LEI v. THE CITY UNIVERSITY OF NEW YORK, #2004-016-001, Claim No. 99848
Damages. Modified 33 AD3d 467 [1st Dept 10/19/06].
Footnote (claimant name)
THE CITY UNIVERSITY OF NEW YORK
Footnote (defendant name)
Alan C. Marin
Barton, Barton & Plotkin, LLPBy: Gerald C. Barton, Esq. and Michael J. Hurwitz, Esq.
Eliot Spitzer, Attorney GeneralBy: Gail Pierce-Siponen, Esq., AAG and Leslie Stroth, Esq., AAG
February 18, 2004
Modified 33 AD3d 467 [1st Dept 10/19/06]
See also (multicaptioned
This is the decision following the trial on damages of the claim of
Man-Kit Lei, who was severely burned on March 4, 1998 when he caught fire while
working with an oxy-acetylene torch in a studio at Brooklyn College. In the
Decision dated November 1, 2002, the defendant City University of New York was
found 80% liable for Mr. Lei’s accident and resulting injuries.
that March morning, Lei was using the torch on a sculpture he was creating when
sparks jumped to his shirt; he was not wearing a leather apron. In a few
moments, he was engulfed in flames; a campus public safety officer who ran to
help described a “ball of flame” coming at him. Claimant testified
that “[w]hen I was on fire it seemed like forever, like it never [would]
stop. I thought I was going to die . . . [it] was very violent . . . like
getting beat up by ten big guys.” Lei, worried about a larger fire or
explosion, tried to shut the welding torch off, but his hands hurt too much for
him to do so.
THE PHYSICAL Treatment
Lei was taken to the
Cornell Burn Center of New York-Presbyterian Hospital in Manhattan where he came
under the care of Dr. Harvey Himel. Dr. Himel is board certified in the
specialties of general surgery and plastic surgery; he holds additional
certifications in the sub-specialties of critical care medicine and hand
surgery. Defendant did not call an expert in Dr. Himel’s field and left
Dr. Himel’s conclusions essentially unchallenged.
Dr. Himel testified
that claimant’s trunk, head, neck and upper limbs had suffered burns which
were so extensive on the upper part of the body that it amounted to 22% of
Lei’s total body surface. In addition, Lei’s hands were burned.
Lei’s burns were principally second and third degree, which categorization
refers to the impact on the epidermis, the outer skin, and its foundation, the
dermis. When the surface is burned, but some of the underlying dermis survives,
the injury is classified as second degree. In a third degree burn, the
epidermis and the dermis are destroyed; third degree burns do not heal.
Lei had his first surgery on March 10, six days after his admission to the
Burn Center. Dr. Himel performed this surgery as he did, apparently, all but
one of claimant’s surgeries. Himel explained the necessity for waiting
almost a week: “[i]t takes several days for a burn to run its course to
get to the point where we can judge what does or doesn’t have the ability
to heal itself.”
In that period, intravenous fluids were administered,
the damaged epidermis was trimmed away, the wounds were cleaned, and the patient
received twice-daily dressing changes. Because of the constant need for them,
painkillers were given intravenously. As Dr. Himel observed, “[b]urn
patients kind of live under anesthesia . . . They’re not completely asleep
at any time, but they’re continually give[n] the types of medication that
would be used in the operating room.”
Dr. Himel explained that only so
much could be accomplished in the first surgery because, among other things, it
places too much stress on the patient: more than half of Lei’s blood was
replaced because of the skin grafting, which took 3,660 square centimeters, or
20% of the body surface. In Dr. Himel’s characterization, the skin
grafting “doubled the size of his injury. . .”
during the recovery period included intravenous fluids, assisted feedings, pain
medication, dressings to the donor sites from which the skin was grafted and
daily bandages to the un-operated areas that continued to require wound care.
Due to the high risk of infection with a burn injury, antibiotics were included
in the intravenous ministrations. Lei also underwent physical therapy in the
hospital, which included having his arms pulled up and his neck moved from side
to side in order to stretch the skin.
Dr. Himel and his team had begun in
the initial surgery with the large surface of the patient’s trunk, the
chest and abdomen. In the second surgery performed a week later on March 17,
1998, they “proceeded to the next part of the burn . . . The neck is a
relatively smaller area, but far more difficult because of [its] contour . . .
The right arm is a pretty big area that needed to be done. The left hand had
very severe burns, and that was w[h]ere I focused my energies that day.”
Skin for the surgery was taken from the patient’s back.
surgery was performed by Himel’s colleague, Dr. Paul Halabian, on April 3,
1998, at which time the right nipple and areola were removed to prevent
infection. After seven weeks of hospitalization, Lei was discharged on April
22, 1998. On June 19 of that year, Dr. Himel amputated a fingertip - - the
bone had been protruding through an open wound. For that surgery, he was
admitted June 18 and remained hospitalized until June 26. There were three more
surgeries, one on September 29, 1998 and two the following year on June 18 and
July 30 - - for a total of seven operations.
Following his discharge,
Lei went back to the Burn Center three times a week for the first few months,
then twice a week for a similar period and finally once a week for two months,
at which point claimant was told that they “have done as much as they can
do, so they don’t think I would need any more therapy. . .” Lei was
given a program of home exercise involving pulleys and grip sticks, which were
of progressive difficulty and predominantly meant for his hands (cl exhs 13-17).
While an individual exercise within a progression would typically be used for a
month or two, the complete program of exercises was finished within a
In the first year, for 23 hours a day - - except to bathe - - claimant
wore compression garments over his burns, including a face mask (see cl exh 3).
According to Dr. Himel, the garments apply “about 20 millimeters of . . .
pressure to the surface of the scar to mold it and soften it and smooth it
out.” Lei needed the assistance of his mother and sister to put them on
and off. He also needed help to dress his burns after showering and this
remained so as of trial: “I still have some open wounds that [need]
attention, so every night . . . after I shower, my sister would put Bacitracin
and a piece of gauze and wrap it with some sort of bandage.”
Dr. Himel last saw Man-Kit Lei on February
15, 2003, which was just a few months prior to trial, at which claimant disrobed
to show the severity and extent of his burns.
This section details Lei’s current physical appearance and functional
His chest and abdomen are completely scarred with a heavy layer
of scar tissue. Parts of his neck, back, shoulders, arms and hands are also
burned. A piece of the left ear has been burned away and the ear lobe deformed.
A red scar runs from ear to ear, which is not concealed in the neck
under the chin, but frontally visible on the lower portion of Mr. Lei’s
jaw. His bellybutton is “nearly obliterated” and as indicated, his
right nipple had to be removed. There is also scarring on his back and the
rear of his legs (cl exh 2-O), sites from where the skin grafts were
Lei has a persistent limitation of motion in the neck because of
scarring in the front of the neck and the skin is tighter: “[n]ot only
does the skin not grow back when it’s burned, but when it heals, it
shrinks.” It is difficult for Lei to turn his head from side to side.
The normal contour from the jaw to the neck has been changed, sort of pulled
together. Dr. Himel indicated that Lei cannot reach his arms over his head.
Following the June 19, 1998 surgery,
there is almost nothing
left of the last joint on the little finger. As Dr. Himel explains, that finger
“is very sensitive because the skin is thin, [and] the nerves are exposed
just below the surface of this [thin] skin.” The thumb has a broad scar
that prevents it “from moving properly.” The fingernails of the
other three fingers are all distorted because the fingertips were shrunken and
withered by the flame injury.
The skin between the thumb and index finger
- known as the web region - is “scarred, shrunken and deficient.”
The result is that the thumb and index finger cannot form an “L”; it
is more of a curved hook which can make it more difficult to grasp objects. On
the right hand, there is scarring on the thumb and little, ring and middle
Lei suffers from frequent intense itching of his skin.
He uses a moisturizer, Lubriderm, together with the drug Benedryl twice a week
to control the itching. By and large, weather that is other than moderate
exacerbates claimant’s condition. In the summer, Lei stays indoors:
I cannot take the heat of summer . . . The scar is thick, it holds heat
inside my body. And when it holds heat in me, it becomes unbearable . . . [T]he
scars in my chest [do not] sweat anymore because . . . the pores of the
skin [are] gone . . .
As to winter, “I can’t enjoy [it]
because dry air makes [my] skin itch and I’m scratching all the
time.” Moreover, “[w]hen it rains it tends - - well, before - -
before it rains I tend to itch.” Nor can he tolerate hot beverages like
tea or coffee: “my body holds the heat . . . and it becomes
unbearable for me.”
Lei was evaluated on October 18, 2001 by Rina
Chawla, who is an occupational therapist as well as a hand therapist. Ms.
Chawla found a loss of range of motion on all of the fingers of the left hand,
from the index finger across to the little finger as 33%, 24%, 30% and 50% and a
concomitant loss of grip strength. Ms. Chawla noted some loss of range of
motion to the little finger of his right hand. Chawla made the following
That he is right dominant and that he was using his right hand
for his basic needs, but the left hand was definitely restricted and he had
difficulties in various tasks in using this hand . . . where he could only
carry things for a very short period of time in his left hand. He had to use
modified or [some] sort of alternate ways and means to use the left hand for
tasks . . . [h]e didn’t use any adaptive devices, per se, but he had to
use modified devices to have to accomplish . . . [a] particular
Ms. Chawla concluded that his condition had reached a plateau and
will not change. As for the use of the hands for specific activities, Chawla
conceded that Lei was independently able (without a device or help from another
individual) to engage in the following activities: bathing; toiletry;
dressing, including the use of fasteners like buttons, buckles and belts;
grooming and hygiene; eating; handwriting; object manipulation and fine motor
tasks like tying shoelaces or putting shoelaces through an eyelet, and motor
tasks like moving a small table; money handling; shopping; and household tasks
like washing dishes, heavy cleaning, laundry and food preparation, except that
for opening cans and containers claimant has altered his method of stabilizing
items in his left hand.
Ms. Chawla testified that with regard to the use
of the computer keyboard, claimant would have to type using the hunt and peck
method, but it was unclear what his pre-accident keyboard skills were. Ms.
Chawla went on to note that claimant would be able to use the computer mouse
unmodified. On a daily basis regarding manual dexterity, claimant testified
that he currently assembles robotic models known as Gundam models. Before the
fire, Lei did not participate in any sports (except for shooting pool), nor did
he drive an automobile.
All these scars are
permanent, as are the pain, the itching, and the sensitivity to cold, heat and
humidity. Dr. Himel recommends that Lei undergo additional surgeries on his
neck and left hand. Claimant credibly indicated on the stand a
willingness to undergo the operations in the not too distant future. I would
therefore include them as an element in future medical expenses.
was concerned that Lei could develop some degenerative disease in his spine, but
such was less predicable and not directly based on current indicators; I cannot
therefore conclude that claimant will undergo surgery for such possible
Mr. Lei’s response to his physical
condition was as follows:
- The first time he looked in the mirror, about
three weeks after his injury, “I could not believe the person that I was
looking at was me.” At the time Lei was with the physical therapist and
held in his emotions, but when he got back to his hospital room, he started to
cry: “I looked ugly . . . I asked [Dr. Himel] if there’s any way
that he could change me back to the way I was.”
- Within a few months after Lei left the hospital in April of 1998, he
described himself as very depressed and for two days he stopped eating, drinking
and going to the bathroom. “I was depressed. I just lie on my bed and
cry until I fell asleep. Then I wake up, I cry again. Look at the
- Lei told psychiatrist Kathryn Grunes, who began
treating him as an outpatient on August 28, 2001 at New York Presbyterian
Hospital’s Westchester Division, that he considered himself “a
beast,” which she testified has far reaching psychiatric implications:
[Women] aren’t going to be interested in him, let alone anybody else,
but that he’s very devastated by not having any romantic relationships,
not feeling that those are accessible to him since his burn, his low
self-esteem, his own image that he has to look at and be reminded of the fire.
When he looks in the mirror or feels his skin or looks at his hands when
he’s writing, or anything like that.
- To Dr. Mark Rubenstein, a
psychiatrist who saw him on November 25, 2002 and June 9, 2003, claimant
[h]e will never find a woman who will love a beast. That he will never
turn into a prince. That he will never get married and have children or a
family. That his sister will grow up and get married. That his parents will
die and he’ll ultimately be left all alone.
- Claimant had
suicidal thoughts. He thought about jumping in front of a subway. Lei
testified that about a year after his release from the original hospitalization,
he was “very depressed” and picked up a pair of scissors intending
to slash his wrists, but his sister saw him and stopped Lei before he cut
himself. Some time after this, he scratched his wrists with his fingernails
until he bled. In April of 2002, claimant was voluntarily hospitalized for
three days after telling Dr. Grunes that he was fearful for himself and wanted
to be put in a hospital.
- Lei began to drink until he became
intoxicated, but stopped doing so, apparently in early 2003. Claimant sleeps a
great deal since he was burned:
“[I]t’s one way to escape
from this body.” He explained that he used the phrase “this
body” because, “I am not myself anymore. This is just like a prison
that’s holding me inside . . . there’s a Chinese myth that when a
person is asleep, the spirit leaves the body. So I like to sleep a lot because
I want to leave this body as much as I can.”
Initially in the Cornell
Burn Unit, Lei was seen by a psychologist, Dr. Daniel Fisher, twice a week.
When he left the hospital, Dr. Fisher continued to see Lei as an outpatient
until July of 1998, when Fisher transferred to another facility. Lei then had
appointments with a social worker, Maggie Gleason, until he began seeing Dr.
Xiao Yu, a psychiatrist,
once a month for a year to a year and a half.
Then, as noted, Lei began seeing Dr. Grunes in the late summer of 2001.
Fisher’s superior had been Dr. Joanne DiFede, a clinical psychologist, who
testified that she supervised the non-physical care of claimant at the Burn
Center (when hospitalized and as an out-patient apparently through 2001) and
personally evaluated him on October 19, 2001.
As of trial, Lei was taking
two anti-depressants (Paxil and Wellbutrin); an antipsychotic (Resperdal), and
Xanax for anxiety.
In addition to Dr. Grunes, claimant put on the stand
another psychiatrist, Mark Rubenstein, who saw claimant on November 25, 2002 and
June 9, 2003. The two psychiatrists
agreed on the diagnosis, that Lei
suffered from post traumatic stress disorder (PTSD) and major depression that
was caused by his accident. Dr. Grunes described the major depression as
“recurrent, in partial remission.” The psychiatrists concluded that
the conditions were permanent, with Rubenstein explaining that he thought that
they “will likely wax and wane to one or another extent over [the]
Defendant called psychiatrist Paul Nassar. Dr. Nassar
testified that while Lei had elements of PTSD within the first few months of his
accident, “he didn’t have a complete post traumatic stress disorder
and he never developed that syndrom[e].” Nassar’s diagnosis was
adjustment disorder with depressive mood. Dr. Nassar explained that an
adjustment disorder is a condition in which the individual
psychiatric symptomatology due to a changed circumstance, for example a physical
disability due to an accident and a not inconsiderable change in one’s
Dr. Nassar, board certified in forensic psychiatry as well as
general psychiatry and whose experience included victims brutalized by war and
torture, saw claimant once on May 3, 2003 in a four-hour session. Nassar
displayed a good grasp of claimant’s background and his description of
PTSD was accessible and vivid:
In post traumatic stress disorder . . . you
continue to live in the danger zone. It’s about - - the trauma that
happened to you is about to happen again. So not only do you avoid the things
that initially frightened you, but then you have what we call a stimulus
generalization that goes on. So if you were attacked by a Rottweiler and then
a year later your child brings home a . . . rabbit, you react to it as if it
were a Rottweiler; you have the same fears. So innocuous things now become
dangerous. For [claimant] to not only handle flame again, but then to handle
the actual object that precipitated his injuries demonstrates that he is not
avoiding and, in fact, doesn’t have the kind of reactions that you would
expect in post traumatic stress disorder.
Lei had gone back to
the same sculpture lab in which he was burned and finished the sculpture,
, that he had been working on, using the instrument of his injury,
the oxy-acetylene torch. He completed a second sculpture in 2001, entitled
in the same lab and also with the same kind of torch.
Furthermore, he was not afraid to smoke, nor was he (after a period of time)
afraid to light a charcoal grill.
When asked whether claimant’s
responses were consistent with major depression, Dr. Nassar answered:
[H]e’s struggling with this adjustment problem. Seeing himself
differently and coming to terms with that difference in his environment and the
way he conducts himself in his life. That’s exactly what adjustment
disorder is. So what you’ve really described is an adjustment disorder
with depressed mood, which I agree with. I absolutely agree with.
Nassar does not contest that Lei’s psychological problems are permanent;
he agreed that claimant, while withdrawn, did not have these problems prior to
March of 1998.
Wherever the boundary is, if there is such a
thing, between major depression and depressive mood - - and we heard some
testimony suggesting that the difference between the two may turn on whether Lei
is taking his multiple prescribed medications - - ultimately it is the
functional effect on his daily life and his ability to earn a living that weigh
As to whether claimant’s diagnosis properly includes Post
Traumatic Stress Disorder, Dr. Nassar’s analysis was more persuasive, but
be that as it may, the instant case is not one of an individual who recalls or
re-experiences a terrible accident via flashbacks or other mental cues. Rather,
claimant has constant physical reminders of what happened to him on March 4,
1998; the figurative expression here becomes literal reality - - Man-Kit Lei
cannot get out of his skin. His upper torso, neck, lower jaw and left hand are
severely scarred. Every time he turns his neck, he is aware of its limitations;
his left hand is gnarled and has diminished grip strength; his skin itches
persistently, and heat, cold and humidity make him additionally uncomfortable.
The evidence at trial depicts an individual whose core was always based on
his close-knit family life. In fact in his early teens, even given the
circumstances of place and culture, Lei led a sheltered existence. After
graduating high school, he tried college in Buffalo, his first time not living
with his parents, and all indications are that he did poorly and wanted to
return home. We also heard testimony that he had little or no experience with
the opposite sex, social or otherwise, by the time of his injury, when he was
nearly 24 years old. But Lei had a circle of friends, all of whom were married
by the time of the damages trial. Claimant finds going to weddings of those
friends he had before the accident upsetting because “I’m the only
one who is still alone.”
THE MEASURE OF DAMAGES
on May 4, 1974, Lei was 29 years old at the time of trial. Despite his serious
scarring, physically and psychologically, no evidence was adduced to support a
conclusion that his life expectancy was reduced as a consequence of the
accident. Thus according to the actuarial table, claimant can be expected to
live another 46 years. (PJI
App A, table 2; carried out to the tenths
place, the tabular entry is 46.4 years).
In view of the foregoing
discussion of his physical and psychological injuries, I find claimant’s
damages for pain and suffering to be as follows:
- $ 2.5 million for past
pain and suffering; and
- $ 2.5 million for future pain and
suffering. Medical (including pharmaceutical)
undisputed that Claimant has medical bills for which he is responsible in the
amount of $199,528, a figure that includes medication (cl exh 26).
above, Dr. Himel strongly recommends additional surgeries to relieve some of the
difficulties of claimant’s neck and left hand. While Lei’s last
surgery was in 1999, as indicated previously, I credit claimant’s trial
testimony as to his willingness to continue his surgical treatment
surgery on the neck, which will require two operations, Dr. Himel estimated the
total cost for both surgeries as $20,000, with a hospital stay in each case of
two or three days at $5,000 a day. Using the average of the estimate for the
period of hospitalization of five days, the cost of the additional surgery on
claimant’s neck is $20,000, plus five times $5,000, or a total of $45,000.
The left hand would require three or four surgeries, each of which if done as an
ambulatory outpatient runs $10,000; using the average of the cost of three and
four surgeries yields a cost of $35,000. The total for the future surgery on
Lei’s neck and left hand thus amounts to $80,000.
Both of the
psychiatrists who testified on Lei’s behalf concluded that he would
require regular psychiatric care in the future. Dr. Grunes said that Lei would
need psychiatric care the rest of his life; three times a week for five or ten
years, then perhaps twice a week. Dr. Rubenstein’s opinion was that the
frequency of such treatment should be twice a week for a minimum of ten years.
While Dr. Grunes suggested that claimant’s finances and her
location in Westchester were limiting factors, she first saw Lei in August of
2001 and did not treat him more frequently than once every two weeks. Moreover,
Dr. Grunes stated that Lei is the kind of patient who would “have to be
able to talk about it and re-experience it to a certain degree. . . ,”
entailing certain risks. To this trier of fact, once a week for ten years is a
reasonable view of the evidence.
Using the uncontested figure of $250 per visit and 50 weeks to the year
amounts to $125,000. Together with the $80,000 for the neck and hand surgeries,
the total future medical costs are $205,000.
was not challenged in his testimony that Lei would need to continue taking
medication for the rest of his life. The doctor estimated the cost at between
$400 and $450 a month for five drugs.
While the doctor stated that three could be sufficient, the higher figure of
$450 monthly will be used; Rubenstein offered no figure for growth rate in
costs, but such could depend on any number of factors which went undeveloped at
trial. At $5,400 per year times 46 years (the life expectancy), the resultant
future cost of medication is $248,400.
Mr. Lei, a college student, had little work
history pre-accident. In high school, he had helped his mother sew garments at
the factory where she was employed. During college, before the fire, he worked
for a year at the Brooklyn Public Library re-shelving books; no salary was
given. After the accident, claimant completed his studies, receiving a
Bachelor of Fine Arts degree from Brooklyn College in the spring of 1999. Had
there been no accident, he would have received his degree a year earlier.
Claimant’s first job after graduation was in the year 2000 for the
U.S. Census, which lasted two months at four hours a day and $18.25 an hour.
Lei worked alone, going around the neighborhood knocking on doors and asking the
necessary questions. Next, he was in a government-funded seven-week hotel
training program, but before completing that he was hired by the not-for-profit
Chinese-American Planning Council as a caseworker/medicaid service coordinator.
He assisted persons, particularly Chinese-Americans, who needed assistance with
English, at medicaid and social security offices and with doctor’s
appointments. In addition, he visited a group home with four clients once a
month and wrote a report; Lei described himself as being the
“manager” of the home. That job, which was full-time, required a
college degree and paid $26,000 a year to start. Lei left it in April of 2002,
having had some sort of difficulty with his supervisor. Claimant testified
that he “did not enjoy” working with her, nor with his
co-workers, but I do not conclude that such demonstrates any diminished earning
During this period, claimant was still taking art courses. Lei
took two semesters as a non-degree graduate student in the fall of 1999 and the
spring of 2000, sculpting with the same instructor, in the same location and
with the same tool, the oxy-acetylene torch, as obtained when his accident
occurred. In the summer of 2002, he took a metal sculpture class at the School
of Visual Arts in Manhattan.
By that time, on June 24, 2002, he had begun
working as a security guard or special officer at Bellevue Hospital, which is
part of the New York City Health and Hospitals Corporation. The job required
only a high school diploma. Claimant secured this position, one which carries
peace officer status under the Criminal Procedure Law, by taking a civil service
I. Past Wage Loss
Were there no accident, it is
reasonable to infer that, even though claimant had no job offers as of early
March of his graduation term, he would have had a job by the end of the summer
of 1998. From such time to trial, just short of five years, Lei had worked a
total of about two years - - his time working for the Chinese-American Planning
Council and the U.S. Census amounted to about a year, plus a year at Bellevue.
Thus, he lost three years in the workforce; it would be inappropriate to offset
against this period of loss his time taking a few non-degree graduate art
In 2001, he was earning $26,000 at the Chinese-American Planning
Council and in 2002, $25,500 with Bellevue Hospital. As developed more fully
below, were it not for his accident, Lei would have gone into some entry level
job in the arts after graduation; according to him, jobs he sought in the field
paid “[l]ike 25-, 26- a year”; Joseph Pessalano, a vocational
specialist, agreed that such jobs began at around $25,000.
Berenson, an economist, used at trial a rule-of-thumb representing 11.4% of
salary for the value of fringe benefits, conceding that the value for unionized
and/or municipal workers can be substantially higher. For expenses related to
work, which would not otherwise be incurred, Dr. Berenson advanced a figure of
6%. The period in question involves employment opportunity in the arts field,
so 11% is appropriate; with the 6% offset for work expenses, there is a net
add-on to salary of 5%. Assuming a salary of $25,000 for each of the three
years, which becomes $26,250, the lost wages for the three years amounts to
$78,750. Since this level of precision is not warranted by the data, it will
be rounded-up to $79,000. (For that matter, if a fringe of 11.4% were used and
5.4% were added to base salary, the resultant loss would be $79,050).
II. Future Wage Loss
There was credible, if not
unchallenged, testimony to support the following elements:
goal of being an artist, ultimately one with his own studio, was present both
before and after the accident. Lei went back into the studio where he suffered
his terrible accident and resumed welding, using the means of his injury - - an
oxy-acetylene torch. The testimony made it manifest that a recently minted
Bachelor of Fine Arts faces very long odds of being able to earn a living as a
sculptor, but claimant’s accident did not diminish his potential to do so.
interest in the creative comprehended employment in some capacity in the arts.
Before the fire, he had applied for employment with galleries and museums. He
did a more desultory search in the art world after his accident, reflecting his
depressed condition and adjustment problems. The security guard position, which
was less of a challenge, was his refuge, which to this trier of fact he would
not have turned to had he not gone through the fire. The problem was
highlighted by Dr. Richard Schuster, a psychologist and specialist in
rehabilitation: “now he’s drifting into jobs that are more
congruent with high school graduate levels, not college graduate levels . .
.” Four years after receiving his bachelor’s degree, Lei is
working the evening shift at Bellevue Hospital as a guard. I see no evidence
that would recast Dr. Rubenstein’s conclusion: “I just
can’t reasonably foresee a future for him other than the one he’s
living at the time. His present is his future.”
per the expert testimony, an individual with a bachelor’s degree will earn
measurably more than an individual with only a high school diploma. This is so
even where the appropriate comparison between the educational levels is further
refined to the arts field.
as noted, Lei’s left hand was not fully functional and he had trouble
turning his neck, in view of the above explanation of the tasks he can perform,
the kinds of positions we are discussing and his demonstrable ability to
perform security guard work, claimant’s physical impairment will not be a
will not be factored in. The benefit packages in the arts are not superior to
that available to claimant at Bellevue; if anything, the converse is more
likely. Down the road, a higher salary could generate better benefits, but at
this time, there is insufficient evidence to draw any conclusion thereon.
Finally, nothing was submitted to the effect that the amount of work expenses
(not the percentage) would differ in either situation.
Dr. Schuster testified that he “put his aptitude together, developed
his profile without any physical difficulties” and found that 57% of jobs
in the entire New York labor market were “accessible” to
Schuster went on to state that the average earnings potential in 1998 “for
a college graduate . . . is somewhere in the $40's, mid $40-s, approaching
$50,000.” According to both Schuster and Berenson, such “earning
potential” is deemed to be reached at the work life midpoint.
testimony of Joseph Pessalano, a vocational rehabilitation specialist, properly
focused on salaries in the arts field. Mr. Pessalano initially began with a
narrow occupational cluster covering sculptor, artist and illustrator, to which
he attached a salary of “about $32,000 a year
. . . There will be
lower salaries for the more entry-level positions and much higher salaries when
you are higher up on the experience scale.” These figures, as of 2001,
were from the New York State Department of Labor, suggesting they were statewide
and not specifically geared to the New York metropolitan region; such
distinction is also unclear from Schuster’s testimony.
Pessalano went on to explain that individuals in “the art field, in
addition to working specifically as an artist . . . very commonly pursued”
alternate, but related, positions in advertising, marketing and public
relations. Further “[i]ndividuals with degrees in fine arts work as
recreation therapists . . . teachers, draft people” and in art therapy.
Such employment draws upon the individual’s basic skills, but “also
may require a somewhat different skill set at some point that the individual is
certainly capable of learning.”
It is this broader range that, to
this trier of fact, is the relevant labor market segment. However, Pessalano
did not supply an average salary for the broader arts-related category. At the
higher end, he did testify that an art director for an advertising agency,
magazine, public relations firm or printing company, which position would entail
some degree of staff supervision and management, pays, on the average, $76,000.
In light of the above, including Dr. Schuster’s testimony
that the average salary of college graduates approaches $50,000, it is, in my
view, reasonable to estimate that the average for college graduates in the
extended art segment is moderately lower at $45,000, and for high school
graduates about a third below that of all college graduates - - at
These figures - - earnings potentials - - are, as noted above, assumed to be
attained at mid-career. I had concluded above that Mr. Lei’s life
expectancy is undiminished from the actuarial expectation. Claimant in his
post-trial brief (p 41) also relies upon a life expectancy directly from the
actuarial table (PJI
App A, Table 2). No credible evidence has been
advanced that would lead me to conclude that the injury reduced claimant’s
expected working life. The actuarial table yields 31 years of working into the
future, at which time, Lei would be 60 years of age (PJI
App B, Table 3).
Dr. Schuster had fixed claimant’s future work life as midway between 32
and 33 years. I shall use the latter figure of 33 years, which brings claimant
to the age of 62.
Mr. Lei’s lost future wages are represented by the
difference between the total earnings over 33 years of the arts/college degree
job(s) with an earnings potential of $45,000 and working at a high school
diploma job with an earnings potential of $33,000. While obviously, future wage
loss is the inquiry at this stage, had it not been for the accident,
claimant’s career would have begun in 1998, so that his entire work life
would amount to the five years past plus 33 years, or 38 years. The earning
potential is achieved at the half-way career point, or after 19 years - - 14
years into the future.
The earnings potentials were given as of 1998; what
will the pair of salaries ($45,000 and $33,000) be at Lei’s mid-career
point, in 2017? Dr. Berenson presented two ranges of annual wage increases:
initially he gave 3.1% to 5.1% and then offered 3.7% to 5.7% as applicable to
the service sector. Berenson relied upon historical data going back to 1975,
but on the stand conceded that the period from 1975 to 1982 was one of uniquely
high increases. I conclude that 3.5% is a reasonable annual increase, not only
for the years leading to mid-career, but in the subsequent years to the end of
claimant’s work life.
The calculation is as follows:
- Apply the
annual 3.5% beginning in 1999 through 2017 (Lei’s career mid-point) to
find an updated pair of earnings potentials for what in 1998 had been $45,000
and $33,000: by the year 2017, the earnings potentials for college degree
art-related and high school degree jobs will have advanced to $86,513 and
(i) What would claimant’s salary have been
in 2003 had he not been injured and instead graduated with his bachelor’s
degree in 1998 and then began working in the arts at a salary of $25,000? After
five years of annual 3.5% increases, the earnings potential of an arts job
($45,000 in 1998) is at $53,446. But since Lei does not reach the earnings
potential until his career midpoint, after 19 years, assume that in 2003 he
would have been five/nineteenths of the way toward the $53,446 figure,
, at $32,486.
(ii) Claimant’s actual current salary at
his hospital guard job is $25,500 (the latest figure in evidence were as of
(iii) Assume that the where-he-would have-been and the where-he-is
2003 salaries of $32,486 and $25,500, respectively, increase in a straight line
to their career midpoint numbers of $86,513 and $63,443. The lost wages for
being employed in the high school, rather than the college, track from 2003 to
2017 amount to $210,392.
- Having reached his earning potential in 2017, thereafter, or for another
19 years, the $86,513 and $63,443 figures
continue to increase by 3.5%
per year, with the two numbers at $121,968 and $166,321 when Mr. Lei stops
working. The lost wages for these 19 years would have been $640,528, which when
added to $210,392 for the years 2003 to 2017, gives the result of $850,920 as
claimant’s future wage loss.
* * *
In sum, the damages incurred by
claimant, including the apportionment calculation, are as follows:
Pain & suffering $2,500,000
Medical (& drugs) 199,528
79,000 Past Total
which defendant is responsible for 80%
x .80 =
2,222,822 Future Damages
Pain & suffering
850,920 Future Total
$3,804,320, of which
defendant is responsible for 80%
= 3,043,456 Total Past & Future
$6,582,848, of which defendant is responsible for 80%
.80 = $5,266,278
Judgment of $5,266,278
is to be
held in abeyance pending a hearing under Article 50-B of the CPLR, which will be
scheduled by the Court. Motions not previously ruled upon are hereby
February 18, 2004
York, New York
HON. ALAN C. MARIN
Judge of the Court of Claims
See the photographs: cl exhs 1-A
through 1-M, taken a few weeks after the accident; and cl exhs 2-A through 2-O,
which are from October of 1999.
Dr. Rubenstein observed: “Well,
he’s only seeing a psychiatrist once every two weeks, and that’s
for, I think, 15-minute medication checks at this point, which I always view as
being very insufficient.” Among other things, Rubenstein’s
testimony suggests that the current levels of medication need to be maintained
by psychiatric visits, but this issue was not requisitely developed at
The earlier reference to four drugs - -
Paxil, Wellbutrin, Resperdal and Xanax - - came from the testimony of Dr. Grunes
Dr. Schuster indicated that as of 1998
this group of jobs, representing 57% of the relevant market, had an average
earning potential of $996.85 per week or $51,836 annually.
Specifics on earning potentials for
high school graduates, or an appropriate segment thereof, have not been
supplied. As mentioned, Lei’s security guard job at Bellevue Hospital
requires only a high school diploma. Claimant’s current salary is known,
but no additional information on any Bellevue salary schedule was offered into
evidence. While Lei took only one sick day in his first year at Bellevue, such
does not mean that he has the mental focus and sense of self worth to go out and
pursue a career in the art world.
$210,392 is 14 years times the average
differential per year of $15,028. The latter number is the average of the 2003
differential of $6,986 ($32,486 less $25,500) and the 2017 differential of
$23,070 ($86,513 less $63,443).
The $640,528 is calculated using the
same methodology as explained in footnote 6 for years 2003 to 2017: namely,
the average yearly differential of $33,712 is multiplied by 19 years. The
$33,712 derives from the average of the final work year’s differential of
$44,353 ($166,321 less $121,968) and the 2017 differential of $23,070 ($86,513