New York State Court of Claims

New York State Court of Claims

HYNES v. THE STATE OF NEW YORK, #2001-029-106, Claim No. 88481


Damages only; suffocation; conscious pain & suffering 5-15 minutes; pecuniary damages-lost income and funeral expenses; reduced by decedent's contributory negligence

Case Information

EDLYN R. HYNES, Individually and as Executrix of the Estate of JOHN G. HYNES, Deceased
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Claimant's attorney:
Finkelstein & PartnersBy: George M. Levy, Esq.
Defendant's attorney:
Hon. Eliot Spitzer
Attorney General of the State of New YorkBy: Michael A. Rosas, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
October 18, 2001
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

By decision filed August 11, 2000, Judge Andrew P. O'Rourke found the defendant and decedent each 50% responsible for decedent's death. Decedent was killed by an avalanche as he tried to free his car from a snowdrift on Route 218 in the Town of Cornwall on March 13, 1993. This decision deals only with the issue of damages.

The claim sets forth three causes of action: (1) the decedent's next of kin seek recovery for their pecuniary loss caused by the death of Mr. Hynes and medical, hospital and funeral expenses; (2) damages for the conscious pain and suffering of the decedent; (3) a claim by decedent's wife for loss of her husband's services, society and consortium.

The claimant, Edlyn Hynes, testified that she and her husband became stranded on Route 218 in the Town of Cornwall on the afternoon of March 13, 1993; that the snow was so high that Mr. Hynes had to crawl out of the driver's side window of his truck; that he began to clear a path in the snow around the front of the vehicle and she got out to assist him and then after a short time, got back into the truck to clean his glasses. Claimant stated that her husband remained outside and continued digging the snow near the front of the truck; that while she was not able to actually see her husband, she could see the snow coming up over the hood as he dug with his hands; that as she sat in the truck cleaning her husband's glasses, she heard a loud noise and came to realize that snow had come down off the mountain and covered the front and passenger side of the truck. The witness further stated that after the snow had come down on the vehicle, she no longer saw any snow coming up over the front of the vehicle; that she did not realize immediately that her husband had been buried by the snow, but she could not see him and he did not answer when she called out for him; that she had trouble opening the passenger door, due to the snow piled against it, and had to push the door with her feet in order to open it; that when she did get out of the truck, the snow was up to her armpits; that she climbed back into the truck and began calling for help on the mobile phone; that she reached a police agency, but the first police vehicle did not arrive for approximately a half hour after the call; that while waiting for help to arrive, she continued to scream through the open window for her husband, whom she had last seen on the passenger's side at the front of the vehicle, but that there was no response; that the emergency personnel ultimately found her husband near the front of the truck and the retaining wall which was off the passenger side of the vehicle; that he was taken by ambulance to Cornwall Hospital where he was pronounced dead.

It was established that claimant and decedent were married in 1953 and were the parents of six children. Decedent was born in 1931 and claimant in 1935. Claimant opined that her husband was very outgoing and involved with their grandchildren. Claimant asserted that decedent was generally in good health at the time of his death, but conceded that he was under a doctor's care for a problem with his vagus nerve. Decedent took Metamucil and Tagamet for heartburn caused by that condition. Decedent also had a mild heart condition (mitral valve prolapse) for which he was not taking any medication.

Decedent entered the military in 1948 and received his general equivalency diploma in 1950. He initially performed sports-related work, but shifted to computer-related work in 1964, where he remained until his death. At the time of his retirement from the military in 1971, he held the rank of Sergeant First Class. In 1972 he returned to West Point as an entry level computer operator at civilian grade GS-7 and eventually progressed to a grade GS-11 as a branch chief of operations.

Claimant asserted that decedent planned to work well into his seventies because he liked his job and wanted to ensure that claimant's future was secure. Decedent was a supervisory computer specialist earning $44,788 at the time of his death, was enrolled in the Civil Service Retirement System (hereinafter CSRS) and received average annual military retirement payments of $14,000 in 1991 and 1992.

According to claimant, decedent spent very little money on himself, sometimes took his lunch to work and sometimes bought it there. He drove an older car, but claimant could not recall how old the car was. However, claimant conceded that decedent played golf and was a member of the West Point Golf Club. They frequently visited their children, who live in different parts of the country and they also went on trips to Atlantic City. Claimant testified that she and decedent had not yet decided on a location for their retirement. As they got older, claimant and decedent planned to visit their grandchildren more often.

Claimant was also employed at West Point from 1975 to 1995. She initially worked as a service order clerk and then as a mechanical engineer.

Claimant called Mark Taff, M.D., a forensic pathologist, as an expert witness
. He stated he had reviewed the Death Certificate of Mr. Hynes (Ex. 1) , which listed asphyxiation as the immediate cause of death.[1] He also reviewed the autopsy report (Ex. 2) which confirmed this cause of death noting small pinpoint hemorrhages (petechiae) were found on the heart surface further indicating asphyxiation. The witness stated there were no findings of trauma to the head and no fractures or internal bleeding. These findings were factored into his opinion with respect to the duration of Mr. Hynes' conscious pain and suffering. He stated that the autopsy report did not contain any finding of foreign objects or obstructions in the throat, which was significant because obstruction of the airways would have decreased the time of survival under the snow. Dr. Taff also explained that the environmental conditions at the scene were important since being buried under snow is different from being buried under other materials, as snow is porous and allows oxygen to pass through it. This was another factor considered in his opinion with respect to the amount of time that Mr. Hynes would have remained conscious. He testified that forensic pathologists divide death into three phases: the pre-death phase, the death or dying phase and the post-death phase. The pre-death phase is that in which the victim realizes that he's going to be injured or maimed. He factored a pre-death phase into his consideration of the conscious pain and suffering experienced by decedent. He then explained the physiological process involved in death by asphyxiation. Dr. Taff testified that Mr. Hynes would have experienced a fear factor during the pre-impact phase, as he saw the snow coming at him and realized that he was going to be hit by it. Once he had been knocked to the ground and felt the weight of the snow on his body, there would have been some attempt at escape, followed by the realization that it was going to be extremely difficult or impossible to do so. There would be another fear factor, depending upon whether or not he was able to hear sounds from outside the snow. Finally, there would be a panic phase, followed by a lapse into unconsciousness. The witness also considered the fact that Mr. Hynes' brain and spinal cord were intact, which indicate that he lingered for some time under the snow and realized what was happening to him.
Dr. Taff rendered an opinion, with a reasonable degree of medical and forensic certainty, that decedent experienced about 15 minutes of conscious pain and suffering before succumbing to hypoxic encephalopathy (lack of oxygen reaching the brain). Dr. Taff testified that statistical data reveals that most avalanche victims who are rescued in 15 minutes survive, while about half of those rescued after between 15 and 25 minutes survive, and virtually all those recovered after a half hour or more were dead. He placed Mr. Hynes' conscious pain and suffering at the low end of that continuum. Mr. Hynes would also have been able to hear until he lost consciousness.

On cross-examination, Dr. Taff was asked to explain how he arrived at his estimate of 15 minutes of conscious pain and suffering. He testified that it was based upon a combination of the factors outlined in his direct testimony, the lack of drug or alcohol involvement and his experience with other victims of cave-ins and building collapses, as well as his knowledge of avalanches. He further testified that his estimate of 15 minutes of conscious pain and suffering was actually conservative. When asked to what he attributed the fact that Mrs. Hynes was unable to hear any response from her husband to her repeated screams for him, Dr. Taff explained that the depth of the snow or the position of his body with respect to the ground may have prevented any sounds which he made from reaching Mrs. Hynes. He also clarified, with regard to his statistical reference, that the majority of those who were pulled out of the snow within 15 minutes of being buried were conscious and able to tell their rescuers of the experience. Dr. Taff was then asked about various types of airway obstructions, including vomiting or regurgitation of food. He was asked if that scenario was present in this case, and replied that the autopsy report did not contain any findings of vomitus in the mouth or upper airways. When shown a notation in the Prehospital Care Report (Ex. 6, Page 4) which noted that a copious amount of vomitus was suctioned out of Mr. Hynes' airway, he agreed that would lead to some obstruction of the airway, but did not change his estimate of 15 minutes of conscious pain and suffering. Dr. Taff was asked for the basis of his conclusion that Mr. Hynes suffered pre-impact terror and replied that decedent would have heard and/or seen the wall of snow coming at him. When asked to assume that Mr. Hynes was bent over at the front of the vehicle, digging snow out from under the wheels, and that Mrs. Hynes couldn't see him, Dr. Taff refused to agree with defense counsel that Mr. Hynes did not know what hit him, although he was forced to agree that his main focus would have been the road and the wheels of his car.

The State called Lone Thanning, M.D., a forensic pathologist, as its medical expert. Dr. Thanning stated she was contacted by the Office of the Attorney General in November of 2000 and asked to render an opinion with respect to the cause and manner of Mr. Hynes' death, as well as to establish any period of conscious pain and suffering, including the possibility of pre-impact terror; that she was furnished with Mr. Hynes' death certificate, the autopsy report, the police report, 24 photographs, the claimant's Bill of Particulars, the transcript of Mrs. Hynes' 50-h Hearing, a transcript of the claimant's Examination Before Trial, the Court's decision with respect to liability, and the claimant's Expert Witness Disclosure with respect to Dr. Mark Taff. Dr. Thanning opined that the cause of Mr. Hynes' death was accidental asphyxiation. She was able to render an opinion with respect to Mr. Hynes' conscious pain and suffering, in which she considered his age and weight, his pre-existing heart disease and his being submerged in snow. She testified that Mr. Hynes was confined to a "pre-formed small space" while covered with the snow and that there was little oxygen within that space to breathe and re-breathe; that based upon two competing causes of death, hypothermia and the limited access to oxygen in a situation where his oxygen usage would be higher than normal due to fear and anxiety, she concluded that Mr. Hynes would have lost consciousness within 5 to 8 minutes.

Dr. Thanning admitted that she had been provided with additional documents the day before she testified, and that those documents consisted of Mrs. Hynes' testimony during the damages phase of the trial and a summary of Dr. Taff's trial testimony. Following objection by claimant's counsel, it was elicited that what was actually provided to Dr. Thanning were defense counsel's hand-written notes regarding the testimony of the claimant and Dr. Taff. After some discussion, it was determined that counsel would pose any questions regarding the prior testimony of the claimant or Dr. Taff on a hypothetical basis.

Defense counsel asked the witness if she had reviewed the hospital Emergency Room records before testifying, and she replied that she had never been provided with those records and had not, therefore, considered their contents in rendering her opinion. He then asked her to assume that the hospital record reflected that copious amounts of vomit were suctioned from Mr. Hynes' airway at the hospital, that he had been buried under a pile of snow and that claimant had been yelling out to him but did not hear anything in response. The witness was asked what significance, if any, these assumptions would have upon her findings and she responded that the vomiting would have occurred early, rather than later, in the process and would have occurred as a physiological response to the situation, concluding that it would have occurred within the first minute or two. The doctor stated that this would have contributed a mechanical cause of asphyxiation (physical obstruction of the airway) to the primary cause of lack of oxygen. Asked if this information would cause her to change her opinion, she replied that it would, as the mechanical obstruction would add a third competing cause of death, and would shorten her estimation of the period of conscious pain and suffering. When asked how much of a change this information would produce, Dr. Thanning testified that her estimation of Mr. Hynes' conscious pain and suffering would go down to three minutes, with death following "a couple" of minutes thereafter, so that he would have been dead within five minutes after the avalanche. The witness opined that there was no period of pre-impact terror or fear of impending death prior to the impact of the falling snow. She stated that, although Mrs. Hynes had testified that she heard a loud noise produced by the oncoming avalanche, there was no evidence that Mr. Hynes perceived that noise as a threat to his life. She based this upon the lack of any testimony that he stopped digging or made any effort to run or avoid the falling snow.[2]

Upon cross-examination, Dr. Thanning admitted that she was aware that Mr. Hynes had been removed to the hospital from the accident scene, yet she never requested counsel to supply her with the hospital records. She agreed that she would usually request the hospital record in such a case, whether or not counsel offered to provide it to her, as she could not render a proper opinion without it. She agreed that, according to the autopsy report, there was no blunt trauma to the head or neck areas, no damage to the spinal cord and no obstruction to the airways. She also admitted that it was possible that Mr. Hynes vomiting was caused by cardiac arrest and that there was no evidence that it occurred at any particular point in the process of his asphyxiation and death. She also admitted that the autopsy report noted no deformity in Mr. Hynes' mitral valve and that she had not seen any medical records which reflected that Mr. Hynes suffered from mitral valve prolapse. Dr. Thanning also explained that her conclusion was that there was no pre-impact terror in this case. She stated that she was referring to the falling snow striking decedent's body as the "impact". She agreed that this was not a case of instant death upon impact. Dr. Thanning testified that Mrs. Hynes' testimony that she [Mrs. Hynes] heard no response to her repeated cries for her husband was a factor which the witness considered in her estimation of the conscious pain and suffering. She acknowledged the possibility that Mr. Hynes struggled under the snow and that he attempted to scream or talk, but that snow or vomit in his mouth may have prevented him from doing so. She also agreed that the snow resting upon his chest created a compression asphyxia in Mr. Hynes, which would also have made it difficult or impossible for him to scream. The witness also stated that Mr. Hynes could have heard his wife screaming for him, even if he was unable to answer. Under re-cross, Dr. Thanning made it quite clear that the opinion which she had rendered under direct examination (5 - 8 minutes of consciousness) would not have changed (to 2 - 3 minutes) had she not been asked to assume that "voluminous amounts of vomit" were suctioned from Mr. Hynes' airway. Dr. Thanning was unable to explain why the autopsy report made no mention of any vomitus in the airways, as even after it had been suctioned out, there would have been a residue left behind. She also admitted that a person can vomit while unconscious.

We turn to claimant's motion to strike that portion of Dr. Thanning's testimony which was based upon information contained in the hospital record, which had not been provided to her prior to her testimony at trial.

CPLR 3101 (d) requires that the identity of an expert, as well as the substantial nature and facts of the expert's anticipated testimony, be disclosed prior to trial. The subsequent modification of an expert's testimony at trial is well within the discretion of the Court, provided that testimony is not inconsistent with, or misleading, as it pertains to the original disclosure (
Burton v State of New York, 283 AD2d 875; Andaloro v Town of Ramapo, 242 AD2d 354). Here, neither the State's expert witness disclosure pursuant to CPLR 3101 (d), nor the report of its medical expert, Dr. Thanning, dated April 20, 2001, makes any mention of the fact that her opinion is based, to any extent, upon the fact that the decedent's airway was obstructed or that such obstruction hastened either his loss of consciousness or his ultimate death. Dr. Thanning's report attributes Mr. Hynes' death to the effects of asphyxiation due to lack of oxygen, combined with the chilling of his body as a result of being buried in cold, melting snow, as well as his overall physical condition. Physical obstruction of the airway by vomitus was never mentioned as a concurrent cause of death.
The issue of the airway obstruction did not arise until after both the claimant and her forensic expert had testified. In fact, Dr. Thanning had already rendered an opinion which was entirely consistent with the conclusion reached in her report, before the Assistant Attorney General first posed a hypothetical question regarding obstruction of the airway by vomitus. We also note that this entire line of questioning was based upon an entry in the Prehospital Care Report (Ex. 6), which was included as part of the hospital record, to the effect that a "copious amount of vomitus" was suctioned from Mr. Hynes' airways. Dr. Thanning admitted that she had not been provided with a copy of the hospital record for her consideration in connection with her rendering an opinion in this matter and that she was lax in failing to specifically request it. It is also uncontroverted that the defense counsel had been in possession of the hospital record for some time prior to trial, but had failed to provide the document to his forensic expert for her review prior to her rendering an opinion and that there was no mention of this theory or cause of death in the State's expert witness disclosure nor in Dr. Thanning's written report.

We conclude that Dr. Thanning's testimony relating to the hypothetical question regarding obstruction of the airways by vomitus was inconsistent with the information and opinions contained in the expert witness disclosure and her written report to the prejudice and surprise of claimant (see,
Burton v State of New York, 283 AD2d 875, supra; see also, Andaloro v Town of Ramapo, 242 AD2d 354, supra). Thus, claimant's motion to strike Dr. Thanning's testimony regarding the obstruction of decedent's airways, upon which the Court reserved decision, is now granted and such testimony is stricken.[3]
We find, therefore, based upon the preponderance of the credible evidence adduced at trial that Mr. Hynes died by asphyxiation and that prior to his death he endured a period of conscious pain and suffering of between 5 and 15 minutes. The exact minute of unconsciousness becomes minimally relevant since 5 minutes of such terror is more than sufficient to justify the Court's award on this cause of action. The Court, however, does not accept Dr. Taff's conclusion that Mr. Hynes suffered pre-impact terror. The evidence adduced at trial failed to establish that Mr. Hynes heard or saw the wall of snow coming at him. There was no evidence presented to establish that decedent looked up, stopped digging or attempted to flee prior to his being buried in the snow. Based upon the foregoing, the Court awards $400,000 for conscious pain and suffering for a period of 5 to 15 minutes (see,
Gonzalez v New York City Housing Authority, 161 AD2d 358 affd 77 NY2d 663; see also, Johnston v State of New York, 127 AD2d 980). Based upon decedent's comparative negligence, the award is reduced to $200,000.
Under Estates, Powers and Trusts Law (EPTL) § 5-4.3(a), damages for wrongful death are limited to "fair and just compensation for the
pecuniary 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. Hosp., 51 NY2d 242). Thus, neither the grief suffered by survivors nor the loss of the decedent's companionship is compensable (see, Liff v Schildkrout, 49 NY2d 622; see also, Turano Practice Commentaries, McKinney's Consol Laws of NY, Book 17B, EPTL § 5-4.3, p. 439).
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 consortium (
Gonzalez v New York City Housing Auth., 77 NY2d 663, supra; Liff v Schildkrout, supra).
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]).
In support of her claim for pecuniary loss, claimant offered the testimony of an economics expert, David Kennett, PhD. In estimating claimant's economic loss, Dr. Kennett assumed several facts: that decedent was born in May 1931 and died in March 1993; he was married and had adult children at the time of death; he entered military service in 1948 and progressed to the level of branch chief of computer operations at West Point; he retired from the military in 1971, but returned to work at West Point after one year; he was generally in good health; and intended to work into his seventies.[4]

Dr. Kennett determined that decedent's annual income at the time of death was $44,788; that his annual military retirement payments for 1993 were $13,819; that upon decedent's death, claimant started receiving a survivor benefit of $705 per month. Dr. Kennett also estimated CSRS pension payments starting in 2002, the first year of decedent's eligibility, at $28,910. He then continued calculating pension payments, based on the 4.08% cost-of-living adjustment, until 2012, the year of decedent's statistically-likely death. The witness used life expectancy tables from the Department of Vital Statistics of the Centers for Disease Control. In calculating the cost-of-living adjustment he used the average rate from 1945 through 1999. After decedent's projected death in 2012, claimant, who had a greater life expectancy rate than decedent, would have received the survivor benefit (50%) until the statistical date of her death in 2018. Dr. Kennett calculated this for both the military and the civil service retirement amounts.

Dr. Kennett estimated that decedent's total income stream would have been $1,462,718 if he had lived. He then reduced that amount to present value, as of December 2000. Dr. Kennett further determined that the total income stream to claimant as a result of the decedent's death was $710,008. Reduced to present value, that amount was $521,168. Accordingly, he estimated that the present value of the loss of income to the estate was $732,118 (see Ex. 9).[5]

The State called Thomas Fitzgerald, PhD, as its economic expert, who testified he reviewed deposition transcripts, the bill of particulars, pension information, government personnel notices, W2 forms and tax returns. He analyzed the loss of decedent's earnings to the claimant and the loss of decedent's retirement benefits. In his opinion, the total economic losses to the surviving spouse were $151,957. The losses consisted of $103,186 for the past (date of death to trial) and $48,771 for future (trial date to statistical date of claimant's death).

Dr. Fitzgerald's calculations were contained in a summary (see Ex. C). In evaluating past losses, Dr. Fitzgerald determined that claimant incurred a loss as a result of decedent's death. Dr. Fitzgerald determined the loss of earnings from decedent's death of $182,312 by calculating losses of earnings of $199,299 and subtracting $16,987 in mandatory contribution to the civil service retirement system of 7%. The loss of earnings, $182,312, were reduced by $80,889, the increased amount of retirement benefits due to decedent's death, for a net total of past loss of $101,423. Future net losses were determined by adding up the losses in retirement benefits and survivor benefits totaling $554,765 and subtracting $505,600, the amount of survivor benefits that will be paid to claimant over her lifetime.

In calculating loss of earnings, Dr. Fitzgerald determined decedent's work-life expectancy, his salary, expected salary increase and his personal consumption. In determining decedent's work-life expectancy, Dr. Fitzgerald relied on statistics contained in the Bureau of Labor Statistics Work Life Expectancy Tables (Tables). According to the Tables, which differentiate between age, sex, level of education and work force status, decedent had a remaining work-life expectancy, after his death, of 5.17 years, or until his 67
th birthday.
With respect to applicable salary, Dr. Fitzgerald relied on official information published by the federal government for salary schedules applicable to every position, including step salary increases based on an employee's grade. He determined that the salary schedule applicable to decedent's position projected a two-step increase in his salary pay from a Grade 11, Step 8 to a Step 10. Accordingly, he projected two increases during the remaining five years of claimant's work-life expectancy since decedent's salary grade warranted a step increase every three years.[6]

In estimating loss of earnings, Dr. Fitzgerald also considered decedent's personal consumption. However, in decedent's household, where both decedent and claimant worked, the witness also considered her salary. Dr. Fitzgerald explained that a person in a two-person household would not be likely to retain the same reserved spending habits as a person in a one-person household; that person's spending habits would be reflective of the whole family income. Accordingly, Dr. Fitzgerald calculated how much of the family's income was expended overall and then determined the amount spent by decedent. He then subtracted that amount from the income earned in order to determine what was lost to the surviving spouse.

In evaluating future losses, Dr. Fitzgerald also considered claimant's loss of pension and survivor benefits. According to the 1996 data provided by the National Center for Health Statistics, based on decedent's age, race and sex, Dr. Fitzgerald estimated decedent's remaining life expectancy, from the date of death, to be approximately 18 years. He added up the family's three pensions, estimated the family's expenditures and subtracted decedent's personal consumption expenses from the income produced by his two pensions in determining a loss of pension benefits to claimant of $232,542. His calculations were based on his own proprietary computer program.

Dr. Fitzgerald's calculations of future pension and benefit losses included annual cost of living increases ranging from 1.3% to 3.5% for the period from decedent's death through 2001. He stated that this range was consistent with Social Security benefits increases for the same time period. Starting in 2002, Dr. Fitzgerald assumed annual cost of living increases of 3%, based on the CPI average annual increase for urban consumers over the past 17 or 18 years. He noted that this period included some "run off" of the inflation of the 70's and early 80's.

In evaluating claimant's loss of survivor benefits, Dr. Fitzgerald assumed, based on the same statistical data, that she would outlive decedent by 8½ years. Upon her statistically-likely death, claimant would have collected survivor benefits totaling $320,400 to the end of her life expectancy. However, claimant began collecting the survivor's portion of decedent's pension benefits immediately after his death. According to the witness, she collected a total of $149,660 in survivor benefits; this was in excess of the survivor benefit she would have received, had decedent lived, by about $79,000, as he would have consumed a portion of those payments before they benefitted her.

Claimant presented no proof regarding medical or hospital costs for Mr. Hynes. Therefore, no award is made for these items. The funeral bill was $5,455 (see Ex. 5).

The weight to be accorded an expert's opinion is a matter for the trier of fact (
Ciaffone v Ciaffone, 228 AD2d 949; Forte v Weiner, 200 AD2d 421). The Court is not required to accept the entirety of an expert's testimony (Halvorsen v Ford Motor Co., 132 AD2d 57 lv denied 71 NY2d 805).
Despite claimant's assertion that decedent indicated a desire to work "into his seventies" and Dr. Kennett's conclusion that, but for the accident, Mr. Hynes would have worked until he was 70, the Court finds Dr. Fitzgerald's conclusion that decedent would have retired at age 67 to be more likely to have occurred. The evidence at trial established that decedent was already receiving one pension at the time of the accident and that he would have been vested in the Civil Service Retirement System for a second pension before age 67. This would have given decedent a great incentive not to continue working. In addition, claimant testified that she and decedent enjoyed traveling to visit their children and grandchildren who live in various parts of the country and retirement at age 67 would have allowed decedent to indulge in such travel, as well as his other leisure activity of playing golf, with minimal financial impact.

The Court has also accepted the State's expert testimony that but for the accident, the statistical year of decedent's death would have been 2012. We also determine that claimant has a life expectancy of 17 years or until 2018, as estimated by her expert economist.

Initially, the Court does not agree with Dr. Kennett's conclusion that decedent's income would have increased by 4.08% per year into the future and finds Dr. Fitzgerald's figure of 3% more reasonable. We further find Dr. Kennett's conclusion that decedent would have used 10% of his income for his own needs to be too low and find 15% for personal consumption to be reasonable. We also find that for the period from 1993 through 1998 (the date of decedent's likely retirement had he lived) he would have had to contribute 7% of his salary to his CSRS pension. Thus, we have made an adjustment to decedent's salary for this period of time. We have made corrections we deem necessary to adequately compensate the decedent's estate for the loss of past and future wages and pension benefits. We, therefore, find that the distributees suffered past lost income from 1993 through 2001 of $260,000 and future lost income from the date of trial through 2018 (claimant's life expectancy) of $213,000.

The third cause of action seeks recovery by Mrs. Hynes for the loss of her 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 partner' (Liff v Schildkrout, 49 NY2d 622, 633)". Thus, this cause of action must be dismissed.
To summarize, the Court finds damages as follows:

Conscious Pain and Suffering $ 400,000
Past Lost Income $ 260,000
Future Lost Income $ 213,000
Funeral Expenses
$ 5,455
TOTAL $ 878,455

Since decedent was found 50% at fault for this accident, the Court awards claimant as executrix of decedent's estate $200,000 for decedent's conscious pain and suffering, $130,000 for decedent's past lost income, $2,727.50 for funeral expenses and $106,500 for decedent's future lost income.

Interest on the past wrongful death award ($132,727.50) shall run from November 30, 1997[7]
(see, Milbrandt v A.P. Green Refractories Co., 79 NY2d 26, 34-38). Interest, in accordance with the law, on the damages awarded for decedent's pain and suffering shall run from the date of the signing of the Court's liability decision, June 15, 2000 (see, Love v State of New York, 78 NY2d 540). Interest on the total wrongful death award of $239,227.50 will also accrue from June 15, 2000 in accordance with the law (see, Love v State of New York, supra). All motions made at trial, not heretofore decided, are now deemed denied. The Chief Clerk is directed to enter judgment accordingly.

October 18, 2001
White Plains, New York

Judge of the Court of Claims

[1] Dr. Taff defined the various types of asphyxiation and testified that Mr. Hynes died from a "combined" or dual type of asphyxia. He said that the weight of the snow created a "compression type" of asphyxia, preventing decedent from expanding his chest to draw a breath and closing off or compressing his upper airways. In addition, there was suffocation asphyxia.
[2] Upon completion of Dr. Thanning's direct testimony, claimant's counsel objected requesting that all opinion testimony based upon the hospital record, which had not been furnished to her prior to her testifying, be stricken pursuant to CPLR 3101 (d). After much discussion, both in the courtroom and in chambers, the Court reserved decision and requested that the issue be discussed in post-trial memoranda. The objection is now sustained and the motion to strike granted for the reasons discussed, infra.
[3] The Court notes that the testimony stricken by this ruling was of limited probative value in any event since neither expert could conclusively establish the point in the death sequence when it occurred. This lack of a definitive sequential placement renders the effect of the emesis speculative, at best. Further, the lack of any residue, as established by the post-mortem, persuades this Court that the event occurred "later rather than sooner", since there was apparently not enough subsequent breathing to cause aspiration into the respiratory track.
[4] The Court does not doubt claimant's veracity concerning conversations with her husband. However, other factors such as the dual pension, New York State tax position and their desire to visit their children and grandchildren also play a role in balancing what the most probable actual course of events would have been.
[5] In the absence of a proper 50-b Hearing, the Court will not deal with issues of present valuation. Therefore, the awards herein are in unadjusted dollar amounts reflecting no discount factors.
[6] The Court has also taken judicial notice of the actual GS salary schedule showing the various grades and steps as of 2001 and used this information as a reference point in computing salary loss. Pursuant to CPLR 4511 (a), every Court shall take judicial notice without request of, inter alia, public statutes of the United States (see Richardson, Evidence § 2 - 201 [Farrell, Eleventh Ed]). The Office of Personal Management has issued regulations in Part 532 of Title 5 of the Code of Federal Regulations to fulfill its responsibilities of overall administration of the Prevailing Rate System under Title 5 USC § 5343 and § 5346.
[7] Given that past damages generally accrued continuously over the period before trial, there are no discrete, ascertainable dates from which to run interest thereon. Thus, the Court has chosen the approximate midpoint occurrence and trial as a reasonable intermediate date (Gottlieb v State of New York, Claim No. 82167, filed December 29, 1999, O'Rourke, J., p 8, n 4; Mann v State of New York, Claim No. 78186, filed September 25, 1995, Rossetti, J., p 16, n 13).