New York State Court of Claims

New York State Court of Claims

QUACKENBUSH v. THE STATE OF NEW YORK, #2003-013-502, Claim No. 95363


Damages in the amount of $1,866,012.00 are awarded to a 49-year-old businessman who suffered back injuries requiring spinal fusion, probably requiring a second more extensive operation in the future, and resulting in some degree of permanent disability, affecting future earning ability.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Attorney General of the State of New York
BY: EDWARD F. McARDLE, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
April 11, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


In a previous decision of this Court, Claimant was granted partial summary judgment on the issue of liability. This decision is limited solely to the issue of damages.

On September 30, 1996, Claimant's Chevrolet S-10 pickup truck was involved in a collision with a street sweeper operated by an employee of the Defendant in the Town of Van Buren, New York. The collision occurred on the bridge crossing over Route 690. The operator of the street sweeper approached the bridge at a rate of speed that caused the water in the tank to shift, causing the street sweeper to veer and cross into Claimant's lane of travel. Claimant attempted to avoid the collision by turning his truck to the right, but his ability to maneuver was restricted by the guardrail. His truck was struck along the right side and was destroyed. In my earlier decision, I determined that the State was liable for Claimant's injuries, without any fault on his part contributing to this accident.

Claimant testified that immediately after the accident, he removed himself from the truck on the passenger's side, called 911 on his cell phone, and then sat on the guardrail to assess his situation. His first sensation was fear, because he had never been involved in a vehicular accident before, and he also felt as if he had been "beaten up." He experienced principally pain and pinprick type sensations in his left shoulder, arm, hip and leg. He also sustained some minor lacerations to his face, but these were not of a serious or permanent nature.

After the accident, and after his vehicle had been removed, Claimant went to his home to clean up, reported the accident as he had been instructed to do, and then reported to work at his part-time job at Aquatic World. After a while, the pain became more intense and he arranged to see his doctor. Later that day he was examined by both his family medicine practitioner, Dr. Kodsy, and his chiropractor, Dr. Richard F. Christiana. He had been seeing Dr. Christiana for several years prior to the accident and, at the time of accident, was seeing him monthly as part of a "maintenance program." For the following several years, Claimant continued to consult with these practitioners and numerous others -- including neurosurgeons, orthopedists and pain specialists -- in an effort to treat his continuing pain and limitation of movement in a conservative fashion. He shied away from more invasive or experimental treatments because he had never had any major surgeries and questioned the effectiveness of some alternatives. His pain and limitation were treated primarily with chiropractic manipulation and physical therapy (
see, Exhibits 11, 17). The pain did not subside, however, and in fact increased. Claimant also began to experience periodic episodes in which his left leg "locked up."
In May 1999, he consulted with Dr. Richard J. DiStefano, an orthopedic surgeon. After examining Claimant, Dr. DiStefano diagnosed his condition as L5-S1 spondylolisthesis, with resultant bilateral foraminal narrowing, resulting in left radiculopathy. On September 16, 1999, Dr. DiStefano performed a laminectomy and spinal fusion.

At the time of the accident, Mr. Quackenbush was 49 years old, was employed on a part-time basis at a business known as Aquatic World, and was also a Town Councilman and Deputy Town Supervisor for the Town of Van Buren. Earlier, armed with an AA Degree in business administration, he had been a partner in a computer program company known as Mincom Business Systems, which started with a minimum investment in 1979. The work of this company centered on mainframe computer systems, and Claimant spent most of his time creating a client base and traveling to customers to resolve problems and implement upgrades. When his partner passed away in the late 1980's, Claimant took over sole responsibility. He eventually sold the company in the early 1990's and essentially "retired." During the year following the sale, he explored possible business ventures in which he might become involved.

Beginning in 1994, he developed an interest in scuba diving and acquired several diving certificates, with the idea of eventually owning a dive shop and teaching diving to customers, either in the Florida Keys or in Central New York. According to Claimant, his reason for taking the part-time job at the Aquatic World dive shop had been to gain experience for developing the dive shop and school. Although he had invested significant time and effort into exploring the possibility of starting a business of this type, he now has to admit that the extensive physical limitations that he presently faces, and that he will face in the future, have ended his hopes for this second career.

Claimant has also been unable to return to the active lifestyle that he enjoyed prior to the accident. He had been coaching football part time at the high school level and had hoped to continue this once he established his diving shop, but that is not possible now. Claimant is unable to lift any object weighing over 20 pounds, nor can he walk distances for sustained periods. In addition, he must wear a sizeable and bulky back brace during his waking hours and, as was evident during the trial, sitting for extended periods of time is very uncomfortable for him. Claimant is also limited in what he can do around the house, in the form of simple household tasks, such as ordinary cleaning, laundry or grocery shopping, that a single person must engage in in order to maintain a home. His social life has also been affected.

Claimant was divorced two years after his accident, and his physical condition has made it difficult for him to have a meaningful recreational and social life. Prior to the accident, he frequently swam and dove and was socially active. He is uncomfortable attending movies or social events, where he needs to sit for extended periods of time, or to attend church, where it is uncomfortable for him to kneel. In addition, he has found attempts at intimacy to be very painful. His trips to visit his family in New Jersey and in Florida have been limited, and he no longer feels that he is active enough to have a dog as a pet. Claimant testified that his documented out-of-pocket medical expenses associated with treatment for the injuries he sustained in the accident are $1,270.00 (Exhibit 12).


Dr. Richard J. DiStefano, Claimant's Board certified orthopedic surgeon, testified that he first examined Claimant in May 1999, at which time he presented with complaints of pain in his lower back, left leg, and top of his left foot. He diagnosed several conditions: (1) Grade 1 L5-S1 spondylolisthesis,[1]
(2) bilateral foraminal narrowing, and (3) L5-S1 radiculopathy (Exhibit 11, p. 65). These conditions are typically acquired over time and were preexisting at the time of the accident. On the other hand, they are typically asymptomatic and either do not cause any problems or symptoms, or can be handled with very conservative measures. The problems experienced by Claimant prior to the accident, according to earlier medical records and reports of Claimant's activities, would have included some back pain and some left leg pain, but overall they would have been considered "minimal" (Transcript, p. 176) and "stable" (Transcript, p. 181). Dr. DiStefano noted that there was no record of pain medications being given to Claimant, and he felt that the problems were probably satisfactorily handled by the chiropractic maintenance program.
After the accident, however, the pain and limitations were much more of a problem and, in fact, no conservative remediation he attempted was satisfactory. Dr. DiStefano felt that this was established, without question, both by the medical results and by Claimant's own conduct. Thus, while he became aware at trial that Claimant's back problem was a preexisting condition, it was still Dr. DiStefano's opinion that Claimant's 1996 accident "turned this somewhat latent innocuous condition or problem into a very significant life-changing problem" (Transcript, p. 232). Further, he stated that he considered it very unlikely that the previous condition would ever have required surgical intervention.

By September 1999, Claimant was having back pain, shooting pain down his left leg, and weakness and numbness, and he exhibited the condition known as "foot drop," caused by enervation of the L-5 nerve root. It was at this point that surgery was performed. Following a period of recovery during which he was totally disabled, Claimant was released for part-time work in November 1999, with restrictions against lifting more than 20 pounds or repetitive bending and lifting. He also had to be able to move around and could not sit or stand in one place for extended periods of time.

Dr. DiStefano considers Claimant to have a permanent, moderate to severe disability (Transcript, p. 189), which limits his future employability to sedentary work. His condition continues to deteriorate, with numbness now in both legs; he continues to require physical therapy; and further surgery is anticipated. The additional surgery would most likely involve further decompression of various nerves and an L-4 fusion, and, in order to stabilize the spine, rods and screws will have to be inserted and a bone graft performed. Neither of these steps had to be taken in the first operation, and, consequently, Dr. DiStefano anticipates that the pain following this surgery will be greater than that previously experienced after the initial laminectomy and fusion. Although he considers Claimant to have a fairly high tolerance for pain, the level of pain that he experiences continues to increase and, as time goes on, medications will be only partially successful in alleviating this pain.

On cross-examination Dr. DiStefano acknowledged that current medical indicators do not show that Claimant has any demonstrable weakness in addition to the numbness he is experiencing. He also confirmed that records of Claimant's chiropractor, Dr. Christiana, showed complaints of back, neck and shoulder problems for a number of years prior to the 1996 accident. This did not change Dr. DiStefano's view as to the nature of the preexisting condition, however, or the "life-changing" effect that the accident had on Claimant (Transcript, p. 232).

Dr. Richard F. Christiana, Claimant's treating chiropractor, who is also certified in chiropractic spinal rehabilitation, testified that Claimant was his patient from 1990 to 1998. Claimant initially sought treatment for problems with his lower back and cervical spine, specifically for intermittent episodes of pain in his left buttock and down his left leg. Dr. Christiana's diagnosis was spondylolisthesis, described as a "failure of the posterior element of the vertebrae to essentially maintain its unity with the anterior segment" (Transcript, p. 646). By approximately 1995, Claimant had improved to the point that he could be maintained with only monthly treatments. During the year prior to the 1996 accident, Claimant himself paid for services that Dr. Christiana described as a "wellness level of care or a maintenance level of care" (Transcript, p. 627), designed to safeguard the previously corrected structural changes. During this period, there were times that Claimant complained of a low level of discomfort, and other times that he had absolutely no symptoms at all. Asked to describe Claimant's condition immediately prior to the September 1996 accident, Dr. Christiana stated that he considered him to be "fairly stable, functional, able to continue with normal activities of daily living and employment" (Transcript, pp. 631-632).

When he examined Claimant on the day of the accident, along with the clinic's medical doctor, Dr. Christiana found tenderness and limitation in the range of motion of the cervical spine, tension in the trapezius neck muscles, and pain in the lower back and leg on the leg raise test. Essentially, he stated, this presented a picture of a nerve root compression, consistent with a herniated disc. This condition was confirmed by an MRI taken on October 16, 1996. Over a series of visits, two or three each week, Claimant was diagnosed as having lumbosacral strain and probably lumbar radiculopathy. Dr. Christiana considered Claimant to have a disability at this point, as he increasingly had difficulty walking. Despite his attempts to return to work, within a few months after the accident, Claimant was, in Christiana's opinion, totally disabled.

A number of different chiropractic treatments, medical treatments, and occupational therapy procedures were tried during 1997, when there were approximately 28 visits to the clinic. The therapeutic goals were to get the patient out of pain and to increase his range of motion. While Claimant's responses were sometimes encouraging, it was eventually concluded that a neurological consultation was needed for pain management, epidural injections or possibly surgery. These ongoing problems were, in Dr. Christiana's opinion, caused by the accident. He reached this conclusion because, prior to that event, there had been no evidence of a herniated disc. Although Claimant may have had some degenerative changes in the same area of his spine as he aged even if the accident had not occurred, in the chiropractor's opinion, the trauma of the accident caused these to occur much faster, magnified the pain, and also caused other injuries that would most likely not have been present otherwise.

Dr. Jose R. Lopez, an orthopedic surgeon, performed an independent medical examination of Claimant for the Defendant. He observed that Claimant walked with a limp; that he had difficulty walking on his toes or heels; that his range of motion bending forward and backward was limited; and that his lateral range of motion was limited. When in a supine position, however, his response to leg raising tests was normal. The neurological part of the examination was essentially normal also, although Claimant reported decreased sensation over a wide area of his leg. After considering Claimant's medical history, which included the surgery performed by Dr. DiStefano, and conducting the examination, Dr. Lopez concluded that while Claimant reported a number of subjective complaints, particularly regarding his left side, there was little objective evidence of continued problems. The areas of pain or weakness that he identified were not consistent with patterns or pathways, or dermatomes, associated with compression of any particular nerve root. In his opinion, Claimant was not a malingerer, as he did, in fact, have some discomfort and mild limitation of movement, but was overstating the manifestations of his injury.


Claimant's vocational expert, Peter D. Stickney, testified regarding his earning capacity both prior to and after the September 1996 accident. It was his opinion that the appropriate way to determine the preinjury capacity of someone who was in the process of making a career change was to assume an earning capacity equivalent to that of the average graduate from the same course of training. Consequently, he disregarded Claimant's reported preaccident income of approximately $10,000.00 because Claimant was working only part time in what he considered to be a sort of training program for his plans to open a dive shop and school. "It wouldn't have been appropriate to use his figures while he was retraining, because he wasn't working full time, and it's not a true representation of his earning capacity" (Transcript, p. 284). Instead, he considered Claimant's age and his desire to obtain certification as a Diving Instructor, assumed that he would ultimately have owned his own diving shop, and concluded that his preinjury annual earnings would have been $49,926.00. As a consequence of his injury and ultimate disability and limitations, and based in part on his own personal observations of Claimant while at work, it was Mr. Stickney's opinion that Claimant's postinjury earning capacity would be reduced to $19,430.00 if he were not retrained. If he were retrained for an appropriate field, his earning capacity would be $20,000.00 for a period of two years and $30,000.00 thereafter.

Fields that Mr. Stickney identified as possibilities for Claimant included maintenance dispatcher, credit analyst and employment interviewer. Although he could physically perform the work of a computer programmer, he would need additional training to handle a job of that nature: at least two years, full time, at a cost of $7,800.00 to $9,800.00 per year.

Matthew McCabe, an economist called to testify on behalf of Claimant, relied in part on Peter Stickney's findings, and in part on information regarding the income to be derived from operating a scuba dive shop. He calculated Claimant's potential earnings from September 30, 1996 to September 13, 2000, the date of the Court's finding of liability, and then thereafter to March 31, 2010, representing the balance of Claimant's undisputed worklife expectancy. In his opinion, if the accident had not occurred, Claimant would have earned $969,851.00 over this time span, assuming that he would have ultimately owned the planned dive shop and that it would be located in New York (Exhibit 3, Table 1).[2]

As a result of the injury and subsequent disability and limitation, Mr. McCabe concluded that Claimant's postinjury income for the same period, again assuming a New York location, would be limited to $296,071.00, for a net loss in earning capacity of $673,780.00. Added to this would be an additional sum of $72,272.00, representing Claimant's future medical expenses. The total economic loss, according to Mr. McCabe, would thus be $746,052.00 (Exhibit 3).[3]
Alternatively, if it is assumed that Claimant would have chosen to obtain the necessary training and again become employed in the computer field, his earnings would be somewhat more, but still would result in net lost earnings of $401,946.00 (Exhibit 3, Table IX).
Joseph Pessalano, Defendant's vocational expert, concurred that Claimant was underemployed at the time of the accident, and he accepted Dr. DiStefano's conclusion that Claimant is permanently partially disabled in that he is restricted as to lifting and bending and must change positions frequently. He did not agree that these restrictions would prohibit owning and managing a dive shop. In addition, in his opinion, Claimant could perform a number of the same sedentary and "light" jobs that he would have been able to perform prior to the accident, all with annual salaries in the $25,000.00 to $45,000.00 range (Exhibit F). Claimant's best employment prospect, both before and after the accident, according to Mr. Pessalano, would be to return to work in the computer industry. Because of Claimant's background, this would require only minimal retraining, he stated, despite the fact that college degrees are more frequently required today, computer technology is very rapidly changing, and the field in general has become more competitive. The average salary of a computer programmer in New York State is $59,560.00 (Exhibit F). When compared to his estimate of Claimant's preinjury earning capacity of $35,000.00 (Transcript, p. 388), the result, according to Mr. Pessalano, is that the injuries sustained by Claimant did not adversely affect his potential earning capacity.

Dr. Jerry Miner, Defendant's economist, testified that there were two alternative approaches that could be taken in estimating Claimant's uninjured earning capacity: to assume that he would have been successful in opening a dive/scuba shop, or, to assume that he would have had, from whatever source, the average earnings of a male of his age with equivalent education. He agreed that the amount Claimant was earning at the time of his accident was not a proper measure of his actual earning capacity. In part, therefore, he based his estimations regarding Claimant's earnings on the evaluations of the vocational expert, Mr. Stickney, but he disagreed with Mr. Stickney's conclusion that prior to the accident Claimant would have been expected to earn the same as an average member of the workforce with his age and education. In fact, Claimant had only been partially employed since selling his business in 1992. His optimum preinjury earning capacity, therefore, would have been to obtain training and go back into the computer services field. Such work would likely have earned in the area of $45,000.00 preinjury (Transcript, p. 566). Because he could still physically perform this work after his injury, there would be no long-lasting effect from his postinjury physical condition. The economic loss, therefore, would best be measured by the delay in Claimant's reentry into the labor market caused by the accident. Assuming he had wished to maximize his earning capacity, that delay would be approximately one year before and after his surgery, with perhaps some additional hiatus in the future if further surgery is required. Some retraining would have been necessary for him to pursue this line of work, but this would be the case whether or not he was injured.

It is highly speculative, in Dr. Miner's view, to assume that Claimant could have gone directly into a dive shop business and earned as much as $95,000.00 (using the profit margin figure of 30 percent). He also questioned the accuracy of the dive shop income figures relied on by Mr. McCabe, noting that more than 80 percent of the relevant businesses failed to respond to the survey. He had no criticism, however, of Mr. McCabe's estimation of future medical expenses.


There is no dispute as to certain elements of Claimant's economic damages. The value of his Chevrolet S-10 truck, which was destroyed, was $6,200.00. His out-of-pocket past medical expenses totaled $1,270.00, and his future anticipated medical expenses, both parties agreed, will be in the neighborhood of $72,272.00, if Claimant is required to have a second operation. Based on the medical testimony presented at trial, I find it unfortunately likely that such an operation will become necessary.[4]
Consequently, the total award for past and future medical expenses is $73,542.00.
Nor is there any meaningful dispute that Claimant suffered, and will continue to suffer, pain and loss of enjoyment of life as a result of the injuries he sustained on September 30, 1996. Even Defendant's medical expert recognized that Claimant was not a "malingerer," and Claimant struck me as a person who did not enjoy being physically limited and would avoid seeking treatment or limiting his vocational options unless he were forced to do so. Acknowledging that he had had some earlier problems with his back, for which he was on a "maintenance" regimen at the time he was injured, the marked contrast between his functioning and daily activities before the accident, and his physical functioning level after the accident can only, on the basis of the evidence presented at trial, be attributed to September 1996 injuries.

In addition to the day-to-day discomfort and interference with the lifestyle he would have chosen for himself, Claimant has undergone painful diagnostic procedures and has had at least one period of greater pain and total disability following his operation. I also credit the testimony that it is more than likely that Claimant will, at some point in the future, have to undergo a second, possibly more extensive operative procedure, and he will not be rid of the effects of these injuries at any point during the remainder of his life, which based on actuarial tables would be approximately 25.2 years. Recognizing that awards for these types of intangibles can never be fixed with absolute certainty, I award the sum of $300,000.00 for Claimant's past pain and suffering, and the sum of $1,175,000.00 for his future pain and suffering, for a total of $1,475,000.00 (
see, Barrowman v Niagara Mohawk Power Corp., 252 AD2d 946; Adams v Georgian Motel Corp., 291 AD2d 760; Murry v Witherel, 287 AD2d 926, and cases summarized therein).
The more difficult determination, of course, is calculating the loss of income that can reasonably be attributed to the injuries caused by the accident and their effect on Claimant's earning ability. I accept, as did all of the vocational and economic experts, that at the time of the accident Claimant was underemployed, and that his actual annual income following the sale of his business, around $10,000.00, did not reflect his optimal, preaccident earning capacity. I also accept the implicit assumption that Claimant would have carried through to some degree on his plans for a second career and would have, in some fashion, earned more in the future once he settled on a second career.

I find insufficient evidence in the record to support a finding that Claimant would have carried out his plans to start and run a scuba/dive shop, either in New York or in Florida, or even if he had done so, that he would have been successful to the extent indicated by the somewhat questionable studies regarding that field. While there is no doubt that Claimant was interested in exploring his vocational option and undoubtedly was interested in the activity, there was simply no persuasive evidence of sufficient concrete actions on his part to allow me to conclude that this course would, in fact, have been chosen. I do not mean to imply that I found his interest in such work feigned or frivolous, but it is simply not sufficiently certain that he would have pursued this option for it to provide the basis for a concrete award for economic loss. In fact, there are significant reasons to believe that this would not have been his actual choice. Starting a business of this sort would involve a substantial and rather risky investment; it would tie him down to one location day after day, and prevent the traveling that he testified was important to him; hands-on running of a business of this nature would not easily allow him to continue in the other part-time interests that he enjoyed (government service and coaching football); and, while he might enjoy the activity of diving and teaching others, he would also have to be aware that having to perform such active work on a daily basis would become increasingly difficult for him with the passing of time.

It is impossible, of course, for anyone, even Claimant, to say with certainty what his future vocational decisions would have been if he had not been injured. He testified convincingly that he had serious reservations about returning to the computer technology field. Nevertheless, if he had at any point chosen to maximize his earning ability, this would undoubtedly have been the path chosen. He had experienced significant success in this field in the past, retraining would be well within his abilities, and he undoubtedly would have retained some connections, or at least knowledge of the field, from his prior business; and working with computers is employment that would not become increasingly difficult with the passing years. Despite Claimant's lack of interest in returning to this field, both parties viewed this as a realistic and optimal choice for him to make on a strictly economic basis, and I concur.

I reject, however, Defendant's argument that because Claimant could still work in the field of computer technology after his injuries, he has experienced little, if any, overall future economic loss. Physical limitations that prevent, impair or make more burdensome the everyday activities such as dressing and shopping and the more enjoyable social activities, are inevitably going to prevent, impair and make more burdensome the activities associated with obtaining retraining and working in any field. Should he decide to obtain the retraining and reenter a field related to computers, his ability to do so and to succeed within the field would, without question, be hampered by his current and future physical limitations. In addition, his earnings in this or any other field will in all likelihood be reduced by a period of total disability following a second, more extensive surgical procedure.

Claimant's experts calculated a net economic loss of $401,946.00 if Claimant is considered to be a typical person of his age, with an Associate's Degree who receives some further training in a suitable field, such as computers (Exhibit 3, Table IX).[5]
I believe this figure, which cuts his estimated preinjury earning capacity almost in half, is somewhat inflated. Claimant's ability to work and to succeed has already been established, so one can assume similar success in any endeavor in the future; he would have a strong base of knowledge and contacts on which to build; and while his physical limitations would interfere with any type of work, the degree of interference would be certainly minimized here. In addition, and perhaps most importantly, it can never be known with absolute certainty that Claimant would have chosen to maximize his earning potential. While there is no doubt that he was considering other fields and looking for an opportunity to invest his prior earnings and become more active in one field or another, there was no compelling need for him to do so. By his own testimony, his life prior to the accident was full and rewarding, even though he was underemployed. His ability to invest in other business, to perhaps be a silent partner or absentee owner in a business, was unimpaired by his injuries. Accordingly, with respect to provable or probable future economic loss, I award the sum of $310,000.00. Because of Claimant's acknowledged underemployment at the time of this accident, I hold that he is not entitled to an award for past economic loss, even though he was unable to work immediately after his surgery.
In summary, the award to Claimant is as follows:

Property Damage - Chevrolet S10 Truck $ 6,200.00
Past Medical Expenses $ 1,270.00
Past Pain and Suffering $ 300,000.00
Future Medical Expenses $ 72,272.00
Future Pain and Suffering $1,175,000.00
Future Economic Loss $ 310,000.00

TOTAL AWARD $1,864,742.00[6]

with appropriate interest from the date of the liability decision, September 5, 2000.
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 not previously ruled upon are now denied.

April 11, 2003
Rochester, New York

Judge of the Court of Claims

  1. [1]He later explained that this term is essentially the same as a subluxation, or misalignment.
  2. [2]If it is assumed that Claimant would have been able to open a dive shop in Florida where his son's family lives, the net economic loss would be greater - $1,117,372.00 (Exhibit 21, Table 1[a]).
  3. [3]Alternatively, assuming a Florida location, the total economic loss would be $893,573.00 (Exhibit 21).
  4. [4]Defendant presented no proof in mitigation of damages of Claimant's failure to wear a seatbelt at the time of the accident.
  5. [5]This figure is arrived at by estimating preinjury earning potential at $732,102.00, which would be reduced by $330,156.00 in light of his injuries.
  6. [6]The Court granted Claimant's motion to conform the pleading in this damage trial to the proof set forth in the record.