CONIKER v. THE STATE OF NEW YORK, #2002-030-085, Claim No. 86901
Claimant, rendered a quadriplegic at the age of 23 in a car accident for which
State 100% liable, granted total damages in the amount of $12,570,856.61,
including past and future lost earnings, past and future pain and suffering, and
future medical and other expenses.
MICHELLE L. CONIKER
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
THOMAS H. SCUCCIMARRA
FUCHSBERG & FUCHSBERGBY: BRUCE H. GOLDSTONE, ESQ.
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERALBY: JOHN HEALEY, ASSISTANT ATTORNEY GENERAL
December 23, 2002
See also (multicaptioned
By Decision filed December 15, 2000, Judge Andrew P. O'Rourke found the
Defendant to be 100% liable for the two-car accident of August 11, 1992 which
resulted in Michelle Coniker's quadriplegia. The Court found that the road
surface traveled by Claimant contained dangerous ruts which, when filled with
rainwater, were prone to and did result in drivers losing control of their
cars, and that this known, dangerous condition was the cause of the collision
between Claimant's Geo Metro automobile, and another driver's Mercury Grand
Marquis. This Decision deals only with the issue of damages. A trial of the
matter commenced on February 19, 2002, and continued on February 20, 21, 22, 25,
26, 27, 28, March 1, 25, 26, 27 and concluded on April 1, 2002.
The claim in this action, filed on March 4, 1993, contained a demand for
$63,817,565.27, including past and future medical expenses, custodial care, lost
income, past and future pain and suffering, including loss of enjoyment of
The evidence adduced at trial established that Claimant, who was born on April
18, 1969, was 23 years old on the date of the accident. She testified that at
the time of the accident she was grossing between $320.00 and $350.00 per week
as a sales merchandiser, and had hopes of promotion to sales representative.
Such a position, she claimed, would double her earnings and include some fringe
benefits. Her work at the time of the accident had involved driving to various
grocery stores and convenience stores and checking for the display of the
product on their shelves. A high school graduate, Claimant indicated she had
taken various types of courses after high school, including courses in bar and
restaurant management, typing, and courses toward becoming a manicurist and a
dental assistant, but had chosen her present job because of the potential for a
future with the company.
She had moved out of her parents' home at the age of 18 and described herself
and "outgoing" with many
friends. [T-20]. She regularly attended parties with her friends and played
many sports, including softball, basketball, soccer and bowling. She had been
"talking about marriage" with a boyfriend she'd dated for three years. [T-21].
Her last memory before the accident, was being in the parking lot of a
restaurant. Her luncheon companion on that date, Renee DeStefano, testified
that she observed Claimant walk to her car and put her seat belt on. She
indicated that Claimant always wore her seat belt.
Claimant testified that her memory was restored approximately 5 weeks after her
accident. She recalled she was lying down in Westchester Medical Center, unable
to speak, and in pain all over, while people hovered over her, some of them
crying. She said she was being medicated with morphine during that period, and
had what she called "morphine dreams" throughout. [T-5-6]. A 35-pound "halo" was
screwed directly into her skull, with bolts in her temple and on the sides. It
is a device with a ring around the head, and four pins directed into the skull.
Four, upright pieces are attached to the ring and to a vest worn at her chest.
Despite the morphine, she could feel the pain of the procedure, designed to
stabilize her neck.
After her stay at Westchester Medical Center, she went to Swedish Medical
Center [hereafter Swedish] in Englewood, Colorado for a two-week period. She
recalled being still on morphine, and receiving Demerol for pain. From Swedish,
she was moved to Craig Hospital [hereafter Craig], the rehabilitation wing of
the medical center she continues to visit annually.
The nature and extent of Michelle's injuries are largely not in dispute. Her
cervical injury is described as at the C-6, C-7 levels, and renders her
quadriplegic, with no sensation from her upper chest through her lower
extremities, except for pain. There is a second spinal injury to her thoracic
spine at the T-7, T-8 level, that would have rendered her paraplegic if she had
not sustained the higher cervical injury. She has lost all bladder and bowel
function, and has a supra-pubic catheter inserted directly into her belly from
the outside to drain her bladder. The catheter is attached to a bag that must be
emptied several times daily. Her bowel function must be digitally stimulated by
another person. She cannot use her hands, but can use her shoulders and arms to
a limited extent.
DR. SHIH-FONG HSU, a medical doctor employed by Craig, testified concerning
Claimant's initial treatment at Swedish, as well as her initial and continued
rehabilitative treatment at Craig. After acute medical intervention at local New
York hospitals, including Cornwall Hospital [See, Claimant's Exhibit
"36"] and Westchester Medical Center [See, Claimant's Exhibit "33"],
Claimant was admitted to Swedish on September 8, 1992, and stayed there until
September 21, 1992, when she was moved to the Craig portion of the
The medical and surgical procedures Claimant underwent are legion. [See,
generally, Claimant's Exhibit "32"]. Initially dependent on a ventilator to
breathe, caused by paralysis in her intercostal muscle, Claimant was eventually
"weaned" off of it because her diaphragm was normal. [T-615]. Because of the
injury to the spinal cord at the C-6, C-7 levels, there were and are
interruptions of the nerve impulse transmission to the brain. Thus, Claimant
cannot perceive that someone is touching her, cannot sense a full bladder, or
initiate the contraction necessary to empty her bladder; and she does not have
normal sexual sensation.
At Westchester her neck had to be immediately stabilized, which involved
putting her in the "halo vest" she had described. Physicians in Colorado
determined that her neck was not stable enough with the vest, and that there was
disc protrusion between the C-6 and C-7 area, causing Claimant considerable pain
and requiring surgical intervention in October, 1992. The surgery - which
involved placement of a bone plug and titanium plate - got Claimant out of the
vest, reduced the pain from the disc compression, and stabilized Claimant's neck
further, but there were scars left from the bone graft required at the hip. The
whole process of effectively soldering the vertebra "takes about three months."
Claimant was at Craig from September 21, 1992 until January 12, 1993. During
that time, she started off with feeding tubes into her stomach for nutrition -
and for decompression of her abdomen - that were eventually removed. At some
point, a colostomy had been performed. The tracheostomy tube for breathing was
eventually removed. A traction instrument to reduce fractures and dislocation -
used initially to open the area between C-6 and C-7 and also to attempt
realignment - was used for a period. A metal device that goes over the head,
the traction instrument involved placing a pin on the right and left sides of
her temple, with Claimant lying supine, "facing the sky." [T-643]. The
neurosurgeon determines how much weight is actually applied to pull the two
vertebra apart in this painful procedure.
During her four month stay in Colorado, she was also treated for skin sores at
the base of her head by a plastic surgeon.
After medical stabilization, the primary focus was rehabilitation. Claimant was
introduced to equipment she would require, including wheelchairs, cushions,
bathroom equipment; as well as given education concerning routine care including
a bowel program every other day in which the Claimant must be digitally
stimulated by another person in order for the bowel to evacuate, and the care of
the bladder. Proper bladder care monitoring would hopefully avoid the danger to
Claimant of a condition known as autonomic hyperreflexia - causing headache,
high blood pressure, and potential for a stroke - should the urine bag not be
timely emptied, something she is incapable of doing herself.
Claimant's annual visits to Craig have also involved additional surgery,
including removal of a spinal cord cyst in 1996; and the 1996 removal of the
titanium plate that had been surgically implanted the first year because it had
fractured, and doctors opined that her neck was now stable. She suffers from
spasms in her legs and feet, and because these involuntary movements cause parts
of her body to strike at hard objects - such as the base of her wheelchair - her
skin becomes bruised and she can suffer from skin sores easily. This has
happened to the back of both of her feet in the heel area.
At the time of trial, Dr. Hsu had last seen Claimant in September, 2001, on the
occasion of her last annual reevaluation. The conference notes for that visit
indicate that Claimant was warned that she was at increased risk for bladder
cancer because she smoked; was advised to lose weight to reduce pain in her
shoulders and upper extremities; and some adjustments on her medication were
made. [Claimant's Exhibit "32", pp 12-20]. The doctor notes that she is
"independent in communication, light meal preparation, feeding and grooming
after setup. She requires assistance for upper extremity dressing and bathing.
She is dependent for shaving, housekeeping, bowel and bladder management, and
leg bag drainage....She has attendant care for about 12 hours .... The patient
is independent in wheelchair mobility....[and] can be up in her wheelchair all
day by using a power hand-drive wheelchair, and she moves frequently for weight
shifts. She has a spinal C-curve but laterals limited her mobility. The
patient has a Dodge Grand Caravan modified for passenger usage. The patient
does not drive." [Id, at p 13].
Dr. Hsu indicated that Claimant has some shoulder movement and some upper arm
and forearm movement. She can stretch out her elbow slightly, and extend it out
to a degree, and can extend her wrists, but cannot have voluntary movement of
individual finger muscles.
DR. SOPHIA LEE, board certified in internal medicine, testified concerning her
current treatment of Claimant, and Claimant's treatment by the witness' medical
group overall, that began in November, 1998. She indicated that a history
concerning Claimant's primary care prior to her consulting Dr. Lee's group was
taken, showing she had problems prior to 1998 as well, but no testimony was
elicited for that period. Claimant had come to the group complaining of symptoms
of a urinary tract infection. As of the date of trial, the witness had seen
Claimant about four times, and the medical group as a whole had seen her fifteen
times. Dr. Lee reported that among Claimant's current and permanent conditions
was the experience of pain in her arms and in her lower extremities, in a
condition known as "hypersensation." Because of her loss of bladder function
and lack of sensation, she is prone to urinary tract infections, that may result
in more extreme infection should the infection enter her bloodstream. The
witness indicated Claimant had been hospitalized on more than one occasion
because of such events.
The Claimant is also more prone to contracting pneumonia and, indeed, saw Dr.
Lovoti, a member of the witness' medical group, in January, 1999 after a
diagnosis of pneumonia at the emergency room of Horton Hospital. The witness
indicated that because of Claimant's spinal injury, her respiratory muscles,
specifically the intercostals, are partially paralyzed. She is at an increased
risk for upper respiratory infection, including pneumonia.
Dr. Lee herself - as opposed to other members of the medical group - first saw
Claimant in February, 1999 when Claimant was again suffering from urinary tract
infection symptoms, and antibiotics were prescribed. Dr. Lee gave Claimant a
referral to a physical therapist at the time, opining that physical therapy was
necessary to maintain what strength she had in her upper extremities, including
her arms, and in April, 1999 she began treatment by a physical therapist.
Treatment included stimulation therapy -involving the use of electronic
stimulation devices - and range of motion exercises. In June, 1999 Michelle
suffered a second degree burn on her left shoulder because the electronic
stimulation unit was left on too long. Because she could not feel the heat, she
was unaware that it had gotten too hot. Dr. Lee said that cervical spine
injuries can cause problems generally with temperature regulation in the skin,
including sweating. Thus something that might not necessarily burn normal skin,
could burn Claimant. A box of Chinese food placed on her lap caused burns on
her legs. Even an insect bite could cause problems in healing because of the
lack of normal functioning skin temperature regulation and, indeed, on one
occasion complications resulting from an insect bite required medical treatment.
When Claimant suffered another urinary tract infection in September, 1999, a
different antibiotic from the one used previously was prescribed, with the hope
of avoiding her developing antibiotic resistance over time. Such resistance
occurs when a particular class of antibiotic is over-prescribed. Thus if
Claimant were to develop a resistance to one antibiotic in the four or five
major classes of antibiotics that exist, she could become resistant to the whole
In October, 1999 Claimant saw Dr. Lee for a skin infection on her elbow. In
November, 1999 another urinary tract infection developed, and in December, 1999
she suffered upper respiratory problems that developed into bronchitis.
In December, 2000 Claimant saw a physician in the group for problems with
leaking around the catheter. Claimant had been complaining of what she called
"stomach spasms", and was referred to a urologist. These stomach spasms Dr. Lee
interpreted as a possible "obvious" symptom of another urinary tract infection.
When the urologist examined her, not only was another urinary tract infection
confirmed, and the catheter replaced, but a vaginal yeast infection was also
discovered. Claimant's immobility creates a moist environment, which coupled
with the constant prescription of antibiotics killing the normal bacteria and
allowing the yeast to grow creates a bigger risk for such infection in
Twice in January, 2001, once in March, 2001, twice in August, 2001, and twice
in October, 2001, Claimant consulted her physicians for, respectively, an upper
respiratory infection and severe constipation; treatment after a fall; a urinary
tract infection and two more respiratory infections leading to pneumonia.
At the time of trial, Dr. Lee had last seen the Claimant in October, 2001, as a
follow-up on the pneumonia. Dr. Lee described Claimant's condition as permanent
and deteriorating, given the repeated infections, and the use of antibiotics
that eventually may not be effective. She opined that absent Claimant's parents'
presence Claimant would need 24-hour home health care.
Although smoking can be harmful to people prone to upper respiratory
infections, and Claimant had been warned against it, Dr. Lee confirmed on
cross-examination that the records show that Claimant smokes two packs of
cigarettes per day. Dr. Lee also indicated that she did not know how many hours
of home health aide assistance Claimant was then receiving, but knew that it was
less than 12 hours per day, and "recall[ed] maybe eight." [T-164]. She testified
she observed Claimant try to be "cheerful", but believed that Claimant is
clinically depressed. [T-178]. She did not have any case notes to this
DR. JEFFREY A. SPINA, a chiropractor whose group first saw Claimant on
September 19, 2001, testified as to his group's treatment of Claimant. She was
being treated in her neck and upper back and shoulders for pain and stiffness
with the aim of decreasing muscle spasms, and keeping her range of motion at the
then present level if not improving it. She was given deep massage as physical
therapy, through a "muscle relief technique" known as "rolfing" involving the
use of the masseur's elbows to work on palpable muscle knots or muscle spasms.
[T-190-191]. The witness described it generally as a painful procedure.
Claimant came for treatment two times per week. Initial sessions were an hour,
to an hour and one-half in duration. He thought the visits should go on
On cross-examination, Dr. Spina concurred that he was not a medical doctor,
that physical therapy "probably rolfing" for an uncertain duration had been
prescribed by Dr. Lee, and that he had never personally treated Claimant,
although he assisted in getting her placed on the table for treatment.
[T-209-210; 222]. The witness' records revealed that the problems triggering the
need for this kind of physical therapy began in 1999, that he did not have a
record of what her initial range of motion was, that they did have success with
decreasing muscle spasms, and that her pain level in her "upper back, cervical
and shoulders, bilateral shoulders" decreased as they went through the therapy.
DR. VALAPET SRIDARAN, a physiatrist called by the Defendant who had examined
Claimant on May 4, 2001, and reviewed her medical records, also testified at
length. He seemed to essentially confirm the same conditions testified to by
Claimant's witnesses. He opined that the quadriplegia was caused by the injury
to her cervical spinal cord which injury was caused by a "fracture subluxation "
- or displacement of the vertebra - at the C-6 and C-7 levels. [T-877, 881]. He
thought to a reasonable degree of medical certainty it was hyperflexion of the
neck - meaning the movement of the head down to the chest in an exaggerated
motion - that caused the injury at C-6, C-7.
With regard to the thoracic injury, he opined that it was sustained due to a
heavy blow to her back. Injury to the spinal cord at the T-7, T-8 level alone
would have allowed Claimant full range of motion in her neck and full use of her
arms, rather than the one-third the normal range of motion on the left side of
her neck, and two-thirds the normal range on the right she experiences.
Nonetheless, had only the thoracic injury occurred she still would have been
paralyzed from the waist down.
During the witness' physical examination of the Claimant, he observed her
operate a motorized wheelchair, answer the phone, light a cigarette and smoke
it, with the use of hand cuffs. He concurred that in most areas of daily living,
she required some type of assistance, including use of a mechanical device to
get her in and out of bed, and preparation of any food to be then placed in a
microwave. He agreed that under ideal circumstances, it was better for Claimant
to have a person available at all times. It had been his understanding that
Claimant had 12 hours of paid assistance, and the availability of her mother in
the adjacent home at the time. He concurred that some reasons to have assistance
at all times were that she could not change her bedding in the event of any
bowel or bladder accidents in the night; and that the recharging of the
wheelchair battery in the night was a potential fire hazard based upon that
battery charger having caught fire at Craig on one occasion. The witness
confirmed that lower limb spasticity, and the deafferentation pain, would only
worsen with age, and had worsened, based, in part, upon the increased
medications addressed to spasticity and pain noted in her medical records. Dr.
Sridaran agreed that the annual reevaluation at Craig was "essential." [T-920].
Defendant raised the so-called "seat belt defense" [See, §1229-c
(8) Vehicle and Traffic Law] in its Verified Answer. Since the defense is an
affirmative one, the burden of proof is on the Defendant to establish it by a
preponderance of the evidence. Spier v Barker, 35 NY2d 444, 450 (1974);
Karczmit v State of New York, 155 Misc2d 486 (Ct Cl 1992); Guido v
State of New York, Claim No. 86905, Rossetti, J., February 10, 2000.
Defendant was required to establish not only that the seat belt was not used,
but that the failure to use the seat belt had a causal connection to Claimant's
injuries. See, Id; See, also, Stein v Penatello, 185 AD2d
976 (2d Dept 1992). The issues of non-use and causal connection were
interrelated because Defendant relied in part on the nature of the injuries as
proof that the Claimant was not wearing her seat belt. After careful
consideration of the evidence, including assessment of the respective
credibility, reliability and accuracy of the various witnesses, the Court finds
that Defendant has not met its burden of proof.
Officer ALFRED J. SMITH, of the Blooming Grove Police Department, currently
employed as a police officer/accident investigator, testified about his
examination of the Claimant's car as early as one half hour after the accident.
He indicated that he had one hour of training touching on the use of seat belts
in accident investigation as part of an advanced accident investigation training
course in or about 1987. When investigating an accident scene, he had been
trained to base his conclusion on seat belt use upon several factors. First,
examination of the person's injuries to see if they match injuries normally
associated with seat belt use. Second, testing of the mechanics of the belt
itself and the clip mechanism to see if they were functioning and observing
whether the belt was frayed or the clip was cracked. This involves essentially
performing various tests with the belt itself to observe whether it could bear
the weight of a body at impact without breaking or coming apart from the
mechanism. Finally, he was trained to observe the position of the belt after
the accident. What would be noted with respect to the positioning of the belt
would be whether it was in an upward cradle, or fully extended out, or locked in
It was his opinion that the Claimant was not wearing her seat belt at the time
of the collision.
When Officer Smith arrived at the scene, the Claimant had already been taken
away in an ambulance. He could not attest that the seat belts had not been
touched between the time of the accident and the Claimant's removal by ambulance
to the hospital, and his own inspection of the car. The entire passenger side of
the car - including the portion of the seat belt mounted on the passenger side
door - was gone.
The seat belt at issue was a combination shoulder and lap belt, mounted on the
respective doors of the car. The clip was fixed between what would be the lap,
and shoulder portions of the belt, and would attach to the seat belt latch
mounted to the floor.
Officer Smith testified that he began his inspection of the car by checking the
functioning of the seat belt on the driver's side, as well as the clip that
would be associated with the driver's belt. He reached into the vehicle through
the passenger side, grabbed the seat belt from the upright position it was in,
and attempted to pull it down to snap the clip actually on the belt into the
clip latch in order to check the mechanical functioning of both. He said he
could not pull the belt down, and was photographed attempting to pull the belt
down. [See, State's Exhibit "O"].
Another photograph, he testified, shows the clip in place between the shoulder
and lap portions as well as his right hand trying to pull the belt down.
[See, State's Exhibit "N"]. The clip was not "ripped away." [T-1111]. The
witness testified that another photograph shows the latch mechanism in place on
the driver's side, including the red release button. [See, State's
Exhibit "M"]. He was never able to pull the belt down from the driver's side to
test the clip in the latch mechanism. He stated, however, that he tested the
latch mechanism by putting the passenger side clip into the latch
mechanism. There was no photograph of this test offered in evidence.
On cross-examination Officer Smith admitted that since he never saw the
Claimant, he could not use the presence of certain kinds of injuries to
determine seat belt use. He also admitted that the only training he'd received
had been the training received 15 years earlier, together with on-the-job
experience with no verification as to the accuracy of conclusions he may have
drawn on-the-job. He had not modified his procedures since his initial training.
Officer Smith admitted that the pressure he exerted on the belt by pulling on it
would not be as great as the pressure exerted by the weight of a person's body
against the belt. He confirmed that the retracted position of the belt could
imply not only non-use, but that it had been released on impact, or released on
a second impact. He could not state that the collision itself - that had
crashed in the driver's side of Claimant's car and ripped off the door on the
passenger side - had not effected the position of the seat belt.
The experiment of placing a clip not designed for it into the driver's side
buckle mechanism can be given little probative weight. Additionally, because
the door on the passenger side was gone, and no explanation was offered as to
where the passenger clip came from to perform this experiment, and other
experiments with the actual belt - such as testing its weight-bearing ability by
simply yanking it - are flawed; the Court cannot give much credit to this
DR. MICHAEL KLEINBERGER, Defendant's expert in biomechanical engineering,
testified with respect to Claimant's seat belt use. He opined that she was not
wearing a seat belt at the time of the collision; and that she would not have
sustained the injuries to her cervical and thoracic spine had she been wearing
her seat belt. The basis for his opinion with respect to seat belt use was her
complete ejection from her car, and the absence of indications on her body that
there was any bruising from the seat belt system. The bases for his opinion with
respect to the injuries she would not have sustained, were indications in her
medical records that the "fracture dislocation in her cervical spine was an
anterior displacement of C-6 with respect to C-7, which indicates a flexion-type
injury...." [T-1230]. He stated that because "...this was an oblique lateral
impact in a different direction, her head would not have gone...[forward] and
she would not have sustained that injury" had she been wearing a seat belt.
He noted that the impact was to the right side of the car but not
perpendicularly. Because there was "an angle to it", it was not directed toward
the center of gravity of the car. [Id]. Since the impact was forward of
the center of gravity, the car was caused to rotate in addition to moving
laterally to the left. The rotating of the car would have engaged the seat belt
more than if it had been a direct side impact.
Dr. Kleinberger also noted that had there been a "pure side impact", Claimant
might have slipped out of the shoulder part of the belt, although he opined that
the lap portion would still hold. [T-1231]. Had the belt been on, the shoulder
portion would have loaded on her left shoulder, across her chest, and down to
her right hip. The shoulder belt would have "restrained her shoulder for the
critical portions of the impact." [T-1233].
Dr. Kleinberger testified that the injuries she suffered to her thoracic spine;
to wit: "comminuted fractures of T-7, 8 and 9...are injuries that are generally
caused by a direct blow to the back. If you are restrained in your vehicle, the
only thing behind you is your seat back, which is cushioned, and you wouldn't be
struck in the back. That injury can only be caused if she leaves her protected
occupant space and gets subjected to direct impacts from some other part of the
vehicle or some other structure outside of her vehicle." [T-1234].
The witness also gave his opinions as to what injuries Claimant would have
sustained had she been wearing her seat belt. He opined that she would have
suffered inertial injuries, such as small lacerations or contusions to her
internal organs from the effect of her internal organs being "slosh[ed]
around"relative to the body wall; as well as injuries to her arms and legs, but
would not have suffered an injury to either her cervical spine or her thoracic
Dr. Kleinberger also testified concerning a computer simulation he conducted
purportedly simulating the subject accident. Based upon the data he placed in
the program, the simulation showed that without a seat belt Claimant would have
been ejected from her vehicle.
On cross-examination, the witness conceded that although all seat belts must be
certified by the National Highway Traffic Safety Administration (hereafter
NHTSA), not all seat belts are necessarily tested by the NHTSA, and he did not
know whether the federal agency had tested the belts applicable to the
Claimant's vehicle, or just the manufacturer. He admitted that examining the
vehicle itself as opposed to viewing photographs would yield the most accurate
conclusions. He did not appear to know where the seat belt mechanism was
attached on the particular car driven by Claimant, or whether it needed to be
placed manually or had some passive features; and admitted to awareness that
there had been problems of aging and deterioration in the model buckle of the
seat belt at issue, causing problems with it locking properly, and that it could
open under heavy pressure with impact. [See, Defendant's Exhibit
When the computer simulation program was used, he noted that he supplied the
program with the Claimant's height and weight; admitted it did not include input
as to Claimant's position on the seat; her relative body type (i.e.: muscular,
flabby); and agreed that such factors could make a difference in the result. His
simulation assumed the passenger door to the car was attached, whereas it was
torn off at some point in the accident, assumed a closing speed of 57
and assigned that speed to the Grand
Marquis, treating the Claimant's Geo Metro as if it were at rest. He relied on
his memory to report the results of the simulations performed and did not have
notes with him.
During cross-examination concerning the presence of Claimant's cervical spinal
injuries, the witness could not state that he knew exactly what position her
head and chest were facing at the point of impact, after having opined that it
was the direction the head and chest faced, and the forcing of the neck into
flexion, beyond the normal range of motion, where the head moves down to the
chest that caused the Claimant's spinal injuries; and that the movement of a
head to the chest would occur whether one was in a seat belt or not. Somewhat
incredibly, the witness would not agree that this could happen in a side impact
collision, even while he stated that it was the direction that the body and head
were facing rather than the direction from which the collision came that
controlled the manner in which the head would move to the chest.
When determining the angle of the impact between the cars to be 30
, he looked at the sketch drawn by the investigating police officer: not a
witness to the accident. To further refine the angle, he looked at the damage to
the vehicles determining the point where the maximum crush was, measured against
that as the point of impact with the corner of the bumper to determine what
angle would cause that amount of damages. He used a protractor to measure the
angle on the police sketch. He admitted on cross-examination that while a
difference in the angle of impact in either direction (i.e.: 35
) would not make any difference in his conclusion concerning the angle of
impact, greater than that amount would. He testified in a contradictory fashion
about the effect the speed of the other car might have had on where Claimant was
thrown and the force of the impact, and generally did not impress this Court
with the foundation for his opinion, which still appeared to be based primarily
on the fact that Claimant was found outside her vehicle.
In rebuttal, Claimant presented the testimony of her biomechanical engineering
expert, DR. JAMES PUGH, who had testified in the liability portion of this case
as an accident reconstruction expert. It was his testimony that Claimant was
wearing a seat belt, and that the injuries she sustained were consistent with
seat belt use. He also opined that even if she had not been wearing a seat belt,
her injuries would not have been substantially different because of the severity
of this collision. He said the combined speed at impact of the Claimant's car
and the Marquis, was 57 mph. The force of the impact was so great that it
caused the air bag in the Marquis to open.
Dr. Pugh thought the angle at which the Grand Marquis engaged the Geo had to
have been much more rearward than indicated in the rough police sketch. He did
not agree with the "literalness" of the angle depicted in the drawing, and
stated that if the Marquis had hit the Geo as much on the perpendicular as
described by the drawing (i.e.: 16
from the perpendicular), the side of the Geo would have been punched in rather
than ripped off. [T-1422].
Dr. Pugh testified that the angle selected by Dr. Kleinberger - 30
to the perpendicular - was incorrect as well. The witness noted that as stated
in his testimony at the liability phase he had determined that "...the angle was
more like 45
to [the] perpendicular....[meaning] this impact was not truly a side impact. It
was as Dr. Kleinberger stated an oblique side impact, but it was approaching the
rear of the vehicle." [T-1422]. He said because of the angle and force of
the collision, containing a rear impact component - not particularly designed
for vis a vis the seat belt system - the seat itself could not maintain
it's "structural integrity" [T-1425] and failed, snapped backwards and
"submarined" Claimant out of the belt. [T-1438]. It is the seat itself that
keeps the person in his seat when the impact has a rear component. The seat belt
keeps the occupant in the seat only if the sitting angle - an angle between the
torso and the thighs - is maintained sufficiently so that the lap belt portion
keeps the occupant in place.
Moreover, buckled or unbuckled, the witness opined claimant would have been
ejected back out of the car. He stated that at impact, "...[h]er initial
movement would be towards...the C pillar....But as the vehicle spins...what
happens is she begins to aim for....[the right side of the rear window of the
Geo]....it's probable what happens is she gets her head contacted against the
window frame or roof as she's ejected up and her head gets put in hyperflexion,
which causes...that symmetric lesion of the cervical spine and the cord
With respect to the thoracic injury, Dr. Pugh agreed that a "focal blow to the
thorax" of some kind would be required. [T-1454]. He credibly stated that it
could have been caused as her back passed over the edge of the seat, or as her
body hit the other car or hit the pavement.
The Court finds that Dr. Pugh's explanations, including an extensive
discussion of the relative forces brought to bear upon each vehicle at the point
of impact, and the lack of structural integrity to the seat, better explains how
Claimant came to be ejected from her car. This is true, especially given the
lack of any analysis on the part of the defense expert concerning the obvious
deformity of the seat as shown in the photographic exhibits, and as explained by
the persuasive testimony of Dr. Pugh.
RENEE DeSTEFANO- who had lunch with Claimant on the day of the accident - saw
Claimant get into her car and put her seat belt on. She testified that it was
Claimant's habit to wear a seat belt. She had known Claimant for a few years at
the time of the accident, and had socialized with the Claimant between 4 and 5
times per week until the accident.
The Claimant also credibly testified that while she did not specifically recall
her actions on the day of the accident, it was her habit, both as a passenger
and a driver, to put her seat belt on when she got in the car.
DR. VALAPET SRIDARAN, Defendant's medical expert, testified that the injuries
to Claimant's cervical spine at the C–6, C-7 levels are what made the
Claimant a quadriplegic. Based upon the medical records he reviewed, he
confirmed that the cervical injury was caused by the hyperflexion of her neck.
He stated that thoracic injuries affect a lower portion of a person's body, and
had they been the only injuries present, she would probably have had full use of
her arms and neck, but would still have been paralyzed.
As noted above, it was the Defendant's burden to establish any failure to wear
a seat belt, and the causal connection of such a failure to Claimant's injuries.
The weight of the credible evidence in this case supports a finding that she was
both wearing her seat belt at the time of the accident, and that the most
damaging injury she suffered - that to her cervical spine - would have occurred
regardless of seat belt use given the severity of this accident.
It is axiomatic that the Claimant's work life expectancy is estimated based
upon her pre-injury life expectancy. To view it otherwise, would be to penalize
the victim for an injury caused by the liable party. [See, Doe v State
of New York, 189 AD2d 199, 206 (4th Dept 1993); Rummo v Celotex, 726
F.Supp. 426 (EDNY 1989)]. Whether her actual life expectancy is reduced,
resulting in a shorter period of time for which medical and other expenses may
be necessary, is another matter entirely, and is not foreclosed. On the issue of
an alleged reduction in her life expectancy as a result of her quadriplegia, the
Court allowed the Defendant to present the testimony of Harold Kost, M.D., its
expert in life expectancy. [See, e.g., Davis v City of New York,
273 AD2d 342, 343 (2d Dept 2000); O'Rourk v Berner, 249 AD2d 975 (4th
DR. HAROLD KOST - board certified in internal medicine and insurance medicine -
opined that rather than the life expectancy of 48.9
expected in a woman of the Claimant's
age, this Claimant could only be expected to live an additional 30 years because
of her quadriplegia. This opinion was based upon a review of the pleadings in
this case, Claimant's medical records, her deposition, a review of the
independent medical examination conducted by Dr. Sridaran, review of certain
studies and insurance industry charts, as well as his own experience and reading
of the medical literature.
He himself did not conduct a physical examination, but noted that when
conducting this kind of risk appraisal it was the practice in the industry to
rely on the medical examinations of others. When describing the methodology used
in the industry he stated that the basic tool for life expectancy is the
proportion of deaths expected in a given population over a given period of time.
The individual's medical records are reviewed with the object of determining if
there are any conditions existing that might tend to increase mortality or
shorten survival of that individual. If such conditions exist, then Dr. Kost
would refer to his own experience and to such published literature as may be
available to see what the mortality rate is for those conditions and compare
them to the mortality rate for a general population or a select population,
generally established by the public health service for the population of the
United States at large. "...Once having established the expected mortality
rate, it's possible to predict the number of deaths per year, the average number
of deaths that would be expected over a period of time, and arrive at the
average number of years lived by individuals with that sort of medical
condition. It's not possible to take a single individual and say with great
accuracy how long that person is going to live. It is possible to look at large
numbers of individuals with the same or similar conditions and predict the
probability of survival for that group." [T-1573-1574].
Because of her "residual neurological disability" from the automobile accident,
rendering her immobile, Claimant, Dr. Kost opined, possesses a primary medical
condition that would tend to shorten her life expectancy. [T-1574-1575]. Those
individuals who are completely immobile have much higher mortality rates.
Immobility, he testified, produces a number of pathological conditions tending
to shorten a person's life.
Of the group he used, the average life expectancy was 28 years. No reduction
was made for Claimant's acknowledged smoking activity. The witness did add 5
years to the 25 years he originally assessed based upon what appeared to be her
otherwise generally good health, were it not for the opinions of the physicians
that she would be susceptible to various respiratory and urinary tract
infections among other illnesses. He also assumed she would be receiving good
On cross-examination, the witness acknowledged that the actual group from whom
the statistics were drawn, contained only 110 quadriplegics, although the larger
group contained 20,000 people suffering from spinal injury. He acknowledged he
was unaware of whether Claimant suffered from high cholesterol, high blood
pressure, diabetes, ventilator dependence, cancer, and other life shortening
conditions; that a mortality table for quadriplegics such as the one he used
that did not distinguish between those individuals with additional health issues
and those without, would not be as accurate; and that how long a person lived
could depend in part upon the kind of care she received. The data he asserted he
used, did not differentiate between males and females, and he acknowledged that
a female with the same medical problems would live longer than a male.
Based upon the evidence adduced, the Court is persuaded that this Claimant's
life expectancy is less than the statistical average because of her physical
condition, primarily the very fact of immobility. See, generally,
Blyskal v Kelleher, 171 AD2d 718 (2d Dept 1991); O'Rourk v Berner,
supra; Kavanaugh v Nussbaum, 129 AD2d 559, 562-563 (2d Dept 1987),
affd as mod, 71 NY2d 535 (1988); Auer v State of New York,
Claim No. 86167, King, J., December 30, 1999. As was clear from the record,
certain of her physical conditions militate against a long statistical life,
even with the best of care. While she is prone to certain ailments - including
urinary tract infections and respiratory ills - these appear preventible with
adequate monitoring and daily care. But not completely. As noted by all the
physicians, treatment with antibiotics would eventually become ineffective. Dr.
Lee noted that her condition had deteriorated during the period she had been
under that medical group's care, and would continue to deteriorate. It would be
erroneous, therefore, to say that Claimant would ever be in such excellent
health that her life expectancy would be the same as a young woman not confined
to a wheelchair. Claimant is predictably afflicted with medical conditions
attendant upon that immobility. Additionally, Claimant smokes cigarettes, and
is overweight. This Court determines that a reasonable estimate of life
expectancy is 30 years.
Lost Past Earnings
At the time of the accident, Claimant had been working in what was essentially
an entry level job, and had not really established a work history. Claimant
testified that she was earning between $320.00 and $350.00 per
as a sales merchandiser, had been told
she was in line for promotion to sales representative shortly before the
accident, and would be earning more. Dr. Richard Schuster, whose profession is
psychology, neuropsychology and vocational rehabilitation, offered a life plan
for Claimant including a vocational component, and testified about Claimant's
earning potential before her injury and after.
Based on the work potential for high school graduates such as Claimant,
possessing some additional training - courses in bar tending, cosmetology, and
dental hygiene - although not with a particular focus, Dr. Schuster created a
work force profile indicating an average "pre-injury wage" of $630.47 per week,
or $33,000 per year over her life time. [T-273]. He found that based upon her
severe physical limitations post injury, without any accommodations relevant to
her disability by an employer she would be eliminated from the job market. His
best outcome for Claimant would be earning approximately $50.00 per week for
part-time work of some 15 to 20 hours per week with vocational training and
special accommodations at her work place.
It was Claimant's burden to establish her lost earnings to a reasonable degree
of certainty. Papa v City of New York, 194 AD2d 527, 531 (2d Dept 1993),
lv to app dismissed, 82 NY2d 918 (1994); O'Connor v Rosenblatt,
276 AD2d 610 (2d Dept 2000). Testimony alone, without documentary evidence such
as tax returns or a W-2 form is generally insufficient as a matter of law.
Ramirez v City of New York, 279 AD2d 563 (2d Dept 2001); Gomez v City
of New York, 260 AD2d 598 (2d Dept 1999); Poturniak v Rupcic, 232
AD2d 541, 542 (2d Dept 1996); Razzaque v Krakow Taxi, Inc., 238 AD2d 161,
162 (1st Dept 1997). Certainly, Claimant's own testimony concerning her intent
to move into work as a sales representative for the same company is probative at
least to the degree that her particular aspirations are expressed, as opposed to
more speculative opinions as to what her work potential could have been for this
past period. She intended to work with this company, and might well have been
working there still had there been no accident. She might also have taken time
off to marry and raise children: another expressed aspiration.
On the Defendant's case, it was shown at the time of the accident, Claimant was
actually earning $320.00 per week and had been for an eight month period.
[See, Defendant's Exhibit "R"]. There is nothing in the record to show
that Claimant was receiving any fringe benefits. What would she have earned in
the succeeding 9 years until the time of trial? While the actual earnings for
that eight month period might accurately reflect a portion of the lost past
earnings, the Court cannot thoroughly discount the notion that an expressed
intention by a 23 year old, without any particular work history other than
course work evincing perhaps passing interests in one trade or another, cannot
bind her to that job goal. Assessments of work potential for high school
graduates used by Dr. Schuster of Claimant's background to come up with a figure
of her potential for earning $630.47 per week by 1999, however, is too
Claimant's economist found lost past earnings in the amount of $306,964.00,
inclusive of benefits. Defendant's economist, in contrast, arrived at a figure
of $187,146 for lost past earnings. Benefits were not calculated in for
After careful consideration within the range of the expert testimony elicited,
and based on what little is known of Claimant's work history, training, and
inclinations, all of which paint a picture of an individual not inordinately
ambitious, not particularly driven toward professional or financial success, and
recognizing that in some sense any awards for a life cut off from certain
choices is speculative, it is reasonable to find that from the date of the
accident to the date of trial, Claimant would have earned, on average, between
$22,000.00 and $30,000.00 per year - or $26,000.00 - from 1992 to 2001. As
noted, her actual earnings at the time of the accident were slightly more than
$16,000.00 or $18,000.00 annually, depending upon whether the $320.00 per week
or $350.00 per week salary is credited. Claimant would likely be at least
partly out of the work force during these years, and at various other times
during her work life due to unemployment, maternity, child-rearing and other
family-related duties. Certainly, while her ambitions might have changed, for
example, she might have pursued a professional degree that might translate into
a higher economic return, there is nothing in the record to conclude that such
would have occurred.
With respect to any fringe benefits, as stated nothing in the record shows that
Claimant was receiving any. Nonetheless, based upon what other course work she
had sought out, there is some likelihood that at least nominal fringe benefits,
in the form of contribution for retirement or health insurance, would have been
part of her employment package. Any of Claimant's testimony concerning the use
of a car or other company fringe benefit was not admitted for the purpose of
establishing the truth, but rather to show Claimant's intent with regard to her
future. Claimant's economist used a fringe benefit figure of 18.8 % of wages,
broken down as 7.5% insurance, 3.64% retirement and 7.65% Social
Security/Medicare ; it is unclear what Defendant's economist used, though he
testified that there was nothing to indicate Claimant was receiving any fringe
benefits. Clearly, it would be overstating it in either direction to say she
would never have gained fringe benefits in her work, or that obtaining fringe
benefits was a certainty. It should also be noted that in adding fringe
benefits, adjustment for normal deductions from income should be made as well.
Thus, the adjusted figure for lost past earnings is $260,091.00.
With respect to lost future earnings, and based upon a work life expectancy of
23.1 years, Claimant's expert opined she had suffered an economic loss of
between $1,673,956.00 when using a 3.8% increase, and $2,078,020.00 when using a
higher percentage increase of 5.8%, and taking into account a post-injury
earning potential of between $67,767.00 and $70,961.00. [Claimant's Exhibit
As had been testified to by Dr. Schuster, although in theory Claimant could now
work at least part time, perhaps from home with a computer, there are
significant limitations on her employability post-injury. Indeed, Defendant's
economist predicted she would never work again, although Defendant's life care
planner, Wendy Cummings, was perhaps overly sanguine concerning Claimant's
Here is an otherwise
alert individual, unconstrained by cognitive limitations, who may yet discover
potential employment or other interests. Severe constraints on her ability to
continue at a particular task for a long time, chronic pain and spasticity,
however, make it unlikely that she will be able to make more than the minimal
contribution to her own income stream proposed by Dr. Schuster, if at all.
Indeed, the Court concludes that Claimant will not work again.
Dr. Berenson assumed for his analysis of lost future earnings that Dr.
Schuster's figure of $630.47 per week translated to $680.00 per week in June,
2001 dollars by consulting the Bureau of Labor Statistics wage index; that
fringe benefits be included at 18.8% of wages, that work expenses of 6% of her
wages would be deducted, and assumed earnings increases from a low of 3.8%, to
a high of 5.8% per year. [Claimant's Exhibit "30"]. That earnings increase was
derived from the economic practice of going back in economic history as many
years as one goes forward to derive a percentage to apply to a flat rate
He noted that while history is a
good guide, it is not absolute. Average workers in the past have been given
increases of 5.2% per year over the past 23 years, with variations up or down to
a reasonable degree of economic certainty. The variation down he chose was 1.4;
the variation up he chose was .06. The witness did not really explain why those
particular variations were chosen.
On cross-examination, Dr. Berenson noted it was his practice to rely on the
figures provided by the vocational rehabilitation expert - here, Dr. Schuster -
when forecasting future earnings. He used the initial wage potential number of
$630.47, and consulted the employment cost index of April 26, 2001 published by
the Bureau of Labor Statistics, without reference to a particular field of
Dr. Thomas Fitzgerald, using a 21.3 year projection from the day of trial,
found lost future earnings in the amount of $670,947.00. As he credibly noted, a
high school degree today simply does not have the employment potential it had in
the 1940's and 1950's, when certain studies relied on by Claimant's expert in
his future projections took place. Still, Defendant's economist does not appear
to have considered other than the actual and limited earnings history presented
by Claimant - as opposed to work potential - in assessing her lost future
income. From data published by the Bureau of Labor Statistics, he used the
hourly wages of the category of production workers in the dairy products
industry and the canned fruit and vegetables industry - industries where her
then employer did business - to calculate her projected earnings consistent
with the average annual rate of change in the hourly wages of these workers
between 1983 and 2001. The earnings projection was based upon a 3.15% figure he
derived, and was applied after 2001.
On cross-examination he indicated that he did not recall that Claimant had
training as a manicurist, or in bar and restaurant management, and had training
as a typist and dental assistant, though he recalled she'd had several jobs
before the one she had at the time of the accident. Additionally, although
figures for people involved in sales - versus production work - were available
from the Bureau of Labor Statistics, and the witness admitted Claimant was in
"some type of sales", he could not be sure which table would apply to Claimant's
type of work, and thus chose a category that apparently includes people who milk
cows. [T-2103-2104]. Finally, while Defendant's economist was emphatic in his
opinion that it would be error to include the "hyper inflationary" period from
1973 to 1982 to calculate a percentage increase [T-2106], he could not truly
predict that such an aberration might not occur in the future. It appeared that
he did consider recessionary periods, and did calculate inflation, but not in
terms of the late 1970's or early 1980's. He acknowledged that had he gone back
29 years instead of the 18 years he did, the answers would have been
After carefully considering the bases for each expert's opinion on lost future
earnings, there are some limitations on the efficacy of each of their
approaches. The Court finds it reasonable that with respect to future earnings,
Claimant should not necessarily be limited to calculations based upon her actual
earnings at the time of the accident, versus her earning potential without
injury as expressed in Dr. Schuster's so-called conservative figure of $630.47
in 1999 dollars. While the figure is not reflective of what she was actually
earning in 1992, and would reflect an approximately 8% inflation rate between
1992 and 1999, it is nonetheless probative of her potential, but also not
conclusive. As at least one other Court has noted, it is somewhat suspect to
harken to wage potential versus actual earnings when the actual earnings are
significantly lower than the potential wage figure assessed. [See, e.g.
Escobar v Seatrain Lines, Inc.
, 175 AD2d 741 (1st Dept
It is likely that Claimant would have worked an additional 23 years, a portion
of which might well have been part time, and within that period there may have
been unemployment due to job changes or personal concerns such as raising a
family. The percentage increase chosen by both experts seems somewhat
arbitrary. While Dr. Fitzgerald used a figure that would appear to be largely
irrelevant to the type of work Claimant actually did and might perform in the
future, Dr. Berenson, after using a very general wage increase marker of 5.8%,
without much explanation chose high and low percentages to apply to his flat
projections. A reasonable rate would seem to be an accommodation between the
two approaches of 4%, and the court so finds. Accordingly, Claimant's lost
future earnings and benefits are set at $1,058,220.36, based upon the $26,000.00
per year average figure.
FUTURE MEDICAL AND LIFE CARE EXPENSES
Dr. Richard Schuster, offered a life care plan for Claimant including a
vocational component, and figures for one time recurring costs, medical and
therapeutic care, comprehensive annual evaluation, orthopedic or other adaptive
equipment, transportation, personal items and support care, among other things.
[Claimant's Exhibit "29"]. Wendy Cummings, who had been "doing life care
planning and case management for eight years" [T-1850] with Jane Madsen
Associates, and was certified as a life care planner in 2001, also testified
concerning a life care plan for Claimant, including essentially the same
elements. [Defendant's Exhibit "Q"]. While both witnesses appeared to be
competent professionals with varying degrees of experience specific to the kind
of disability possessed by Claimant - with Dr. Schuster appearing a little more
seasoned, and Ms. Cummings, however, appearing to have taken a more hands on
approach in gathering information - only portions of each of their conclusions
will be credited here. Adding to the unfortunate tone taken by counsel in their
examination of the witnesses, was the late breaking news that rather than
remaining at her present home in New York State which adjoins that of her
parents, it was Claimant's intent to move to Colorado in order to be closer to
the rehabilitative facility she visits annually, as well as a potential
community of similarly disabled individuals. To some degree there appeared to
be a scramble to obtain up-to-date information reflective of the cost of care in
a state some two thousand miles away. To Ms. Cummings' credit, she pursued her
information in this internet age with appreciable zeal.
Although testimony and cross-examination of the parties' respective experts
concerning the present day costs continued for protracted periods during the
trial, the major components of a reasonable plan are the cost of having a
live-in aide and the number of hours necessary for such assistance, and future
medical and related expenses.
Claimant's Life Care Plan
Dr. Schuster's plan calls for a full-time live-in personal care attendant at a
cost of $215.00 per day. It is unclear on what he based this figure. He
indicated such a person would need special qualifications and, at a minimum, be
certified as an aide. Although the aide would perform light housekeeping, such
as changing beds and preparing meals, the witness also included the cost of a
housekeeper for the "heavy" chores, at four hours per week, and a nursing visit
at least once per month to change the catheter. [T-292]. He acknowledged that
at the time of his firm's investigation, Claimant was paying for 6 hours of
assistance, but relied on family members, specifically her mother, for
assistance at other times. The life care plan was reviewed and approved by Dr.
Lee, Claimant's treating physician, through the use of a form letter sent by Dr.
Schuster asking the recipient physician to review the plan and make any
The down payment for the purchase of a ranch style home in Colorado averaging
$179,000 would be $35,800.00, and Dr. Schuster included the initial deposit as
well as the mortgage payments in the plan. Modifications of the home for its use
by a quadriplegic would average between $20,000.00 to $30,000.00, to include any
ramps, modifications to bathrooms, and widening of doors if necessary. The cost
of renting an apartment was compared to purchasing a home, though the comparison
appears to have little meaning since it was made between a one-bedroom rental
and the ranch home mentioned, except that presumably a larger sized rental would
be more costly and therefore the difference in cost over time would be even
According to Dr. Schuster's summary, the annual cost of Claimant's medical and
therapeutic care, inclusive of the yearly evaluation at Craig, and of such
things as monthly visits to her primary physician, the cost of medication, the
cost of orthopedic/adaptive equipment, the cost of mobility/transportation -
whose primary components are a motorized wheelchair and an adapted van, and
exclusive of a manual wheelchair for which an annualized cost cannot be
determined from his summary - and accessories for such equipment and replacement
parts is approximately $45,800.00. For a personal care assistant, and room and
board costs for that person, a monthly visit from a nurse and a weekly
housekeeper for 4 hours per week, the annualized cost is approximately
$86,000.00. The summary indicates that the approximate annual cost for personal
care items such as gloves, catheters, and drainage bags is $4,800.00 and for
exercise equipment $160.00. Dr. Schuster also included an education and/or
training component of approximate $8,000 per year for a two year period, and
calculated Claimant's annual hospitalizations at $9,500.00 per year, as the
"average for quads" [See, Claimant's Exhibit "29", Page 29] for life.
Thus, annual expenses totaled approximately $125,000.00 under Dr. Schuster's
plan, plus one time costs of approximately $60,000.00.
Defendant's Life Care Plan
While Counsel for Claimant spent two days cross-examining Ms. Cummings, and
made much of the fact that the witness had apparently written four reports in
association with this case, the Court nonetheless found that Ms. Cummings did
not approach formulating a plan for Claimant with bias, but rather sought out
the most accurate information, based on changed plans such as the proposed move
to Colorado, and new realizations concerning additional equipment Claimant might
need. With some appreciable and refreshing naivete for an expert witness, Ms.
Cummings was rash enough to admit to omissions here and there, and to adjust
some of her projections. Such adjustments demonstrated a certain sincerity.
Ms. Cummings' life care plan [See, Defendant's Exhibit "Q"], in a far
more readable format than that of Dr. Schuster, calculated one-time,
non-recurring costs at $72,173.00, including a case management component for a
two year period to assist Claimant in hiring, and adjusting to life independent
of her parents in a different state, and a down payment for a home. The witness
also included a provision for psychological counseling, even though Claimant had
indicated to her she felt no need for such assistance, because Ms. Cummings
thought it a necessary component should the need arise. To that end, she
provided for 100 sessions in the plan at a present cost of $12,500.00. Other,
one-time, non-recurring costs include a Handi-Move lift used to get in and out
of bed that would cost $6,500.00, and the motor and tracks for it that would
require replacement twice in Claimant's expected lifetime, as well as additional
parts such as batteries and a battery charger, amounting to $14,135.00.
With respect to a personal care assistant, Ms. Cummings calculated in training,
room and board, and FICA, worker's compensation and unemployment payments, in
addition to the daily fee to arrive at $54,542.00 annually. It was her opinion
that assistants hired through agencies were generally more expensive, and that a
privately hired individual would not be as expensive. The witness had spoken to
a woman who provides live-in care in Colorado, as well as a case manager there
who manages cases for those who hire privately and have live-in attendants, to
arrive at her information.
On cross-examination, she admitted that the person who was available for the
$128.00 per day she was quoted was presently working and therefore not really
available, and that the number she was given by the case manager experienced in
hiring attendants for individuals with quadriplegia was $131.00 per day, with
one attendant working five days, and the other working two days. Other prices
she found were $200.00 per day for 24 hour live in care; and $220.00 to $230.00
per day for hourly rate workers, with more charged on the weekend.
While Ms. Cummings included an annual visit to Craig in her plan, at a reduced
cost because of the lack of travel, she included visits to a treating physician
at only three times per year, opining that the Claimant would see her doctor as
needed but that a monthly visit was unnecessary given that the monitoring
function could be performed by the aide, and by a twice monthly visit from a
visiting nurse. The hospitalization allowance is considerably smaller than Dr.
Schuster's as well, although the costs for personal care items and medications
are similar. Ms. Cummings did not include expenses for physical therapy and
massage therapy, a separate cost for a urologist one time per
, vocational counseling and/or retraining,
housekeeping, exercise equipment, a monthly mortgage payment, and some personal
care items and some equipment such as cellular phones and the monthly bill for
same. The annualized cost under Defendant's life care plan for Claimant is
approximately $87,000.00, plus the $72,000.00 one time costs referred to
This Claimant has suffered a catastrophic injury at a time when her life was
just beginning. It is beyond argument that such an injury has taken its toll on
Claimant herself, who has endured and will endure daily reminders of a life not
fully lived. The present cost of care described by the life care experts, when
projected out into the future by the economists, is huge. Whether it is the
reasonable and just compensation mandated by statute [See,
§§4111(f); 5501(c) Civil Practice Law and Rules] and assessed in the
attendant case law is another issue.
As noted in another catastrophic injury case, what is reasonable with regard to
future medical and life care costs, is measured by two, somewhat competing,
considerations. It would 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." Cesnavicius
v State of New York, (Ct Cl), Patti, J., February 14, 2002, UID No.
2002-013-501 (www.nyscourtofclaims.state.ny.us/decisions). Clearly
neither plan presented a complete picture, enabling the Court to credit such
information as appeared worthy of consideration, and to discard information that
was not as carefully thought out by the respective planners.
After careful consideration of the foundation for each opinion, the Court finds
that given Claimant's medical history, her pre-accident independence, and the
very real potential for disastrous complications in the event of a fire in her
home, or other emergency, a 24 hour live-in aide, or series of aides, is
necessary. The present day cost of such an aide is debatable. No particular
medical training is necessary, but a willingness to engage in intimate and
sometimes unpleasant tasks on an ongoing basis, as well as an ability to
establish a rapport with Claimant would be required. The cost of such personal
care items as are described most expansively in both plans, and the specific
equipment, such as hospital beds, lifts, electric and manual wheelchairs, and
modified vans, as well as the purchase of a home, modified for use by Claimant,
appears warranted. While in the normal course of events this Claimant might have
purchased her own home from earnings at some point in the future, now it is
unlikely that just any home will prove functional, and rather than modify a
rental property, it would seem more economical to purchase and modify a home.
Certainly, her present living situation reflects that. However, this Court has
credited the professed intention to move elsewhere, and the flexibility she
would otherwise enjoy had she not been injured in this accident.
Accordingly, the reasonable present day cost of a life care plan for Claimant
is in the amount of $115,000.00 annually, plus a one time non-recurring cost of
$200,000.00 for such items as down payment on a home and modifications to it,
possible counseling and case management. This is essentially based upon the
Court's finding that a reasonable estimate of the cost of a live-in attendant
would be approximately $81,000.00, based upon the range of rates presented by
the experts. Further reasonable estimates are yearly reevaluation at Craig
costing $6,000.00; monthly visits by a Nurse costing $600.00 annually; visits to
her primary physician as needed but also including visits to specialists - such
as a dermatologist - averaging 12 times per year, or $840.00 annually; physical
therapy of some kind, at approximately $800.00 annually; medications of
approximately $5,000.00 annually; anticipated hospitalizations, based upon past
complications averaging 8 days per year, or $7,600.00 per year; and for medical
supplies, personal care items and equipment - containing so many items within
these categories: from catheters and gloves, to wheelchairs, batteries, and van
modifications, with varying replacement periods - an adequate average annual
cost would appear to be $12,000.00.
The projections by the parties' respective economists are helpful to a point,
and only if the exact figures presented by the life care planners are accepted,
as well as the life expectancy assumptions noted by each. Thus, Claimant's
expert, Dr. Conrad Berenson, analytically made more sense in his approach to
projections by including in his calculations projected inflationary and
recessionary periods, as well as projecting forward and backward the same or a
similar number of years, yet because he relied on a life expectancy of 48.9
years the conclusion is off. Another concern is that although some flexibility
is anticipated because he projected forward utilizing a flat projection, a low
percentage of 4% and a higher percentage of 6%, he applied the same percentage
increases to all present costs, including the cost of the personal care
assistant, medical supplies, and services provided by physicians, which seems to
defy practical experience of the vagaries of the economy with respect to
different goods and services. [See, Claimant's Exhibit "30"]. Dr.
Berenson opined that the cost of future medical and associated care expenses
would be between $17,108,823 and $32,281,279. [Id].
Similarly, Defendant's expert, Dr. Thomas Fitzgerald, calculated all his
projections based upon a life expectancy of 30 years, viewed the inflationary
period from 1973 through 1982 as unlikely to be repeated [T-2029-2030], and
therefore disagreed with Dr. Berenson's approach of projecting forward and
backward; and also disagreed with the use of one rate to project the cost for
the future of all goods and services, unless the rate were an average of all the
different rates and the different components of the plan were equally weighted.
Thus for physician's services, he used a different component of the Consumer
Price Index that had increased approximately 5.3% over the last 18 years, and
for personal care attendants he used a rate of 3.3%. Unfortunately, more
specific testimony concerning the distinctions in increases Defendant's
economist used was not elicited. Dr. Fitzgerald opined that the cost for future
medical and associated care expenses would be $4,661,095.00.
Accordingly, and in keeping with the Court's attempt to approximate a
reasonable course between what are clearly discrete approaches by the two
economists, the Court has adjusted for cost increases within the range of expert
testimony at the rate of 5% - not the double-digit type of percentage present in
the 1970's and early 1980's, nor the remarkably low inflationary rate of today -
to find that the reasonable value of the Claimant's future custodial care and
medical services is $7,840,467.46 . This includes a one time non-recurring cost
in present dollars of $200,000.00, and $7,640,467.46 for medical care and
Although it was included in the ad damnum clause of the Claim, no
substantive evidence of what Claimant's medical expenses were from the date of
the accident to the date of trial was presented. Certainly, witnesses testified
generally about procedures she underwent, however no documentation of the
associated costs was provided. Accordingly, the Court has nothing upon which to
base an award for this aspect of alleged damages except upon mere speculation,
and none is given.
Perhaps the most elusive aspect of any damages award for personal injury is the
past and future pain and suffering experienced by the Claimant. Courts look to
other awards given because this item of damages is not subject to "precise
quantification." Karney v Arnot-Ogden Mem. Hosp., 251 AD2d 780,782 (3d
Dept 1998), lv dismissed, 92 NY2d 942 (1998). Thus in the Appellate
Division decision in Auer v State of New York, 289 AD2d 626, 629 (3d Dept
2001), the Court found that the Court of Claims had been too conservative in its
estimate of future pain and suffering with respect to its award to an 18 year
old Claimant who was almost totally physically incapacitated as a result of a
traumatic brain injury, and increased the award to $1.5 million from
$750,000.00. But in Brown v City of New York, 275 AD2d 726 (2d Dept
2000), lv to appeal denied, 96 NY2d 709 (2001), plaintiff, who had been
rendered a pentaplegic, was given a reduced award for past pain and suffering
from $3,000,000.00 to $1,000,000.00 and for future pain and suffering from
$7,000,000.00 to $3,000,000.00.
Similarly, in Driscoll v New York City Transit Authority, 262 AD2d 271
(2d Dept 1999), the 19 year old quadriplegic's award for past pain and suffering
was reduced from $5,000,000.00 to $900,000.00; and for future pain and suffering
from $5,000,000.00 to $1,100,000.00.
Another recent award of note includes one given with respect to an adult
Claimant who suffered from significant cognitive deficits, had been hospitalized
continually for 2 years for medical and rehabilitative treatment - undergoing
many surgeries - and who was able to walk only a short distance with the use of
a leg brace, a cane, and the physical support of another. Cesnavicius v
State of New York, supra. Remarking that Claimant's altered thinking
may have "softened" his awareness of what he had lost in terms of enjoyment of
life, the Court of Claims awarded the Claimant $2,000,000.00 for past pain and
suffering, and $2,500,000.00 for future pain and suffering.
Cases presented by the Claimant as guides include Jump v Facelle, 292
AD2d 501,502 (2d Dept 2002), lv to appeal denied, 98 NY2d 612 (2002),
wherein the Appellate Division did not reduce a past pain and suffering award of
$1,300,000.00 where decedent remained hospitalized until his death for a period
of 8 months after defendants' medical malpractice - involving failure to
conduct emergency corrective surgery after complications arose with decedent's
original surgery - causing decedent to suffer from insertion of a temporary,
then permanent, colostomy; insertion of drains; abdominal infections; mental
confusion; hallucinations; inability to walk; pain upon sitting upright in a
chair; unhealed bed sores resulting in a spinal infection; a total of 8 major
surgeries; and had been in a hospital room that his wife reported "always
smelled like feces." Another case suggested as a guide by Claimant is
Desiderio v Ochs, 294 AD2d 241 (1st Dept 2002) lv to app granted,
296 AD2d 874 (1st Dept 2002), wherein the Court found that it was reasonable
compensation for the severe brain damage sustained by Plaintiff when he was four
- despite pre-existing impairments extant since his birth - to award him
$1,500,000.00 past pain and suffering, and $3,000,000.00 future pain and
suffering over 55 years.
Certainly, the period immediately after the accident, when various medical
devices designed to stabilize Michelle Coniker were imposed, and later
rehabilitative measures were sought, was experienced with some continual level
of consciousness. She was conscious as personnel surrounded her at Cornwall, and
she felt a great weight on her chest because of difficulty in breathing, and
when she became aware that her arms and her legs didn't work. She was in and
out of consciousness throughout her five weeks stay in Westchester, and her
stays at Swedish and Craig, experiencing painful procedures and, when awareness
struck, it was surely with shock and despair at the gravity of her situation.
Unlike some other Claimants, no cognitive impairment has been recognized as a
result of the accident [See,e.g., McDougald v Garber, 73 NY2d 246
(1989)]; thus Michelle is clearly aware of what are her present physical
limitations, and keenly aware of what aspects of her past enjoyment of life are
foreclosed in the future.
Michelle testified that in the nine years since the accident she went to the
theater in Manhattan once, an ordeal involving a two hour van ride in each
direction, and considerable discomfort and personal embarrassment. She has been
to the movies perhaps four to five times, in the company of her mother or an
aide, and found the arrangement at local movie theaters awkward for wheelchairs,
and herself too self conscious to enjoy the film. Restaurant trips are few.
The logistics there are difficult as well, from managing the wheelchair, to the
use of utensils in a public place. The boyfriend she had had for three years at
the time of the accident, was gone shortly after it. Her friends are down to
two girlfriends, both with lives of their own. She has had thoughts of suicide;
wondering if she could accomplish the feat by propelling through a window.
The simplest features of daily living are a production, from getting in and out
of bed and bathing only with the assistance of others with a cumbersome shower
chair, to using manual cuffs that allow various instruments to be inserted in
order to poke at a telephone, or a computer, or pick at food with inserted
silverware. All with constant pain. She has not slept through the night since
the accident without awakening from pain. She described muscle spasms causing
her legs to "shake violently" [T-67], and her fingers to curl and squeeze in
toward her palm.
When attempting to compensate someone for this aspect of damages - namely,
"...the physical and emotional consequences of the injury..." - it is clear that
such damage can only be assessed on a case-by-case basis. Certainly, on an
emotional level, one individual suffering from the same physical limitations
will react differently from another. Here, based upon the harrowing physical
experience of pain Claimant endured immediately following this accident, up to
the time of trial, including multiple surgeries, infections, chronic pain, loss
of friends, and intrusions upon her person and privacy, and a future that
foretells more of the same, the Court finds that the reasonable compensation
for Claimant's past pain and suffering, is in the amount of $1,000,000.00, and
for Claimant's future pain and suffering the amount of $2,500,000.00.
For the reasons set forth above, the Court makes the following award:
Lost Earnings: $ 260,091.00
Pain & Suffering: $ 1,000,000.00
Total award for past losses:
Lost Earnings: $ 1,058,220.36
Future Medical & Related Expenses:
Pain & Suffering: $ 2,500,000.00
Total award for future losses:
TOTAL AWARD: $12,658,778.82
Since the amount of future damages exceeds $250,000.00, a structured judgment
is required [See, §5041(e) Civil Practice Law and Rules]. Let
judgment be held in abeyance pending a hearing pursuant to Article 50-B Civil
Practice Law and Rules. The Court suggests the parties agree upon an attorney's
fee calculation, and the discount rate to be applied to formulate a structured
settlement of their own. [See, §5041(f) Civil Practice Law and
Rules]. 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 Article 50-B Civil Practice Law and Rules within 120 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 hereby
White Plains, New York
HON. THOMAS H. SCUCCIMARRA
Judge of the
Court of Claims
All quotations, unless otherwise indicated,
are to transcribed trial testimony.
Using the speed assigned by Claimant's
expert, Dr. James Pugh.
This is the life expectancy testified to by
Dr. Conrad Berenson, Claimant's economist, and is a figure close to the life
expectancy also found at Appendix A; Pattern Jury Instructions 1B NYPJI3d 1465
Counsel spent an inordinate amount of time
debating whether Claimant earned $320.00 or $350.00 per week at the time of the
accident. Given the Court's view that her limited earnings history does not
actually control the issue, the debate has become largely academic.
Ms. Cummings opined she could earn
approximately $21.00 per hour as a social worker, for example, with some
training. While there is some argument that involvement in some work would have
therapeutic value, based upon this Court's assessment of Claimant's inclinations
and her palpable physical discomfort during her testimony, it is highly unlikely
that Claimant will either seek out further training, or look for work involving
extensive contact with strangers.
A flat rate projection would be the baseline,
assuming no further increases in salary, projected forward the given number of
years - here, 23.1 years - inclusive of fringe benefits and deducting work
The Appellate Division frowned upon using the
earnings of another supposedly comparable individual - rather than the actual
earnings of decedent whose earnings were considerably lower - in the future
earnings calculation of a wrongful death claim.
Evaluation by a urologist is included as part
of the yearly evaluation at Craig in Dr. Schuster's life care plan, but is also
broken out as a separate yearly item without explanation in his plan.