GUGLIOTTA v. THE STATE OF NEW YORK, #2002-001-504, Claim No. 96538
JOSEPH A. GUGLIOTTA, an Infant under the age of fourteen (14) years, by his Parents and Natural Guardians JOSEPH L. GUGLIOTTA and ELLEN M. GUGLIOTTA, and JOSEPH L. GUGLIOTTA and ELLEN M. GUGLIOTTA, Individually
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
SUSAN PHILLIPS READ
Robert George Bombara, Esq.
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Michael W. Friedman, Esq., Assistant Attorney General, Of Counsel
November 15, 2002
See also (multicaptioned
While camping on July 15, 1995 with his parents, Joseph L. Gugliotta ("claimant
father") and Ellen M. Gugliotta ("claimant mother") and his two brothers at
North/South Lake Camp Ground, a State-owned facility located about 35 miles
southwest of Albany, New York, claimant Joseph A. Gugliotta ("infant claimant"),
who was just shy of six years old at the time, suffered a spinal cord injury
when an internally decayed tree fell during a severe wind and rainstorm and
crushed the pop-up camper in which he was sleeping. In a decision dated
November 3 and filed November 12, 1999, the Hon. James P. King found defendant
State of New York ("defendant" or "the State") wholly at fault; interlocutory
judgment was entered accordingly on November 19, 1999.
Infant Claimant's Condition Before and After the Accident and his
Treatment and Prognosis
Infant claimant recalls awakening in the hospital after the accident at the
camp site as well as that he was operated on, remained hospitalized for about
two months and wore a back brace (claimants' exh. 14). Before the accident, he
was able to "ride [his] bike, run around,
when he went camping. Afterwards, he could "not really" engage in these
activities. In addition, he now urinates by inserting a catheter through his
penis every four hours; he wears diapers because he has no voluntary control
over his bowels.
Infant claimant has sensation in his left leg "a little bit below [the] hip"
and on the right side, "above the knee." When asked how he felt "about what
happened to [him] that day," infant claimant replied "I don't like it--a
Since the accident, infant claimant has been hospitalized once for hip surgery
that was needed because he "walk[ed] like slanted." He received treatment
(therapy) three times a week for awhile to learn how to walk better; however, he
has not recently undergone physical therapy. He can walk "pretty far" with his
braces and crutches, but uses his wheelchair when he needs to travel long
Infant claimant sleeps in an upstairs bedroom in the family home, and in the
immediate aftermath of his accident, his father carried him up and down the
stairs. Now he crawls up the stairs and slides down; he also crawls to move
about the house. He gets into an automobile by transferring or sliding in from
Infant claimant attends regular classes in school and, in fact, started the
first grade in the fall of 1995 after the accident. He used a wheelchair at
school until he reached the fourth grade, when he began to wear braces on both
legs. He also uses crutches as well as a wheelchair "when [his] crutches are
Infant claimant travels to school each day in a wheelchair-accessible bus, and
attends classes from 8:00 A.M. until 3:00 P.M., moving from class to class using
his braces and crutches and the elevator. He catheterizes himself during the
school day at the school nurse's office. He leaves school at 3:00 P.M., and
takes the bus home.
Infant claimant is doing well in school (almost a 90 average), where he
participates in chorus and gym. His extra-curricular activities include "select
chorus," which, as he explained it, is a group of vocalists who are "good." For
"a couple years" he has played wheelchair basketball (the St. Charles Shooting
Stars) at the Nassau County Community College through an organized league or
group. He has friends in the neighborhood with whom he plays at their houses or
his; he works on the computer, plays video games, goes to the movies and watches
hockey on television or live at Madison Square Garden and Nassau Coliseum. He
vacations with his family, and has gone camping with them in a pop-up camper
since the accident. Infant claimant particularly enjoys swimming, and swims
during the summer in an above-ground pool at his aunt's house or in a neighbor's
Claimant father testified that following the accident on July 15, 1995, he
accompanied infant claimant, who was transported from the camp site by ambulance
to Columbia Hospital, where he stayed for an hour or two before continuing on to
Albany Medical Center Hospital ("Albany Medical Center") in Albany, New York.
Claimant father testified that his most vivid memory of this trip is his son's
repeated complaints of thirst.
The accident occurred on a Saturday morning, and infant claimant was operated
on at Albany Medical Center on the following Monday. He remained bedridden at
Albany Medical Center until July 27, 1995, with his parents taking turns keeping
him company for 24 hours a day, seven days a week.
Infant claimant was transferred by ambulance from Albany Medical Center to St.
Charles Hospital and Rehabilitation Center ("St. Charles"), where he was treated
for another two months. While infant claimant was at St. Charles, his parents
again took turns staying with him: claimant father went to St. Charles at
dinnertime and stayed with infant claimant overnight while claimant mother
stayed with him during the day after he returned from physical therapy.
In late September 1995, infant claimant was discharged from St. Charles to his
home, a two-level cape cod-style house, and started first grade. For roughly
the first three years after infant claimant's accident, claimant father
routinely transported him about the house and elsewhere by carrying him. The
family owns a van for long-distance transportation.
When asked to describe his son's activities before the accident, claimant
father testified that he was the "best soccer player on the soccer team" that he
coached; that he learned to ride a bicycle at the age of three and one-half;
climbed trees and generally "was ripping up the neighborhood." Since the
accident, infant claimant has been unable to ride a bike. Nor has he played
organized sports, "which he's getting into right now with the school, but we're
working on it, . . . he's very good, he's probably the ace on his [wheelchair]
basketball team." In short, infant claimant "tries . . . to do whatever he can
do; he stays active." Swimming is his "number-one sport" in addition to
wheelchair basketball because "he can be very competitive with other kids."
Claimant father described his son as "a very popular little guy" who loves to
play video games with his friends.
The family still goes camping in a pop-up camper in the summertime. Claimant
father described an August 2001 trip to a campground near The Six Flags Great
Adventure, the amusement park in New Jersey, which he took with his wife and
infant claimant and an older brother, both of whom had invited a friend along.
Infant claimant "loves amusement parks" and participated in the rides with the
others, having gotten "more adventurous" in this regard within the past year.
He enjoys fishing and canoeing while on camping trips, and also goes canoeing on
a pond near his home.
When asked if his son was "involved in any kind of counseling program,"
claimant father replied that "[w]e're just starting to reach that point, [infant
claimant]'s not on any particular regimen, they see him in school." The family
has not participated in any kind of counseling related to infant claimant's
At the time of the accident, claimant father was working in a manufacturing
facility as a woodworker. He became unemployed in 1995 within a few months
after infant claimant's accident because the contract for the project on which
he was working expired. For about three years thereafter he worked at odds and
ends as he tried unsuccessfully to get a painting business established; attended
school part-time either at day, while his son was at school, or at night in
pursuit of his teaching certification; performed his six months of student
teaching and some substitute teaching; and obtained his provisional teaching
certification in August 2000. Since September 2000, claimant father has taught
"technology," a course of study that he testified was formerly known as
"industrial arts," to seventh- and eighth-graders. In the summers, he "usually
[will] try to do things around the house," such as painting.
During the school year, claimant father leaves the house at 6:45 A.M. and
returns at 3:00 P.M. to 3:30 P.M., arriving home before infant claimant returns
from school. His wife works from 9:00 A.M. until 2:00 P.M., and both are
usually at home in the evening with infant claimant and an older brother.
(Their eldest son attends college and no longer lives at home.) The family does
not employ home health aides to assist with infant claimant's care, nor does the
family employ any housecleaning help.
After the first few days of infant claimant's hospitalization at Albany Medical
Center, claimant mother returned to the family residence on Long Island to
search for a nearby rehabilitation facility for him. A day or so after choosing
St. Charles, she returned to Albany Medical Center and "started to get the
transfer . . . of getting [infant claimant] back home." Claimant mother and her
husband essentially alternated their daily visits with infant claimant during
his hospitalization at St. Charles.
After infant claimant was discharged from St. Charles to his home and started
first grade, claimant mother met him each day when he returned home from school.
She testified that at that time, he "really was not mobile, very much. He would
pretty much sit in the chair or in his wheelchair. He could roll from one room
to another. What we did work on [was] exercises and strengthening and
stretching with him at home." She described her activities at that time as
mostly a lot of therapy, a lot of exercising, lot of balancing exercises, a lot
of strengthening. Because he was in his wheelchair they wanted to make sure
that he had the strength to push the wheelchair. Any skin care that needed to be
done. He was incontinent of urine and bowel, so his diaper had to be changed.
We would put him on the toilet every four hours because what we found in the
hospital is if he pushed hard enough--originally when we were in the hospital
they were straight-cath[eteriz]ing him, which means exactly what we do now--but
they found that he was able to push and empty his bladder, so that's why we kept
doing that up until the time when we had the urologic consult. Other than that,
his safety in transfers, getting him used to the house, how to get around the
house, how to get up and down the stairs, he really--he was little at the time
so my husband would carry him up and down the stairs. I tried to occasionally,
but I gave up after awhile, he's too heavy. . . . I would help him in and out of
the tub. Getting over, into the tub and hence we got a whirlpool tub, which
helped with circulation . . . with his legs.
She took her son to physical therapy roughly three times a week for two or
three years. After infant claimant's surgery for a hip contracture, she took
him to further physical therapy for perhaps six weeks. She testified that he
also received physical therapy in school, and that physical therapy outside
school stopped "because [her] insurance benefit wore out, ended." She added
that "[a]ctually they only normally give a year, but I wrote to the Medical
Director of Aetna/U.S. Healthcare and they extended it."
Infant claimant underwent physical therapy in school for three times a week and
then two times a week. The family discontinued his in-school physical therapy
in June 2001, however, because "[t]he therapist . . . felt that [infant claimant
had] made enough--he was able to do what he needed to do while he was in school,
and that's what the therapy worked on, to make sure that he could get between
classes, his strengthening, his balance. [The physical therapist] felt that he
met the goals in school that he needed." Claimant mother testified that infant
claimant was not undergoing physical therapy in his school or elsewhere, and
that claimant mother "left it open at the latest meeting at the school that if
[she] felt that [infant claimant] had lost any functions, any of his strength,
we left it open with the special education department that we would start
physical therapy again."
Claimant mother testified that her son got his first set of braces in October
or November 1995, and "they started working at therapy with him. And he had
that set, which was a full--up to his chest the braces went--and I think they
last[ed] at least six to eight months, and then they were able to drop him down
to the full-leg brace on one side and the lower-leg on the other side." She
estimated that infant claimant was now outfitted with his fourth pair of these
When asked to describe how she currently takes care of infant claimant,
claimant mother testified that
[a]t the present time, . . . you have to keep a close eye on him because . . .
when he crawls, his skin breaks down very quickly. He's had [inaudible] on both
of his knees that we've had to do wound care on. You have to keep a close eye
where his braces are because . . . they irritate him very quickly. I always
make sure that he does his catheterizations on time; I make sure that he takes
his medications on time. I always make sure that he washes his hands--with the
catheter you have to make sure he doesn't get an infection. And as he crawls
around, he doesn't have any sensation in his legs, so he bruises quite easily at
times. And basically safety, safety in transfers, safety that he doesn't catch
his leg in a reclining chair, he doesn't fall and twist anything.
She testified that infant claimant was currently taking
Bactrim once a day at night to prevent infection, Ditropan for the bladder and a
stool softener/stimulant for his bowel.
She testified that her son required four to six diapers a day on account of his
bowel incontinence, and catheterized himself every four hours while awake. From
January 1999 until early 2001, she performed the catheterization while infant
claimant was at home, and the school nurse assisted infant claimant with this
procedure while he was at school. He was able to change his own diapers a year
or so earlier than he was able to self-catheterize.
When asked to describe her son before the accident, claimant mother stated that
he had done "everything and anything that he could as much as any other little
kid." Following the accident, "[h]e tries very hard to keep up with the other
kids and he does, to a point. He obviously can't do a lot of the things that
other kids can do, but he tries to stay involved with many things, like he has
the wheelchair basketball." She also testified that infant claimant was the
manager for the little league team the prior year, swims and "really does as
much as he can." When asked how well infant claimant had adjusted to his
injury, she testified that "[h]e has done very well. I honestly believe that";
however, "this year in school, it becomes team sports . . . I mean he would love
to play football, he would love to play . . . every other team sport that goes
on in school, but he feels he can do it, but football he's not playing. You
know there's a lot, he can't do a lot of the things that he would like to do. .
. . He feels a little funny about it at this time."
of Dr. Robert E. Steckler ("Dr.
Dr. Steckler graduated from Albany Medical College in 1985; he has been
licensed to practice medicine in the State of New York since 1986, at which time
he was a resident at New York Hospital-Cornell Medical Center in New York City,
where he trained for two years in general surgery and for four years in urology.
In 1991, he undertook a two-year fellowship in pediatric urology at The Hospital
for Sick Children in Toronto, Canada.
In July 1993, Dr. Steckler commenced an academic practice at the University of
Medicine and Dentistry of New Jersey in Camden, New Jersey. After three years
there, he relocated to Tampa, Florida, where he practiced medicine for a year
before relocating his private practice to Long Island, where he grew up.
Dr. Steckler's practice is "devoted to taking care of children from birth,
generally up to the age of 21 [although] there are special circumstances where
[he will] follow a patient into adulthood if it's a problem that is best taken
care of by a pediatric urologist." He defined "urology" as "the care for the
urinary tract in males and females, as well as the genital tract in males, and
to some extent females as well."
Infant claimant first visited Dr. Steckler, who is Board-certified and
specializes in pediatric urology, in November 1998. He explained that upon
joining his current practice, he assumed the care of all the children, and "as
with all children who have any kind of spinal injury, whether it's congenital or
post-traumatic, they have bladder and bowel-related problems and they get a
thorough evaluation in that regard." Dr. Steckler conducted a "thorough history
and physical" in this initial visit, during which he found "evidence consistent
with [infant claimant's] injury to L-1 and L-2, which is a level of the spinal
cord that he had sustained his trauma. . . . [O]n the left side he had a motor
level of L-1, L-2, and on the right side he had a motor level somewhere around
S-1 and S-2, and that was . . . consistent with his history."
As part of this initial examination and evaluation, Dr. Steckler ordered an
ultrasound of infant claimant's kidneys and bladder; an x-ray of his bladder
(called a voiding cystourethrogram, or "VCUG"); and, following those,
urodynamics. He described ultrasound as "a test that will help you assess the
gross anatomies of the kidney and the bladder. It doesn't necessarily give you
very fine detail, but can give you a lot of important information"; the VCUG as
"a test that
gives . . . some more detail on the bladder, and on . . . [the] bladder
neck, which is the sphincter mechanism, as well as the urethra, the tube through
which he voids"; and urodynamics as "a test that assesses the pressure-volume
dynamics of the bladder."
According to Dr. Steckler, infant claimant's initial ultrasound showed a grade
3 hydronephrosis of the left kidney, "hydronephrosis referring to dilatation of
the interior of the kidney," meaning "the kidney in [infant claimant's] case was
not draining freely," which "puts the kidney at risk for both infection and for
damage." On the ultrasound, the bladder was noted to be thickened, which "would
imply that the bladder is having to work harder; it's not working properly."
The VCUG showed that infant claimant had reflux, "which means that the urine
backed up from the kidney to the bladder and this was grave reflux on the right
side." Dr. Steckler described the effects of the reflux as similar to those of
hydronephrosis: "It places the kidney at risk for infection and should the
kidney get infected, then there's an increased risk of permanent kidney
In light of these results, Dr. Steckler recommended that infant claimant
commence a regimen of intermittent catheterization. He explained that infant
claimant had been "voiding by straining his abdominal muscles, which is an
inefficient and potentially dangerous way to evacuate the bladder."
When asked to explain how a catheterization is performed, Dr. Steckler replied
that it was
done by the patient or a caretaker. A sterile technique is not necessary. You
don't even necessarily have to wear gloves, but you do need to wash your hands.
[You] have some lubricant, you'll pass the catheter through the urethra, and
then manipulate the catheter something a little back and forth until the bladder
is completely empty, you get no more urine back.
While the intermittent catheterization does not prevent
reflux, "it insures that the bladder is being emptied at regular intervals."
Dr. Steckler also started infant claimant on a medication called Ditropan,
"which is a medication to try to control some of the bladder's increased
pressure and try to inhibit some of the bladder's contractions, which can be
contributing to the thickening of the bladder and the reflux, the back-up." Dr.
Steckler also placed infant claimant on Bactrim, an antibiotic, as a
prophylactic measure to decrease the risk of infection from
Infant claimant underwent the urodynamics testing in May 1999. By that time,
he was catheterizing approximately every four hours and taking the Ditropan.
The urodynamics revealed that infant claimant's "bladder pressures were good,
were being controlled with his medication, and that . . . the bladder was not
contracting abnormally." Because "the study was promising" and "showed that
treatment was having beneficial effects," Dr. Steckler "was happy with the way
things were going."
When asked whether "anything was done with respect to [infant claimant's] bowel
movements," Dr. Steckler replied that "[a]s with any spinal injury, the bowels
are affected in similar fashion as the bladder. We had discussed a bowel
regime, putting him on some fiber, and starting him on laxative. . . . As of
March 2000 we had done very well with his bladder, but hadn't made significant
progress with his bowels at that point, and we were continuing to work on that."
In March 2000, Dr. Steckler also switched infant claimant to a once-a-day
formulation of Ditropan "to make things easier for him."
Infant claimant, who sees Dr. Steckler about twice a year, underwent repeat
testing in the spring of 2000, which "showed that the reflux had actually
resolved, and that the hydronephrosis had resolved as well. . . . So within two
years, we were really able to make very significant strides, although still not
as much on his bowels." Dr. Steckler had decided to stop the antibiotics
"because [infant claimant] no longer had reflux, but shortly after stopping his
antibiotics, he got an infection" and so prophylactic antibiotic treatment was
According to Dr. Steckler, infant claimant has most recently been catheterizing
every four hours "and reported no problems" and that he "was basically perfectly
dry, relating to the bladder." When Dr. Steckler inquired why infant claimant
continued to wear a diaper, he was told "that was because he still had no bowel
control, so we tried to intensify his treatment with fiber and a stool
softener/laxative that he's taking." As Dr. Steckler put it, "[w]e still have
progress to make with his bowels, and that's not unusual that bowels take more
effort and more tinkering to get a program that works."
When queried further on cross-examination about infant claimant's prospects for
improved bowel control, Dr. Steckler explained that he "hoped to be able to give
him control--not voluntary control--but assisted control so that he doesn't need
to wear a diaper at all." When asked if that were a "realistic goal," Dr.
Steckler replied "I think so." He described the treatments needed to achieve
this goal as "any combination of fiber, laxatives, suppositories, enemas, that
sort of thing. . . . some dietary manipulation"; and commented that infant
claimant was "right now . . . taking some fiber in a combination laxative/stool
softener, but we're going to need to intensify that." In addition, whether
infant claimant "is going to need to have suppositories on a regular basis, or
enemas, his last x-ray showed . . . that he is quite constipated."
children who are resistant to medications, enemas, you name it, there is a
surgical procedure that sometimes that we opt for that was developed about ten
years ago that works exceedingly well. . . . but it would be more than premature
to say [he] needs that. That's something that we hold in our pocket . . . for
someone who's resistant to everything else.
Dr. Steckler described the elements necessary for infant claimant to achieve
assisted bowel control, which would eliminate the need for him to wear diapers,
as "finding the cocktail, the regime that works," and that he was "mixing and
matching and playing with things, it's empiric, you just have to play,
manipulate things [to] find what works for him. Every patient's a little
different." Dr. Steckler readily agreed with the characterization of this
aspect of infant claimant's treatment as a "work-in-progress"; he reiterated
that the goal, which he considers attainable, is to eliminate infant claimant's
dependence on diapers because "to achieve bladder control without the bowel,
that's only half the game."
Dr. Steckler testified that infant claimant's condition was caused by his
spinal cord injury, and "barring some fantastic new research," this condition is
permanent. When asked if infant claimant would ever have voluntary control of
his bladder, he replied that "voluntary, meaning free of catheterization and
medication, no. He'll always have to have those aids." When asked whether
infant claimant would ever have voluntary control of his bowels, he responded
When asked his opinion about infant claimant's sexual functioning, Dr. Steckler
replied that he had not yet explored this issue, as infant claimant was "just
beginning to go through puberty." Specifically, he testified that he "did not
have that data" but that
patients with similar levels of injury . . . about 25% of those patients would
be expected to be able to have what's called reflexogenic erections. . . . Even
if [infant claimant]--take our worst-case scenario--was unable to, there are
medications to assist with that, potentially surgical procedures to assist with
erectile function. In terms of reproductive function again . . . if he had
erectile dysfunction, ejaculation should not be a problem. Again, worst-case
scenario, with anyone with either congenital or spinal cord injury, even if they
can not have ejaculation or emission on their own, there are assisted
procedures, such as electro-ejaculation to stimulate the process or even to
extract sperm. There are things that can be done to help him if he is not able
to do this on his own.
When asked about the need for future surgery, Dr. Steckler testified that
"either for his bladder or his bowel management, the need for surgery is always
possible. If we get [infant claimant] to 18, or rather than pinning it on a
specific age, if he's fully grown in terms of stature, things are unlikely to
change significantly in terms of urinary tract or bowels. Things will likely
stay the same, and just need due diligence to maintain the program. It's
impossible to predict until such time." With respect to infant claimant's life
expectancy, Dr. Steckler testified that "if things were to stay as they are now
in terms of his urinary tract--he has no reflux; the bladder pressures are under
control; he has no hydronephrosis; . . . he remains infection free--his life
expectancy should be pretty normal."
of Dr. John J. Labiak ("Dr. Labiak")
In 1986, Dr. Labiak graduated from the Upstate Medical Center in Syracuse, New
York. He subsequently interned in general surgery and completed a residency
program in orthopedic surgery at New York Medical College, as well as a
fellowship in orthopedic surgery of the spine at the Hospital for Joint
Diseases, Orthopedic Institute. Dr. Labiak is Board-certified and currently
practices orthopedic surgery with a specialty in the spine.
At the request of Dr. Lois Saltzman, a physiatrist at St. Charles, Dr. Labiak
examined infant claimant on July 31, 1995 for a fracture dislocation with
traumatic paraplegia and thereafter continued to follow and evaluate him during
his convalescence at St. Charles from the surgery performed at Albany Medical
Center. Dr. Labiak described infant claimant's condition as post-fracture
dislocation of L-1, L-2 with open reduction and internal fixation and spinal
fusion. When asked to explain what was involved with this kind of surgery, Dr.
Labiak testified that "at the time of the injury, the spine was dislocated
completely, meaning that one vertebra was completely forward of the next
vertebra." Accordingly, open reduction "refers to opening the skin, moving the
muscles out of the way and actually putting the spine back to where it belongs";
internal fixation refers to "the metallic devices that were used, the screws and
wire that were used to then fix [the spine] and keep it in place"; and finally,
"the fusion is accomplished by removing the surface of the bone, and then
putting bone grafts in to allow those bones to heal together, which is
ultimately what provides the stability of the spine."
Dr. Labiak maintained infant claimant on the TLSO (thoraco/lumbo/sacro
orthosis), a plastic brace (claimants' exh. 14), in which infant claimant was
placed after his surgery at Albany Medical Center in order to augment stability
and facilitate spinal fusion. Dr. Labiak testified that he began to wean infant
claimant from this brace on October 18, 1995, a process that takes a few months.
Dr. Labiak testified that infant claimant eventually underwent hip surgery to
relieve a contracture because he had begun to lose motion in the hip and was
unable to fully extend or straighten it.
Dr. Labiak testified that x-rays taken of infant claimant in late 2001 showed a
mild scoliosis, or curvature of the spine. He described the two effective forms
of treatment for scoliosis as bracing or surgery, which involves "fusing the
spine and potentially straightening it somewhat and then stabilizing it. Most
commonly, depending on the age group, using implants, rods, screws, wires or
some combination of those."
According to Dr. Labiak, as a result of the accident infant claimant suffers
from "scoliosis, a hip flexion contracture, and uncovering of one of the hips
because of pelvic obliquity, meaning his pelvis is not level--it's higher on one
side than the other--so one of his hips is not fully covered by the socket on
that side; and he has a neurologic injury with paraparesis and sensory loss in
his lower extremities." He characterized infant claimant's future prognosis as
"guarded," meaning that "with regard to his neurologic status, he's not going to
improve" and that "he will need surgery for his spine" because "the risk of . .
. having a progressive scoliosis with a neurologic injury such as this is
virtually one hundred percent. He will most probably need further hip surgery
as well." When asked how much hospitalization would be required for such
scoliosis surgery, Dr. Labiak replied five to seven days; as to the fee, he
"would be guessing" $15,000 to $20,000; as to the length of the recovery period,
he testified that "activity restriction is really in effect until the fusion is
solid, which takes approximately one year." He also testified that hip surgery
would require hospitalization for three to five days.
When questioned further about the prospects for infant claimant to ambulate in
the future, Dr. Labiak opined that "[a]t this point [infant claimant] ambulates
with the . . . assistive devices in braces. Essentially, as a child, you're
really in your best position to do that, so I would say that as he gets older
and loses some coordination and strength, that his ability to ambulate will
probably diminish and stop," at which point he would be wheelchair-bound. He
estimated that, while "difficult to pinpoint exactly," this would happen
"probably [in] middle age."
In summary, Dr. Labiak testified that in the future infant claimant would
require surgery for the scoliosis and hip; and that "the sensory change . . .
presents an increased need for diligence as far as his skin goes. For instance,
he's not susceptible to the sensory feedback for thermal I think, so he's more
susceptible to burns. Pressure . . . with regard to his skin. And then the
offshoot of his neurological injury would be bowel, bladder and sexual function,
so he'll need ongoing care in each one of those areas." He further opined that
infant claimant's life expectancy was nonetheless "approximately normal."
On cross-examination, Dr. Labiak described his current function as "observing
[infant claimant] for the potential complications of having a fracture
dislocation and a neurologic injury and treating him along the way with things
such as bracing [and] physical therapy." Because of infant claimant's age, Dr.
Labiak now sees him yearly, but will probably see him every three or four months
when he "goes into his adolescent growth spurt" because of "its effect on his
scoliosis and his hips." Dr. Labiak, who prescribes physical therapy, testified
that he did not know if infant claimant was currently undergoing physical
therapy, but he would need physical therapy in the future "periodically." He
last prescribed physical therapy for infant claimant prior to his hip surgery
and after late August of 1998. The last brace that he prescribed for infant
claimant was an orthosis for his wheelchair; that is, a brace for an insert for
the wheelchair. He has not prescribed any leg braces for him.
Dr. Labiak testified that the "most common way" to "communicate the
measurement" of scoliosis is by degrees, by a technique called the Cobb method.
Normal is 0 degrees with a margin of error of ±4 degrees. He reviewed an
x-ray report dated November 20, 2001, which stated that "thoraco-lumbar
to the right in the upper portion and 5
to the left in the lower portion. Post-operative changes with screws noted in
the posterior aspect of L-2." Dr. Labiak also reviewed a report dated January
23, 2001 that he had prepared in which he noted that infant claimant had
"minimal scoliosis, less than 10
in the lumbar region."
When questioned as to how, in light of these findings, he could "with any
certainty" predict that infant claimant would require future surgery on the
spine, Dr. Labiak replied as follows: "Well, I can certainly call upon the
literature and my experience with patients of this type to determine essentially
what he's going to need or encounter, so you know with any certainty, yeah."
When pressed as to whether he agreed that "it's individualized with a particular
patient," Dr. Labiak responded that "[w]ell, everything's individualized with
respect to the individual patient, but certainly there are things in him that
are extraordinarily probable if not guaranteed, based on the medical literature
and based on our experience with similar patients." When asked to expand on
this answer, he replied that "medical literature" is "a broad term, but
certainly in orthopedic spine surgery, the journals that I read regularly
The Journal of Bone and Joint Surgery
and The Journal of Spinal
] as well as myriad textbooks, and things of that nature. . . .
[t]here have been numerous articles actually on the progression of
neuro-muscular scoliosis in children with paraparesis"; further, in James
Weinstein's book Pediatric Orthopedic Surgery
"there's an excellent
summary of that, which would indicate that a child . . . prior to [his] growth
spurt who sustains a spinal cord injury with paraparesis has a virtually 100%
chance of having a progressive scoliosis and needing surgery," and "The
Textbook of Spinal Surgery
has a similar reference."
When queried as to whether he considered this medical literature a reliable
basis for his prognosis of further surgery for infant claimant, Dr. Labiak
replied "Well, yes. Certainly the medical literature is not to be taken
verbatim--any individual article--however, having read both of those textbooks
in their entirety and reading [the journals] regularly, I mean I think it's a
well-documented point in this case." He further testified that he had treated
perhaps 50 to 100 patients with spinal cord injuries similar to those suffered
by infant claimant.
Dr. Labiak identified the future medical problems that someone in infant
claimant's situation might face as bladder, bowel, sexual dysfunction and skin
(sensitivity to dermal pressure) problems as well as deep vein thrombosis. When
asked if the medical literature indicated that the life expectancy of those
suffering spinal cord injuries was "somewhat shorter" than would otherwise be
the case, he testified that "Well, I think that they are, certainly they're more
susceptible to those things, but I don't believe it effectively shortens their
lifespan that I know of. I don't think I have ever seen a number for the
lifespan of somebody who has a certain level of paralysis, and I don't know that
that literature exists because it's such a commingled group of people." When
then asked whether he had searched the medical literature for information on
this subject, Dr. Labiak responded that he "[couldn't] say that [he had]
actually, actively gone back and looked for a specific reference on it."
In short, Dr. Labiak was convinced that infant claimant would suffer
progressive scoliosis, which would ultimately require surgery to arrest the
progression and to fuse his spine. He characterized the risk of further hip
surgery as less certain, although still significant.
of Dr. Patricia Tan ("Dr. Tan")
Dr. Tan graduated from the University of Santo Tomas in the Philippines in
1984; she came to the United States, took her certifying examinations and
entered into a five-year double-board residency program at Long Island Jewish
Medical Center, from which she graduated in 1995. Since then, she has worked
there and at St. Charles. She specializes in pediatrics, particularly traumatic
brain injury and spasticity, and also practices physical medicine and
rehabilitation, or physiatry, in which she is Board-certified.
When Dr. Tan first examined infant claimant in April 1996, he exhibited gross
atrophy of his lower extremity muscles, particularly those required for walking.
He also "had a lot of problems in terms of his sensation because of his injury
from the hips and below" as well as spasms of the right extremity and "problems
with his functional mobility." Further "[b]ecause of his weakness [infant
claimant] was unable to move independently and therefore he was able to scoot
around without any assisted device. Assisted device in this case would mean a
brace. He had a long-leg brace on one side, on . . . the left leg, and a
short-leg brace on the right and then he also required some crutches, Lofstrand
crutches." She added that, with those assisted devices, infant claimant was
able to ambulate around the office. Dr. Tan determined that infant claimant
would benefit from physical therapy, with the goal of preventing contractures of
the lower extremities; strengthening his residual muscle power; and assisting
him with functional mobility, in particular, transfers and independence in
ambulation with the assisted device.
She next saw infant claimant in July 1996 as a follow-up for his
musculoskeletal problems, in particular tightness on the left side and pelvic
obliquity. Then in January 1997, she treated him for a breakdown on the right
knee, a stage 2 pressure sore, caused by the way he moved around his home on his
knees without braces or the assisted devices. She added that because of the
level of his spinal cord injury, infant claimant has no sensation from his hips
down and is therefore "very prone to these ulcers." She also continued to
follow him for his functional mobility to make sure that he did not develop any
range-of-motion contractures and that he continued to improve with his balance
and show progress with therapy. She noted that, at that point, infant claimant
was able to transfer with minimal assistance from supine to sit and sit to
stand; he was able to ambulate short distances with long-leg braces. She
referred him to Dr. Labiak, whom she characterized as an expert in
Dr. Tan saw infant claimant again in March 1997 for follow-up of a pressure
sore that he had developed on the right knee. In December 1997, she saw him on
account of another stage 2 breakdown on the right knee, and she was also
following him for his functional mobility. By that time, he was more ambulatory
with the help of his Lofstrand crutches and the braces.
When Dr. Tan saw infant claimant in September 1998, he had developed an
isolated contracture, which prompted a consultation with an orthopedic surgeon.
She also wanted "to rule out whether the hip was getting . . . dislocated from
the socket," so x-rays (which were negative) were taken; however, the
contracture was affecting his gait and independence in transfers and therefore
she prescribed physical therapy for "aggressive stretching" of the contracture.
She also recommended that he visit the spasticity clinic because "at that point
there was a question whether he was developing spasms, which were causing him to
develop that contracture"; however, "after evaluation of the entire team,
[infant claimant] was deemed not a candidate for injections of Botox or any
other intervention other than surgical intervention. It was a fixed contracture
because it was developing over the course of time. It required surgical release
of that contracture." Infant claimant underwent the surgical release in January
1999 at St. Charles.
After this surgery, Dr. Tan saw infant claimant in March 1999 for a pressure
sore on the left knee, and placed him in physical therapy for strengthening and
follow-up for the braces. She added that he is "very active," which requires
that she "be sure that the braces still fit well. He has a lot of wear-and-tear
with his braces and therefore [she has] to be sure that the fit is well, and
that there is no breakdown." She saw him for further follow-up late in March
In November 1999, Dr. Tan saw infant claimant to treat another pressure sore, a
stage 3 ulcer, and to fit him for new braces. She also noted that she follows
infant claimant for his bowel-bladder problem; i.e., she checks on him to make
sure that he is performing the catheterizations and taking his medication.
Infant claimant next visited Dr. Tan in April 2000, when he was seen for a
brace repair. Noticing a leg length discrepancy, she also prescribed a shoe
lift on the left side to improve his gait and prevent further scoliosis. She
also recommended that he continue physical therapy.
In October 2000, when she saw infant claimant for a left heel ulcer, Dr. Tan
also made a finding that he was developing a deformity on the right foot as a
result of the contracture. Continuing to follow his range-of-motion, she
determined that infant claimant's left side was weaker than his right
Dr. Tan next saw infant claimant in October 2001 for new braces because "once
again, the wear-and-tear on the brace required [a] prescription of new braces."
Moreover, she continued to follow him for an abrasion that he had suffered on
his left knee as a result of rubbing in the brace and assessed his overall
medical status (bowel-bladder and scoliosis) as well as his progress in school
and social history. Upon physical examination, she again remarked that he has
greater weakness on the left side than on the right, and insensate problems (on
the left side, no sensation from the left hip; on the right side, no sensation
from the right mid-thigh).
Dr. Tan continues to follow infant claimant functionally, and characterized him
"as quite independent in terms of his ambulation," but noted that "he does
require assisted devices and . . . some reminding to perform this therapies."
Dr. Tan attributed the conditions for which she has treated infant claimant to
the injuries that he sustained to his spinal cord in 1995, which are "permanent
Dr. Tan opined that infant claimant requires assistance for his daily living
because of his age, he still requires assistance . . . donning and doffing . . .
the brace. . . . Because of his insensate problem, it's very important that. . .
the brace be put properly. They have all sorts of metal joints and hinges and
to put it appropriately requires some discipline, which, at his age, is not
fully developed and we need to have somebody supervise him. He has to have
socks underneath those braces that are stretched without any wrinkles so that he
doesn't develop any breakdown. He requires supervision in taking his
medications. He's on a lot of bowel-bladder medication . . . which he will
require for the rest of his life and if he doesn't take [the medication], it
could lead to problems, such as constipation, malnutrition, all that. He
requires . . . some assistance with bathroom activities, such as going to the
shower and helping him out . . . in terms of checking his pressure sores. He
requires that someone be able to check the front of him and the back of him
because of his problems. He is prone to skin breakdowns. As you've already
heard, he's had all these breakdowns on the knee, but that doesn't mean that he
doesn't have [a] breakdown on the back. If he goes for long distances, he sits
on the wheelchair and he will develop pressure sores also in his gluteal area .
. . where he sits if he doesn't do his pressure relief. So somebody has to
check to be sure that he doesn't have [a] breakdown in that area.
She estimated that infant claimant requires five hours of
assistance each weekday and eight hours for a weekend day, taking into account
the time he currently spends at school and will in the future spend at work; and
that he would require this level of assistance for the remainder of his
Dr. Tan further opined that she "would recommend that [infant claimant] receive
physical therapy at least two times a week, about thirty- to forty-five minute
sessions" because he is prone to develop contractures on account of his spinal
cord injury. She defined the goal of this therapy as "supervis[ing] [infant
claimant] so that he performs his therapies, range-of-motion exercises, he
doesn't develop contractures" and "strengthen[ing] whatever muscle power is left
in his right extremity as well as his left." In addition, because "he has some
tightness, he needs to be stretched" and "[I]f he needs to have some modalities
applied by a physical therapist, then they can do so." Finally, infant claimant
"needs to work on his balance and his sitting balance, standing balance and his
walking, his gait training. Especially when he has new braces, they have to
supervise him when he walks with his new braces [to] check that he doesn't have
When asked the length of time the physical therapy that she described would be
required, she responded that "ideally, it would be his entire lifetime"; and
added that the "reason why" was "because as [infant claimant] gets older, he
will be less mobile, and as he gets more and more wheelchair-bound . . . it will
make him prone to develop all these contractures, and all these complications .
. . mentioned and therefore the need for therapy will be increased throughout
his lifetime." When asked again what type of therapy she would recommend, Dr.
Tan answered "physical therapy, supervised by a licensed therapist. It could
either be through school or through . . . after school as an out-patient basis,
or home therapy. Either way, as long as it's supervised."
Finally, Dr. Tan testified that infant claimant would require "a lot of durable
medical equipment" over the course of what she anticipates will be a normal life
span. Specifically, "his braces will have to be overhauled . . . maintained and
replaced as needed" and he will need Lofstrand crutches, catheters, medications
and a lightweight wheelchair for long distances. When he is old enough to
drive, he will need a van with special controls; he will need "a special type of
van that will accommodate the wheelchair." In addition, he will need the proper
ramps to access his home, which has to be wheelchair-accessible; i.e., the
doorways and shower have to be wide enough to accommodate a wheelchair; the
kitchen has to be accessible at a level to allow him to be independent.
On cross-examination, Dr. Tan acknowledged that in her three most recent
medical or progress reports she had observed that infant claimant is independent
in his activities of daily living and ambulation; attends regular school; is
quite active in sports, including wrestling and swimming, and does not
participate in physical therapy through his school or otherwise as a result of
any medical prescription (defendant's exhs. B, C and D). She has not to date
prescribed any outside help (i.e., home care or home health aides) for infant
Claimant father described
various modifications made to the family home to accommodate infant claimant
after the accident, including renovating the bathroom to include a
wheelchair-accessible sink, pocket doors and a jacuzzi; removing a wall in the
kitchen/hallway/dining room area and replacing the existing floor coverings with
wood floors; increasing the width of doorways; installing a
wheelchair-accessible island in the kitchen; and enclosing a breezeway at the
side of the house to provide wheelchair access to the house in the absence of
ramps. He testified that these modifications cost $20,948.00 (claimants' exhs.
17 and 21, 22, 23, 24 and 25), and he performed some of the labor. He testified
that further house modifications are needed; specifically, some means for infant
claimant to negotiate the stairway, other than crawling (for example, a chair
glide), and a ramp into the house's back or front entrance.
Claimant mother is a registered nurse who received her B.S. degree in 1979 from
the State University College at Brockport. Prior to infant claimant's accident,
she worked full-time at South Shore Home Health Services, Inc., earning
$23.56/hour with full benefits for a 40-hour workweek (claimants' exh. 8).
After the accident, she began to work part-time 25 hours a week because she
"wanted to be home to take care of [infant claimant]" when he came home from
school. As a part-time employee, claimant mother's salary dropped to
$21.00/hour and she had to pay for one-half of her health insurance benefits
As a result of subsequent salary increments, claimant mother was earning
$23.05/hour (gross salary of $576.25/week) by the end of 2001 (
). She described her job as supervising "Medicaid, New York State
cases that have personal care aides" by "go[ing] into the homes just to make
sure the aides are doing what they're supposed to be doing." She also
supervises two nursing cases to "make sure the nurses are doing what they're
supposed to be doing."
Claimant mother's pay stubs confirm that her gross pay was $942.40/week
($23.56/hour for 40 hours/week) and her net pay was $727.44 for the pay period
ending June 25, 1995, or just prior to infant claimant's accident (claimants'
exh. 16-B); her gross pay was $525.00/week ($21.00/hour for 25 hours/week) and
her net pay was $437.14 for the pay period ending November 12, 1995 (claimants'
exh. 16-A); her gross pay was $525.00/week and her net pay was $389.14 for the
pay period ending December 31, 1995 (claimants' exh. 16-C); her gross pay was
$546.00/week ($21.00/hour for 26 hours/week) and her net pay was $387.88 for the
pay period ending May 25, 1997 (claimants' exh. 16-D); her gross pay was
$601.65/week ($23.14 [rounded]/hour for 26 hours/week) and her net pay was
$426.59 for the pay period ending April 19, 1998 (claimants' exh. 16-E); and her
gross pay was $576.25/week and her net pay was $370.09 for the pay period ending
October 8, 2000 (claimants' exh. 16-F). These stubs reflect deductions of
$48.00 for health insurance during the pay period ending December 31, 1995
(claimants' exh. 16-C); $63.86 for health insurance during the pay period ending
May 25, 1997 (claimants' exh. 16-D); and $47.68 for health insurance during the
pay period ending October 8, 2000 (claimants' exh. 16-F). She stopped paying
for health insurance coverage through her employer as of October 1, 2000 when
her husband obtained full-time employment and health insurance benefits through
his employer. When infant claimant underwent hip surgery in January 1999,
claimant mother took five weeks of unpaid leave pursuant to the Family Medical
Prior to infant claimant's accident, the family employed a babysitter for an
hour or an hour and a half a day five days a week, who was in the home to meet
the three children when they arrived home from school. During
cross-examination, claimant mother insisted that she continued to work part-time
after infant claimant started first grade solely because of his injury, although
her husband was unemployed because "he really wasn't home all day. He would
either be out making an estimate or working painting." She acknowledged,
however, that her decision to work part-time so that she could spend more time
at home allowed her husband to pursue a business and go to school. When asked
if she could have returned to full-time work once infant claimant had become
older and more self-sufficient and her husband got home from his job as a
teacher at 3:00 P.M., she answered "Could I? I could." Claimant mother
testified that full-time work had become possible again for her when infant
claimant began self-catheterization in January 2001. She added, however, that
she "still want[ed] to be there to make sure that [infant claimant]'s able . . .
right when he comes home, I want to make sure that he's catheterized correctly,"
although her husband is also able to do that.
Claimant mother has incurred unspecified out-of-pocket expenses on account of
infant claimant's post-accident care for diapers, wound-care supplies and the
stool softener. She also paid the required fifteen-dollar co-payment for infant
claimant's periodic physical therapy and made co-payments for prescription
medicines. Claimant mother knows of no social services liens against infant
of Alfred Samenga ("Samenga")
Samenga styles himself a legal and health care specialist. His company, A.
Samenga and Associates, Inc., which he founded in 1990, provides expert witness
services to plaintiffs and defendants and to insurance companies to prepare life
care plans, which he defined as "in essence . . . [a] damage analysis of the
patient's needs." From 1976 to 1990, he worked as the executive vice-president
and chief operating officer of an international home care company that provided
nursing services, durable medical equipment, orthotic and prosthetic devices,
therapy services and modifications to both homes and facilities. He holds a
bachelor's degree in marketing from St. John's University, and a master's degree
in supervision and administration from Long Island University.
Samenga testified to various costs in 2001 dollars for medical services or
products that he was asked to assume that infant claimant would require.
Specifically, he testified (1) that it cost $200.00 to visit a urologist,
$150.00 to visit an orthopedist, $150.00 to visit a physical
medicine/rehabilitation specialist and $125.00 to visit a licensed physical
therapist; (2) that a semi-private hospital room, not accounting for any
diagnostics, cost roughly $1,000.00 per day; (3) that someone who is wheelchair
bound or unable to use the legs in the operation of a vehicle requires a
specialized van, with a five-year lifespan and an adaptation for the wheelchair
lift, at a cost of $25,000.00 to $30,000.00, and an additional cost of $5,000.00
for hand controls; (4) that Lofstrand crutches cost approximately $75.00 and
have to be replaced approximately annually; (5) that a knee/ankle/foot orthosis
and a hip/knee/ankle/foot orthosis cost approximately $5,000.00 to $5,500.00 and
require replacement roughly annually (assuming ongoing repairs) from the ages of
12 to 18 or 20, and approximately every three to four years after that; (6) that
diapers cost $1,040.00 per year, assuming five to six changes daily, and that
the accompanying over-the-counter wipes to prevent infection cost $287.76
annually; and (7) that one-a-day Ditropan costs $900.00 per year, one-a-day
Bactrim costs $264.00 per year, one-a-day stool softeners cost $72.00 per year,
medicated cream costs $77.88 per year, catheters (assuming catheterization four
times daily) cost approximately $8.00 to $10.00 per day and KY jelly (used to
assist in catheterization) costs approximately $75.00 to $100.00 per year. When
asked how much it would have cost for someone to come into the home to
catheterize infant claimant three times daily for the period January 1999 until
January 2001, Samenga testified that a registered nurse would provide this
service at a cost of $125.00/catheterization.
Samenga was also asked about the cost of certain home modifications in 2001
dollars. Specifically, he testified that a stair glide costs approximately
$2,000.00; that a ramp's cost varies from approximately $2,500.00 to $6,000.00
to $7,000.00, depending upon where it is located in the house. (After visiting
infant claimant's house, however, he estimated a cost of $5,000.00.) Samenga
estimated $32,000.00 per year (at $15.00/per hour) as the cost for assistance in
the home with activities of daily living for five hours a day during the week
and eight hours a day on weekends.
When asked on cross-examination how he went about preparing a life care plan,
Samenga testified that "generally speaking, . . . certain documents, medical
records, depositions, bill of particulars, would be submitted" and he "would do
a review of the records . . . then normally . . . a preliminary analysis, and
then based upon direction, from the carrier or law firm, do a visit with the
family, and then refine the product once again for final submission." When
asked to specify what he had reviewed in this case, he replied that he no longer
Samenga identified the life care plan prepared on behalf of infant claimant as
his work product virtually exclusively (i.e., he might have asked a nurse to
review the costs of the prescriptions). In developing the costs for the life
care plan in this case, he looked at the prevailing Medicare rate in the area or
the usual and customary charges of physicians; however, "most of the costs . . .
for instance, the personnel costs, [were] based upon [his] working knowledge of
the region and representing these particular health care providers." For
example, the costs that he attributed to orthotics were based on his
"involvement in the area, [his] contact with p. and o. shops, prosthetic and
orthotic shops, in verifying the costs," back-up references that he failed to
provide or cite.
Samenga further acknowledged that he had prepared two widely varying life care
plans for infant claimant. In his initial life care plan (circa the spring of
which was submitted to defendant during discovery, Samenga estimated that infant
claimant would require home health aides or in-home assistance for 24 hours a
day/seven days a week. He acknowledged that he had not interviewed infant
claimant's family before preparing this report (although he had previously
testified that he routinely conducted an interview as part of his usual
procedure for developing a life care plan); he claimed that he had been provided
with medical reports prior to his preparation of this initial life care plan,
though. When questioned about his reason for concluding that infant claimant
required 24-hour-a-day/seven-day-a-week care, Samenga responded that "prior to
meeting with the family, the basis for it was quite honestly that the family
should be provided as much care as possible. They should not have to be the
primary health care providers for the individual." He acknowledged that in the
spring 2001 he did not realize that infant claimant was attending regular school
or was out of the house for seven or eight hours a day, and made no effort to
determine such facts "at that time." When asked why he issued a second report,
Samenga testified that "after meeting with the family and discussing with the
family and meeting with the child . . . it was apparent that this [his second]
plan better reflected [infant claimant 's] condition and his needs."
of Leonard R. Freifelder, Ph.D. ("Dr.
Dr. Freifelder performs economic analyses "almost exclusively in various types
of litigation" as well as "statistical analyses and sometimes actuarial studies
for the same types of purposes." He earned an undergraduate degree with a major
in actuarial science as well as a masters and Ph.D. in operations research from
the University of Pennsylvania. He taught for ten years at the college level,
and then was employed by various types of employers to perform actuarial science
studies and economic and statistical work, including rate-making studies in the
field of automobile insurance as the Special Deputy Commissioner at the New
Jersey Department of Insurance. Prior to forming his own consulting firm,
Leonard R. Freifelder and Associates, he was employed at a company that was a
third-party administrator for automobile insurance carriers and at the Center
for Forensic Economic Studies, an economics and statistical consulting firm
headquartered in Philadelphia.
Dr. Freifelder analyzed the various life care plans prepared by Samenga in this
case to develop the costs of infant claimant's future care (i.e., future
damages) by looking at each of the services or products (e.g., medical services,
medications, medical equipment, etc.) that Samenga had identified as required by
infant claimant over the course of his lifetime; fitting these services or
products into categories for which there is published data as to how costs
change over time; and then projecting the cost of each service or product
independently over infant claimant's life expectancy; i.e., until about
two-thirds of the way through 2064, based on the United States Life Tables,
1998, published by the United States government, which indicated that on the
date of infant claimant's accident, when he was 5.95 years old, he had a life
expectancy of 69.15 years. That is, Dr. Freifelder took the initial-year (2001)
cost for each service or product in Samenga's life care plan; selected the data
category into which in his opinion each particular service or product best fit;
increased the initial-year cost for each service or product by the selected data
category's percentage growth factor for each of the years remaining in infant
claimant's anticipated lifespan (apparently, 62.6863 years); and added all these
numbers up. As he further explained, a life care planner
might put the cost of a dentist alongside the cost of a physician and . . .
treat that as the same kind of cost. From my point of view those costs are
different because the economic data that exists, which is the consumer price
index, has sub-components which allows me to identify how the cost of dental
services change relative to the cost of medical services. And so in order to be
as accurate as possible, I want to associate the costs with categories for which
there is data in order to project each cost independently. The best example in
this particular case is that there are estimates for various types of medical
equipments, medical supplies, other things. . . . [M]edical equipment and
medical supplies to the life care planner are different. To me as an economist,
they're the same because there is no data on medical equipment independent of
medical supplies. So I have to break the data up and re-form it in a way that
allows me to make the projections. Once I've done that, I then calculate a
growth rate for each element of the life care plan and I project that cost over
the plaintiff's remaining life expectancy.
Dr. Freifelder testified that in this instance he selected growth rates for the
different services or products from among those for the various sub-categories
of the Consumer Price Index for All Urban Consumers
as published in the Statistical Abstract for the United
he based the cost for therapeutic
services on the employment cost index for professional, specialty and technical
workers; and he estimated the future cost of transportation with reference to
the Economic Report of the President (2001), "which has the same data as the
Statistical Abstract, but it's one year more current."
The categories into which Dr. Freifelder grouped the services and products in
Samenga's life care plan were medical services; therapy; medications; medical
equipment and supplies; home care; transportation; and a one-time cost for home
modifications: (1) in the category of medical services (e.g., the costs of
treatment by physicians in the various specialties from which infant claimant
requires treatment), he computed an annual growth factor of 4.63%, "which
represents the average rate of growth in the cost of physicians' services over
the decade ending 1999, so 1989 through 1999," based on the relevant index
values in the CPI-U;
(2) in the category of therapy (the cost of physical therapy), he used an annual
growth factor of 4.62%, which he describes as the average annual growth over the
past 20 years (1980-2000) in the wages and salaries of professional, specialty
and technical workers; (3) in the category of medications (Ditropan, Bactrim and
a stool softener [colace, as he recalled]), he computed an annual growth factor
of 5.17%, which is "the average annual growth in the cost of prescription drugs
for the decade . . . between 1989 and 1999 according to . . . that sub-component
of the Consumer Price Index";
(4) in the
category of medical equipment and supplies (e.g., catheters, crutches), he
computed an annual growth factor of 4.43%, "which is the . . . ten-year period,
1989 through 1999, the average annual growth in non-prescription drugs/medical
supply sub-component of the Consumer Price Index"; (5) in the category of home
care costs (the cost of a home health aide), he used an annual growth factor of
3.82%, which he described as the average annual growth in the wages and salaries
of workers in the private sector health care industry; and (6) in the category
of transportation, he used an annual growth factor of 2.31%, which he described
as the average annual change in the cost of new vehicles from 1980 to 2000.
Finally, he added the cost for a one-time modification to the house in which
infant claimant lives. Applying these growth factors to the 2001 figures set
forth for each category in Samenga's most recent life care plan, Dr. Freifelder
calculated future damages in the amount of $16,373,842.00. The summary of his
analysis and background information comprise claimants' exh.
Dr. Freifelder also testified that before trial he had reviewed defendant's
life care plan (defendant's exh. A), which he determined "contained exactly the
as Samenga's most recent plan, but "the numbers . . . are different, and as a
result of the numbers being different, each of the individual categories has a
different value." By applying exactly the same methodology to defendant's life
care plan as he had applied to project future damages in Samenga's life care
plan, he arrived at a figure of $8,702,028.00 for future damages. The summary
of this analysis and background information comprise claimants' exh. 20.
On cross-examination, Dr. Freifelder readily acknowledged that he "merely took
[Samenga's life care plan] and played out the numbers." Thus, when given
Samenga's initial life care plan, he calculated future damages in the amount of
roughly $48 million; then, when given Samenga's November 2001 life care plan, he
calculated future damages in the amount of roughly $24 million; and, finally,
when given the life care plan about which Samenga testified at trial, he
calculated future damages in the amount of roughly $16,373,842.00. He did not
independently assess any of the medical information with which he was provided
(e.g., Dr. Tan's reports [defendant's exhs. B, C and D], which belie any need
for home care for 24 hours a day/seven days a week, a major element of Samenga's
spring 2001 life care plan).
Dr. Freifelder likewise accepted the cost for transportation provided by
Samenga, who did not subtract the base cost of a vehicle. He testified that
"[i]t could be argued that it's more appropriate to extrapolate the incremental
cost between the type of vehicle that [infant claimant] would [otherwise]
purchase and the van," and agreed that this was probably the better way to
arrive at an initial cost for this item of future damages.
Dr. Freifelder balked at using the per cent changes in all items of the CPI-U
(either from December to December or from year to year) for the years 1995
through 1999 as the reference point for predicting future inflation rates, as
suggested by defendant's counsel.
He opined that it was "proper" to look at the "actual experience of the
different elements of care over the relevant period of time," which he generally
identified in his testimony as the components and expenditure categories in the
Medical Care major item group of the CPI-U for the ten-year period from 1989 to
1999. More specifically, Dr. Freifelder testified that "one should not look at
the last five years solely" and that these all-items indices "generally are not
the sub-indices of the consumer expenditure which I relied on and which I
believe are appropriate to rely on."
of Sharon L. Reavis ("Reavis")
Reavis graduated from a hospital school of nursing, and also holds a bachelor's
degree in health care management and a master's degree in rehabilitation
counseling, a field in which she has completed post-graduate work. She is a
registered nurse, a certified case manager and a registered provider of
rehabilitation care; she is also certified as a rehabilitation counselor, which
is a national board certification, and as a national counselor, which is a
general counseling certification, and has worked as a rehabilitation counselor
and case manager since 1978.
Reavis has also taught the medical component, which she identified as the core
component, in graduate programs in rehabilitation counseling at the Medical
College of Virginia and Virginia Commonwealth University. She teaches roughly
two seminars annually in the area of case management and life care planning;
specifically, she has most recently taught courses in cost research, traumatic
brain injury and general life care planning. For the State of Virginia, Reavis
developed a fee schedule for rehabilitative services, including medical
treatment and cost of equipment (e.g., wheelchairs), for individuals who are the
State's clients. For the federal government, she has developed life care plans
in instances where they are required (e.g., for vaccine-related cases).
Reavis defined rehabilitation counseling as "working with individuals who have
disabilities and developing long-term treatment plans for those individuals to
allow them to reach their highest functional capacity"; or "[i]n short . . .
coordinating services and working with individuals who have disabilities."
According to Reavis, a case manager "basically does the same thing as a
rehabilitation counselor"; specifically, a case manager
coordinates services for individuals and these individuals generally have
long-term disabilities or chronic illnesses. The case manager may provide
discharge planning from the hospital, set up home care, oversee home care, work
within the treatment team to act as a liaison to coordinate services, provide
long-term care planning, find services for the individual--be it rehabilitation
services and/or equipment--oversee the care, make sure the person receives the
care, review the bills, a little bit of everything.
Since January 1, 1989, Reavis has been employed as a case manager at Health
Information Services, Inc. ("HIS"), located in Glen Allen, Virginia, a group of
case managers, both medical and vocational, who work with individuals who have
disabilities and their families to provide rehabilitation and case management
services. While at HIS, she has worked with hundreds of individuals with spinal
cord injuries comparable to infant claimant's.
Reavis defined a "life care plan" as "basically, a rehabilitation plan.
‘Life care plans,' that phrase was really coined when they were used in
forensic practice, but it's basically the same rehabilitation plan that's been
utilized by rehabilitation counselors for many, many years--back to the
fifties." She described the methodology for devising a life care plan,
including its associated costs, as requiring her "to review the medical records
and determine the disability--the
disability . . . is the diagnoses--and to gather information regarding the
and . . . particular handicaps from that disability
and/or other secondary complications; to establish what the care needs are and
then to research the cost of care in that geographic area, if the geographic
area can be identified." Reavis has prepared many life care plans since 1978
and the early 1980's when the cost of care "began to be a problem . . . and
became much more important."
Following the methodology that she described, Reavis first reviewed the records
of infant claimant's initial hospitalization and follow-up treatment; the
records of the various physicians who treated him (his urologist, his general
practice physician, his rehabilitative medicine physician, his orthopedist); and
the records from his subsequent hospitalization and surgical procedure (the
contractual release); i.e, all the records related to "the medical services that
have been provided to him or for him since the time of his injury," as well as
the bill of particulars.
She then interviewed infant claimant briefly, but spoke mostly with his parents
by conference call to ascertain "additional information for specifics of
activities of daily living and that type of thing"; specifically, the purpose of
an interview is to elicit "those details that aren't always available within the
medical record . . . there's always some updating regarding some changes in
treatment or just to specify for sure if the doctors [who] are following that
individual continue to be the same doctors." Reavis added that the information
sought in the interview varies depending on the particular case, but that she
conducts a structured interview.
Reavis described the basic kinds of information that she seeks in her
structured interview as "information about the family situation; particularly
with a child, school attendance, does the child have an individualized
educational plan or a 504 plan; what the particular protocol is for any
medication administration, in this case such things as his bladder and bowel
program; the equipment that he utilizes, problems he may have had with
equipment; basically the total medical treatment program." She characterized
infant claimant's parents as "very helpful" in her telephone conference call
interview with them.
Because the cost of medical care varies geographically, Reavis next "looked at
providers in the specific geographic area, and researched by developing direct
information from them, the cost of care, and then do some comparisons." In
addition, she also has "a significant [proprietary] database that [she] can use
for geographic areas by area code that [she] can go back and compare with as
well," such as Long Island and the metropolitan area of New York, the relevant
geographic area here.
The life care plan that Reavis developed for infant claimant as a result of
this methodology is set forth in a report (defendant's exh. A), which includes a
narrative background and a series of charts. The charts specify by category the
items of service delivery or equipment required by infant claimant as a result
of his injuries, the unit cost of each item and the frequency with which and
period over which each unit cost is incurred.
Under the category of "complications," Reavis explained that an individual who
has experienced a spinal cord injury is inherently at risk for certain
complications, which may require in-patient hospitalization over the course of a
lifetime. In this case, Reavis testified that she was able "to assign a figure
to a hospitalization, [but] what would be speculative would be to determine how
many" hospitalizations infant claimant "would have over his lifetime."
Specifically, "he is at risk for orthopedic complications. He has had one
surgery and there may be more of those in the future. He's at risk for
urological complications and there may be hospitalizations associated with that,
but to say that there are going to be so many per year would be speculating."
Accordingly, Reavis "researched the cost of a medical hospitalization" in the
Long Island area, which she determined to be
She emphasized, however, that she could not project from infant claimant's
medical records how many, if any, such hospitalizations might become necessary;
therefore, she assigned a cost of $0.00 to this
Under the next category, "drugs and supplies," Reavis listed eight products,
their purpose, a specific supplier (either national or local), the period and
frequency of their use and a unit cost. Those costs include the cost for one
straight catheter per month: according to claimants, infant claimant washes his
catheter; i.e., he uses a clean catheter program/intermittent catheterization
and so washes the catheter after use and replaces it once a month. With respect
to the briefs or diapers, Reavis included a cost for periodic replacement,
recognizing, however, that an appropriate bowel training program should
eliminate this cost.
Under the category of "educational services," Reavis provided a cost of $0.00
because of infant claimant's eligibility under a federal program for special
education, which "means that if [he] require[s] any assistance in school to
allow [him] to attend school and function appropriately, then the school is
mandated to provide that assistance." She noted that infant claimant had been
"operating under an individual educational plan" or "IEP," but in the current
school year was "operating under a 504 plan, which is just a different degree of
that, so that if services are required for him in school, they would be
provided." When asked if such educational services might encompass physical
therapy, she replied that it could since "the plan is put together by the
parents and the teachers and the therapists, etc. and they can provide anything
from nursing care and physical and occupational therapy to having a child closer
in the classroom, any type of accommodation."
Under the category of "wheelchair," Reavis assumed that infant claimant would
need a new chair once every five years. She assigned a unit cost for a titanium
manual wheelchair ($2,495.00) that "works very well for a lot of situations [and
is] probably the most universally accepted chair by most of the patients." She
added that "it's a little bit more expensive than the typical wheelchair, but it
works extremely well and the titanium makes it lightweight, which is a big
issue. And secondly, [infant claimant's] parents indicated that he was
interested and did participate in wheelchair sports, and this is an easier chair
to use for that as well." In other words, she selected a chair that was
compatible with the level of infant claimant's activities. Under this category,
Reavis also specified a frequency and unit cost for maintenance ($250.00 yearly
minus 11 replacements) and cushion replacement ($400.00 every three years).
The category of "home accessories and equipment," includes "assisted aids
within the household, some [infant claimant] uses now, some he doesn't, but [he]
may want to use [them] in the future." These include a transfer bench to
provide shower access ($139.95, replaced once every five years); crutches, which
he currently uses because he ambulates with long-leg braces ($89.95, replaced
once every five years); reachers, which "sometimes the teenagers don't bother
with [but] when they get older they do think they're important" ($13.95,
replaced once every five years); and a hand-held shower, which infant claimant
would use when he sits in the shower to bathe himself ($41.95, replaced once
every ten years).
The category of "home services" encompasses both respite care until infant
claimant reaches age 16, and household services to allow him to live
independently once he reaches the age of 18. When asked to define "respite
care," Reavis explained that infant claimant's parents "provide his supervision
now or assist him with access in the community, and there can be situations
where it's not convenient for them to provide that and therefore respite care
can be brought into the home to give them some additional flexibility." She
noted that infant claimant was independent in his personal care and "does a
great job, and of course as he gets older he'll be more independent, but there's
a few things that need some consideration such as queuing for his intermittent
cath[eterization]s, that type of thing." When asked if she had inquired whether
claimants were using any kind of in-house assistance or care, she replied "No,
I don't believe they have used any." Nonetheless, Reavis included respite care
(alternative assistance/12 hours per week, which amounts to $9,360.00 annually
until infant claimant reaches 16 years of age) in this category as part of her
overall plan of reasonable services, given infant claimant's disability. She
also included $9,360.00 annually for "homemaker services"
adult/12 hours per week/age 18 to life expectancy), assuming that infant
claimant wants to be independent at age 18, whether or not he goes to college.
Finally, she included $3,120.00 yearly for "housecleaning service"
(independent/household/adult/periodic/age 18 to life expectancy) to allow infant
claimant to maintain an independent household as an
Under the category of "medical routine," Reavis included the costs for the
medical follow-up that infant claimant will require throughout his life;
therefore, she looked at the costs for his current "treatment team" as well as
the costs for physicians in the relevant specialties (urology; physical medicine
and rehabilitation; orthopedist) from whom he will need treatment as an adult.
Under the related category of "medical services," Reavis included the costs for
medical surveillance that infant claimant will require (i.e., renal ultrasound;
cystometrogram and scoliosis study). The costs for physicians totaled $575.00
annually until age 18, and $265.00 annually thereafter; the costs for medical
monitoring until age 18 totaled $2,340.00 plus $936.00 for three
cystometrograms; and from thereafter, $250.00 annually plus $1,925.00 for five
Reavis provided $19,997.50 under the category of "home modifications." She
noted that "it is very hard to project home modifications for someone who
doesn't have a permanent home yet [so she] tried to use a general idea of what
any home with accessibility features would require," which includes ramping for
safety and kitchen and bathroom modifications.
Reavis described the category of "orthotics/prosthetics" as "basically
bracing"; i.e., infant claimant wears a knee/ankle/foot orthosis on one leg and
a hip/knee/ankle/foot orthosis on the other leg. She assigned a cost to these
appliances of $1,655.57 annually for the former until age 18, and $2,657.68 for
the latter until age 18, which accommodates for growth as well as activity; and
$1,655.57 every three years for the former and $2,657.68 every three years for
the latter as an adult. Reavis based her three-year estimate for the frequency
of replacement on her experience with the hundreds of patients with whom she has
Next, Reavis testified that infant claimant is "very fortunate that he is able
to brace-walk because that's excellent upright therapy for him . . .
physiologically and etc., but there are a lot of recreational activities that
are . . . prohibitive to him, and an excellent means for him to stay conditioned
and socialized and be involved with good exercise would be a swimming program,"
which he enjoys. She noted that she chose the YMCA under the category of
"therapies" because the YMCA nationwide has the "appropriate,
accessible pools, and they're well-heated, which is great for muscles."
Accordingly, she indicated a youth and then an adult membership for infant
claimant in the YMCA, for which she assigned costs (youth membership/student
membership, totaling $1,275.00; adult joining fee of $45.00 plus a yearly
membership fee of $290.00).
Under this category, Reavis also assigned a cost of $2,976.00 for intermittent
physical therapy (12 sessions every two years for the remainder of infant
claimant's life). Reavis noted that infant claimant was apparently not
currently participating in physical therapy in school and that she had not seen
an order for it in his medical record.
Next, she included physical therapy as directed by IEP or 504 at $0.00; and
family/individual counseling until age 18 (six times at a unit cost of
$1,200.00). With respect to the latter, Reavis noted that infant claimant
"seem[ed] to be making a great adjustment, but things can happen periodically,
for instance leaving home or other particular issues that may require some
intermittent counseling, adjustment issues. It's hard to tell when, but over
[a] lifetime [he's] likely to need it at some point"; however, she noted that
she was unaware that infant claimant or his family were currently receiving any
Finally, under the category of "transportation requirements," Reavis included
$15,950.00 for a one-time conversion to retrofit a van for a wheelchair lift.
She testified that once infant claimant is able to drive, he would probably
require hand controls as well, and so she included a cost of $17,895.00 (every
six years) for this modification to a van plus maintenance fees of $150.00
(annually, minus nine modifications).
The table in the last two pages of Reavis's report, entitled "Cost Summary,"
sets forth the cost for each category of products and services (each unit cost
in a category multiplied by the number of times incurred and then all these
figures summed) and a lifetime total cost of $1,419,004.50 in 2001 dollars (the
sum of the costs from all of the categories). Reavis did not attempt to project
2001 costs into the future.
mother's past damages
Claimant mother seeks as damages
(1) $309,875.00, which is $125.00 per catheterization (or $375.00 [$125.00
× 3] per day for each school day and $500.00 [$125.00 × 4] per day for
each non-school day) for the time period from January 25, 1999 through calendar
year 2000; (2) reimbursement of the fifteen-dollar co-payment that she made for
the physical therapy treatments that infant claimant received roughly three
times a week for two to three years; and (3) loss of income and benefits in the
amount of $147,816.56.
Claimant mother is entitled to recover the reasonable value of the nursing
services that she necessarily furnished to infant claimant (
King v State of New York
, 56 AD2d 964; PJI: 2:318.1), and this would
certainly include the catheterizations that she performed daily until infant
claimant reached an age where he was able to self-catheterize; however, the
record is bereft of credible evidence to support an award of $309,875.00 as the
reasonable and customary value of these services. Dr. Steckler testified that
catheterization is "done by the patient or a caretaker
" (emphasis added)
and that "[a] sterile technique is not necessary." Yet Samenga equated the
reasonable value of claimant mother's catheterization services to the cost of
having a registered nurse make a home visit, which he estimated (without giving
any specific basis for his estimate) as $125.00/catheterization or $125.00 for
each of three or four daily visits. In short, although claimant mother happens
to be a registered nurse (who testified, by the way, to a salary of $23.56/hour
as a full-time nursing supervisor in 1995), the record does not suggest that
someone with a registered nurse's training and skill was required to catheterize
infant claimant and thus does not support the measure of damages proffered by
Samenga to compensate claimant mother for providing this care to her son.
There was, however, evidence that the salary of a home health aide was
$15.00/hour in 2001 dollars: Samenga testified to this hourly wage and Reavis's
report supplies a yearly cost in 2001 dollars of $9,360.00 for twelve hours a
week of respite care (i.e., 12 hours/week × 52 weeks/year = 624 and
$9,360.00 ÷ 624 = $15.00/hour). Assuming that this hourly wage was
somewhat less in 1999 and 2000 (say $14.25 in 1999 and $14.65 in 2000, which
assumes approximately a 3% inflation rate) and (as claimants proposed) that
claimant mother performed catheterization services during 154 school days and
186 non-school days in 1999 and 191 school days and 175 non-school days in 2000,
the reasonable value of providing this care amounts to $35,835.00 (rounded),
which the Court therefore awards her.
Next, the Court credits claimant mother's testimony that she took infant
claimant to physical therapy sessions roughly three times a week for
approximately two or three years, making a co-payment of $15.00 per visit.
Accordingly, the Court awards claimant mother past medical expenses in the
amount of $5,850.00 ($15.00/visit × 3 visits/week for 2½ years =
The Court also awards claimant mother $14,695.00 (rounded), which represents
her out-of-pocket expenses to purchase health insurance coverage for infant
claimant from December 1995 until October 2000 (
, claimants' exh. 16) when her husband obtained full-time employment
and health insurance benefits through his employer. Finally, although claimant
mother testified that she lost earnings because she worked part-time or
otherwise took leave solely to care for infant claimant, any such lost earnings
are not recoverable (Barnes v Keene
, 132 NY 13; Syczhk v
, 233 App Div 342).
father's past damages
The Court credits claimant father's testimony, substantiated by various
receipts (claimants' exhs. 17, 21, 22, 23, 24 and 25), that he incurred expenses
in the amount of $20,948.00 to modify the family home to accommodate infant
claimant's injuries, and therefore awards him damages in this amount.
Infant claimant suffered a spinal cord
injury on July 15, 1995 as a consequence of which he will require lifelong
medical surveillance and prophylactic care for the management of his condition
and the prevention of complications, as well as equipment and services and
accommodations to allow him to live an independent and productive life. Both
parties have prepared and presented life care plans to detail the level of the
medical and other care or products or equipment required by infant claimant over
the course of his life expectancy, and the Court finds that the life care plan
prepared and presented by Reavis is far more credible than the life care plan
prepared and presented by Samenga.
Reavis is a health care professional with extensive experience in
rehabilitation counseling, case management and life care planning, who has
worked with hundreds of individuals with spinal cord injuries comparable to
infant claimant's. The Court was impressed by the degree to which the life care
plan that she developed for infant claimant was tailored to his specific needs
and exhibited attention to detail. For example, Reavis was familiar enough with
infant claimant's medical history and knowledgeable enough generally to include
costs in the life care plan for future medical testing (i.e., renal ultrasound;
cystometrogram and a scoliosis study) specific to his condition. Similarly, she
was astute enough to learn from infant claimant or his family about his love for
swimming, which claimant father described as his son's "number-one sport," and
so included the cost of lifetime membership in the YMCA as an element of a
reasonable conditioning program for him. She, in fact, included in the life
care plan any number of products or services not considered by Samenga.
Moreover, she substantiated her 2001 costs by identifying a specific provider
(local to Long Island or the metropolitan area of New York) or supplier (local
or national) for each service or product in the life care plan.
By contrast, Samenga, who is not a health care professional, presented a life
care plan at trial (his third effort) that exhibited scant awareness of infant
claimant's actual medical condition or situation. As defendant's counsel
pointed out, Samenga's initial life care plan provided for home health aides or
in-home assistance for infant claimant for 24 hours a day/seven days a week
although nothing in the medical record (to which Samenga admittedly had access)
remotely suggests that infant claimant's degree of disability ever warranted
this level of care. Dr. Steckler prescribed a clean catheter/intermittent
catheterization (i.e., not a sterile technique) program for infant claimant and
Reavis learned from her interview that infant replaced his catheter once per
month. By contrast, Samenga seems to have assumed that infant claimant used a
fresh catheter for each catheterization. In addition, Samenga provided no
back-up references, relying instead on his "working knowledge of the region and
representing . . . particular health care providers."
In his final version of a life care plan for infant claimant, Samenga
established the level of therapy and home care by reference to the testimony of
Dr. Tan. Specifically, Dr. Tan testified that she "would recommend" that infant
claimant receive supervised physical therapy two times a week, "ideally" for the
remainder of his life; and that he required and would continue to require home
care for assistance with activities of daily living for five hours each weekday
and eight hours each weekend for the remainder of his life. Samenga placed the
cost of a visit to a licensed physical therapist in 2001 dollars at
$125.00/visit and estimated an annual cost in 2001 dollars of $32,000.000 for 41
hours a week of home care. From these 2001 costs, Dr. Freifelder calculated
$4,699,579.00 as the full amount of future damages for therapy, and
$8,246,977.00 as the full amount of future damages for home care.
Reavis, by contrast, provided for intermittent physical therapy (12 sessions
every two years for the remainder of infant claimant's life); and lifetime
membership in the YMCA, as discussed earlier, in view of infant claimant's
enjoyment of swimming and the "excellent means [thus provided] for him to stay
conditioned and socialized and be involved with good exercise." As for home
care, she provided for 12 hours a week of alternative assistance for life (with
a one-year gap) and for a housecleaning service from age 18 to life expectancy.
In other words, both Dr. Tan and Reavis agree that infant claimant will benefit
from supervised physical therapy and will always need some assistance in the
home. The Court must decide what infant claimant reasonably requires or what
reasonably compensates his loss in this regard, and here the Court finds that
Reavis's testimony is more convincing than Dr. Tan's.
First, the Court notes that Dr. Tan talked in terms of what she would ideally
recommend for infant claimant in the way of physical therapy. As a matter of
fact, though, neither she nor any other physician had prescribed physical
therapy for him at the time of the trial in December 2001 (or, apparently, since
shortly after his surgery for a hip contracture in January 1999); Dr. Labiak
testified that he did not know if infant claimant was receiving physical therapy
at the time of trial (as just indicated, he was not), but that he would need
physical therapy in the future "periodically." Although claimant mother
testified that she exhausted her health insurance coverage for this benefit
during the two- to three-year period after the accident when infant claimant
underwent intense physical therapy, since October 1, 2000 infant claimant has
been covered under another health insurance policy and there is no indication in
the record that any physician has failed to prescribe or that infant claimant
has gone without necessary physical therapy because of any problem with health
insurance coverage. In fact, claimant mother further testified that the family
had discontinued her son's physical therapy in school in June 2001 because he
had met the goals of the program, and that she "left it open at the latest
meeting at the school that if [she] felt that [infant claimant] had lost any
functions, any of his strength, we left it open with the special education
department that we would start physical therapy again." As Reavis pointed out,
infant claimant is entitled to receive physical therapy in school at no cost
under the terms of a federal program. As was also apparent from the testimony,
infant claimant is quite active in sports, including swimming and wrestling
, defendant's exh. C).
Next, Dr. Tan has never prescribed any home care for infant claimant. Quite to
the contrary, she has consistently recognized that he is "quite independent in
his ambulation" (defendant's exh. D) and "ambulatory independently with his
braces" (defendant's exh. C) and "independent in his activities of daily living
including dressing, bathing and hygiene, feeding, writing, computer usage as
well as leisure activities" (defendant's exh. B). Moreover, "[h]e needs a
little reminding to do his skin check, but otherwise he is independent in his
ADLs" and maintains a "very active lifestyle" (defendant's exh. C). These
comments strike the Court as inconsistent with the need for a lifetime regimen
of home care for 41 hours each week and, indeed, from his and his parents'
description of his daily routine, infant claimant did not require this level of
care even as a 12-year old.
Next, the Court must determine a reasonable inflation rate to apply to
determine the full amount of future damages, an issue on which the State chose
not to present any expert testimony. Claimants' expert, Dr. Freifelder, who
holds an undergraduate degree with a major in actuarial science and a masters
and Ph.D. in operations research, offered his opinion, but the Court considers
his testimony problematic in several respects.
First, Dr. Freifelder's testimony was marred by minor errors and
, n 4, 5 and 7, supra
). He provided his calculations and a
back-up sheet to support the calculations of future damages that he made using
Samenga's and Reavis's 2001 costs as the starting point (claimants' exhs. 19 and
20 respectively), but the back-up sheets (claimants' exhs. 19-000009 and 20, p
9, which are actually quite difficult to read because of the small size of the
print) do not readily illustrate how Dr. Freifelder derived the various
inflation rates that he proposed for the different categories of costs. Nor did
he ever explain why he considered the ten-year period from 1989 to 1999 as the
"relevant period of time" on which to base his inflation forecasts for the costs
of goods and services within the components and expenditure categories in the
Medical care major item group of the CPI-U. Likewise, Dr. Freifelder did not
explain why he looked to data over longer time periods to predict inflation
rates for other kinds of goods or services. Several such ambiguities and
inconsistencies are on display in claimants' exh. 20.
In this exhibit, Dr. Freifelder purported to show how he arrived at a figure of
$8,702,028.00 for future damages by applying the same methodology and
percentages to project future damages based on defendant's life care plan as he
had applied to project future damages based on Samenga's life care plan. The
Summary Table (claimants' exh. 20), shows that Dr. Freifelder attributed
$5,614,600.00 of these future damages to the category of home care, a category
in which Reavis provided for respite care (alternative assistance/12 hours per
week, which amounts to $9,360.00 annually until infant claimant reaches age 16),
homemaker services (independent household/adult/12 hours per week, which amounts
to $9,360.00 annually from age 18 to infant claimant's life expectancy) and a
housecleaning service such as The Merry Maids at a cost of $3,120.00 annually
from age 18 to infant claimant's life expectancy. But the 2001 dollar cost that
Dr. Freifelder used was $18,720.00, or
the 2001 cost for respite care, in fact, provided by Reavis
($9,360.00), and he provided no explanation for this significant
Moreover, he inflated both this
cost and the cost of the housecleaning service at a rate of 3.82%, which he
described as a rate reflecting the average annual growth in the wages and
salaries of workers in the private sector health care
In other words, although Dr.
Freifelder promoted his proposed inflation rates figured to the hundredth of the
percentage point as particularly proper or appropriate because fashioned from
historical data more specific to a particular product or service, in this case
he used historical wage and salary data for workers in the private sector health
care industry to predict the future costs of
Notwithstanding these criticisms, the Court agrees with Dr. Freifelder that
historical data from the CPI-U provide a (if not the only) rational point of
departure for the prediction of future inflation. Nor are Dr. Freifelder's
proposed inflation rates wildly out of line with those applied in other claims
to determine the full amount of future damages. Moreover, as noted previously,
the State simply did not provide any expert testimony on this issue. The Court
therefore finds that 5 per cent is a reasonable inflation rate to apply to those
costs in defendant's life care plan encompassed within the Medical care major
item group of the CPI-U; and that 3 per cent is a reasonable inflation rate to
apply to all other costs. The Court notes that 5 per cent is the average
(rounded) of the inflation rates suggested by Dr. Freifelder for medical
services (4.63%), therapy (4.62%),
medications (5.17%) and medical equipment and supplies (4.43%); that 3 per cent
is the average (rounded) of the inflation rates suggested by Dr. Freifelder for
home care (3.82%) and transportation (2.31%); and that, in addition, 3 per cent
is the average (rounded) and 3.0% is the median value of the year-to-year
percent changes in the all-items CPI-U index for the years 1989 through 1999.
Finally, the Court finds that infant claimant's life expectancy is properly
measured by reference to the life expectancy table in the Pattern Jury
Instructions (1B NY PJI3d 1462 ), which is 62.3 years for a male reaching
the age interval of 12-13 in 2002.
Given this life expectancy and inflation rates of 3 per cent and 5 per cent, the
Court has computed future damages for each product or service comprehended in
defendant's life care plan by category, as explained below.
The Court awards infant claimant future damages for drugs and supplies in the
amount of $824,204.00. This number is computed as follows: $815,752.00
(rounded) (the 2001 yearly costs provided by Reavis for a straight catheter,
gloves, KY jelly, Ditropan, Bactrim and Peri-Colace [$1,952.27] × 1.05 =
$2,049.89 compounded by 5% for 62.3 years = $815,752.00 [rounded] [the sum of
the values for years 1 through 62.3]) plus $8,452.00 (rounded) (the 2001 yearly
cost provided by Reavis for Depends-briefs [$730.00] × 1.05 = $766.50
compounded by 5% for 9 years (because infant claimant reaches the age interval
of 20 to 21 in year 9) = $8,452.00 [rounded] [the sum of the values for years 1
through 9]) equals $824,204.
00. The Court determined the costs of Depends-briefs for a nine-year period in
light of Dr. Steckler's testimony that assisted bowel control, which would
eliminate infant claimant's dependence on diapers, was a "realistic goal" and
achievable for him, with some further experimentation or "mixing and matching
and playing with" various combinations of such things as fiber, laxatives,
suppositories, enemas and dietary manipulation.
This category of future damages is comprised of the costs of (1) a wheelchair
(replaced every five years); (2) wheelchair maintenance (yearly except in those
years when the wheelchair is replaced); and (3) a wheelchair cushion (replaced
every three years). The Court therefore (1) took the 2001 cost provided by
Reavis for a wheelchair ($2,495.00) × 1.05 = $2,619.75, compounded this
number by 5% for 62.3 years and summed the values for years 1, 6, 11, 16, 21,
26, 31, 36, 41, 46, 51, 56 and 61 = $216,572.00 (rounded) (dividing the
first-year cost by five and compounding by 5% for 62.3 years yields a roughly
equivalent value of $208,505.00 [rounded] as the sum of the values for years 1
through 62.3); (2) took the 2001 cost provided by Reavis for wheelchair
maintenance ($250.00) × 1.05 = $262.50 compounded by 5% for 62.3 years =
$104,462.00 (rounded) (the sum of the values for years 1 through 62.3) and
subtracted $21,701.00 (rounded) (the sum of the values for years 1, 6, 11, 16,
21, 26, 31, 36, 41, 46, 51, 56 and 61; i.e., every year in which it is assumed
that a wheelchair is new) = $82,762.00 (rounded); and (3) took the 2001 cost
provided by Reavis for a wheelchair cushion ($400.00) × 1.05 = $420.00
÷ 3 (to reflect replacement every three years) = $140.00 compounded by 5%
for 62.3 years = $55,713.00 (rounded) (the sum of the values for years 1 through
62.3). Thus, $216,572.00 (rounded) plus $82,762.00 (rounded) plus $55,713.00
(rounded) equals $355,047.00, which the Court awards infant claimant as future
Home Accessories and Equipment
The Court awards infant claimant future damages for home accessories and
equipment in the amount of $22,134.00. This number is computed as follows:
$20,379.00 (rounded) (the 2001 costs provided by Reavis for a tub transfer
bench, Loftstrand crutches and reachers [$243.85] ×1.05 = $256.04 ÷ 5
[to reflect replacement every 5 years] = $51.21 compounded by 5% for 62.3 years
= $20,379.00 [rounded] [the sum of the values for years 1 through 62.3]) plus
$1,755.00 (rounded) (the 2001 cost provided by Reavis for a hand held shower
[$41.95] × 1.05 = $44.05 ÷ 10 [to reflect replacement every 10 years]
= $4.41 compounded by 5% for 62.3 years = $1,755.00 [rounded] [the sum of the
values for years 1 through 62.3]) equals $22,134.00.
The Court awards infant claimant future damages for home services in the amount
of $2,252,760.00. This number is computed as follows: $1,705,160.00 (rounded)
(the 2001 yearly costs provided by Reavis for respite care/homemaker services
[$9,360.00] × 1.03 = $9,640.80 compounded by 3% for 62.3 years =
$1,705,160.00 [rounded] [the sum of the values for years 1 through 62.3]) plus
$547,600.00 (rounded) (the 2001 yearly costs provided by Reavis for a
housecleaning service [$3,120] × 1.03 = $3,213.60 compounded by 3% for 62.3
years minus the sum of the values for years 1 through 6 [$20,786.89] [because
this cost begins when infant claimant reaches the age interval of 18 to 19 in
year 7] = $547,600.00 [rounded] [the sum of the values for years 7 through
62.3]) equals $2,252,760.00. Defendant's life care plan provides for respite
care for infant claimant through age 16, and for homemaker services beginning at
age 18 and continuing through life expectancy. The Court has eliminated the
resulting one-year gap, which was unexplained in the record.
The Court awards infant claimant future damages in the amount of $112,943.00
for his prospective medical routine. This number is computed as follows:
$39,695.00 (rounded) (the 2001 cost provided by Reavis for an orthopedist
[$95.00 once a year] × 1.05 = $99.75 compounded by 5 % for 62.3 years =
$39,695.00 [rounded] [the sum of the values for years 1 through 62.3]) plus
$1,143.00 (rounded) (the 2001 cost provided by Reavis for a pediatric and
physical medicine specialist [$80.00 for each of two visits a year = $160.00
yearly] × 1.05 = $168.00 compounded by 5% for 6 years = $1,143.00 [rounded]
[the sum of the values for years 1 through 6; i.e., until infant claimant
reaches the age interval of 18 to 19 in year 7]) plus $2,285.00 (rounded) (the
2001 cost provided by Reavis for a pediatric urologist [$160.00 for each of two
visits a year = $320.00 yearly] × 1.05 = $336.00 compounded by 5% for 6
years = $2,285.00 [rounded] [the sum of the values for years 1 through 6; i.e.,
until infant claimant reaches the age interval of 18 to 19 in year 7]) plus
$32,857.00 (rounded) (the 2001 cost provided by Reavis for an adult urologist
[$80.00 once a year] × 1.05 = $84.00 compounded by 5% for 62.3 years =
$32,857.00 [rounded] [the sum of the values for years 7 through 62.3]) plus
$36,963.00 (rounded) (the 2001 cost provided by Reavis for an adult physical
medicine and rehabilitation specialist [$90.00 once a year] × 1.05 = $94.50
compounded by 5% for 62.3 years = $36,963.00 [rounded] [the sum of the values
for years 7 through 62.3]) equals $112,943.00.
The Court awards infant claimant future damages in the amount of $116,544 for
medical services. The Court computed this number as follows: $104,462.00
(rounded) (the 2001 cost provided by Reavis for a renal ultrasound [$250.00 once
a year] × 1.05 = $262.50 compounded by 5% for 62.3 years = $104,462
[rounded] [the sum of the values for years 1 through 62.3]) plus $1,141.00
(rounded) (the 2001 cost provided by Reavis for a pediatric cystometrogram
[$312.00, three times through age 18] × 1.05 = $327.60 compounded by 5% for
6 years and the values for years 2, 4 and 6 summed = $1,141.00 [rounded]) plus
$9,941.00 (rounded) (the 2001 cost provided by Reavis for an adult
cystometrogram [$385.00, five times from age 18 to life expectancy] × 1.05
= $404.25 compounded by 5% for 62.3 years and the values for years 9, 19, 29, 39
and 49 summed = $9,941 [rounded]) plus $1,000.00 (rounded) (the 2001 cost
provided by Reavis for a scoliosis study [$140.00, yearly until age 18] ×
1.05 = $147.00 compounded by 5% for 6 years [because infant claimant reaches the
age interval of 17 to 18 in year 6] = $1,000.00 [rounded] [the sum of the values
for years 1 through 6]) equals $116,544.00.
The Court awards infant claimant future damages in the amount of $19,998.00
(rounded), representing the one-time cost estimated by Reavis for such features
as ramping and bathroom and kitchen modifications.
The Court awards infant claimant future damages in the amount of $580,060.00.
This category of future damages is comprised of the costs of a knee/ankle/foot
orthosis and a hip/knee/ankle/foot orthosis, which are replaced yearly through
age 18 and every three years thereafter to life expectancy. The Court therefore
took the 2001 cost provided by Reavis for these orthoses ($4,313.25) × 1.05
= $4,528.91, compounded this number by 5% for 62.3 years and summed the values
for years 1 through 6 (because infant claimant reaches the age interval of 17 to
18 in year 6) and for years 9, 12, 15, 18, 21, 24, 27, 30, 33, 36, 39, 42, 45,
48, 51, 54, 57 and 60, which equals $580,060.00 (rounded).
The Court awarded infant claimant future damages for therapies, which includes
physical therapy treatments, in the amount of $681,866.00. This number is
computed as follows: $51,540.00 (a one-time student membership fee for the YMCA
[$225.00] + an adult joining fee [$45.00] + $51,245.00 [rounded] yearly fees
[$290.00] × 1.03 = $298.70, compounded by 3% for 62.3 years and the values
for years 6 through 62.3 summed = $51,540.00) plus $621,756.00 (rounded) (the
2001 cost provided by Reavis for 12 physical therapy sessions [$2,976.00] ×
1.05 = $3,124.80 ÷ 2 [to reflect that this cost is incurred over a two-year
period] = $1,562.40 compounded by 5 % for 62.3 years = $621,756.00 (rounded)
[the sum of the values for years 1 through 62.3]) plus $8,570.00 (the 2001 cost
provided by Reavis for family/individual counseling [$1,200] × 1.05 =
$1,260.00 for six times only for years 1 through 6 [i.e., until infant claimant
reaches the age interval of 18 to 19 in year 7] = $8,570.00) equals $681,866.00.
This category of future damages is comprised of the costs of (1) a one-time
conversion to retrofit a van with a wheelchair lift; (2) hand controls once
infant claimant is old enough to drive, which Reavis estimated would need to be
replaced every six years; and (3) maintenance fees for the hand controls in
those years when they are not new. The Court therefore awards infant claimant
future damages in the amount of $546,729.00 to meet his transportation
requirements, computed as follows: $16,429.00 (rounded) (the 2001 one-time cost
provided by Reavis for a van conversion [$15,950.00] × 1.03 = $16,429.00
[rounded]) plus $507,707.00 (rounded) (the summed values for years 4, 10, 16,
22, 28, 34, 40, 46, 52 and 58, given the 2001 cost provided by Reavis for a van
conversion for hand controls [$17,895.00] compounded by 3% for 62.3 years) plus
$22,593.00 (rounded) (the 2001 cost provided by Reavis for maintenance of hand
controls [$150.00] × 1.03 = $154.50 compounded by 3% for 62.3 years =
$27,326.00 [rounded][the sum of the values for years 1 through 62.3]
$4,733.00 [rounded] [the sum of the values for years 1 through 4 and 10, 16, 22,
28, 34, 40, 46, 52 and 58]) equals $546,729.00.
In fashioning compensation for infant
claimant's injuries and long-term consequences, the Court recognizes that
"personal injury awards, especially those for pain and suffering, are not
subject to precise quantification" (Karney v Arnot-Ogden Mem. Hosp.
AD2d 780, 782, lv dismissed
92 NY2d 942; see
, Kahl v MHZ
, 270 AD2d 623). Although no two cases are alike, claimants
point to the Third Department's decision in Auer v State of New York
AD2d 626) as the lodestar and seek $1 million for infant claimant's past pain
and suffering and $7.5 million for his future pain and suffering.
, the Third Department affirmed an award of $1.5 million for past
pain and suffering and increased the award for future pain and suffering from
$750,000 to $1.5 million. The claimant's physical injuries in that case were,
however, catastrophic: claimant Melody Auer suffered severe contusion and
bleeding of the brain, which caused quadriplegia and significant cognitive
defects; two severely comminuted fractured legs, requiring surgery and the
placement of permanent steel rods and screws; three fractured vertebrae in her
lumbar spine; a fractured eye socket; spasticity and contractures in all four
limbs, causing ongoing pain and restriction of motion; and emotional distress
and depression (Auer v State of New York
, Ct Cl, unpublished decision
filed Dec. 30, 1999, King, J., Claim No. 86167, p 2). As a result of these
injuries, she was on a mechanical ventilator for nine days, had a tracheostomy
in place for 98 days, was on a feeding tube for seven months and was
hospitalized for 344 days during which she underwent seven surgical procedures
, pp 2-3). Her physical impairments included a lack of muscular
control of the mouth and tongue muscles (id.
, p 9) and severely impaired
speaking ability with marked spastic dysarthria and dysphonia of speech
, p 33); the inability to ambulate, roll over on both sides or
exercise independently (id.
, p 9); and severe and continual physical pain
, pp 20, 25-26). Some of her mental processes were affected, yet she
remained cognitively aware of her surroundings and able to interact with others
, p 3). She will require 24-hour supervision and care to carry out
any and all daily living activities for the remainder of her life, which was
determined to be 38 years (id.
, pp 3, 11).
Infant claimant's physical injuries, although undeniably serious and life
altering, are nonetheless (and obviously) markedly less severe than Melody
Auer's, and, again unlike Melody Auer, his prospects for continuing to enjoy a
well-rounded life with a high degree of independence and achievement are quite
good. The Court therefore finds that $500,000.00 is reasonable compensation for
infant claimant's past pain and suffering and that $1,000,000.00 is reasonable
compensation for infant claimant's future pain and
summary, the Court finds that claimants are entitled to the following damages,
based on a fair preponderance of the credible evidence:PAST
home modifications $20,948.00
PAST NON-ECONOMIC DAM AGESInfant
Past pain and suffering $500,000.00FUTURE
Home accessories and
Home services $2,252,760.00
Medical services $116,544.00
requirements $546,729.00 FUTURE NON-ECONOMIC
Future pain and suffering $1,000,000.00
Since the amount of future damages exceeds $250,000.00, a structured judgment
is required (CPLR 5041 [e]). The Court therefore directs that judgment be held
in abeyance pending a hearing pursuant to CPLR article 50-B. The Court
encourages the parties to agree upon an attorneys' fee calculation and the
discount rate to be applied and to formulate a structured settlement of their
, CPLR 5041 [f]). In the event that this does not prove possible,
each party shall submit a proposed judgment in writing conforming to the
requirements of CPLR article 50-B within 120 days of service of this decision
upon them by the Clerk of the Court. A hearing will thereafter be scheduled at
the mutual convenience of the parties and the Court.
November 15, 2002
HON. SUSAN PHILLIPS READ
Judge of the Court of Claims
Unless otherwise indicated, quotations are from the Court's trial notes or
audiotapes of the trial on damages.
Sometimes the witnesses and counsel referred to this as Samenga's April 2001
life care plan; at other times they referred to it as Samenga's May 2001 life
Dr. Freifelder subsequently generally referred simply to the "Consumer Price
Index" or the "CPI" in his testimony. The CPI reflects spending patterns for
two population groups: All Urban Consumers, or the "CPI-U," which represents
about 87% of the total population of the United States, and Urban Wage Earners
and Clerical Workers, or the "CPI-W" (see
, Frequently Asked Questions
[last modified Aug. 7, 2002] <http://www.bls.gov/cpi/cpifaq.htm>). Dr.
Freifelder clearly relied on index values from the CPI-U to calculate those
growth factors that he derived from the Consumer Price Index ("CPI")
, claimants' exh. 19-000009, claimants' exh. 20, p
Dr. Freifelder identified the Statistical Abstract as a publication of the
United States Department of Labor, Bureau of Labor Statistics. Actually, the
United States Census Bureau publishes the Statistical Abstract annually, but the
United States Department of Labor, Bureau of Labor Statistics, is the source for
the tables or information in the Statistical Abstract related to the CPI.
As his testimony subsequently developed, he actually relied on non-CPI data in
three instances, not two.
"Medical care" is one of the eight major item groups within the CPI, and
consists of two components: "Medical care commodities" and "Medical care
services." The former component, "Medical care commodities," is organized into
two expenditure categories: "Prescription drugs" and "Nonprescription drugs,
medical supplies." The latter component, "Medical care services," is organized
into two expenditure categories: "Professional medical services" (which is
further subdivided into "Physician's services," "Dental services" and "Eye
care") and "Hospital and related services" (which includes a category for
"Hospital rooms") (see
U.S. Census Bureau,
Statistical Abstract of the United States: 2000, Table 770 [Consumer Price
Indexes for All Urban Consumers (CPI-U) for Selected Items and Groups: 1980 to
The Court notes that none of the testimony indicates that the stool softener
used by infant claimant is a prescription drug. Indeed, colace appears to be an
over-the-counter medication; i.e., a nonprescription drug. As noted at n 6,
, "Prescription drugs" and "Nonprescription drugs, medical supplies"
are separate expenditure categories within the component "Medical care
The precise figure for the total future care costs specified in the summary of
Dr. Freifelder's analysis (claimants' exh. 19) is $16,378,342.00, which he was
asked to reduce by $4,500.00 in light of testimony about the cost of home
In fact, defendant's plan included additional elements.
Defendant referred specifically to Table B-63 at p 347 of the Economic Report of
the President, transmitted to the Congress in January 2001. The source of these
data is the Bureau of Labor Statistics, and a table with year-to-year percentage
changes for all items and by major groups is routinely published as part of the
Statistical Abstract of the United States (see
Abstract of the United States: 1995, Table 761 [Consumer Price Indexes (CPI-U),
by Major Groups: 1960-1994]; Statistical Abstract of the United States: 1999,
Table 776 [Consumer Price Indexes (CPI-U), by Major Groups: 1980-1999]).
She assumed that a renal complication was the most likely cause of any such
admission; therefore, this figure represents the cost associated with the
average length of stay and treatment of a renal complication in a Long Island
Claimants' counsel was quite critical of this methodology, and Dr. Freifelder
testified that it is "not uncommon . . . for life care planners . . . [to] take
. . . . the care costs that they've identified and the costs that they've
determined [are] appropriate and then . . . multiply . . . by the person's life
expectancy and that produces a number. It's a number without any . . .
inflationary growth added to it." As the Court understands it, this is an
accepted methodology for determining a present value for future damages, based
on an assumption that the inflation and discount rates are equal over time and
so totally offset each other; however, the Court does not understand the State
to dispute that the Court here must perform the two-step exercise of making a
finding as to a future inflation rate and a finding as to a discount rate in the
subsequent CPLR article 50-B proceeding.
Whatever the explanation, the effect, by the Court's calculation, is to increase
this category of future damages by roughly $2.4 million.
Although the Court does not recall that Dr. Freifelder testified as to his
reference period for these data, the back-up sheets suggest that he may have
looked at data for the time period of 1985 to 2000 (see
, claimants' exhs.
19-000009 and 20, p 9).
Price observations for physical therapists are encompassed within the
Professional medical services expenditure category of the Medical care services
component of the Medical care major item group (see
, Measuring Price
Change for Medical Care in the CPI [last modified Oct. 16, 2001]
The Court notes that this life expectancy is virtually identical to the life
expectancy used by Reavis (life expectancy through 2063) and Dr. Freifelder
(life expectancy to roughly two-thirds of the way through 2064).
Both claimants' and defendant's life care plans attributed $0 for future
hospitalizations for infant claimant. All the physicians and Reavis recognized
that infant claimant was at risk for future complications requiring future
hospitalizations, however, and Dr. Labiak considered scoliosis surgery a near
certainty. The Court has taken the prospect of future hospitalizations into
account in setting reasonable compensation for future pain and suffering.