pain and suffering. Thus, this cause of
action must be dismissed.
The sixth cause of action seeks recovery for Clifford as the parent of the
infant claimant, Jessica, for the loss of her aid, services, society,
companionship, love and for Jessica's future medical expenses. At trial,
claimant presented no proof as to what chores Jessica performed prior to the
accident (such as setting the table or taking out the garbage) which she was
unable to perform after the accident. The evidence established that Jessica
became more attached to her father after the accident than she was prior to it.
We turn now to the issue of Jessica's future medical expenses. Jessica and
Clifford both testified that Jessica would need dental surgery to make a
permanent bridge for her missing four teeth after she turns 18 and stops
growing. However, Dr. David S. Ostreicher's (Orthodontist) letter dated October
30, 1998 (Exh. 10) does not state what the estimated cost of this bridge or
appliance would be. There was no evidence offered as to the estimated or actual
cost of the appliance. An award for future medical expenses may not be based
upon mere speculation (
Faas v State of New York
, 249 AD2d 731; Cramer v Kuhns
, 213 AD2d
131, lv dismissed 87 NY2d 860; Buggs v Veterans Butter and Egg Co.
AD2d 361). Here, based upon the lack of evidence regarding Jessica's future
medical expenses, any award by this Court would be based upon uninformed
speculation. Therefore, based upon a failure of proof, the sixth cause of
action must also be dismissed.
Accordingly, claimants are entitled to a total award of $
2,723,655 for damages for the wrongful death of Mary Bogen, with the breakdown