New York State Court of Claims

New York State Court of Claims

Johnson v. STATE OF NEW YORK, #2003-018-273, Claim No. 98766


Case Information

AMANDA HEALEY JOHNSON, as Administratrix of the Goods, Chattels, and Credits of JEFFREY ALAN HEALEY, Deceased
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant's attorney:
LOCKWOOD & GOLDENBy: Lawrence Golden, Esquire
Defendant's attorney:
Attorney General of the State of New York
By: Patricia M. Bordonaro, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
April 1, 2004

Official citation:

Appellate results:

See also (multicaptioned case)

After a trial on liability, the Court found the State 100 percent liable for the wrongful death of claimant's decedent. Decedent was killed in an offset head-on collision on State Route 26 in the Town of Constableville, Lewis County, on August 14, 1996. The Court's decision on liability was filed with the Clerk of the Court on April 8, 2002. This decision addresses the issue of damages for decedent's wrongful death. At the trial, counsel stipulated that no award for pain and suffering was being sought.[1]

Decedent was 31 years old at the time of his death. Claimant testified she met the decedent while they were attending Wartburg College in Iowa in 1987. Both had attended a meeting of the Waverly Iowa Municipal Ambulance Service, and shortly thereafter, began dating. Prior to attending Wartburg College, decedent graduated from Clinton High School in Upstate New York in 1983,[2]
and then joined the United States Army. In the Army decedent was a Parts Clerk Specialist working with the Hawk Missile System. He was stationed in Germany and then returned to Fort Bragg, North Carolina, where, in 1984, he began studying accounting and business management at Campbell University. He was discharged from active duty with the Army in July 1986, remaining on "call-back status" until August 1989 when he was honorably discharged.
In 1986, decedent transferred to Wartburg College, continuing his studies in Business Administration and Accounting. In 1988, he transferred to Hawk Eye Technical College until decedent moved with claimant later in 1988 to Grand Forks, North Dakota. Decedent graduated from Askers Business College in North Dakota in 1989 with an associate's degree in Business Administration and Junior Accountancy. After claimant received her degree, she and decedent moved back to Central New York and were married on August 31, 1991.[3]

Claimant described decedent's work history which revealed him as a hard-working, young man. While attending college in Iowa, decedent worked at various convenience stores, as a veteran's representative for an employment agency and with an ambulance service. When claimant and decedent relocated to North Dakota, decedent continued with school full-time, while working for a time with a temporary service. He also worked for a contracting company in the accounting department and for the Association for Retarded Citizens (ARC) doing bookkeeping. After he earned his degree, he was employed by Lyons Auto Supply as the bookkeeper, also working at the service counter and making deliveries.

Upon returning to the Utica area, decedent began working for Williams Development Corporation as an assistant manager of a Nice and Easy store in Utica. He was promoted to manager but after two years, he left to work for Fasino Power Brake, also in Utica. In September 1994, decedent began work for Syracuse Suspension and Hydraulic Parts, Inc.,[4]
also in Utica, as a bookkeeper. Decedent's work hours were 8:00 a.m. until 4:00 p.m., but decedent often left early to deliver products to customers on his way home. Decedent's main job functions were to handle the accounts for the company. One of the owners of the business, Richard Lockwood, testified that he hired decedent at a salary of $375 per week. The company offered major medical insurance through Blue Cross/Blue Shield, paid vacation after one year, paid holidays, and, at the time, small bonuses after 90 days. At first, claimant carried insurance so decedent did not participate in the group insurance plan; however, decedent enrolled in the plan and obtained family insurance coverage in March 1996.
Decedent also took a seasonal job with Jackson-Hewitt as a tax preparer. In 1994, he left Jackson-Hewitt and went to work for H & R Block at an hourly rate of $6.50 to $7.00.

He would work from January through April, 5:00 p.m. to 9:00 p.m. weekdays, and some Saturdays. In the fall of 1996, decedent was scheduled to take an Intermediate Tax Course through H & R Block which would have allowed him to prepare more complicated tax returns. Also, it would extend the tax season to late May or June.
Susan Roberts, decedent's employer at H & R Block, as well as Mr. Lockwood, described decedent as a prompt, careful, trustworthy employee who enjoyed his work. Decedent would work late, if necessary, never missed work, and got along with his fellow employees. Both witnesses testified they would have continued to employ decedent.

In addition to work, decedent devoted time to the Boy Scouts. In every community in which he lived, decedent worked with the Boy Scouts as an assistant Scout master and a voyager guide. He enjoyed hiking, camping, fishing and hunting, which, except for hunting, he shared with claimant. Decedent also volunteered with the Red Cross.

Around the house, decedent would assist with the housework, make repairs and do the routine maintenance work. He installed a wood stove and chopped wood for it. He plowed the driveway, mowed the lawns and repaired and maintained the equipment and the motor vehicles.

Claimant described decedent as a caring, protective, romantic husband who centered his life around family. He encouraged her to start a business, Manda Bears, which he helped manage. They would attend craft shows with the teddy bears they made. Decedent did the bookkeeping. Claimant discontinued the business after her husband's death.

William Blanchfield, was called by claimant as an expert in economics. Dr. Blanchfield has a Ph.D. in economics and is a professor of economics at Utica College. Dr. Blanchfield reviewed decedent's income history,[5]
fringe benefits, interviewed claimant and determined a value for decedent's lost income, benefits and household assistance.
Decedent's W-2 forms from 1993 through 1996 were used to establish his earnings. He had earned $15,191 for the first 7 ½ months of 1996, before he died. Dr. Blanchfield projected that his annual wages for 1996 would have been $24,305. To that figure, he added 3% for raises and advancement each year to decedent's age 65, totaling $1,452,350. He determined decedent's fringe benefits to be 20% of his wages resulting in a net loss of $222,500, and he further determined the loss of home contribution to be $150,125 through decedent's age 70.[6]
From the lost wages and fringe benefits, Dr. Blanchfield deducted a consumption allowance of 23.4%.[7] The total net loss, according to Dr. Blanchfield, was $1,485,126.[8]
It was noted by Dr. Blanchfield, that the decedent's wage increase from 1993 to 1994 was 7.4%, from 1994 to 1995 it was 9.1% and from 1995 to 1996 it was 12.2%. The 3% he used to project decedent's income he felt was conservative.[9]

Dr. Blanchfield calculated that decedent's past lost earnings totaled $183,499, after deducting the consumption allowance, the net loss was $140,560. For future earnings, the net loss was $971,941. He then determined the lost fringe benefits, past and future, by figuring 20% of the net losses, arriving at $28,112 for past and $194,388 for future fringe benefit losses. He also broke down the home contribution losses as $22,920 past, and $127,205 future.

The Assistant Attorney General questioned Dr. Blanchfield about the tables he used to arrive at a work life expectancy for the decedent. He used data compiled by the U.S. Department of Labor for 1997 and for various reasons he chose age 65. When asked about the tables contained in New York Pattern Jury Instructions (hereinafter referred to as PJI), Dr. Blanchfield said he had not used those in years. In his opinion, they are outdated. He acknowledged that those tables indicate a probable work-life expectancy for decedent to age 60.

Using a retirement age of 60, as the PJI tables indicate, would, of course, lessen the amount of lost earning set forth in his report.

Dr. Blanchfield was also questioned about how he arrived at his consumption allowance of 23.4%. For that, he used the Rand Report, which he consistently uses whether he has been retained by plaintiffs or defendants. He recognized other studies compiled on personal consumption but does not use them. Dr. Blanchfield acknowledged that the Rand Report was probably not "refereed" [10]
and that there are more recent studies contained in the authoritative Journal of Forensic Economics which have consumption allowance figures as high as 40.6%. Use of that figure would also greatly reduce the total loss of earnings calculated by Dr. Blanchfield. However, on re-direct, Dr. Blanchfield reiterated that decedent was frugal, so in his opinion, the 23.4% is acceptable.
Claimant's expert was also questioned about how and why he determined a home contribution loss should be awarded. The claimant's testimony established that decedent performed a considerable amount of work around the house including such things as car repairs. Dr. Blanchfield, however, was not provided any receipts or other evidence of actual loss. Claimant indicated she had gratuitous assistance from family and friends. Based upon
Schultz v Harrison Radiator Div. General Motors Corp., 90 NY2d 311, the Court finds claimant has failed to prove any compensable loss for decedent's household services.
The defense also inquired about how Dr. Blanchfield arrived at a 3% annual rate of inflation. Dr. Blanchfield said he relied upon the consumer price index as reported by the Federal Reserve Bank of Cleveland. For recent years, the median consumer price index was 3%. In 1995, the consumer price index was 3.75%, and 5 out of the 8 years since then it was 3% or greater. The defense showed him other published consumer price index figures which averaged between 2.5 and 3%.

Dr. Blanchfield also agreed that the linear method of calculating a decedent's lost income is not the only available method. In short, Dr. Blanchfield acknowledged that economists can use different work-life expectancies, different consumption allowance figures, different rates of inflation and different methods of calculating items of damages. Each change, obviously, would produce a different result. However, Dr. Blanchfield's methods and figures appear to be accepted in the economic community and to some degree specific to Mr. Healey.

The State did not call any expert, choosing to use an economist only to assist in the cross-examination of Dr. Blanchfield. Claimant noted that defendant had the economist present in the Courtroom with defense counsel during the damages trial. At the close of the case, claimant moved the Court to draw a missing witness inference, specifically finding that had the State's expert testified, he would not have contradicted Dr. Blanchfield's calculation of damages (
Sanders v Otis El. Co., 232 AD2d 327).
The party seeking a missing witness charge or inference must establish that there is a witness available who could provide material, non-cumulative evidence, and who is under the control of the opposition (
see People v Gonzalez, 68 NY2d 424). Clearly, the State's expert was available and within the defendant's control; he sat with defendant's counsel at trial. Presumably his testimony regarding the claimant's compensatory losses would be material. However, case law on this point, as it relates to expert witnesses seems to require more. In Sanders, the Second Department said "Defendant's failure to present testimony of an expert witness, after giving notice of his identity and the subject matter of his proposed testimony, showing his familiarity with the cause of the elevator accident, warranted a missing witness charge..."[emphasis added] (Sanders v Otis El. Co., supra at 327-328; see also, Pan v Shaw, 203 AD2d 195, where although no mention is made of the expert disclosure, the Court relies on what defendant's expert would have testified to in support of its position that a missing witness charge should have been provided presumably relying on the witness's expected testimony in the disclosure).
The Appellate Court in
Mason v Black & Decker (U.S.) Inc., 274 AD2d 622, lv denied, 95 NY2d 770, found that the trial court correctly denied defendant's request for a missing witness charge when plaintiff failed to call an expert identified in her original disclosure. Supplemental disclosures listed other experts, who did testify. The Third Department held that defendant failed to show that the witness was in the plaintiff's control having initially been retained by a co-defendant's insurance company. The plaintiff successfully argued that other experts had been substituted for the alleged missing witness.
Gibson v St. Luke's Roosevelt Hospital Center, 267 AD2d 136, the First Department held that the trial court erred in allowing defendant's expert witness disclosure into evidence and permitting plaintiff's counsel to comment in summation regarding defendant's failure to call their retained orthopedic expert in lieu of a missing witness charge.
The Court, in
Camillo v Geer, 185 AD2d 192, 196 held a missing witness charge appropriate given that the expert had participated in the accident investigation, and prepared a diagram establishing the cause of the accident which was admitted into evidence yet the expert was never called as a witness.
These cases all have a common thread - the expert was disclosed pursuant to CPLR 3101(d)(i), or the expert prepared a report that was used at trial, without the witness being produced for cross-examination. In this case, the State never provided claimant with expert witness disclosure nor did defendant submit a report from the expert. There is nothing to indicate that defendant retained this expert for any purpose other than consultation, and nothing prevents a party from retaining a consultant. Defendant never presented this person as an expert "witness." In fact, if defendant had tried to call this expert as a witness, undoubtedly, the request would have been rightfully met with an objection and demand for preclusion for the absence of proper disclosure pursuant to CPLR 3101(d)(i).

There are situations where a party might consult with an expert but decide ultimately not to retain his or her services for trial (i.e., consultation solely for purposes of preparing a certificate of merit [CPLR 3012-a(a)(i)]; expert too costly or unwilling to travel). Under these circumstances, a missing witness inference would be inappropriate and the Court finds the circumstances of this case also do not warrant the inference. Claimant's motion is denied.

Section 5-4.3(a) of the Estates, Powers and Trusts Law (EPTL) provides that damages for wrongful death are limited to "fair and just compensation for the pecuniary injuries resulting from decedent's death to the persons for whose benefit the action is brought." To determine what is "fair and just compensation" the Court may consider evidence of the "reasonable expectancy" of financial support, gifts, and inheritance that would have been provided to claimant had the decedent lived (
Loetsch v New York City Omnibus Corp., 291 NY 308). Factors to be considered in arriving at an award include "present and future earnings, potential for advancement, and probability of means to support heirs, as well as factors pertaining to the decedent's age, character and condition, and the circumstances of the distributees" (Gonzalez v New York City Housing Auth., 77 NY2d 663, 668).
The Court finds that Dr. Blanchfield's method of calculating claimant's lost wages and fringe benefits was appropriate. However Dr. Blanchfield extrapolated the remainder of claimant's 1996 income by using the 7½ months of income he actually made which included claimant's seasonal work as a tax preparer. The remainder of the income for 4½ months should have only included claimant's position with Syracuse Suspension and Hydraulic Parts, Inc. That figure would amount to $8,153 which would result in an annual income of $23,344. This would change the calculations for decedent's loss of future earnings contained in Exhibit 32. The witness testified that he erred by including $1,519 for decedent's fringe benefits in column 7 of that exhibit.

The Court accepts claimant's inflation rate of 3%. The Consumer Price Index fluctuates but the median rate from 1995 to 2003 was 3%. Since the projection in this case extends over 35 years, the 3% rate is reasonable.

The Court finds that the decedent's work life expectancy should be age 65. The testimony established that decedent was an industrious, hard-working individual in good health. Relying upon this evidence, a work-life expectancy of 65 seems appropriate.

Using decedent's projected 1996 income of $23,344, as determined above, and calculating a 3% per year increase based upon the rate of inflation, total lost wages would equal $1,396,175; past lost wages would be $175,642.50 and future lost wages would be $1,220,532.50. Given the testimony about claimant's frugality and his efforts to minimize household expenses, the Court adopts Dr. Blanchfield's use of a personal consumption allowance of 23.4% which would be $41,100.35, deducted from the past lost wages and would be $285,604.60 deducted from future lost wages. Claimant's net past lost wages would be $134,542.16, and the future net lost wages would be $934,927.89. The 20% fringe benefit loss which defendant did not dispute, and this Court accepts, would be $26,908.43 for the past net lost wages, and $185,985.58 for the future net lost wages. Adding the fringe benefit loss to the adjusted lost wage figure, claimant's total net past lost wages and benefits equal $161,450.59, and net future losses equal $1,121,913.48. As stated above, the Court cannot award any home contribution loss.

The Court awards $5,645.46 for decedent's funeral expenses.

Accordingly, to summarize the Court awards claimant the following:
Past lost wage and benefits $ 210,771.40

Past consumption allowance -
Net past lost wages: $ 161,450.59
Future lost wages and benefits $1,464,639.00

Future consumption allowance -
Net future lost wages: $ 1,121,913.47
Funeral expenses: $ 5,645.46
Total damages : $ 1,289,009.52

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 issues and the determination of appropriate interest (see Milbrandt v A.P. Green Refractories Co., 79 NY2d 26, 37-38). 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 60 days of the service of this decision upon them by the Clerk of the Court. A hearing will thereafter be scheduled at the mutual convenience of the parties and the Court.
All motions made at trial and not heretofore ruled upon are now denied.

April 1, 2004
Syracuse, New York

Judge of the Court of Claims

[1]Claimant also did not present any proof of property damage.
[2]Exhibit 2
[3]Exhibit 6
[4]The company is now known as Syracuse Motor Parts but it will be referred to as Syracuse Suspension and Hydraulic Parts, its name at the time decedent was employed.
[5]Exhibit 32
[6]Exhibit 28
[7]Exhibit 29
[8]Exhibit 28

[9]The defendant objected to the admission of Dr. Blanchfield's breakdown of the damages into past and future amounts on the basis that the allocation was not contained in the expert witness disclosure. The Court granted an adjournment to allow the defendant time to prepare for cross-examining Dr. Blanchfield on his calculations. The testimony and exhibit 32 were received subject to the defendant's cross-examination.

[10]Refereed means that other economists have not reviewed and reached a consensus that the methodology used in a report is sound.