New York State Court of Claims

New York State Court of Claims

CESNAVICIUS v. THE STATE OF NEW YORK, #2002-013-501, Claim No. 78324


Synopsis


A 39-year-old professional man who was injured in an automobile accident for which the State was responsible and who suffers from severe dementia, hemiparesis and other permanent injuries, is awarded a total of $11,287,431.50 representing the cost of medical and home care, pain and suffering, and economic loss.

Case Information

UID:
2002-013-501
Claimant(s):
ZITA CESNAVICIUS, as Conservator of the Estate of Frank W. Minardi,
Claimant short name:
CESNAVICIUS
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
78324
Motion number(s):

Cross-motion number(s):

Judge:
PHILIP J. PATTI
Claimant's attorney:
DANIEL DONNELLY, ESQ.
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General of the State of New York
BY: MICHAEL A. ROSAS, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
February 14, 2002
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision



In my prior decision on the issue of liability, Defendant State of New York was held to be 100% liable for the damages sustained by Frank W. Minardi in an October 27, 1987 automobile accident. This decision results from the trial of damages, during which evidence was heard relating to the seat belt defense and to the amount of damages attributable to Mr. Minardi's medical and life care expenses, pain and suffering, and economic loss.


SEAT BELT DEFENSE

As explained more fully in the liability decision, the accident giving rise to this claim involved Mr. Minardi's 1973 Dodge Challenger and another driver's 1987 Mercury Sable. The cars were driving in opposite directions, in a heavy downpour, when Mr. Minardi apparently lost control of his vehicle and it began to spin. The other driver attempted to avoid a collision, but her car hit the Challenger on its passenger side, causing the Mercury to essentially plow into the Dodge.

Peter R. McLain, a State Police officer who was at the scene of the accident, testified that when he observed Mr. Minardi inside the car, his "upper torso was in the rear passenger side of the vehicle facing at an angle, and his front part of the torso was hanging over the top of the seat going towards the front part of the vehicle" (Transcript - p. 953). In his opinion, Mr. Minardi had not been wearing a seat belt because "[h]ad it been on, he would have stayed in the seat" (
id.). McLain also testified that during his six years as a road trooper, he never saw a seat belt device fail and come off in a accident.[1] On cross-examination, Officer McLain confirmed that the photographs of the accident showed the interior of the car to be "substantially rearranged" (Transcript - p. 972), and he agreed that this was most likely a result of the penetration of the other car before it rebounded or bounced back from the collision. He stated that he did not see anything to suggest that the entire seat belt mechanism had come loose or been removed. McLain acknowledged that he was not the first person to arrive at the scene of the accident and thus he could not be sure that someone else hadn't removed Mr. Minardi's seat belt prior to his arrival. His recollection, however, was that the door closest to Mr. Minardi was not open when he arrived.
Dr. Richard C. Nelson, who described himself primarily as a sport biomechanist and acknowledged that the majority of his work was not directly involved with automobile accidents reconstruction, testified for Defendant. He stated that the primary function of seat belts and similar restraints was to stop a body's forward motion, which is of most protection in head-on or front-end collisions. With a passenger side side-impact collision, the vehicle's occupants would, in essence, be thrown to the right, because the car is being pushed abruptly to the left, while the passengers' bodies, which are not directly impacted, have inertia and will attempt to stay still. The effect of a combination (seat belt and shoulder) restraint in such a situation would be to restrain the right side movement of the lower part of the body and at least limit the movement of the upper body.

When asked to perform a biomedical reconstruction of the accident giving rise to this claim, Dr. Nelson concluded that the Minardi vehicle was initially at an angle to the other car because it was spinning, but by the time the cars came to rest, they formed a T, with the Mercury intruding directly into the side of the Dodge. Mr. Minardi's body, therefore, would have been propelled both to the right (because of the side impact) and to the back (because of the spinning movement).

In Dr. Nelson's opinion, Mr. Minardi had not been wearing a seat belt or other restraint when his vehicle was struck. He based his opinion on the number and type of injuries suffered, injuries that included facial lacerations, particularly on the left side; cerebral contusion; chest contusions; pelvic and sacral fractures on the right; and hematoma of the pelvis. He also based his opinion on the fact that Mr. Minardi's body was discovered "over to the right up on the seat" (Transcript - p. 1030), with his legs partially out of the well, and his torso draped over the passenger seat. Dr. Nelson testified that immediately prior to the moment of impact, his body would have been going forward and toward the right, because of the rotation, and upon impact the forward movement would have become rapid movement to the right, while the movement toward the right would have been changed to movement even further right (
i.e., toward the back). Mr. Minardi may even have been pushed up out of the seat by the force, causing him to strike his head on the ceiling and sustain the cerebral contusion, before falling back down in the position where he was later found.
If Mr. Minardi had been wearing a seat belt, according to Dr. Nelson, his movements, and therefore his injuries, would have been different and dramatically reduced because the seat belt would have kept his lower legs from coming up off the seat, while the shoulder harness would have added additional restraint, preventing movement to the right and back. In addition, because what movement there was would be toward the more open interior compartment of the vehicle, he would not collide with any significant structure. If he had been wearing a seat belt and shoulder harness restraint, Mr. Minardi might have had abdominal injuries due to the high force of the lap belt, and chest abrasions from the shoulder harness, but he would not have suffered the "litany" of injuries that he did. In particular, it is unlikely that he would have struck his head at all, and his body would have never gone over into the right (passenger) side of the car.

On cross-examination, Dr. Nelson acknowledged that he never visited the roadway on which the accident occurred, nor had he seen the seat belt mechanism for the vehicle in question. He understood from the photographs, however, that it was a standard three-prong system. When questioned about the specific injures suffered by Mr. Minardi, Dr. Nelson was unable to precisely pinpoint what force or impact would have caused the injuries to the lower back and pelvic area, but he stated that they were not the type of injuries that would have been caused by a seat belt (Transcript - p. 1062). He conceded that Mr. Minardi's chest contusions could have been caused by a shoulder harness, but thought it more likely that they resulted from impact with the steering wheel, even though the steering wheel itself did not show evidence of significant damage. The intrusion of the Mercury Sable was, in his opinion, too far away to have reached Minardi or to have significantly affected any structures that he would have impacted. The other car certainly did not enter the part of the vehicle that he would have been in if restrained by a lap belt and shoulder harness.

Claimant's expert witness on this issue was Billy S. Peterson, whose business, Automotive Safety Training, involves automotive safety engineering and consulting. He previously worked for 13 years for the National Highway Safety Administration and briefly for the Transportation Research Center before forming his private firm. In his opinion, the Sable impacted into the Dodge at a less direct angle than that surmised by Dr. Nelson, a position that was described as roughly at a 4:00 position, if the front of Minardi's vehicle was considered to be 12:00. The Sable would have been angled from the 4:00 position toward the 10:00 position (roughly the location of a driver), and the vector of force would have been in that direction, toward the front and left of the Dodge. With this angle of projection, according to Peterson, the right door and side would have been pushed into the passenger seat, and that seat, in turn, pushed into the left (driver's) seat, almost up to the steering wheel. At its greatest, the degree of penetration by the Sable was , in Peterson's opinion, more than 50 percent of the width of the Dodge Challenger.

Under this scenario, when the Sable penetrated the door of the Dodge, it would have pushed the passenger seat almost directly into the seat belt buckle located next to the driver's pelvis. The fact that the passenger seat was not in contact with Minardi's body after the crash is explained, he stated, by the phenomenon of "spring back" or "coefficient of restitution," in which a car or any metal object operates as a big spring, causing it to rebound in the opposite direction after impact. It will not return to its original position, but it will go back part of the way.

In Peterson's opinion, the severe damage to Minardi's pelvic area can only be accounted for by the application of tremendous force directly at that location, most likely force applied onto a body that was, at least at that moment, held in place by a seat restraint. The sacrum, he stated, is the strongest one in the body and it is for that reason that seat belts are meant to go across the pelvis, because it can "take" the force being presented to the occupant's body in a crash. Because of the nature of this crash, however, the fact that Mr. Minardi was buckled into the seat tragically increased the severity of the injury, because it made him a more stationary object. In Peterson's view, immediately after impact, Mr. Minardi's seat belt became unbuckled as a result of the almost direct blow from the passenger seat. He supported this view by his knowledge of the particular buckling mechanism used, one which had a propensity to open when struck from the side or rear. Peterson recounted tests that he had run on various seat belt buckles, like the one used in the Dodge Challenger, which showed that "a lip on the back of the buckle can cause some buckles, including this one, to unlatch just like you would have pushed the button with your finger" (Transcript - p. 1154). Peterson demonstrated this by striking the back of a seat belt buckle taken from a 1973 Dodge Challenger with a rubber-tipped hammer.

In addition to the buckle unlatching because of the nature and direction of the force applied to it, Peterson also found evidence in the photographs, particularly Exhibit G-16, that the anchor which held the seat belt in place was essentially destroyed by that same force. Its position in that photograph -- directly under the bottom of the driver's seat -- was not, Peterson testified, the position that it would normally have been in in the vehicle. Additional evidence that the seat restraint had been employed before the crash comes from the fact that, after the crash, the belt was not in the "stowed" position. Exhibit G-16, and other photographs, show the shoulder strap hanging down across other objects, and this Peterson said indicated that it had been out of its normal retracted position when the crash occurred.

The net result of the crash, in Peterson's view, was that Minardi's body, restrained from going toward the direction of the impact by the seat restraint, was pushed into the left when the passenger seat was forced into him, at which point the belt unlatched and the seat belt anchor was torn from the floor. This would account for the pelvic fracture, the left-side facial lacerations when he came into contact with the driver's side frame of the vehicle, as well as the blow to the upper left frontal area of his head, the location that Mr. Minardi's medical doctor, Dr. Boksenbaum, believed was the site of initial cranial impact. Following that impact, and no longer anchored in place by the seat restraint, Mr. Minardi's body would have then rebounded in the direction it came from, taking the top part of his torso over the right front seat. In Peterson's view, because of the nature of the crash, the direction from which the force of impact was delivered, and the fact that the seat belt had become unlatched and unanchored, the extent and nature of Mr. Minardi's injuries would have been much the same, whether or not he was wearing a belt. The trauma to the pelvic area might, in fact, have been less had he not been restrained.

On cross-examination, Peterson acknowledged that he had no training in medicine and did not employ anyone with a medical background in his company. He also acknowledged that the location and position of the shoulder strap could have been affected or interfered with by the rescue effort in which the roof of the car was peeled back by a "jaws of life" machine and, further, that the force of penetration of the Sable could have torn away the seat belt anchor, whether or not the driver had engaged the seat belt. Despite persistent questioning, however, Peterson kept to his opinion that the type of pelvic injuries suffered by Minardi were not consistent with impact against the vehicle's dashboard.

Russell Craig Lancaster, one of Mr. Minardi's co-workers at the Putnam County Department of Probation, testified that during the 27 years he had known Mr. Minardi, he had ridden with him at least 20 times, both for business and social purposes, and on occasion had been with him in the Dodge Challenger involved in this accident. Lancaster described Mr. Minardi as being "safety conscious," and someone whose regular use of a seat belt and other restraints stood out in his (Lancaster's) mind. Mr. Minardi's brother, Christopher Minardi, also testified that his brother always used a seat belt, both in his own car and when he was in his brother's car. He had driven with his brother many times, in both of the vehicles he owned, including the Dodge Challenger. Mr. Minardi's wife, Claimant Ziti Cesnavicius, also testified that her husband "always" wore a seat belt when driving.

The testimony of these three witnesses was elicited to establish that it was Frank Minardi's habit to use a seat belt whenever he was driving or riding in a vehicle. For testimony of a habit to be admissible, it must be based on a sufficient number of incidents to warrant the conclusion that the activity was consistently performed by the person in question, and it is most appropriate where the actions or practices involved are "deliberate and repetitive" in nature and the actor is in total control of the circumstances (
Halloran v Virginia Chems., 41 NY2d 386). I find that such testimony is appropriate here and, despite the obvious interest of the witnesses in the outcome of this case, I am persuaded that it was the common practice of Frank Minardi to make use of seat belts and other restraints while driving. Proof that certain behavior is habitual, of course, cannot prove that the behavior occurred in a given instance, but does "allow the inference of its persistence" (Glusaskas v John E. Hutchinson, III, M.D., P.C., 148 AD2d 203, 206, quoting Halloran v Virginia Chems., 41 NY2d 386, supra).
Even if there had been no testimony as to Mr. Minardi's habitual behavior in this respect, I would nevertheless conclude that the weight of the credible evidence supports a finding that he was wearing his seat belt and shoulder harness at the time of the accident. While both experts presented informative and knowledgeable descriptions of the accident and its effect on the positioning of Mr. Minardi's body, his most significant injuries -- the pelvic fractures and the blow to his head -- are very adequately explained by Claimant's expert and left rather unexplained by Dr. Nelson's reconstruction of events. With even a layperson's understanding of physiology, it is difficult to account for these specific -- and critical -- injuries in the course of events hypothesized by Dr. Nelson. I also find that Dr. Nelson's account underestimated the degree to which the Mercury Sable penetrated into the interior space of the Dodge Challenger, as shown in the various photographic exhibits. Accordingly, I find that Mr. Minardi was wearing a seat belt and shoulder restraint at the time of the accident and hold that there should be no reduction of the award.

MEDICAL AND OTHER EVIDENCE OF MR. MINARDI'S INJURIES

It is undisputed that Mr. Minardi almost died at the accident site; he was unconscious and his condition deteriorated during the several hours required to extract him from his vehicle. At the time of the accident Mr. Minardi was 39 years old. He had been married for three and one-half years to his wife, Zita Cesnavicius, and had a daughter, Tara, from his first marriage. Mr. Minardi held a Master's Degree in Probation and Parole and was employed as a Supervisor in the Putnam County Probation Department at the time of his accident. It appears that prior to the accident he was a very active person who worked diligently, interacted with family members and friends in a positive, enjoyable fashion, and took part in an active social life and numerous leisure activities.

Immediately following the accident, Mr. Minardi was hospitalized continually for over two years, for both medical treatment and rehabilitation. He did not open his eyes for the first five weeks and began to speak and interact to a limited degree only seven or eight months later, after a shunt was installed to relieve pressure on the brain. After he left the hospital and returned home, Mr. Minardi was hospitalized on at least seven other occasions for adjustment and revisions to the shunt. He has also been hospitalized in connection with seizure activity on seventeen separate occasions, although at present, the seizures appear to be controlled by medication. Hospital records contain numerous entries reporting that Mr. Minardi became agitated at certain procedures, failing to understand what was being done to him.

Although he suffered, as noted above, a "litany" of various injuries, including pelvic fractures, the most severe and lasting injury that he suffered was the head trauma, trauma that has caused both the seizures and cognitive dysfunction. Dr. Glenn Seliger, a neurologist, testified that Mr. Minardi suffered a severe, diffuse axonal injury, which resulted in hydrocephalus, hemiparesis and seizures. The insertion of shunts to drain fluid from the brain has permitted some cognitive improvement, and the seizures are now controlled to some degree by medication, but that medication blunts his already impaired cognitive abilities. He stated that Mr. Minardi is unable to engage in normal social intercourse and cannot initiate or carry out any meaningful activities, although some degree of improvement has occurred in these areas, and more slight improvement may be possible in the future. Mr. Minardi is totally dependent on others for all of his needs and a home care attendant is necessary at all times, but he does not need 24-hour nursing. In Dr. Seliger's opinion, it would also be possible for Mr. Minardi to participate in a day program, although it is unlikely that he would gain a great deal from the experience.

Dr. Eric Brown, who performed a neurological assessment of Mr. Minardi, concluded that as a result of the hydrocephalus, injury to the anterior portions of the frontal lobe, and subdural hematoma on the left side of the brain, Mr. Minardi suffers from global aphasia, or the inability to use or comprehend words, and exhibits perseveration, which causes him to continually repeat mental actions such as speech. His behavior is described as confused and inappropriate at almost all times, although he is able to appreciate things around him, recognize and appreciate his wife, and has some limited memory of his life before the accident. Prognosis is extremely poor, and Dr. Brown agreed that Mr. Minardi will require one-on-one care for the rest of his life.

Dr. Marc Tarle, a psychiatrist, diagnosed severe dementia, or a chronic deficit in cognitive functioning. Mr. Minardi's ability to remember the past and relate it to the present and his ability to learn new tasks is significantly impaired, and he suffers from speech impairment, interference with normal motor function, failure to recognize and identify common objects and activities, and an inability to perform even the most basic routines of daily living. The dementia is permanent and irreversible, and is attributed by Dr. Tarle to brain tissue damage caused by the hydrocephalus. In addition to the passivity and inability to function normally, Dr. Tarle also diagnosed chronic depression, although this condition can be controlled to some extent by medication and currently is in remission.

In addition to the catastrophic cognitive losses, Frank Minardi suffers from hemiparesis and is able to walk only short distances, even with the assistance provided by a leg brace, a four-prong cane, and someone supporting his waist and right arm. He has some ability to lift his right leg, but it must be picked up by others for him to get into and out of a car. He cannot propel himself in a wheelchair by use of his arms, although he can move it to some extent with his left foot and can operate a joy stick on the electric chair. He must have support when in a sitting position or he will fall backwards or sideways. In addition, he frequently experiences difficulty in eating and drinking because his swallowing reactions are no longer automatic. His wife or other caretakers must perform all daily functions for him and care for his bodily needs, including brushing his teeth and hair and bathing. Even though he may be physically able to do some of these things with his left hand, his brain injury has essentially deprived him of the ability to initiate and complete actions. He is incontinent and must wear a diaper at all times, although he is occasionally able to make use of a commode and a urinal which he is able to hold himself.

Mr. Minardi seems to enjoy some of his former activities, such as painting, music and reading, but is unable to remember a story or to pick out more than an occasional word in a newspaper or book. He has some ability to play simple games with family members or caretakers -- stacking blocks or hitting a balloon with a badminton racquet -- but must continually be prompted to remember what to do next. He seems to enjoy being talked to and watching others carry out various activities. He can converse with others at the level of pleasantries and consistently recognizes his wife and daughter and, to a lesser degree, others whom he sees frequently. Although he participates in trips to the theater or mall on occasion, he rarely goes out or attends social gatherings because his behavior is inappropriate and he becomes disoriented with too much change or activity.

Hospital records and the testimony of family members reveal that Mr. Minardi has periodic awareness of the extent to which his life has been altered and sometimes expresses grief or sadness about the trouble he has caused his wife and others. He clings to the security that his wife provides, but at times has said to her that he is "sorry" that he "can't do anything" or that he is the cause of her problems.

PAST MEDICAL, HOSPITALIZATION AND HOME CARE EXPENSES

Zita Cesnavicius provided a tabulation of medical and therapy expenditures covering the period from May 1998 to September 1999, and a breakdown of those expenditures into categories, along with copies of the individual checks, categorized to support the breakdown (Exhibits 13, 14, 60). The total of these expenditures, for nursing services when his wife was unable to attend to him, medical and dental treatment. therapy (occupational, physical and speech therapy), and medical supplies, was $195,845.35. She also submitted a tabulation, with supporting documentation, of payments made for unemployment tax and withholding tax paid on behalf of the nurse/attendants and therapists during the same period of time (Exhibits 61, 62). The total for these expenditures was $24,010.28. Defendant does not challenge the amounts claimed, but reserves its right to move to strike some of the records at the collateral source hearing (CPLR 4545) to be held in the future.

Past hospitalization expenses that were incurred at all but two of the facilities in which Mr. Minardi stayed totaled $642,264.80 (Exhibits 42A-49). Counsel was unable to obtain records of the specific charges incurred at Samaritan Hospital or from Helen Hayes Hospital.

Claimant is entitled to the sum of $862,120.43 for these medical, home care and hospitalization expenses.


Past Nursing and Health Care Services Provided by Claimant, Mr. Minardi's Wife:

A claim is also made for a sum representing the value of the specialized nursing and home health care services that Claimant provided to her husband during the time prior to trial that he has lived at home (approximately 9.3 years). These services include serving as his home care attendant, estimated to be $510,817.00 (from which the sum of $103,885.93 must be subtracted, as that sum was paid out to others and is included in the figures representing past medical services set out above) and those of a case manager, estimated to be $36,990.00. These estimates, which, with the appropriate subtraction, total $443,921.07, are based on the value of such services presented in Dr. Mattson's life-care plan discussed below.

Particularly with respect to the nursing/home care services provided by Claimant, no one could dispute that these go well beyond the usual "household"services that one spouse traditionally provides to another. Mr. Minardi is incapable, either because of physical inability or cognitive deficit, of carrying out even the simplest daily activity on his own without supervision. He cannot feed himself, brush his teeth, wash, get dressed, or move about the home without assistance and supervision; he is totally incontinent; and during most of the years in question he had frequent, severe seizures and other medical complications. I was particularly struck by the efforts Claimant has made to stimulate his mental and motor abilities by incorporating games and exercises throughout the day and getting him out of the home as much as possible, despite his socially inappropriate behavior. It is difficult to believe that any paid care worker would have provided the constant, caring, indeed loving assistance that Claimant has given her husband during these years, particularly during the early days after his release from the hospital and while his seizure activity was unchecked. In order to provide this level of care on a 24-hour and seven days a week basis, Claimant left her full-time professional employment and only in recent years has she begun to work again, arranging her duties so that she can work from the home. If she had chosen, or been able, to continue to work and paid out-of-pocket for nursing and home care services, the amounts paid out for such services would, without question, be an accepted part of the award. In fact, expenses that were paid for nursing and care services when she was required to hire someone to take over make up a portion of the amount previously awarded for past medical and related expenses.

Claimant asserts, without citing authority, that the award should include compensation for these services at the same rate that a paid attendant would have received. Defendant asserts, equally without authority, that there can be no such recovery. Neither party suggests that Mr. Minardi did not need these specialized services once he returned home from the hospital, and, indeed, the cost of such care is a significant component in the future life care plans proposed by both experts.

The law in this area is sparse, somewhat confusing, and, to be candid, troubling. It has recently been reiterated that "compensation will not be awarded for gratuitous services rendered [to an injured party] by relatives, friends and neighbors" (
Auer v State of New York _____ AD2d _____, 2001 WL 1551917). Cited as authority for this proposition are two Court of Appeals decisions, Schultz v Harrison Radiator Div. Gen. Motors Corp (90 NY2d 311) and Coyne v Campbell (11 NY2d 372). In Schultz, a construction worker testified that he had been unable to maintain his home after his injury and, instead, had relied on the assistance of relatives and friends. The Court of Appeals disapproved an award of $43,096 representing the value of that assistance, saying it was improperly made because he incurred no actual expenditures and because "[a] damages award reflecting the value of such services did not serve a compensatory function..." (90 NY2d at 320). The only authority cited for this proposition in the Schultz decision was Coyne v Campbell (supra). In that case, a physician who suffered whiplash injuries in an automobile accident was denied recovery for $2,235.00, the value of necessary medical and physical services that had been rendered to him "gratuitously as a professional courtesy" by his medical colleagues and his nurse.
The holding in
Coyne, in turn, was based squarely on an 1880 decision, Drinkwater v Dinsmore (80 NY 390). In that case, an injured worker continued to receive his wages while unable to perform his job, despite the fact that his employer had no legal obligation to pay such wages. The Court of Appeals held that the worker was prohibited from claiming compensation from the tortfeasor for an amount representing "lost wages." Drinkwater is a significant, frequently cited decision which has been credited with establishing the "wholly gratuitous" exception to the common law collateral source rule.
The collateral source doctrine in New York State, as in most jurisdictions, holds that as a general rule damages cannot be mitigated or reduced because of payments received by an injured party from a source wholly independent of and collateral to the wrongdoer.
***

New York State has long belonged to a minority of jurisdictions which create an exception to the collateral source rule for wholly gratuitous services and payments received by an injured plaintiff for which he gave no consideration and which he is not obligated to repay, absolutely or contingently.

(Rutzen v Monroe County Long Term Care Program, 104 Misc 2d 1000, 1001-1002, citing Drinkwater v Dinsmore, 80 NY 390, supra, and Coyne v Campbell, 11 NY2d 372, supra; see also, Silinsky v State-Wide Ins. Co., 30 AD2d 1.)
In keeping with the circumstances that gave rise to the
Drinkwater decision, the "wholly gratuitous" exception that case established has most often been considered, discussed and applied where the injured party received benefits from employers, insurance companies or other employment-related sources, such as pension, disability, insurance and unemployment compensation (see, e.g., Klein v United States, 339 F2d 512; Employers' Liability Assur. Corp. Ltd. v Daley, 271 App Div 662; Inchaustegui v 666 5th Ave. Ltd. Partnership, 268 AD2d 121, 128; Silinsky v State-Wide Ins. Co., supra; Teeter v Burhans, 28 AD2d 615; Anastasia v Barnes, 127 Misc 2d 971).[2]
In
Coyne v Campbell (11 NY2d 372, supra), the exception was, as noted above, applied to prevent a physician from recovering the value of medical services provided to him as a "professional courtesy" by his colleagues and his nurse. It is from this basis that the Court of Appeals in Schultz v Harrison Radiator Div. Gen. Motors Corp. (90 NY2d 311, supra) and, more recently, the Third Department, in dicta, in Auer v State of New York, _____ AD2d _____ [2001 WL 1551917], supra ) applied the "wholly gratuitous" exception to nursing, home care and other services provided by friends and relatives, apparently making no distinction between spouses and other less closely related relatives.
When such services are provided by parents, however, recovery is allowed. In
Auer, the actual issue before the court was whether the parents of a catastrophically injured young woman were entitled to compensation for "medical services which they provided gratuitously to their daughter." Expressly limiting the holding to the right of parents and distinguishing it from situations in which the services are provided by friends or other relatives, the court upheld the $150,000.00 award to the parents. Cited as authority for this ruling were Gorman v New York, Chicago and St. Louis R.R. Co. (128 App Div 414), a decision almost as old as Drinkwater, which recognized a father's right to recover both the value of his services in providing nursing care for his son, as well as the value of his wife's services when she performed similar work;[3] Barnes v Keene (132 NY 13), in which a theatrical manager who had previously worked as a nurse was held to be entitled to the value of nursing services that he provided to his daughter, although only at the rate that would have been paid to a nurse, not the higher level of pay representing income he lost while caring for her; and Merrill v Albany Med. Center Hosp. (126 AD2d 66, motion to dismiss appeal denied 70 NY2d 669, appeal dismissed 71 NY2d 990) and King v State of New York (56 AD2d 964), in which substantial awards to the mothers of catastrophically injured children were upheld virtually without discussion.
The rule allowing recovery where specialized services are provided by parents has been linked to their absolute obligation to provide support for their minor children (Family Court Act §413;
see also, Clough v Board of Educ. of Spencerport Cent. School Dist., 56 AD2d 233, 236 ["A parent's derivative action to recover such expenses is grounded upon the parental obligation of support."]). I note, however, that for some of the years in which the parents in Auer provided services, for which compensation was awarded, their daughter was over the age of 21. In any event, this rationale provides no basis for withholding an award when the services are provided by a spouse, because husbands (and now wives) are also legally obligated to support their spouses: "From the very beginnings of the common law the husband has been required to support and maintain his wife. This duty is based not on contract or statute but on status" (Rosenstiel v Rosenstiel, 20 AD2d 71, 77; see also, General Obligations Law §5-311 [except through legal separation or divorce, neither a husband nor a wife may be relieved of the obligation to support a spouse if it is likely that the spouse may become a public charge]).
Even if the legal obligation placed on spouses is not precisely the same as that placed on parents, the husband or wife of a catastrophically injured person is -- on a moral, emotional and practical level -- in much the same situation as the parent of a similarly situated minor child: if specialized care is needed and there are no funds to pay a third party (or if there is no third party who would provide the same degree of care, or if the parent or spouse simply elects to provide the care to their loved one personally), what alternatives are available to them? I find it difficult to accept that nursing and home health care provided by a husband or wife to their spouse is a totally voluntary, "gratuitous" gift of services, such that providing compensation for their services would constitute some kind of "double recovery." What they have given to their injured spouse is in a different category altogether from the professional courtesy voluntarily provided by one physician to another (
see, Coyne v Campbell, 11 NY2d 372, supra) or an employer's freely made decision to continue paying the salary of his injured worker despite the absence of a legal requirement that he do so (see, Drinkwater v Dinsmore, 80 NY 390, supra), or even assistance in home maintenance provided by friends to one who cannot perform such services for himself for a short period of time (see, Schultz v Harrison Radiator Div. Gen. Motors Corp., 90 NY2d 311, supra). Moreover, the services that Claimant and other spouses provide to their loved ones are certainly not intended to relieve the tortfeasor of any part of its liability, and should not be considered a benefit to Defendant, which would be the case if there is no award for the value of these services.
If Claimant had kept her full-time job and paid strangers to provide the constant one-on-one care that her husband required, there would be no dispute that the tortfeasor would be obligated to compensate for such costs. It strikes me that it is illogical, unfair and punitive in effect to have a rule of law that penalizes those who are unable to pay out of pocket for such services until a trial has been held and an award has been made and, moreover, a rule that inevitably encourages husbands and wives to leave their seriously ill spouses in order to work so that they can pay a third party to perform work that, in many cases, they can more appropriately, completely and comfortably provide themselves.

Other jurisdictions and decisions made under the Workers' Compensation Law do not treat with such a dismissive attitude the specialized nursing and home care services when provided by a spouse, or in some instances another close relative or friend. A 1997 annotation, based on a survey of decisions from across the country, contains the following statement:

Generally speaking, the collateral-source rule prevents a tortfeasor who has caused physical injury to a plaintiff from proving that the plaintiff's damages were mitigated by payments made by a third party. Many courts have extended this rule to include nursing or medical-care services gratuitously provided by a relative or friend. As a consequence, plaintiffs are permitted to recover the value of such services.

(Annotation, Valuing Damages in Personal Injury Actions Awarded for Gratuitously Rendered Nursing and Medical Care, 49 ALR5th 685.) The reasoning behind permitting such recovery was most clearly expressed in an earlier survey: [T]he] good fortune of the plaintiff in obtaining without cost services which ordinarily involve some expense, should not be turned to the advantage of the negligent tortfeasor who is responsible for the necessity of such services (Annotation, Damages for Personal Injury or Death as Including Value of Care and Nursing Gratuitously Rendered, 90 ALR2d 1323). In New York Workers' Compensation cases, it is readily acknowledged that an injured employee who is statutorily entitled to nursing and home attendant care may recover the value of such care "whether the services are performed by claimant's spouse or another" (Matter of Manning v Niagara Mohawk Power Corp., 198 AD2d 561, 562; Matter of Haney v Schiavone Const., 195 AD2d 628 [under Workers' Compensation Law §13(a) "it is clear that home care or nursing services provided by a claimant's spouse are reimbursable"]).
It goes without saying that by holding that the award in this action can include an amount representing the value of such services, I am not following the literal language of
Schultz v Harrison Radiator Div. Gen. Motors Corp. (90 NY2d 311, supra) and Auer v State of New York (____ AD2d _____; WL 1551917, supra) and am in fact creating an exception for spouses not heretofore supported by the general reference in those decisions to "friends and relatives." However, just as in Barnes v Keene (132 NY 13, supra), and the cases which follow it, have held that the references to friends and relatives should not include parents of a catastrophically injured party, it is my view that for similar reasons it should not include the spouses of such persons. The rule excluding recovery for "wholly gratuitous services and payments," posited by Drinkwater v Dinsmore (80 NY 390, supra) was premised on the principle that a party should be compensated only for damages and expenses he or she actually incurred. When, however, the injured party receives services that would otherwise have been paid for out of pocket, rather than money to which he had no entitlement, as was the case in Drinkwater, there is no danger of such "double recovery." In addition, the holding in Barnes (supra), has established that compensation for volunteered services must be based on the actual cost of such services, not a higher amount representing the parents' lost wages, so there is no unjustifiable increase in an award based on factors other than actual damage suffered. In the case at bar, services that Claimant provided to her husband have not been paid for from some other source, and the amount of the award reflects the reasonable value of those services, not the income she lost when she elected to provide them. Thus, I perceive no undue benefit to Claimant and no injustice to Defendant in requiring that compensation be paid for the fair value of these legitimate and necessary services.
Finally, it could be argued -- and in one case has been argued -- that compensation for any such services should not be made to the injured party, but only to the parent or spouse who provided the services by way of a derivative claim. As noted above (see Footnote 2), such a restriction was implied in the holding of
Radcliffe v Hofstra Univ. (200 AD2d 562, supra), and the parents' award in Auer (supra), was in fact made in the context of a derivative award brought by the parents. I am not aware, however, of any requirement that there be a separate action by the spouse and decline to establish such a requirement. The type of compensation under discussion here is not properly part of a spouse's derivative action, which is intended to provide compensation for that person's loss of support, the ordinary household services that would have been performed by the injured party, and "love, companionship, affection, society, sexual relations, solace and more" (Millington v Southeastern Elevator Co., 22 NY2d 498, 502; Briggs v Butterfield Mem. Hosp., 104 AD2d 626).
In contrast, a tortfeasor's obligation to pay for home care and other necessary services made necessary by the wrongful act is an obligation owed directly to the injured party. On a practical level, requiring the noninjured spouse to bring a separate action in instances where that person is also the injured party's guardian or conservator would add unnecessary complexity and could well lead to a conflict of interest, particularly if there is a chance that the claim can be settled.[4]
I also note that, to the extent that the right to recovery is tied to the obligation of support, a marriage may be annulled as a result of prolonged mental illness (Domestic Relations Law §7[5]) without removing or reducing the obligation of the nonincapacitated former spouse to provide lifetime financial support for the incompetent (Domestic Relations Law §141). Whether or not such an annulment has occurred prior to the time of trial should not govern either the right of the injured party to recover this legitimate element of damage or the amount of such recovery.
In summary, I hold that the award of damages in a personal injury action may properly include an amount representing the fair value of nursing and home care services previously provided by the injured party's spouse and, further, that such an award may be made directly to the injured party. I further find that in this case a reasonable value for such services is $406,931.07. For reasons discussed at greater length below, however, I do not make an award for the value of case manager services that Claimant provided during this time period.

FUTURE MEDICAL AND LIFE CARE EXPENSES

Claimant's Plan for Future Medical and Life Care:
A life care plan for Frank Minardi was presented by Dr. Jane Mattson, a life care planner and occupational therapist (Exhibit 28). This plan is based on the assumption that Frank Minardi's life expectancy is 72 years, which would be 33 years after the accident and 23 years after the trial on damages.

Recognizing that his injuries have left him severely disabled, but also that he is not bedridden or sick, she proposed three alternative programs: (1) having a live-in aide, who would be trained by Claimant and Minardi's health care providers; (2) having an attendant, similarly trained, in the home for ten hours a day; and (3) placement in a long-term care facility for brain injured patients. The estimated cost of the first two alternatives, expressed in terms of present dollars, would not differ greatly -- $2,441,002.00 and $2,394,802.00, respectively -- although the demands placed on Claimant and the intrusion into the family's privacy would vary significantly. Placement in a long-term care facility would be more expensive, costing approximately $3,392,697.00, and, according to Dr. Mattson, would not be in Mr. Minardi's best interest as long as his wife is able to be with him and provide some of the care for him. It is possible, however, that such a placement could become necessary in the future.

Either of the plans that would permit Mr. Minardi to remain at home would carry some attendant nonrecurring costs, the principal one of which would be the purchase and modification of a home. The home that Mr. Minardi and his wife had purchased not long before the accident was sold and, according to Claimant, the proceeds of that sale were used to pay for medical costs and home care. Once Mr. Minardi was released from his last full-time hospitalization, they initially stayed with Claimant's parents but soon moved to the home of Claimant's brother, where they continue to live. Dr. Mattson estimated that their need for a suitable home of their own could be fulfilled by a modest ranch style home located in Westchester County, where Claimant works, with necessary physical modifications. Another nonrecurring cost that is incorporated into this life care plan would be a short, intensive stay at a rehabilitation hospital. Recommended is a 12-day stay at the Moss Rehabilitation Hospital in Philadelphia, where efforts would be directed toward enhancing in any way possible Mr. Minardi's abilities and developing procedures and techniques to improve the quality of his day-to-day life. Dr. Mattson's projection for all one-time costs totals $354,900.00.

Into the category of recurring costs would fall the cost of a home care attendant; case management services; diapers and other supplies; medications and medical care; therapeutic intervention; wheelchairs and mobility equipment, a wheelchair van (offset by the cost of the vehicle that Mr. Minardi would have driven if uninjured); other durable equipment; and periodic medical testing. Medical care costs include maintenance of Mr. Minardi's shunt and periodic revision of the shunt; monitoring his seizure control and other medications; periodic psychiatric review; and biannual short-term hospitalizations that can be anticipated either because of problems with the shunt or renewed seizure activity. No amount was included for future surgical interventions, because there is no established likelihood that specific procedures will be needed or helpful. Therapeutic intervention -- physical, occupational and speech therapy -- would require an initial, more expensive investment to set up the programs, followed by less costly annual implementation. A neuropsychological evaluation would be provided every three years under this plan.

Dr. Mattson's plan also includes sums for an electric wheelchair and, because of the special requirements of such a chair, a van equipped to be accessible by someone in such a chair. It is anticipated that the van would be replaced every eight years. Other durable equipment needs would include such items as canes, cushions, specialized toilets, shower equipment, and exercise mats, all of which would be replaced on occasion.

Mr. Minardi's attendant, whether live-in or daytime, would not have to have specialized nursing training, but would need to be able to adequately care for all the physical and stimulation/interaction needs of an individual who can do little for himself and lacks initiative to do even those tasks that he has the physical ability to perform. The attendant would also have to be prepared, and capable, to deal with seizures if they should occur.

As to the actual cost of Claimant's future life care plans, Dr. Thomas Kershner, Claimant's economic expert, testified as to the methods he used to calculate the cost of Dr. Mattson's projected future medical and life care costs into future dollars (Exhibit 41). In calculating the costs of recurring expenses, Dr. Kershner applied differing inflation adjustments for the various categories of expenses. Except for medical related costs, the inflation rate used was 4.87 percent; medical costs were increased by rates ranging from 6.24 percent for medications to 7.29 percent for the anticipated biannual hospitalization. Using these projections, Dr. Kershner arrived at the following amounts, representing the three different scenarios outlined by Mr. Mattson:

1. $3,697,732.00 - Live-in Attendant

2. $3,658,804.00 - 10-Hour Attendant

3. $6,218,856.00 - Long-Term Care Facility



Defendant's Plan for Future Medical and Life Care:
Defendant's life care plan was presented by Joseph Pessalano, a certified rehabilitation counselor, case manager, and disabilities management specialist. His report (Exhibit B) focused on a program of at-home care, somewhat similar to Dr. Mattson's second scenario, with the following differences. A home attendant would be hired for an eight-hour shift, rather than ten hours, and Mr. Minardi would also participate in a day program for up to six hours each day. Participation in the day program would meet any needs for physical, occupational or speech therapy, as therapies of this sort are not intended to continue forever at an intensive level once optimal results have been achieved. Although an allowance is included for certain items of medical care, such as consultation with a psychiatrist and urologist, under this plan, most of Mr. Minardi's medical needs would be met by purchasing HMO coverage for approximately $3,000.00 per year. Pessalano saw no need for an electric wheelchair, as he found there was no indication that Mr. Minardi could operate the controls, and no van would be needed if only a mechanical wheelchair is used. There is also no need, in his opinion, for a case manager, because except in unusual situations, such service is provided, at no cost, by the patient's medical doctor and family; nor is there a need for continued psychological or psychiatric counseling. The plan put together by Pessalano provided for home renovations costing $10,000.00 to $20,000.00, but he argued against including the purchase of new home as compensation, because Claimant and her husband would have had to have housing in any event, paid for out of their salaries.

In present dollar terms, Pessalano estimated that his at-home option would cost $52,380.00 annually, plus the one-time cost of $10,000.00 to $20,000.00 for renovations. This would translate into a total of $1,204,740.00 over Mr. Minardi's 23-year life expectancy, in contract to the sum of $2,294,804.00 projected for Dr. Mattson's scenario of at-home care with a part-time attendant. If it were determined that institutional care was necessary, Pessalano projects that that alternative would cost $65,000.00 to $75,650.00 per year ) or $1,495,000.00 to $1,739,950.00 over the next 23 years, as compared to Dr. Mattson's projection of $3,392,697.00 if the long-term care facility option was chosen. Although Defendant did not provide an economist to translate these present dollar figures into future dollars, it is understood that such a calculation would have to be made.


Assessment of Life Care Plans and Conclusions:
An award of damages will not be upheld "if it deviates materially from what would be reasonable compensation" for a particular injury (CPLR 5501[c]). When the standard of "reasonableness" is applied to awards for future medical and life care costs, I consider it to be unreasonable either to require that the injured party scrape by with the least that can be done for him to keep body and soul alive or, on the other hand, to require the wrongdoer to pay for the best, most luxurious treatment and care available, regardless of the cost. Medical treatment should be appropriate to the physical and mental condition of the patient, and a plan for life care should result in circumstances that are "liveable" for the individual in question, being neither unduly spartan nor extravagantly luxurious. Of the two medical and life care plans presented in this trial, it appears to me that the Defendant's could easily result in a quality of life that is less than "liveable" in view of Mr. Minardi's need, while Claimant's scenarios include, although to a lesser degree, some features that would be essentially meaningless to him, "extras" that increase the dollar amount but would not significantly affect the patient's well-being.

The plan proposed by Defendant leaves far too much to chance and would, I believe, result in hardship and discomfort beyond that which is inevitable in light of Mr. Minardi's physical and emotional condition. There was no proof presented that daycare programs exist which would be either helpful and enjoyable to someone in his condition, nor am I convinced that HMO coverage could be obtained for someone already so gravely injured for the sums indicated or that it would provide the specialized level of care Mr. Minardi will need for the rest of his life. Furthermore, there was evidence that Mr. Minardi is capable of operating the joystick controls of an electric wheelchair to some degree, and even if that were not the case, it is highly likely that he would enjoy a more mobile life if his wife or other attendants had a power assisted chair in which to move him and did not have to help to lift him in and out of a car whenever he left the house. Even if and when a mechanical wheelchair is used, an accessible van would significantly increase his ability to travel and ease of travel. An electric wheelchair and a wheelchair accessible van, therefore, are items that are likely to make a very meaningful difference in his daily life, a difference that fully justifies their cost.

There is some logic to Defendant's argument that Claimant and her husband would, in the normal course, have paid for their home out of their own salaries, and in theory they will receive the cost of their original home when past medical expenses are reimbursed. Now, however, the type of home they will need may well be more costly than what they would have had under other circumstances. In any event, it strains credulity to believe that any home could be made physically suitable for someone with Mr. Minardi's limitations with only a $10,000.00 to $20,000.00 investment.

Overall, Claimant's proposed life care plan appears to be more realistically tailored to the actual needs and limitations of Mr. Minardi's condition, although some of the features of this plan would be of questionable value. For example, there was no testimony from which I can conclude that he will need the consistently high level of therapeutic or psychiatric intervention proposed because, from all the medical testimony, it appears that his mental and physical abilities and psychological state have fairly well stabilized and that there will not be a great deal of difference, or improvement, in the future. I recognize, however, that there will always be a need to keep him as physically and mentally active as possible. For this reason, now that his condition does appear to have stabilized, a short-term intensive stay at a rehabilitation hospital, where his remaining abilities could be maximized and methods of care and stimulation tailored to those abilities, might well be a reasonable and rewarding investment. In light of Mr. Minardi's stabilized condition, the absence of any acute medical threat, and Claimant's proven, and extremely admirable, ability to coordinate and care for her husband's needs, I question whether there is any value on paying for a separate case manager in this situation, in the past or in the future. Further, as noted above, there is some legitimacy to Defendant's argument that, had there been no accident and resultant injury, Mr. Minardi and his wife would have provided their own housing, although there would have been many less expensive options available to them than there are in present circumstances.

One aspect of both proposals that concerns me is that neither contemplates what could be a very likely scenario: that Mr. Minardi will be able to, and should, live at home for a number of years but that at some, hopefully distant, point in the future, he will have to go to a full-time care facility. That could happen because his condition worsens or because of health problems or injury to his wife, who plays such a critical role in providing a stable, appropriate home for him. Both of the life care experts conclude that that option is significantly more expensive than any of the at home alternatives.

Consequently, while there are deductions that could legitimately be made from Claimant's proposed plan involving a daytime, as opposed to live-in, health care attendant, I conclude that some additional amount, not incorporated into that plan, is also warranted, to reflect the real possibility that in later years Mr. Minardi may not be able to remain in his home. Accordingly, and understanding that there can be no scientifically accurate prediction of future needs in a case like this, I conclude that, on the present evidence, the amount of $3,650,000.00 is a reasonable approximation of the amount needed to adequately and suitably care for Mr. Minardi's future life care needs. With this amount, Claimant, as her husband's conservator, would be able to implement the life care plan proposed by Dr. Mattson in its entirety or, perhaps more prudently, eliminate some of the nonessential "extras" from that plan in anticipation that more expensive residential care will be necessary at some future date.

PAIN AND SUFFERING

There can be no dispute that, during any period in which he was conscious, the actual pain experienced by Mr. Minardi during the accident, during the years of hospitalization, during insertions and adjustments to his shunt, and during or immediately after his frequent, serious seizures, was both extreme and very real. Because of his cognitive deficits, he has also experienced fear and agitation in situations that might have been more bearable if he were able to fully understand the purpose of, for example, certain medical procedures or even the simple requirements of daily hygiene. On the other hand, his altered cognitive functioning may soften to some extent his continuing conscious pain and suffering and his awareness of what he has lost in terms of enjoyment of life. It is extremely difficult to assess, must less quantify, the effect this may have.

Even in much more straightforward cases, pain and suffering is inherently impossible to quantify precisely, and it is necessary to look to comparable cases to determine if an award deviates materially from what would be considered reasonable compensation (
Karney v Arnot-Ogden Mem. Hosp., 251 AD2d 780, 782). A review of other catastrophic injury cases leads me to the conclusion that Frank Minardi is entitled to the sum of $2,000,000.00 for past pain and suffering and $2,500,000.00 for future pain and suffering (see, Santiago v New York City Health & Hospitals Corp., 278 AD2d 220 [injuries requiring home health care for 55 years; award reduced to $1,250,000.00 for past pain and suffering and $3,500,000.00 for future]; Andree v Winthrop University Hosp., 277 AD2d 265 [injuries requiring custodial care for unknown duration; award of $1,000,000.00 for past pain and suffering and $1,160,900.00 for future upheld]; Brown v City of New York, 275 AD2d 726 [award to a young man who "suffered injures which rendered him a pentaplegic" - reduced to $1,000,000.00 past pain and suffering, $3,000,000.00 future]; Martin v City of New York, 275 AD2d 351 [injuries requiring home health attendant service of unknown duration; award reduced to $1,000,000.00 past pain and suffering, $750,000.00 for future]; Cabrera v New York City Health and Hospitals Corp., 272 AD2d 495 [infant caused to suffer bilateral hypoxic encephalopathy, spastic quadriplegia, cortical blindness, and mental retardation - award of $200,000.00 for past pain and suffering, $950,260.00 for future upheld]; Weldon v Beal, 272 AD2d 321 [permanent brain damage resulting in a vegetative but aware state - award of 2,000,000.00 for past pain and suffering, $3,000,000.00 for future upheld]; Royal v Booth Mem. Med. Center, 270 AD2d 242 [injuries to infant requiring custodial care - award reduced to $750,000.00 for past pain and suffering, $1,500,000.00 for future]; Jones v New York City Health and Hospitals Corp., 267 AD2d 281 [loss of sight and hearing - award of $2,000,000.00 for past pain and suffering, $1,080,000.00 for future upheld]).
ECONOMIC LOSS

At the time of the accident, Frank Minardi was employed as a supervisor in the Putnam County Probation Department where he had been employed for twelve years. During that time, he earned a Master of Science degree from Fordham University, with a concentration in probation and parole. His salary at the time of the accident was $37,094.00, and he was scheduled for a 5.2 percent raise in January 1988, which would have raised it to $39,135.00. He was a Tier 3 employee for pension benefit purposes and could have retired in 2010 at age 62.

In calculating Mr. Minardi's projected lost earnings on the assumption that he would have remained in a supervisory position, Claimant's economist, Thomas Kershner, assumed that Mr. Minardi would have continued working until he reached 62 years of age and factored in a 3.5% annual increase in salary. He also included an amount to reflect the low end of the average annual overtime put in by Supervisors of the Putnam County Probation Department (100 hours). Based on these calculations, he arrived at the sum of $642,702.00 representing past lost income and $898,713.00 representing future lost income. To these figures a deduction was made for the 3 percent employee pension contribution that Mr. Minardi would have made ($46,000.00), and additions were made of sums representing lost pension benefits (reduced by the amount currently being received as disability payments, $268,621.00) and fringe benefits calculated to be 14.41 percent of salary ($222,272.00). Apportioning these deductions and additions between past and future losses, the total lost earnings calculated by Dr. Kershner under this scenario are as follows: past lost wage related income in the amount of $828,203.00, and future lost wage related income in the amount of $1,158,105.00, for a total economic loss of $1,986,306.00.

A parallel computation was done based on the assumption that Frank Minardi would have been promoted to Director of the probation Department when that position became vacant in 1989. The current Director of Probation, Donald J. DeVita, and Mr. Minardi's co-worker, Russell Craig Lancaster, both testified that had he been able to assume the post, Mr. Minardi would undoubtedly have been promoted to the position of Director at that time. If this assumption were to be accepted, the comparative figures would be past lost wage related income in the amount of $866,137.00, and future lost wage related income in the amount of $1,215,133.00, for a total economic loss of $2,081,270.00.

The central dispute with respect to economic loss is whether there is legal justification for concluding that Mr. Minardi would have been promoted to Director of the Probation Department. The position of Director is a political appointment, filled by the County Executive and confirmed by the County Legislature (Transcript - p. 258, pp. 274-275); it is not a position to which an individual is automatically promoted after a certain number of years of satisfactory performance or according to any other fixed criteria. The amount awarded in compensation for economic loss "must be ascertainable with a reasonable degree of certainty and may not be based on conjecture" (
Long Is. Airports Limousine Serv. Corp. v Northwest Airlines, 124 AD2d 711, 713). While it may be very true that, based on his previous work, Mr. Minardi was well qualified to be a Director and even that he would have been given serious consideration when that post became available, predicting who will receive a fairly high-level appointive position in state or local government, particularly when the appointment is made through the political process, can only be conjecture.
As to the specific items, Defendant's contention that the income figures erroneously included a sum representing "private practice" income, based on an undertaking that Mr. Minardi was contemplating at the time of his accident, is incorrect. No such sum was included. I find that the inclusion of 100 hours of overtime income was warranted, because there was evidence of the average number of hours of overtime worked by Probation Department supervisors and, in addition, there was credible evidence that Mr. Minardi was a competent and above-average worker in that department. (Whether the same assumption would be valid if he held the position of Director is uncertain, as there was no testimony or other evidence about the amount of overtime worked by people in that position or, in fact, whether the position was entitled to overtime. Contrary to a point raised by Defendant. Dr. Kershner's calculations accurately account for the 3 percent contribution that would have been made toward pension benefits, but it is true that those calculations improperly exclude the 7.65 percent annual contribution that would have been made toward Social Security and Medicare. If, in calculating lost fringe benefits, an amount is added to represent the employer's contributions to Social Security and Medicare that would have been made if Mr. Minardi had continued to work are included -- as they are here -- then there must be a corresponding deduction for the contributions that the employee would have made. Dr. Kershner explained his decision to ignore such contributions, stating that because he was no longer working, Mr. Minardi was no longer participating in those programs (Transcript - p. 611). The goal of compensation for economic loss, however, is to arrive at a figure that would represent the employee's earnings if he
had continued to work. Thus, for the same reason that it is proper to include as an item of loss the amounts that his employer would have made into Social Security and Medicaid, even though those contributions are no longer made, it is equally appropriate to include as an offset the amounts that Mr. Minardi would have paid into those programs, even though he also no longer makes such contributions.
The award for economic loss, therefore, will reflect the calculations based on the assumption that Mr. Minardi would have retained his position as Supervisor, but an additional 7.65 percent will be deducted from the base salary amounts to reflect the contributions that he would have made to Social Security and Medicare. Accordingly, I award for past economic loss the sum of $779,026.00, and for future economic loss the sum of $1,089,354.00, for a total lost earnings award of $1,868,380.00.

SUMMARY

For the reasons set forth above, I make the following award:

Past Medical, Hospitalization and Attendants $ 862,120.43
Past Home Care Services by Claimant $ 406,931.07
Past Pain and Suffering $ 2,000,000.00
Past Economic Loss $ 779,026.00
Total Award for Past Losses $ 4,048,077.50


Future Medical and Life Care Services $ 3,650,000.00
Future Pain and Suffering $ 2,500,000.00
Future Economic Loss $ 1,089,354.00
Total Award for Future Losses $ 7,239,354.00
TOTAL AWARD[5] $ 11,287,431.50
Since the amount of future damages exceeds $250,000.00, a structured judgment is required (
see, CPLR 5041[e]). I direct that judgment be held in abeyance pending a hearing pursuant to CPLR article 50-B. The Court encourages the parties to agree upon an attorney's fee calculation and the discount rate to be applied to formulate a structured settlement of their own (see, CPLR 5041[f]). In the event that the parties cannot reach such an agreement, each party will submit a proposed judgment in writing conforming to the requirements of CPLR article 50-B within 45 days of the 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.
All motions made at trial and not heretofore ruled upon are now denied.


February 14, 2002
Rochester, New York

HON. PHILIP J. PATTI
Judge of the Court of Claims




  1. [1]Officer McLain was not allowed to testify as an expert about his opinion of the effect a seat belt would have had if it had been utilized. No CPLR 3101(d) disclosure had been proffered with respect to the officer, and at the time he made his observations at the scene of the accident, he had been a State Police officer investigating such accidents for only one year.
  2. [2]Only rarely has Drinkwater been cited where the benefits provided to the injured party came from a family member. In Clarke v Eighth Ave. R.R. Co. (238 NY 246, 253), the decision was referenced to preclude a clear instance of double recovery where the amounts that a father had paid for pretrial medical expenses for his son were included both in the award made to the son and later claimed again in a separate action commenced by the father. More recently, in Radcliffe v Hofstra Univ. (200 AD2d 562, 563), the Second Department relied upon Drinkwater to prohibit a college student from recovering amounts paid by his parents to cover pretrial medical expenses, observing that "[a]lthough the parents could have brought an action to recover for the expenses so incurred, they did not do so."
  3. [3]In a statement that certainly predates the women's liberation movement, the court explained the latter holding in this fashion "[A] husband is still entitled to the services of his wife in his household, and, in the absence of any different agreement or understanding, is entitled to recover for her services rendered to a third party outside of and beyond the household duties. He is entitled to recover the value of his own services necessarily rendered in the care of his injured infant child from the party negligently causing the injury. There would seem to be equal reason in support of [the husband's] right to recover for like services of his wife; he being personally entitled to such services to the same extent as he is to his own."
  4. [4]If, for example, the defendant offers a flat amount to settle both the main and derivative claims, reaching an equitable division of the proceeds would be, at best, awkward for a spouse who is both the guardian or executor prosecuting the main claim and the claimant on the derivative action.
  5. [5]The Court sua sponte amends the amount claimed to conform to the proof.