New York State Court of Claims

New York State Court of Claims
LaMendola v. New York State Thruway Authority, #2004-031-510, Claim No. 93132
Synopsis

Damages awarded for wrongful death, personal injury, loss of parental nurture, guidance and advocacy.
Case Information
UID:
2004-031-510
Claimant(s):
Alice LaMendola, as Administratrix of the Estate of Paul LaMendola, Sr., Deceased, and Marie LaMendola Cannizzaro

1

1The caption has been amended sua sponte to reflect Marie LaMendola’s married name, Marie LaMendola Cannizzaro.
Claimant short name:
LaMendola
Footnote (claimant name) :
The caption has been amended sua sponte to reflect Marie LaMendola’s married name, Marie LaMendola Cannizzaro.
Defendant(s):
New York State Thruway Authority
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
93132
Motion number(s):

Cross-motion number(s):

Judge:
RENÉE FORGENSI MINARIK
Claimant’s attorney:
Francis M. Letro, Esq.
Defendant’s attorney:
Hon. Eliot Spitzer
New York State Attorney General
By: Richard B. Friedfertig, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 23, 2004
City:
Rochester
Comments:

Official citation:

Appellate results:
AFFIRMED 35 AD3D 1229 4TH DEPT 2006
See also (multicaptioned case)
2004-031-511

Decision


On October 5, 1995, in the Town of Lancaster, Paul LaMendola Sr. lost control of his 1991 Lincoln and slid into an unoccupied dump truck parked on the right shoulder of the westbound side of the New York State Thruway (“Thruway”). The crash killed Mr. LaMendola, his wife Deborah, and two of their four children, Nicholas and Chesa. The two youngest children, Lauren and Paul Jr., were injured in the crash, but survived. In a decision filed June 30, 2000, the Hon. John P. Lane determined that Defendant’s negligence was the proximate cause of the accident and that Defendant was 100% liable for damages. This decision addresses the damages portion of this claim.
Claimants request damages for pain and suffering for Paul Sr. and Deborah LaMendola, Nicholas LaMendola and Chesa Lamendola; damages for the wrongful death of Paul Sr. and Deborah Lamendola, Nicholas LaMendola and Chesa LaMendola; and damages for the personal injuries sustained by Lauren LaMendola and Paul LaMendola Jr. In addition, Claimants have requested a damages award for Marie LaMendola Cannizzaro, Paul Sr.’s daughter from a prior marriage, for the loss of her father and half-siblings.
INTRODUCTION
It became clear to me within the first two days of trial that this would be no ordinary battle of fact and law, but instead would be an odyssey into the emotions, disappointments and destruction of what were once solid familial relationships. The backdrop to this case is not so much the horrendous auto accident as much as it is the story of two children who covet precious little original memories of their once intact nuclear family, memories that have melded with the memories that other people possess of Lauren’s and Paul Jr.’s parents and siblings. Justice can be achieved and their memories preserved without sorting out from whence these memories came; the attorneys in this trial have provided ample objective evidence regarding what Lauren’s and Paul Jr.’s lives were like before the accident and what their lives have been like since the accident.
PAIN AND SUFFERING
Martin Phelps testified that, on October 5, 1995, he was traveling westbound on the NYS Thruway when he heard a Citizen’s Band radio (“CB”) report of the serious motor vehicle accident a few miles ahead of him. When Mr. Phelps heard the CB report, he could not yet see the accident scene. Within three minutes of hearing the CB report, Mr. Phelps stopped his car at the scene, approximately thirty feet east of the accident on the north shoulder. At this point, he had a clear view of the accident. Mr. Phelps turned his CB radio to Channel 9 (an emergency channel) and identified himself as a firefighter/rescue person at the scene of an accident and asked anyone listening to call 911. He stated that this call took approximately thirty seconds. He then proceeded to the car, which took approximately fifteen seconds. This is when he first heard screaming, specifically, a child’s screams, coming from the vehicle.
As Mr. Phelps approached the passenger side of the Lincoln, he conducted a primary survey to determine the seriousness of the accident. At that time, Mr. Phelps observed four occupants in the vehicle; Paul Sr. in the driver’s seat, Deborah in the front passenger seat and Nicholas and Chesa in the backseat. Mr. Phelps testified in sum and substance that all four individuals appeared to be deceased. Mr. Phelps testified that he could hear a child somewhere in the backseat, but that the impact of the collision had folded the seat around the child, preventing Mr. Phelps from being able to see him or her.
Mr. Phelps spent the next 15 minutes attempting to locate the screaming child. He finally was able to see the top of the child’s head, but that was as far as he could go with the crowbar he was using to gain access to the vehicle. Finally, with the assistance of a State trooper, a tow chain and a dump truck, the vehicle was pulled out from under the truck with which it had collided and Mr. Phelps was able to physically get to the screaming child. The child was Lauren. Lauren was stuck in the backseat between Chesa and Nicholas. Mr. Phelps testified that he dared not move her, fearing that he would cause further injuries. It was only then that, out of the corner of his eye, Mr. Phelps happened to detect movement in the front seat. He soon realized that another child was in the vehicle, between Paul Sr. and Deborah, with Paul Sr. leaning on top of him. Mr. Phelps proceeded to move Paul Sr. over to the left side of the car to pull his weight off Paul Jr. who, at that time, appeared to be having trouble breathing. Once Paul Sr. was moved, Paul Jr. was able to breathe more easily in a normal sitting position while leaning into his mother. Mr. Phelps’ testimony regarding the state of the vehicle was consistent with the damage as depicted in Exhibits 99 and 100.
At this point, Mr. Phelps testified that he could hear ambulance sirens approaching. The emergency medical technicians first extricated Lauren and quickly carried her to the ambulance. Twenty minutes had gone by from when he first heard Lauren scream and her removal from the car. Lauren had broken glass in her mouth and was bleeding from this area. Mr. Phelps did not notice any other cuts or blood on Lauren. She continued to cry on the way to the ambulance. Mr. Phelps and others had to remove Deborah from the car in order to gain access to Paul Jr. Mr. Phelps testified that Paul Jr. was in the car approximately a minute longer than Lauren. The children were put in separate ambulances and left the scene immediately.
Paul Jr. does not have much memory of the accident, though he testified he remembers being in Buffalo Children’s Hospital and that his grandmother Antoinette Labe was there. Paul Jr. also does not recall who informed him about the accident. When he asked where they were coming from at the time of the accident, he was told that they were coming from the eye doctor. Paul Jr. remembers having two broken legs, though he does not remember the pain from the injuries. Paul Jr. testified that these injuries left him in a wheelchair for a while.
Lauren testified at the trial about the accident. She stated that, on the way home, her father was driving, her mother was in the passenger seat, and Paul Jr. was between them. She was sitting in the backseat with Nicholas and Chesa. Lauren testified that she remembers the family stopping on the way home so that her father could look at an antique car, which he liked to collect, restore, and then sell. After this stop, the family proceeded to head home to the Buffalo area, soon after which, Lauren fell asleep. Lauren states she woke up after the crash, but was still unaware of what had just happened. Lauren testified that her eyes were closed and stayed closed until she arrived at the hospital. Lauren remembers hearing rain hit the pavement, people’s voices and the sound of cars. Lauren testified that she remembers crying and experiencing pain once she was pulled out of the family’s vehicle. Lauren, however, does not recall ever meeting, seeing or hearing Martin Phelps prior to this trial.
Pre-impact Terror
Claimants requested the application of a lower burden of proof as to the issue of whether or not Paul Sr. and Deborah were conscious and aware of the impending impact, relying on the Noseworthy doctrine (Noseworthy v City of New York, 298 NY 76). Specifically, Claimants requested that their witness, a licensed forensic pathologist, be permitted to testify as to “a reasonable degree of certainty in the field of forensic pathology whether [the bruises on the tops of Paul Sr.’s and Deborah’s hands and arms were] consistent with a defensive movement” (Tr. 2476), inferring that Paul Sr. and Deborah were aware of the impending impact and attempting to protect themselves. Defendant objected to the application of Noseworthy and I reserved decision. I now find that Noseworthy does not apply in this case.
In a death case a plaintiff is not held to as high a degree of proof of the cause of action as where an injured plaintiff can himself describe the occurrence (Noseworthy v City of New York, 298 NY at 80). This doctrine has been applied even where the claimant can call an eyewitness to the injury-causing accident to testify (Schechter v Klanfer, 28 NY2d 228, 231). However, the doctrine will not apply where the parties are “similarly situated insofar as accessibility to the facts of the accident” (Rotoli v State of New York, Ct Cl, February 21, 2003 [Claim No. 81960], Corbett, J., UID #2002-005-022). Here, there are two potential eyewitnesses to the accident, Lauren and Paul Jr. Both children testified at trial that they had no recollection of the events immediately preceding the impact. Defendant possesses no witnesses or evidence regarding what happened in that car before impact that Claimants did not also have access to for this case. Therefore, I sustain Defendant’s objection as to this witness’s expert opinion regarding the possible existence of defensive wounds on both Paul Sr. and Deborah.
Even if I allowed the diminished burden of proof on this issue, it would not have benefitted Claimants inasmuch as the objective evidence contained in Exhibits 93, 94, 95 and 96, in combination with Exhibits 99 and 100, lead me to conclude that the impact was so ferocious that the so-called “defensive injuries” were actually consistent with the overwhelming injuries sustained by Paul Sr. and Deborah and were caused by the impact and nothing else.
I also find the proof insufficient to prove that Nicholas and Chesa were cognizant of the impending crash. Further, Claimants have not met their burden of proof that any of the deceased family members were conscious following the impact. I base this finding on the tentative nature of the pathologist’s testimony on this issue when weighed against the enormity of the injuries sustained (Exhibits 93, 94, 95, and 96) (Cummins v County of Onondaga, 84 NY2d 322, 325).
Personal Injuries
Lauren is entitled to recover for her own personal pain and suffering from the physical injuries she sustained in the accident and for any emotional injuries as a result of the accident. Claimants’ expert medical doctor testified regarding the nature of Lauren’s physical injuries. He is currently a Clinical Assistant Professor at the State University of New York at Buffalo’s Department of Rehabilitative Medicine as well as Associate Medical Director for Pediatric Inpatient Rehabilitation at Children’s Hospital in Buffalo, New York. It is uncontroverted that Lauren fractured both clavicles. While painful, the fractures were easily treated by having Lauren wear a “figure eight harness” to keep her shoulders back and restrict her range of motion. Healing took place over approximately two months and she would then, over the third month, start to increase the use of her arms. Lauren recalled at trial that her shoulders hurt when she moved to her uncle Gino LaMendola’s house and could not recall specifically when the pain stopped.
Lauren was admitted to the Children’s Hospital of Buffalo on October 5, 1995 and discharged on October 8, 1995 with instructions to take over the counter Tylenol, as needed (Exhibit 69B). I note that it is the doctor’s opinion that Lauren’s physical injuries have healed and she requires no future medical services. I award $100,000.00 for her physical injuries.
Claimants believe Lauren should be compensated for alleged emotional injuries she sustained from being in the accident. The doctrine Claimants rely upon to support their position is the “zone of danger.” However, before I even get to the issue of zone of danger and all that it implies, I must explore whether or not Lauren was even aware of what happened.
Lauren’s testimony at trial was that she was asleep before the accident occurred, was unaware of what happened when she woke up after the crash, and kept her eyes closed from the time she woke up until she arrived at the hospital. Claimants’ counsel attempted, at great length, but in vain, to tease even a small recollection of the events from Lauren. Lauren consistently and stridently hung on to her position. On this particular point, however, I find Lauren’s testimony sadly incredible.
When Mr. Phelps arrived on the scene and exited his vehicle, he heard screams. This was presumably minutes after impact. He testified that he talked to Lauren attempting to calm her, and that, once the backseat was removed and he was able to see her clearly, he observed that her eyes were wide open. Lauren herself, during her course of treatment with the psychologist and, to a lesser extent, with the developmental psychologist, recounted details of the accident’s aftermath; that her brother Nicholas was on top of her when she woke up, she had glass on her face, she did open her eyes and she did scream, and she knew that what had happened was bad. I believe that Claimants have established that Lauren was conscious and aware of her surroundings immediately after impact. Therefore, Lauren is entitled to an award for post-impact conscious pain and suffering (Cummins, 84 NY2d at 324-325)
[2]
to fairly compensate her for emotional injuries.
There is no question that Defendant’s negligence exposed Lauren to an unreasonable risk of bodily injury or death and that same negligent act was the proximate cause of the demise of Lauren’s family members. She clearly was within the zone of danger as contemplated by the case of Bovsun v Sanperi (61 NY2d 219, 230-231). The only remaining proof required for her to recover damages for emotional injuries is proof that she either observed or had “contemporaneous awareness” of the death of an immediate family member (Cushing v Seemann, 247 AD2d 891, 892). Here, Lauren recollected feeling the weight of her brother on top of her and feeling that something bad had happened. An eyewitness testified that Lauren’s eyes were open and that she had made eye contact with him. Although Lauren may not have been aware of the fate of her remaining family members at that moment, she at least was aware that her brother Nicholas had been badly injured. That is sufficient to satisfy that element of the standard.
A divided Court of Appeals acknowledged in Bovsun (supra) that proof of damages, that is an emotional disturbance, can be speculative and difficult to prove and that “we must look to the quality and genuineness of proof, and rely to an extent on the contemporary sophistication of the medical profession and the ability of the court . . . to weed out the dishonest claims” (Bovsun v Sanperi, 61 NY2d at 231). There is nothing dishonest here about Claimants’ position that Lauren has suffered emotionally since the accident. However, the question now becomes whether the emotional disturbance is “serious and verifiable” and not merely a “trifling distress” (id. at 240 and 231). I adopt Claimants’ expert’s position that Lauren currently suffers from an adjustment disorder with disturbance of mood and conduct, a serious and verifiable disorder. Her distress is more than trifling and her suffering is real. However, the accident is just one cause of her present condition and the award must be reduced by one third in recognition that it is also the loss of her mother and her living environment that have contributed to her emotional state. I award $1,000,000.00 for the emotional harm sustained by virtue of her being in the zone of danger. This figure, reduced by one-third, is $666,700.00. The total award to Lauren for her pain and suffering, both physical and emotional, is $766,700.00.
Unlike Lauren, I have no evidence before me that shows Paul Jr. was conscious and aware of his surroundings immediately after impact; therefore, Paul Jr. is not entitled to an award for post-impact conscious pain and suffering, even though Paul Jr., too, was clearly within the zone of danger.
[3]

Paul Jr. suffered a subarachnoid hemorrhage coma; a fractured left tibia and fibula; a fractured right femur; a displaced and fractured left femur; and a small laceration and bruise on his liver. Paul Jr. was admitted to Children’s Hospital of Buffalo on October 5, 1995 and discharged on October 28, 1995. It is uncontroverted that the doctors stabilized Paul Jr. in the trauma unit, then intubated him and placed him on a ventilator. The doctors administered pain medications and transferred him to the Intensive Care Unit. Doctors kept Paul Jr. heavily sedated from the time of his admission until approximately October 12, 1995 to keep him cooperative with the IV lines and ventilator. Paul Jr. received paralytic agents, narcotic pain medications and sedative medications.
Regarding the subarachnoid hemorrhage coma or traumatic head injury, Claimants’ doctor testified that the trauma caused the brain to bleed and that the blood was eventually transported in and around the brain layers by spinal fluid until it reached the outside of the brain where the blood was reabsorbed. The doctor’s analysis of Paul Jr.’s Computerized Axial Tomography (“CAT”) scans of the area demonstrated that process.
Paul Jr. also sustained fractures in both legs. The doctors operated on Paul Jr. on October 8, 1995 to place pins in his left leg to help correct the left femur fracture. His left leg was then casted and his right leg was placed in traction. I note surgery was done three days after the accident because of damage to Paul Jr.’s liver. It appears from the hospital’s discharge notes that almost two weeks after the operation, Paul Jr. was seen in the hospital’s orthopedic clinic where he received two new orthopedic devices, one for each leg. He also received physical therapy and was able to use a walker by the time he was discharged on October 28, 1995 (Exhibit 69A). Paul Jr. was discharged with a cast on his left leg, a “HKAFO” (Hip, Knee, Ankle, Foot Orthosis) on his right leg which attached at his hip and went all the way down to his foot, prescriptions for a wheelchair, a walker and Tylenol with codeine. Paul Jr. also received follow-up care shortly after discharge in the orthopedic clinic. I award $850,000.00 for Paul Jr.’s past physical injuries. There was no evidence at trial of future damages for pain and suffering or for the medical needs of Paul Jr. Therefore, I make no award in this regard.
WRONGFUL DEATH
The damages awarded to the plaintiff may be such sum as the jury or, where issues of fact are tried without a jury, the court or referee deems to be fair and just compensation for the pecuniary injuries resulting from the decedent’s death to the persons for whose benefit the action is brought. In every such action, in addition to any other lawful element of recoverable damages, the reasonable expenses of medical aid, nursing and attention incident to the injury causing death and the reasonable funeral expenses of the decedent paid by the distributees, or for the payment of which any distributee is responsible, shall also be proper elements of damage. Interest upon the principal sum recovered by the plaintiff from the date of the decedent’s death shall be added to and be a part of the total sum awarded (EPTL 5-4.3[a]).
“Pecuniary injuries” are injuries measurable by money and do not include “loss of society, affection, conjugal fellowship and consortium (Liff v Schildkrout, 49 NY2d 622, at 633-634)” (Gonzalez v New York City Hous. Auth., 77 NY2d 663, 668). Nor may they include consideration of “sympathy, passion, prejudice or corruption” (Juiditta v Bethlehem Steel Corp., 75 AD2d 126, 138).
Pecuniary injuries are calculated upon the following factors: present and future earnings; the age, character and condition of the decedent; increased expenditures needed to continue the services decedent provided; circumstances of the distributees (Gonzalez, supra); and the “premature loss of the educational training, instruction and guidance [that the children] would have received from their now-deceased parent” (Mono v Peter Pan Bus Lines, Inc., 13 F Supp 2d 471, 477, citing Gonzalez v New York City Hous. Auth., 161 AD2d 358).
Paul Sr. and Deborah
Paul LaMendola Sr. died at age 39. His brothers, Lee and Gino LaMendola, gave testimony that was, at times, very emotional and tense, colored by the trauma of losing their younger brother and by the stress of becoming guardians for their brother’s surviving children. I determined that Paul Sr.’s older brothers answered the attorneys’ questions as honestly as they could. I took from their testimony that Paul Sr. never graduated from high school although he later achieved a G.E.D. They also confirmed that their brother worked in the family painting business, on and off, from the time he was a teenager. They recalled that their brother and his family participated in extended family gatherings and that Paul Sr.’s father and siblings, at times, loaned Paul Sr. money.
I have no reason to doubt that their memories, along with those shared with me by Rose Abramo, a close family friend, are accurate in describing Paul Sr. as a good friend, a loving father and husband, and a generous man who had a talent for fixing cars and houses. Their testimony, taken together, also confirmed for me what the evidence suggests - that this good, loving, and generous man struggled with financial difficulties, marital discord, and the stresses of raising and providing for an older daughter from a previous marriage and four children, two of whom possessed special needs.
Deborah LaMendola was described with equally glowing terms. Mrs. Abramo first met Deborah in 1984. She described Deborah as immediately likeable, friendly and outgoing. Also, that she was thin and pretty with long hair; very attractive. Mrs. Abramo testified that Paul Sr. treated Deborah kindly, lovingly and with a lot of respect. Paul Sr. and Deborah were always very affectionate towards each other, Mrs. Abramo observed.
Deborah LaMendola was 36 years old when she died.
Nicholas and Chesa
Mrs. Abramo described Nicholas and Chesa as having similar personalities - mild-mannered, happy-go-lucky, easy to handle and easily satisfied. She recalled that Nicholas would ride his bike to the Abramos’ to visit. Mrs. Abramo remembers Nicholas taking Tae Kwon Do and proudly showing off the belts he had earned. Chesa was very close with the Abramos’ daughter, Jessica. According to Mrs. Abramo, Chesa was the “motherly type.” She described Chesa as a sweet little girl who was a joy to be around. Nicholas was 10 years old on the date of the accident. Chesa was 8 years old. There was no evidence of pecuniary injuries resulting from the wrongful death of Nicholas or Chesa. Therefore, no award is made in this regard.
Lauren
[4]
Here, the proffered expert reviewed portions of the record related to Lauren and Paul Jr.’s school performance; was asked to assume diagnoses of ADD, ADHD and Reactive Reattachment Disorder applied; and had access to one of the experts who testified at trial who had personally reviewed the record and interviewed Claimants. Based on the rule discussed above, Defendant’s motion to strike is granted. The expert was not required to read every record or personally interview the children; the expert could appropriately rely upon another expert who was subject to cross-examination at trial. My problem with the proffered opinion was that it was based on facts not in evidence, that is, the medical diagnosis of Reactive Reattachment Disorder was never made and the medical diagnosis of ADHD was never confirmed.
Lauren entered kindergarten at the Smallwood School in the Amherst School District in September 1992. School records from Smallwood cover September 1992 through November 1995, when Lauren moved to a school district near her Uncle Gino’s home. They depict a pretty little girl capable of good academic performance when she wanted to “settle in” and focus. The comments also show another side of Lauren - she was easily frustrated, demanding of attention, stubborn and moody. By the third grade, she was receiving remedial reading help. She also seemed to work best in small work groups (Exhibit 86). Lauren did not appear to have any physical challenges or disabilities before the accident.
Lauren’s first introduction to therapy after the accident was through the Child & Adolescent Treatment Services (“CATS”). She was seen regularly by a social worker, from October 31, 1995 through May 1996.
[5]
It appeared from the progress notes that Lauren used her sessions to vent; however, the notes also indicate that she was making progress and was beginning to settle into her new school and living situation (Exhibit 80C). I note that it was not long into her sessions with CATS that two major events occurred - she was abruptly moved from Gino and Gail LaMendola’s care, and a major custody lawsuit between the LaMendola family and the maternal grandmother was commenced over the guardianship of her and her brother, Paul Jr.
Lauren was next treated by a developmental psychologist from August 1996 through the spring of 1998. Treatment concerned not only the children, but the other family members as well. The doctor’s background includes the study of all aspects of child development, from infancy through late adolescence. This field includes a consideration of how cognitive ability, communication skills, language skills, personality, social skills and emotional development manifest themselves in the child’s relationships. This witness affirms what every expert or treating physician at trial opined about child development. Between the ages of four and eight, children learn family and societal rules and values by modeling their parents or parental figures. This doctor treated Lauren, Paul Jr., and their second set of legal guardians, Lee and Sandy LaMendola.
It was during this time period that Lauren appeared to be the one having the most difficult time adjusting to life after the accident; she was openly hostile and unwilling to cooperate at home. Lauren, who was 8 at the time these sessions began, lacked insight about her behavior and how it affected the people around her. Although she might be rational and logical at times, her inability to behave consistently in that manner was not age appropriate. In this witness’s opinion, Lauren had not successfully completed the modeling stage in child development. She was not feeling remorse for things she had done wrong; rather, she would feel angry about an adult having set a limit on her behavior. The witness observed that Lauren had a negative self-image and, in this regard, he kept trying to show Lauren that her drawings showed true talent and were something she could point to as a positive attribute.
Regarding her living situation, it was very clear to the witness that Lauren did not feel loved or wanted. Also, she was still grieving the loss of her biological family and possessed limited social and emotional coping skills. Over the course of the two years that he treated her, he felt that Lauren had not improved, that she was still hostile and had a negative effect on people whom she was unable to appreciate. He concluded that her social and emotional development was not just delayed, but actually “disordered.”
When he treated her, he observed a discrepancy between her IQ, which was in the above average range, and her academic performance, which was poor; Lauren tested at the second-grade level while in the third grade. He opined that it takes an incredible amount of nurture and guidance to help a child develop the skills and attitude necessary to close such an educational gap, as well as a tremendous amount of advocacy, with teachers and the school system, and maybe even health care professionals where necessary. The witness believed Lauren was not getting the nurturing, guidance and advocacy she needed. Biological parents would have a difficult time with such a task but they would most likely have a bond with their child that would keep them from giving up. An intact and functioning family could make the difference in such a situation. However, it is a very difficult thing to expect another adult to shoulder this burden, especially with a child that is openly hostile.
Lauren was next treated by a licensed psychologist in a private practice who worked primarily with children experiencing emotional and/or behavioral difficulties. Her practice was therapy-based, meaning that she helped set goals and worked with her patients to achieve those goals. Her course of treatment ran from September 1999 to November 2000.
After several sessions in the fall of 1999, this doctor diagnosed Lauren with adjustment disorder with disturbance of emotion and conduct, that is, she was feeling stressed about adjusting to her life after the accident and having difficulties managing her emotions. The doctor also diagnosed Lauren as clinically depressed; her symptoms were impaired sleep and appetite, difficulty concentrating, irritability and anger. Lauren would, at times, verbalize her wish not to live anymore without her biological family.
Her treatment, psychotherapy (or talk therapy), revolved around getting Lauren to express her feelings, which to the doctor appeared to be anger, loneliness, rejection and sadness, and identify what it is she is missing in her life that causes her to feel that way. The doctor testified that Lauren misses a loving and nurturing support person. It appeared that Lauren never really identified this missing element in her life on her own. For this reason, she could not achieve success in the next level of psychotherapy - discussing all the people presently available to her and exploring whether or not a relationship with one or more of them might fill the void. Not only was Lauren unable to do that, but it appeared that her inability to resolve her feelings interfered with her day-to-day existence. She was unable to get along with the rest of her family or make friends. She was also doing poorly in school and was not performing many age-appropriate self-care activities such as brushing her teeth and bathing. Unfortunately, even if Lauren had gotten to the point where she could accept her aunt and uncle in a parental role, they may not have been capable of filling this void as, by this time, they were “burned out” and overwhelmed by the situation themselves.
Several months into the therapy, the doctor concluded that Lauren was not getting past her grief over losing her family. The conditions that normally allow an individual to do that were not present in her life following the accident. What would be a significant stressor for even an adult, a serious motor vehicle accident with fatalities, was, for Lauren, followed by a change in homes and schools. Such changes are, in and of themselves, significant stressors for any seven-year-old, even with the help and support of biological parents. Throughout all of this, Lauren lacked a connection with a nurturing parent figure that could help her cope and work through her grief. I note that successive therapists were unable to significantly help Lauren.
[6]

Up to this point in her life, Lauren had three potential mother figures, all of whom left her in one way or another. The doctor opined that this fact was a significant reason for Lauren’s anger and feelings of rejection, as well as her inability to accept any guidance or nurture from anyone, except perhaps her maternal grandmother.
The doctor’s treatment plan was to try and help Lauren cope with her situation. She had hoped to get Lauren beyond just expressing her feelings and into understanding the impact her feelings had on her life. The final step would then have been attempting to control this impact. The doctor felt that Lauren’s feelings of anger and rejection kept her from trusting other people, opening up and being herself. This, in turn, prevented her from developing close relationships with other people. This witness states she really did not reach Lauren because there was no change in Lauren’s behavior in school or at home. Lauren’s course of treatment effectively ended in October 2000. The doctor opined that the cause of Lauren’s problems was the motor vehicle accident and the loss of her parents and, while I conclude that those two occurrences are part of the cause, I find that the lack of a nurturing parental figure on the scene after the accident and Lauren’s unfulfilled desire to live with her maternal grandmother were of greater impact on her and a larger cause of the problems she faces today.
I find that the accident had an unquestionable impact on Lauren. The exhibits related to her therapy sessions, starting with the second CATS intervention immediately after the accident through the last therapist discussed above, all reference, on at least one occasion, a description of the accident. Lauren talked about the accident more often early on in the process (see Exhibit 80C). The next event with an even greater degree of impact upon Lauren is the loss of her family, in particular, her mother. Finally, the most stressful events occurring post-accident were the changes in Lauren’s home environment. The Claimant’s expert’s evaluation of Lauren in 1998 led him to conclude that Lauren possessed a stubborn and defiant demeanor. He diagnosed her with an adjustment disorder with disturbance of mood and conduct, a specific diagnosis in the Diagnostic and Statistical Manual of Mental Disorders (4th ed 1994), requiring the existence of a life stressor causing the disturbance of conduct and mood. The symptoms can be present for six months or until the stressor is removed. Here, the initial stressor was the fatal motor vehicle accident. This was followed by the loss of her parents, then drastic changes in her living arrangements. Neither of these last two stressors have abated.
Testimony and records indicate that, before the accident, Lauren did not have any diagnosable disorder, nor did she require therapy or counseling. My own review of the evidence suggests that Lauren needed a lot of attention, applied inconsistent effort to her school work, was stubborn and frustrated easily (Exhibit 86). I agree with Claimants’ expert on this point. The fact that Lauren was stubborn and willful was not surprising given the biological family dynamics; four children, two of whom are handicapped, created stress. Parents would have less quality time to spend with each child because their time together would have predominately been limit-setting and discipline. It was natural for Lauren to seek attention, but she appeared to function well within her biological family unit.
Immediately after the accident, Lauren struggled to adjust to her change in circumstances. Her school performance from October 1995 through approximately June 1998 was below average. Her behavior was willful and stubborn and she required individualized attention from her teachers. By the third grade, she was referred for testing to determine whether or not she had a learning disability. In June 1996, the Committee on Special Education (“CSE”) determined that she did and special services were recommended (Exhibit 88). During this time frame, Lauren was being counseled at CATS. Some of the CATS notes mirror the concerns voiced by the school and some dealt with Lauren’s struggle to come to terms with the motor vehicle accident: a vivid depiction of the accident scene, a flat recitation of the facts of the accident, and anger. The relationship with CATS appeared to end in the spring of 1996 (Exhibit 80C).
Lauren was at the St. Andrew’s Country Day School for fourth grade in 1996. Her grades were poor and teachers’ comments were consistent with the prior years. Lauren repeated the fourth grade and a general improvement in her academic performance for that year was noted (Exhibit 88). She moved to the Buffalo City School District for fifth and sixth grades and her academic performance was good. I found no comments reflecting the types of behavior noted earlier in her school career. I also note that the special services that had been identified as necessary in the third grade were not being provided. The school psychologist’s evaluation of Lauren in October 1999 noted that Lauren was doing well academically and requested that she no longer receive special assistance.
I must address Defendant’s position that Lauren is unaffected by the motor vehicle accident and the loss of her parents because of Lauren’s own assertions that she is fine, not depressed or defiant, and that her only problem is having to live with her uncle. I read a letter that leads me to believe differently; in it, Lauren writes that she would like to invite her parents and deceased brother and sister to Christmas dinner, ask her mom what it is like in heaven and if her mom is happy. Lauren wrote this letter as part of a third grade writing assignment. I do believe that Lauren was beginning to cope with her grief, as evidenced by the CATS progress notes in Exhibit 80C, but losing her parents at the age of 7 and having no replacement parental figure kept her from progressing further and actually coming to terms with the loss and developing a strategic plan for how she will cope in the future.
I find that Lauren will need assistance coping with the loss of nurturing and guidance as it is clear from the record before me that no one has stepped in to fill the role of a nurturing parental figure for her. I adopt the Claimants’ expert’s opinion that psychotherapy sessions every other week for $115 per session through Lauren’s 30th birthday are fair and reasonable.
Paul Jr.
Dr. Scott Olitsky, a board certified ophthalmologist, testified on behalf of the Claimants. Currently, he is a physician at Buffalo Children’s Hospital in pediatric ophthalmology as well as an Associate Professor in the Department of Ophthalmology at the State University of New York in Buffalo. Dr. Olitsky has treated Paul LaMendola Jr. since April 1996.
Dr. Olitsky testified that Paul Jr. suffers from the congenital disease, albinism, specifically tyrosinase negative oculocutaneous albinism, meaning his body makes very little, if any, of the pigment that colors his skin, hair or eyes. He stated most people with any level of albinism have vision problems; the more severe the disease, the more severe the vision deficits. Paul Jr. is a more severe case in both aspects. Paul Jr. also possesses a nystagmus; meaning he suffers from an involuntary pendular movement of his eyes. Nystagmus is typical in all children born with poor vision, but Paul Jr.’s is quite pronounced, given the severity of his albinism. Children with nystagmus will have their vision change from day to day, depending on the frequency of the eye movement. In addition, mood swings caused by excitement, stress, nervousness or sleep deprivation also affect nystagmus, causing the pendulum effect of the eyes to become more rapid, further decreasing a patient’s vision. Paul Jr. also suffers from photophobia, or light sensitivity, and strabismus, a misalignment of the eyes or a “cross-eyed look.” Depending on which eye he is using to focus with, the other eye will always “cross.”
Between Paul Jr.’s first visit with Dr. Olitsky in April 1996 and his second in November 1997, his vision had dropped from 20/240 to 20/400, a change typical in patients with nystagmus. In June 1999, with both eyes open, his vision was 20/200. It was the doctor’s opinion that Paul Jr.’s ocular problems are permanent, and although his best corrected vision would not deteriorate further, Paul Jr. is considered legally blind in the State of New York. Dr. Olitsky also testified that Paul Jr. will eventually require a low vision aid due to the natural decline in his eyes’ ability to focus, a malady that occurs naturally as we get older. Regarding the strabismus, there is a surgery available that would help to align Paul Jr.’s eyes, though it would not correct his vision. In fact, according to Dr. Olitsky, there currently is no surgery available to correct Paul Jr.’s poor vision.
The various reports from the Blind Association of Western New York’s Visually Impaired Preschool Program
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(“VIP School”) (Exhibit 74) are the most objective and helpful evidence of Paul Jr.’s personal circumstances before the accident. I have relied extensively on their contents and used them in conjunction with the observations of Hope Bongiorno, coordinator of preschool services
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regarding Paul Jr.’s behavior and progress from 1991 through 1994. Observations fall into six separate skill areas: cognitive, language, socialization, self-help, gross motor and fine motor.
Paul Jr.’s experience in the VIP School from January through June 1991 showed some degree of progress in all areas, except for “significant” delays in language skills. His teacher observed that he was most interested in activities where he had free rein to explore and handle materials as he wished and was resistant to most activities led by, or accomplished one-on-one with adults. During this six-month period, Paul Jr. attended school two mornings per week. In addition, he received vision therapy one time per week.
From July 1991 through June 1992, Paul Jr. was attending school three mornings per week. His records for this period reflect that Paul Jr.’s greatest strength was in the fine motor skills area. He showed deficits in the areas of language, visual skills and self-help skills. His teacher observed that Paul Jr. was having difficulty following through on adult requests, particularly during group activities. Group activities also posed a problem in that Paul Jr. would move away from the group or try to distract children and adults from the activity at hand. He possessed limit verbal skills, which made communication with the other children and adults difficult. When he became frustrated he would scream or cry and an adult would have to intervene.
By the spring of 1993, Paul Jr. was at the VIP School five days a week for half a day. He also received two 30-minute sessions of vision therapy, three 30-minute sessions of speech therapy, and two 30-minute sessions of occupational therapy each week. Teachers observed that Paul Jr. still had trouble staying on task in small group activity; he also made sounds, talked out loud and touched other children. When in a large group, he would “perseverate,” that is, engage in a repetitive behavior and was observed hopping on both feet or spinning in circles. He would need verbal reminders and physical assistance to get back on task. He also experienced problems working one-on-one with an adult, again needing frequent reminders to stay on task. Paul Jr. did experience some improvement in his expressive speech, but still preferred playing alone and could become easily frustrated, often resorting to tantrums. Paul Jr. also made “remarkable” gains during this time frame in the area of language skills with “[s]teady growth” in the gross and fine motor development and cognitive areas (Exhibit 74, p. 23).
However, Paul Jr.’s socialization skills were beginning to suffer in a more readily discernable way, “largely due to his inability to relate appropriately with his peers” (Exhibit 74, p. 16). It appears that his vision deficits contributed to this problem. Since he started school, he has had to hold objects anywhere from 4 to 6 inches from his face, no problem if you are talking about inanimate objects, quite a problem when meeting new people, or trying to traverse an open area. Paul Jr. would get physically close to other children in order to be able to view their features. This behavior created problems when Paul Jr. was introduced to children in the day care near the VIP School (a process called mainstreaming or integration) where getting that close could be construed as being aggressive and the other children would react negatively to him.
At the end of the 1992-1993 school year, the Amherst Central School District filed an Individual Education Plan (“IEP”) for the following year and recommended that Paul Jr. attend the VIP School every day for half a day in July and August, with related services in occupational and vision therapy. They recommended that Paul Jr. be placed in a full-day program, five days a week from September through June, with related services in occupational and vision therapy. Further, Paul Jr. would also participate in integration activities at least once a week during the summer and once a day during the school year.
Paul Jr. had been consistently referred to as a bright and capable child over this time period but, by February 1994, education professionals began referring to him as a child with poor social skills. “He is intolerant of others, frustrates extremely easily and has difficulty attending to topics or activities not of his choosing. Paul displays a disrespectful attitude toward authority and does not accept responsibility for his actions. Overall he has a negative attitude toward school” (Exhibit 74, p. 38). This negative attitude dissipated when he was happily engaged in school activities of his own choosing either alone or with a peer he tolerated.
Integration was not going well either, as he displayed inappropriate social behavior. Demonstrating self-control was also a problem. In addition, and for the first time, the social worker’s report indicates that Paul Jr.’s behavior at home was aggressive, particularly his interactions with his brother Nicholas and his sister Lauren. The recommended vision strategy was to help Paul Jr. learn “not to invade someone’s space.” He would need constant verbal reminders and physical redirection and could be offered other things to do, and especially to touch, as a way to help him deal with his vision deficits.
While skill assessments supported the opinion that Paul Jr. was indeed a bright and capable child, his “distractability” impeded his progress in those areas. Barely four months later, it was recommended that Paul Jr. attend regular kindergarten in the neighborhood public school in a class with “structure” and “well defined expectations” with the support of a vision teacher and an occupational therapist. It was also noted that Paul Jr. would continue with the VIP Program throughout the summer to avoid “significant regression” in his development. During that time, Deborah LaMendola was in touch with the school to help arrange for an appropriate kindergarten setting.
Post-accident, Paul Jr. has been treated by several child psychologists and psychiatrists, as well as social workers. From August 1996 through the spring of 1998, Paul Jr. treated with the same developmental psychologist as Lauren. The fact that Paul Jr. lost his parents impeded his development to an even greater extent than his sister, Lauren, because, being younger, he missed even more of the opportunity to learn family and societal rules and values by modeling his parents. This modeling occurs because a child will try and earn his or her parents’ approval and have a fear of being rejected by the parent. Paul Jr.’s development was not just hindered by the loss of his parents. This loss, combined with his vision deficits, was devastating to his development, as he was unable to see clearly what behavior a new psychological parent was modeling.
The doctor’s course of treatment with Paul Jr. primarily focused on his behavior at school. Paul Jr. was performing well academically, but his behavior was disruptive. Paul Jr. tested as highly intelligent, yet he was struggling in school. What he really was missing was an advocate. This witness concluded that Paul Jr.’s problems with school started even before the accident, when the school district determined that Paul Jr. could be placed in a regular kindergarten. He testified that this was because the support services offered were insufficient to help Paul Jr. make such a transition. Paul Jr. needed a smaller class size so he could get help with his visual disability during class time.
I note that during the course of Paul Jr.’s treatment with this doctor, the doctor did not notice any symptoms of Oppositional Defiant Disorder (“ODD”) or Attention Deficit/ Hyperactivity Disorder (“ADHD”) during their 60-minute sessions.
Paul Jr. was next treated by a licensed psychologist in private practice. She also worked with Lauren. The witness treated Paul Jr. from September 1999 through August 2001. The doctor’s initial diagnosis for Paul Jr. was depression with behavioral issues. Paul Jr. also showed symptoms of ADHD although the witness did not diagnose that condition. During this course of treatment, there was evidence that Paul Jr. first verbalized a desire to die because he had no parents. She opined that the loss of his parents caused a major disruption in Paul Jr.’s receiving the nurture and guidance needed to overcome his disabilities, but even more importantly, he lost the advocacy for the services he needed.
I agree with the doctor’s assessment that children with special needs cause strain in a normal functioning biological family. Doctors’ appointments do not magically appear on calendars and services, such as occupational or vision therapy, do not just happen. Obtaining services for children with disabilities is a lot of work: phone calls, paperwork, meetings, research and even more time-consuming, a consistency in working with a child at home. One hour of therapy, or even enrollment in the proper school, is not enough. What happens outside of the therapist’s office or the school will have the most impact on the success or failure of intervention. Thus, the loss of his parents made it less likely that Paul Jr. would develop and progress the same way he would have had his parents not died in the auto accident.
By November 2000, Paul Jr. had more than superficial communications with this doctor noting he was sad, missed his parents and believed that things in his life were not right. The doctor noted that Paul Jr. was angry about many things, but the primary focus was having to live with his aunt and uncle. The anger manifested itself in aggressive behavior, both at home and at school. In her opinion, Paul Jr. was unable to control his behavior because he lacked the ability to figure out why he was angry; instead his focus was on any convenient source that he could identify as having made him angry.
Toward the end of this doctor’s professional relationship with Paul Jr., a salient reason for anger happened to be the prescription medication prescribed by a pediatric psychiatrist Paul Jr. was also seeing at the same time.
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Her course of treatment continued to focus on the depression, attempting to change his behavior, but she was unsuccessful. By May 2001, the doctor determined that the structure and support at home and school needed to help Paul Jr. change his behavior was lacking and she recommended a day school where therapy was provided on the spot. The weekly sessions terminated in May 2001 and, due to changes in her schedule, she stopped treating Paul Jr. altogether in August 2001.
At trial, I had the benefit of testimony from Claimants’ expert, a licensed psychologist who, since July 1981, has maintained a private practice in clinical child psychology and neuropsychology. She deals with children with ADHD and learning disabilities. In addition, Defendant provided the testimony of a professor and director of a university school psychology program who has studied and written about the identification of children’s cognitive and behavioral deficits and therapeutic interventions.
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I found both doctors extremely helpful in explaining the significance of the numerous post-accident Individualized Education Programs (“IEP”) with the attached reports from the various service providers and the school records. Based on their testimony and my review of the exhibits, I conclude the following.
Symptoms of ODD and ADHD appear throughout Paul Jr.’s school record, even after the initial CATS intervention prior to the accident. In the Parent Teacher Conference Report for December 1995 at Ledgeview Elementary School, the teacher noted that Paul Jr. was adjusting well to the new school but that he tries to rely on the teacher to do things for him instead of trying himself, possesses poor attending and listening skills, and has crying outbursts if he does not get his way. This same behavior was noted as occurring at home as well (Exhibit 76). By March 1996, Paul Jr.’s special education teacher noted that the biggest concern for the year had been Paul Jr.’s use of inappropriate language and behavior. Although these had improved somewhat, as had his crying outbursts, he still often demanded immediate attention. The school psychologist’s report in the 1995-1996 school year recommended that Paul Jr.’s special education teacher assist him by helping to provide structure, organization and reinforcement of learning (Exhibit 77).
Through the second grade at Ledgeview and the third grade at St. Andrew’s Country Day School, Paul Jr.’s academic progress appeared to be trending upwards despite his tendency to be easily distracted from his work. I note that the IEPs for the Buffalo City School District (Exhibit 78), cover grades four through seven and IEP notes that Paul Jr. needed “supervision” so his classroom behavior did not interfere with his learning. One report noted his behavior as “strange, often immature”; he often cried and ignored adult directives. There were periods of success, when Paul Jr. seemed to settle into a situation, but the behavior issues inevitably arose again. Finally, after a frustrating sixth grade year, Paul Jr.’s guardian and the school principal pressed for a review of Paul Jr.’s special education classification and placement. When the review took place, Paul Jr. had, again, seemed to settle into the new school year and the CSE recommended that he remain in that seventh grade classroom with the recommended services (Exhibit 78). Unfortunately, Paul Jr.’s behavior deteriorated and he was eventually referred to a day treatment center.
The trauma of the accident itself did not significantly impact Paul Jr.; I note that in all the testimony and evidence there is no diagnosis of post traumatic stress disorder. What has had significant impact on him is, however, the loss of his mother, that is a parent/child relationship that provides emotional stability and consistent discipline and structure. That Paul Jr. presented a challenge to his biological parents is an understatement. Before the accident, he possessed a full-time caregiver, fully engaged in his life and in addressing his needs. After the accident, he had to rely on well-intentioned family members that did not possess the tools, skills or ability to provide the type of emotional stability and consistent discipline and structure that Paul Jr. needed.
Since the accident, Paul Jr. has lived with one uncle who subsequently divorced; a second uncle who also subsequently divorced; was the subject of a contentious custody proceeding; and has been placed in four different schools. I find that these events have placed a significant distance between the accident and his current status and have had a far more devastating impact on Paul Jr. by causing the previously somewhat manageable symptoms of ODD and ADHD to become more severe. So severe, in fact, that the school district has finally recognized that their heretofore efforts at addressing Paul Jr.’s needs in the least restrictive environment with a patchwork of services, despite the plaintive appeals of Paul Jr.’s beleaguered custodial parent that this was not working, have failed.
However, it would not be just or fair to lay the cost for addressing these needs now at the feet of Defendant. It is an illogical leap, given the intervening events outlined above, to say that the loss of his parents now necessitates that Defendant pay for residential care, education and treatment for Paul Jr. I find it speculative that the residential treatment proposed by Claimants would have been an expenditure that his parents, had they lived, would have had to provide, given the history of their efforts at intervention and follow-up at home.
Paul Jr. was intelligent enough to progress successfully academically in the early grades despite the symptoms of ODD and ADHD. As the academics became more challenging, he was unable to cope, lacking the skills necessary to apply the required extra effort. I agree with the Claimants’ psychologist that this is one of the more poignant examples of the devastating impact the loss of the nurture and guidance of a parent can have on a child. I also find that it is a perfect example of why the advocacy provided by a parent is so critical.
Inasmuch as Paul Jr. had counseling services to help him and his parents handle Paul Jr.’s unique challenges due to his vision deficit, and due to the fact that he continued to need such help after the accident, I find that psychotherapy sessions every week for $115.00 per session for the remainder of his life is fair and reasonable.
Loss of Parental Guidance:
As stated at the beginning of this decision, the wrongful death award to both Lauren and Paul Jr. must address their claim for loss of parental guidance. Lauren had very specific memories of her family and strong opinions of her parents’ impact on her life. She recalled that she and her sister, Chesa, attended preschool at St. Benedict’s Church for two years. Their mother transported them. When Lauren reached kindergarten, Deborah taught her the importance of taking school seriously and that, as she grew older, school would be more challenging. Lauren testified that her mother was always involved in their education. Deborah kept in contact with each child’s teacher and checked on their progress. She was especially involved with Paul Jr.’s education. Lauren believed her mother had to be because, while the school was helping her brother, they were also teaching her mother how to help Paul Jr. at home. Lauren felt it made Deborah a better mother to Paul Jr. and helped her understand him better.
Lauren told me how her mother used to make clothes for her and her siblings and showed me pictures of some of the outfits. Lauren felt her mother encouraged Lauren’s creativity, providing art supplies and making the time and space for her to use them. Lauren is very artistic and is proud of this fact because her mother was also a very artistic individual. Lauren testified that her mother always encouraged her and her siblings to “stick with” the activities that they enjoyed. Chesa and Lauren were both involved in softball, though it didn’t interest Lauren enough to stick with it. Nicholas was involved in Tae Kwon Do classes, which the family would usually watch together.
Lauren understood her two brothers’ condition of albinism and knew that it meant they needed to be careful. She testified that her mother always made sure that the boys wore their shirts, hats, glasses, and a good amount of sunscreen before going outside. Eventually, Lauren and Chesa could help by making sure as well, so that Nicholas and Paul Jr. could play outside with the rest of the children in the neighborhood.
Lauren remembers her father as a good-looking man who was always smiling and laughing. She remembers her mother having a soft voice and always telling the children how much she loved them and hugging them. She recalled that her father did that, as well. Lauren testified that both her parents taught their children right from wrong, manners, and to be on their best behavior. Deborah taught the children to always keep their rooms clean, and even taught Lauren how to clean the toilets. Whenever any or all of the children were ill, Lauren said that her mother would always tend to their needs and nurse them back to health.
The LaMendola family would take vacations often, including an annual camping trip to Sherkston Shore in Canada each summer. Holidays were usually spent at the family’s home on Berryman Drive, with both her father’s and mother’s families. Birthdays were always special occasions in the LaMendola household, according to Lauren. Deborah would always make a beautiful cake and put together party favors. Lauren said her mother used to read to the children at night and that when the accident occurred in October 1995, she was in the middle of reading Pollyanna to them, and never got the chance to finish it. Lauren testified that she and her siblings even managed to enjoy bathtime, as they had toys and books made especially for the bathtub.
Paul Jr.’s memories are not as detailed. He testified that he loved both his parents very much, especially his mother. Paul Jr. remembers Deborah as a very pretty woman with long hair and a nice shape. Paul Jr. testified that she was always “real nice.” He also testified that his immediate family was very close, and that today he and Lauren remain close, as they are the only members left.
Paul Jr. told the court that, when Deborah told him how much she loved him, it made him feel “really good,” and that she would hug him and kiss him all the time. Deborah would tell Paul Jr. that he was handsome and that he was a “big boy,” which also made him feel good. Paul Jr. recalls Deborah nursing him back to health whenever he was sick. He remembers her loving him and understanding that he could not see very well. She would read things to Paul Jr. that he could not see very well himself (Paul Jr. described his vision as out of focus and blurry). Paul Jr. testified that he remembers his mother explaining his condition of albinism to him. Paul Jr. also testified that he remembers how Deborah used to read to the children before bed, and how bath time was always fun with all the toys and books they had for the bathtub. Paul Jr. does not remember too much about his father, but he did say that he remembers his father as a tall man who was always fun. He told me that he loved his father.
Paul Jr. testified that he remembers taking family vacations to places like Disney World in Florida, and going to see Sesame Street with his family. Paul Jr. also recalls spending summers camping at Sherkston Shore in Canada, and spending those days on the beach. He described these vacations as being a lot of fun. Paul Jr. remembers having a lot of toys to play with when he still lived with his parents, including a bicycle with training wheels. He remembers always having to be careful when going outdoors; always having to wear tinted glasses, a hat and sunscreen.
Paul Jr. testified that his mother taught him not to lie, to always be honest and tell the truth. He remembers going to weekly religion classes, and his parents giving him and his siblings religious videos to watch. If Paul Jr. needed discipline, his parents would tell him “not to do it” and sometimes he would get a spanking. Although Paul Jr. claims that these spankings never really hurt, that they were just enough “to get the picture” so he would know not to repeat the misbehavior. He recalled that his mother was always home waiting for them after school, and all the children had a familiar routine after school. He has no such routine today.
Mrs. Abramo offered several specific examples of the type of parenting, nurture and guidance that Paul Sr. and Deborah provided. Deborah was a member of the PTA and very involved with the Blind Association and United Way fund-raising. She also advocated for her children, and Mrs. Abramo recalled a time when the two families were on vacation and Nicholas and Paul Jr. were not able to use the public swimming pool because they were not allowed to wear hats or t-shirts in the water. Deborah was able to convince the management to let them wear the necessary protection so the boys could swim with the rest of the family. Paul Sr. had been a childhood friend of the Abramos. Mrs. Abramo knew Marie LaMendola Cannizzaro, Paul Sr.’s daughter from a previous marriage, and had frequently observed Marie together with her father. She noted that Marie was always clearly happy to be with him. He was involved with Nicholas’ Boy Scout activities and he frequently enjoyed taking the children out for ice cream in the evening.
Hope Bongiorno’s testimony was helpful in detailing for me the extent of Paul Sr. and Deborah LaMendola’s involvement in Paul Jr.’s education. The VIP’s mission is to work with children that are visually impaired or blind and help them compensate for their vision loss and make the children as self-sufficient and independent as possible. Other students in the VIP had the condition of albinism, including Paul Jr.’s older brother, Nicholas. The VIP also works with children who have cognitive delays and gross and fine motor delays. The VIP does not accept children with severe behavioral needs or those who are severely physically challenged.
The VIP does not recruit or solicit students. At the time Paul Jr. enrolled, parents filed a Family Court petition, stating that they had a child with a disability, and the judge would give approval for the child to enter the VIP program. The parents’ involvement with the program did not end once their child started school. The VIP also ran a program for parents, in which Paul Sr. and Deborah participated. Teachers worked closely with the family to develop a plan that parents could follow at home to reinforce what was learned and expected in school. The plan would address the student’s use of vision at home, as well as behavioral and cognitive issues. Teachers communicated with parents daily, either in person, by telephone or in writing. The VIP regularly evaluated students and reviewed evaluations with parents. The VIP’s vision professionals would work with parents so that they would know how to present materials and what things to follow through with at home - appropriate distances for coloring, cutting, pasting, and appropriate lighting conditions. During Paul Jr.’s tenure, parent training was done one-on-one, rather than in groups, as it was at the time of trial.
Ms. Bongiorno testified that Deborah and Paul Sr. were always involved with the individualized training although it was particularly Deborah that she saw on a daily basis. Paul Sr. was more likely to attend meetings and activities at the school. She recalled that Deborah would come in, talk with the teachers and fill them in on things that were going on at home with Paul Jr. and explain how he was doing. Deborah and the teachers would also communicate about Paul Jr.’s medical appointments and successful classroom strategies that might also be employed at home. Ms. Bongiorno believed that Deborah did follow through at home, based on the strides Paul Jr. made in his first year.
The End of Year Summary for June 1991 in Exhibit 74 memorialized Paul Jr.’s progress, remarkable for the fact that he had only been in the school since January 1991 for two mornings a week plus vision therapy once a week, they reported his skill levels as either age appropriate or only slightly below. Ms. Bongiorno concluded that Paul Jr. had to be getting assistance outside of school because, unlike a seeing child who can mimic adult behavior and learn in that manner, a visually impaired child learns by having someone working closely with him to show him how to perform the skills. Deborah had been instructed to talk with her son all the time and explain what was going on as a way to make up for his vision deficit. Developing his senses of hearing and touch was a way to help him compensate.
Ms. Bongiorno testified that she was aware of Deborah’s involvement with the Blind Association of Western New York and that she was a member of its board. Deborah brought the perspective of a VIP program parent to the board. Also, Deborah was involved in fund-raising activities, advocating for her children and for the VIP program. Her work in these capacities kept the VIP school on the radar screen, so there was funding available and it made the school seem a little less remote. Deborah was also interviewed by the newspaper several times, talking about the program, the preschool, and providing information on albinism, particularly the need for early intervention and the benefits of getting children involved in these programs. She was often a visible advocate for the VIP school and once Deborah brought the president of the Blind Association to the school to provide a first-hand experience of how the school operated. She also made sure that the Association president was invited to the VIP graduations, which helped parents see that the agency hierarchy was interested in their children.
Ms. Bongiorno stated that the entire LaMendola family would attend the school’s events and activities together. Deborah always talked about all her children. She would bring Paul Jr.’s siblings to the playground at the end of their school day. Ms. Bongiorno observed that it was not just Paul Jr. who was always clean and neat, but that all the children appeared that way.
Paul Sr. and Deborah LaMendola were involved and caring parents and, regardless of the love they felt for their children, the stress of raising four children on one income, with two of the children having special needs, was evident. All the children had some level of problems at school and, despite Deborah’s best efforts, there was often not much structure provided in the home (Exhibit 84).
Deborah sought assistance from CATS in November 1994 and a preliminary Initial Assessment was completed on December 1, 1994. Her case manager identified two problems; Paul Jr.’s behavior in school and at home, and lack of support for the parents in managing Paul Jr.’s behavior. Deborah reported that her son Nicholas had been recently diagnosed with ADHA and that she believed her husband suffered from ADHA-like symptoms, as he was easily frustrated. This became particularly apparent as they struggled to combine their two different parenting styles. One of the treatment goals at that time was to decrease stress for Deborah. The objectives were to provide support, “emergency phone numbers,” refer Deborah to a parenting class and to a counselor to treat her own problems (Exhibit 80A).
During late 1994, the tension level at home had escalated to the point where Deborah felt it necessary to call the police and seek an order of protection. She believed that her husband had been exhibiting controlling behavior over her daily routine and had choked Paul Jr. Child Protective Services became involved and it was noted that both parents would be seeking marital counseling at Jewish Family Services, but that they were also considering divorce (Exhibit 80A). I note that Paul Sr. took Paul Jr. to one of the counseling sessions after the choking incident and a few times thereafter. By March of 1995, it appeared that Deborah was in treatment for her own problems and by June 1995, the treatment notes indicate that marital counseling was no longer occurring (Exhibit 80A).
During this time period, it became apparent that the family was experiencing financial problems as well. Paul Sr. had encumbered the family residence with a second mortgage to finance a business venture that, in turn, fell through. Paul Sr. and Deborah sold the family residence, but were able to relocate to a smaller, less expensive home on the same street to keep their children in the same school. This happened in either August or September 1995, just weeks before the accident.
It is clear to me that Deborah was the main source of nurture and guidance for her children. She sought assistance when necessary for the children, and for herself, as well. She fought to keep her children in the same school and neighborhood and she fought to keep her marriage healthy. Her role went beyond nurture and guidance because of the circumstances - raising four children, two of whom had special needs. She became their primary advocate for services. I make two awards, one for nurture and guidance for Lauren, Paul Jr. and Marie (discussed below) and the second for the loss of parental advocacy for Lauren and Paul Jr. To Lauren, I award a total of $450,000.00 for loss of nurture and guidance and a total of $200,000.00 for loss of advocacy. For Paul Jr., I award a total of $1,500,000.00 for loss of nurture and guidance and a total of $3,000,000.00 for loss of advocacy.
Marie LaMendola Cannizzaro
As stated earlier, Mrs. Marie LaMendola Cannizzaro is Paul Sr.’s child from his first marriage. She was born on January 1, 1978. She is now a parent herself. She has a toddler son and is training to work in the hair styling field.
After approximately four years of marriage, Paul Sr. and her mother divorced when Marie was about three years old. Marie testified that she resided with her mother, but that her parents had joint custody. Paul Sr. had visitation on Sundays which, according to his daughter, he exercised faithfully, even after he remarried, until the day he died. Marie’s mother eventually remarried and had another child when the witness was ten years old. A year or two later, her father married Deborah.
Several years later, in 1991, her mother died. Marie recalled that her mother and father’s relationship was cordial, they always spoke to one another when she was picked up and dropped off on Sundays.
She also recalls her father visiting her school; he attended recitals, school events and her graduation. She would call him for advice if she was having a problem; she felt that after she would talk to him, “everything got better.” She was often with her extended family on Sundays at her grandmother’s house and recalls that the LaMendolas were a close family.
When her mother died, Marie had just graduated from grammar school. Her father and stepmother, Deborah, asked her to come live with them and had even painted a room for her to move into, but Marie agreed to stay with her stepfather to help raise her half brother, who was three years old when their mother died. She stayed with her stepfather until her senior year in high school, when her stepfather remarried. She then moved in with her maternal grandmother so she could remain in the school district and complete high school.
After her mother died, Marie saw her father two to three times a week. Her father took her out of the public school and enrolled her in a private parochial high school. Marie testified that all her friends from grammar school were attending this school and, because she had been in a parochial grammar school, she and her father felt it would be good to continue her Catholic education. She recalled her father assisting her with school matters; he would transport her to and from school when called for and give her money for lunch and other items she needed during her senior year (when she lived with her grandmother), about $10.00 - $15.00 a week. She regularly attended church on Sundays with her father and Deborah. Her father also did some remodeling in her grandmother’s house when Marie moved in during her senior year. Her father gave her money to buy Christmas gifts, but otherwise he purchased for her whatever she needed, e.g. clothing and shoes. She also vacationed with her father and the rest of the family.
Marie testified that she relied on her father for advice about cars and, although he did not help her financially with the purchase of her first two, he did give her advice and performed repairs and maintenance. He assisted Marie financially with her purchase of her third car after she graduated from high school. Paul Sr. also helped her get her first job, which she held until shortly after the accident. He always encouraged her to go to college and she had discussed her plans regarding this with him before he died.
Marie started college at Erie Community College (“ECC”) in September 1995. Her father gave her money for her college books. She stated that she withdrew from ECC and quit her job after the accident because she had lost her ambition to do anything. I find that Marie is entitled to an award of $200,000.00 for the past loss of the parental guidance of Paul LaMendola, Sr. I make no award for future loss of parental guidance, given Marie’s age.
Economic Damages:
The evidence at trial established that Paul Sr. was a creative and industrious person who achieved little success in his independent business endeavors. His brother and Mrs. Abramo and, to a lesser extent, his three children, testified that Paul Sr. was good at taking old cars and old houses and fixing them up. However, I find no evidence in the record that he was able to convert that talent into financial profit.
Claimants and Defendant each offered the testimony of economists with Ph.D.s, both of whom are teaching professors who also offer their services in performing appraisals of losses of lifetime earnings and economic value in wrongful-death cases. According to the expert testimony, the tax returns from 1991 through 1995 show a total of gross wages and gross business income of $45,000.00. In addition, over that same period of time, Paul Sr. received approximately $28,000.00 in unemployment benefits.
1[1]
Average annual income over that period is only $15,368.00. Rather than use this figure, however, both experts used Paul Sr.’s earnings for 1995, annualized, as the base figure for their respective lost earnings calculations, each assuming that Paul would continue working for his brother, Gino LaMendola. I adopt this assumption, decline to use the actual annual average earnings, and shall use the 1995 annualized net income as the base earnings figure.
1[2]

Past lost earnings, from the date of the accident until the time of trial, occurred over 6.9 years. Both experts accounted for yearly wage increases; Claimants’ expert used the Consumer Price Index and Defendant’s expert used the Employment Cost Index. The experts agreed that wages, on average, over that time period, increased 3.5% per year. I shall credit Claimants’ expert’s figures and find that 6.9 years of past lost wages totaled $235,005.00.
Next, the experts deducted what Paul Sr. would have spent on himself, that is, his personal consumption. Here is where the two experts disagree. Claimants’ expert used a personal consumption figure that assumed the accident never occurred and commenced the projection with a family of six. The personal consumption percentage with a family of six is 17% and, as each child reaches 21 years of age, the percentage increases until it reaches 31.1%, when, according to the formula, only Paul Sr. and Deborah would be left in the household. Defendant’s expert assumed that the household consisted only of Paul Sr., Lauren and Paul Jr., commencing his projections with a personal consumption figure of 24.2% and finally reaching approximately 71%, when only Paul Sr. would be left in the household. I find Claimants’ position persuasive on this issue. Based on the consumption analysis used by Claimants’ expert, I find that Paul Sr. would have personally consumed $40,776.00 of his past wages, leaving a net of $ 192,226.00 in past lost wages.
I am charged with determining what is fair and just compensation for Lauren’s and Paul Jr.’s injuries resulting from not only the death of their father but their mother and two siblings as well. I have found no caselaw on this particular issue, but my opinion is that, in order to put these children back in the position they would have been in had the accident and the resulting fatalities not occurred, I must credit Claimants’ expert’s testimony. I adopt his analysis and conclusions regarding future lost wages. I also credit Claimants’ analysis regarding Paul Sr.’s work life expectancy, that is, to age 67. I find this particularly accurate, given the fact that he was the father of two special-needs children, he had no pensions or retirement savings and possessed only a G.E.D., and notwithstanding his past history of unemployment as evidenced by his tax records testified to at trial. Thus, Claimants are entitled to $ 1,203,720.00 for future lost wages for Paul Sr.’s work-life expectancy (to age 67). Applying the personal consumption figures, the net total future lost wages is $872,281.00.
I make no award for loss of future income from Deborah. While there was some testimony from family members regarding her skill as a faux painter,
1[3]
she had only a slight income during one year in the immediate five years preceding her death; that earned income was rolled into Paul Sr.’s lost wages calculations as discussed above. There is no credible proof in the record regarding her future earning potential.
Regarding household services, Defendant asserts that, because there was no proof that replacement household services were actually purchased on Lauren’s and Paul Jr.’s behalf, that they are not entitled to recover damages for the value of past and future loss of household services. That is indeed the rule as enunciated in Schultz v Harrison Radiator Div. Gen. Motors Corp. (90 NY2d 311). However, Defendant’s reliance on that case is misplaced. Schultz was a personal injury case where the injured plaintiff relied on the favors of friends to perform the household services he had been able to do himself before the accident. Here, it is true that there is no evidence that anyone was hired to provide the services that Paul Sr. and Deborah provided their children before their deaths. Proof that a distributee has actually hired someone to perform their decedents’ services has never been required in a wrongful death action; replacement costs determine the value of past and future loss of household services in wrongful death cases (Mono v Peter Pan Bus Line, Inc., 13 F Supp 2d 471, 480).
Again, to fairly and justly compensate Lauren and Paul Jr., I will hold to the premise that the accident did not occur, therefore, the replacement of household services must be for a family of six. Inasmuch as Defendant’s expert based his opinion on a household of three, I will credit the Claimants’ expert’s analysis here, as well, except for one important element - damages for future loss of household services stop when Paul Jr. is 21 years of age (see Social Services Law § 101[1]).
Claimants’ expert calculated the total past loss of household services attributable to Paul Sr. as $47,001.00; the total past loss of Deborah’s household services was calculated at $119,512.00. As far as the future loss of household services, Paul Sr.’s future services, until his youngest child is 21 years old, would be $57,264.00. Deborah’s future services for that same period would be $176,612.00. Each figure is based on an average number of hours per week, at $8.00 per hour, with a yearly adjustment for wage increases. At trial, Claimants’ expert calculated a figure for Lauren and Paul Jr. individually, even though he admitted that the household services are not attributed to individuals in the household because the majority of services are jointly consumed. If I followed Claimants’ expert’s position, Defendant would be paying $16.00 per hour for household services from the date of trial through 2008, when Lauren turns 21. As I have no way to break down individual benefits and ascribe to them a fair dollar amount, I decline to make separate awards under these circumstances as Paul Sr.’s and Deborah’s household services benefitted the whole household.
Medical Expenses
The parties agree that unpaid medical expenses total $53,307.55 (Exhibit 73). Of that total, $34,676.25 is for services rendered to Paul Jr. by Children’s Hospital of Buffalo. Lauren received services in the amount of $4,053.32 from the same hospital.
Funeral Expenses
Claimants are to be compensated for the funeral expenses for Paul Sr., Deborah, Nicholas and Chesa. The parties agree that the total amount is $17,970.00. The total breaks down to $3,530.60 for Deborah; $5,060.80 for Paul Sr.; $2,286.00 for Nicholas; and $2,559.00 for Chesa.
CONCLUSION
Accordingly, to summarize, the Court awards Claimants the following:

Wrongful Death
Past net lost wages (Estate of Paul Sr.) 192,226.00
Future net lost wages (Estate of Paul Sr.) 872,281.00

Past lost household services
Estate of Paul Sr. 47,001.00
Estate of Deborah 119,512.00

Future lost household services
Estate of Paul Sr. 57,264.00
Estate of Deborah 176,612.00


Emotional Damages
Lauren (50% Estate of Paul Sr.,
50% Estate of Deborah) 115/every two weeks until age 30
Paul Jr. (50% Estate of Paul Sr.,
50% Estate of Deborah) 115/week for remainder of life

Past loss of nurture and guidance
Lauren (Estate of Deborah) 350,000.00
Paul Jr. (Estate of Deborah) 500,000.00
Marie (Estate of Paul Sr.) 200,000.00

Future loss of nurture & guidance
Lauren (Estate of Deborah) 100,000.00
Paul Jr. (Estate of Deborah) 1,000,000.00
Marie (Estate of Paul Sr.) 0.00



Past loss of advocacy
Lauren (Estate of Deborah) 200,000.00
Paul Jr. (Estate of Deborah) 1,000,000.00
Marie (Estate of Paul Sr.) 0.00

Future loss of advocacy
Lauren (Estate of Deborah) 0.00
Paul Jr. (Estate of Deborah) 2,000,000.00
Marie (Estate of Paul Sr.) 0.00


Medical Expenses $ 53,307.55
Funeral Expenses $ 17,970.00
Pain & Suffering
Pre-impact terror 0.00
Personal Injuries
Lauren 766,700.00
Paul Jr. 850,000.00
With the exception of the awards for personal injuries to Lauren and Paul Jr., all amounts awarded in this decision are for wrongful death and, as such, are payable to the respective estates of the decedents, as indicated parenthetically in the table above.
1[4]
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 and the determination of appropriate interest (see Milbrandt v 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.
The awards to Paul Jr. and Lauren for past pain and suffering for their respective personal injuries ($850,000.00 for Paul Jr. and $766,700.00 for Lauren) are not subject to the 50-B hearing. The Clerk may, therefore, enter judgment, payable in accordance with the Letters of Guardianship of the estates of Paul Jr. and Lauren, granted by the Surrogate’s Court of the County of Erie on May 31, 1996, for those amounts, together with statutory interest from June 30, 2000, the date of the liability determination, directly.
LET JUDGMENT BE ENTERED ACCORDINGLY.

June 23, 2004
Rochester, New York

HON. RENÉE FORGENSI MINARIK
Judge of the Court of Claims



[2]I found no credible evidence at trial to suggest that Lauren was aware of the impending impact, therefore, there will be no award for pre-impact terror (Pullman v Pullman, 216 AD2d 886).
[3]The evidence was also devoid of any showing of contemporaneous awareness.
[4]Both Lauren and Paul Jr. (discussed in the next section) have had extensive contact with various mental healthcare providers. Both parties provided the Court with expert testimony as set forth in the following sections. However, Claimants also called a nurse practitioner, who is a clinical social worker and certified bereavement counselor, as an expert on what, if any, long-term impact the loss of parents causes to a child. At the conclusion of her testimony, Defendant moved to strike her testimony or, in the alternative, afford it no weight because her testimony at trial differed from the disclosure provided by Claimants, specifically, that the disclosure states her opinion was based, in sum and substance, upon facts known personally to her.
“ ‘It is settled and unquestioned law that opinion evidence must be based on facts in the record or personally known to the witness’ (Cassano v Hagstrom, 5NY2d 643, 646; Lopato v Kinney Rent-A-Car, 73 AD2d 565, 566)” (Hambsch v New York City Tr. Auth., 63 NY2d 723, 725). There are limited exceptions to this rule - an expert may rely upon information provided by “witnesses who are subject to full cross-examination at trial . . .” (Erosa v Rinaldi, 270 AD2d 384 [citations omitted]). The proffered expert does not have to personally view the materials on which he bases his opinion, but the facts the expert relies upon must either be facts in evidence or facts personally known to the expert (Matter of Aetna Cas. & Sur. Co. v Barile, 86 AD2d 362, 364).
[5]The family availed themselves of CATS prior to the accident, but treatment focused on Paul Jr.
[6]I was interested to hear that Lauren was able to turn the tables on therapists by this time and, in one instance with this doctor, told the doctor that she would play out a scene using dolls “like you are supposed to do” in psychologists’ offices.
[7]This was the name of the school when Paul Jr. attended. It is now the Elizabeth Purist Olmstead MD Center for the Visually Impaired.
[8]She has run the preschool program since August 1992 and possesses a Master’s in Education, a Master’s in Special Education, and an Administrative Degree in Special Education.
[9]One such drug was Ritalin and, while taking it, Paul Jr. appeared to make slow, but steady progress in controlling his aggressive behavior, anger and outbursts, pursuant to reports from the school to Paul’s guardian, Lee LaMendola. However, this progress was short lived as Paul Jr. was noncompliant with his medication and his behavior eventually worsened. The pediatric psychiatrist did not diagnose depression, but rather ADHD and medicated Paul Jr. for that, even though Paul Jr. had not been tested for ADHD.
1[0]Defendant moved to have its expert’s written reports received into evidence (Exhibits U1, I2). I have reviewed counsels’ arguments, both for and against, as well as the experts’ reports. Although the contents of the reports are relevant, admission as evidence would be unnecessarily repetitive, as this expert testified extensively on their contents and was subjected to a lengthy and thorough cross-examination.
[1]1Part of the unemployment compensation may have been Deborah LaMendola’s, but Defendant’s expert credited the total compensation to Paul Sr.
1[2]The two experts were only $109.00 apart on this calculation.
1[3]Mrs. Abramo testified that, besides making her own home beautiful, Deborah had a talent in faux painting with sponges. Mrs. Abramo recalls Deborah even appearing on AM Buffalo (a local television show) demonstrating the trade in 1989 or 1990. Mrs. Abramo testified that Deborah would do faux painting in friends’ homes, including Mrs. Abramo’s bathroom, but there is no evidence of earnings related to such activities.
1[4]The award to each individual estate for medical expenses, funeral expenses, and emotional damages cannot be discerned at this time and will be determined at the 50-B hearing.