New York State Court of Claims

New York State Court of Claims

BECKWITH v. THE STATE OF NEW YORK, #2005-032-505, Claim No. 104714


Case Information

CHRISTOPHER BECKWITH and RICHARD and PAULA BECKWITH, his Parents By a prior order filed February 28, 2003 the Court amended the caption to reflect the fact that Christopher Beckwith was no longer a minor. Although the original claim did not list Christopher's parents in any way other than his natural guardians, the claim itself stated a derivative cause of action on their own behalf. Consequently, the caption is again amended to include Richard and Paula Beckwith as claimants.
Claimant short name:
Footnote (claimant name) :
By a prior order filed February 28, 2003 the Court amended the caption to reflect the fact that Christopher Beckwith was no longer a minor. Although the original claim did not list Christopher's parents in any way other than his natural guardians, the claim itself stated a derivative cause of action on their own behalf. Consequently, the caption is again amended to include Richard and Paula Beckwith as claimants.
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant's attorney:
O'Connell and AronowitzBy: Stephen R. Coffey, Brian Baker, Thomas E. Dolin, Jr., and Aaron Louridas, Esqs.
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Kevan J. Acton, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
November 21, 2005

Official citation:

Appellate results:

See also (multicaptioned case)

On this bifurcated claim, the Court previously determined by Decision filed August 25, 2003, that defendant was liable for an accident that occurred on August 12, 1999. The accident occurred while claimant Christopher Beckwith [hereinafter claimant] was riding an all terrain vehicle (hereinafter ATV) on a State road, and was forced off the road by a vehicle driven by a State Trooper. Claimant was forced to drive down a ditch and was jettisoned from the ATV, which landed on top of him. In its prior decision, the Court apportioned liability as 90% against defendant and 10% against claimant. After a trial on damages, the Court awards claimant $550,000.00. The Court also awards $50,000.00 to his parents on their derivative claim for loss of consortium.


During the eight-day trial, claimant testified that he remembered his ATV being bumped by the State Trooper's vehicle, losing control of the ATV, going down into a ditch and then blacking out. He awoke with the ATV on top of him. He could not breathe, gasoline was pouring down his face, and there was blood in his throat. As a result, claimant seeks damages for physical and psychological injuries.

After the accident, claimant was transported to Albany Medical Center. Upon admission, he received
diagnoses of minimally displaced right proximal clavicular fracture, left accromial fracture, right open mandibular symphysis fracture, left condylar fracture with anteromedial displacement, and left zygomatic arch fracture (Exhibit 7, p 410).[1] Paula Beckwith, claimant's mother, testified that after the accident she first saw her son in the emergency room. He was in severe pain and his face was so swollen that it was unrecognizable.
As a result of the mandibular fracture, claimant underwent surgery to wire his jaw (Exhibit 7, pp 514-515). Claimant was also treated by orthopedist Allen Carl for the occipital condyle fracture, a fracture of the bone that attaches the head to the neck (Exhibit 32, p 13). Carl testified and opined that the fracture could cause headaches and arthritis, which could appear years later (Exhibit 32, pp 14, 17). He also diagnosed claimant with injuries to the right clavicle and right sternoclavicle region (where the breast and collar bone meet). He stated that during the accident claimant's clavicle was displaced causing an abnormal alignment, which the Court observed as a large lump at the sternum clavicular junction (Exhibit 32, pp 27-28). He also noted that claimant had a chip fracture in his left shoulder.

During his hospital stay, claimant's pain remained moderate. His chart indicates that the day after the accident, on a scale of 1 to 10 (with 10 as the most pain), claimant had pain at 4 while at rest, and at 6 to 7 while moving (Exhibit 7, p 454). Two days after the accident, the notes indicate that his pain was at 4 on such scale, and was reduced to 3 the next day (Exhibit 7, p 476). A later page in the chart, although undated, indicates that the pain was further reduced (Exhibit. 7, p 494). While in the hospital, claimant was seen by psychiatrist Steven Sandler. Because claimant had a preaccident history of depression, Sandler's examination was to determine if the accident was an intentional suicide attempt (1070).[2]
Sandler believed that claimant was not suicidal at this time, but he could benefit from more psychotherapy in light of family conflicts and substance abuse issues (Exhibit 7C).[3]
After five days, claimant was brought home by ambulance. He convalesced at home with his parents' support, requiring the use of a hospital bed for several months. His parents bathed him and assisted him with the use of the toilet for several weeks, due to the fact that his arms were in slings. His jaw was wired for approximately 8 weeks and, thereafter, he underwent another operation to have the wires removed.

In October 1999, prior to the wires being removed, claimant returned to school. Claimant maintains that he went into total isolation and that it was hard to communicate with his friends and teachers. He was embarrassed to wear a neck brace to school, and he disliked that he had to leave classes early to get to another class so other students would not bump into him in the hallway. Claimant described his stress and frustration as "I didn't know who I was. I felt different. My body was different" (1144). He struggled through ninth grade and "ended up hating himself" by the time he finished that year. He stopped doing his hobbies. Food did not taste the same. He reports that he continues to have difficulty falling asleep and staying asleep. His right shoulder is still very painful and his jaw, which now has a plate in it, bothers him particularly when it is cold outside.

As a result of severe feelings of anger, depression, and agitation, claimant was referred in Fall 1999 to psychiatrist Michael Ende. He and certified social worker Suzanne Lis treated claimant at Berkshire Medical Center. The Court admitted into evidence Ende's treatment records, which provide claimant's preaccident mental health background, including substance abuse issues (Exhibit 1, pp 744-748, 876-879).

Both sides of claimant's family have a history of depression, including his father, who is an alcoholic and who often triggered unrest in the family.
Born in 1984, claimant is the youngest of three boys. His middle brother, Jake, was very troubled, turning to alcohol and other drugs early in his youth, and claimant's father admitted that he has had a few altercations with him (256). Jake introduced claimant to marihuana at age 12. By the time claimant was in seventh grade, he was smoking marihuana more frequently, becoming more defiant and apathetic. By Summer 1998, he smoked marihuana on a daily basis. He used alcohol episodically, at times drinking a quarter of a bottle. When he stopped smoking marihuana, he would become agitated very quickly and had difficulty coping. He would begin smoking again to alleviate these symptoms. In 1997, he was brought to Berkshire Medical Center after "huffing gasoline" (Exhibit 1, p 746). This episode triggered family counseling for substance abuse issues, but the family did not follow through with the treatment. Ende noted that since 1997, claimant had suicide thoughts every one to two months.
Ende's initial impression of claimant was that postaccident he suffered from posttraumatic stress disorder, adjustment disorder with depressed mood, although he ruled out cannabis dependency, alcohol abuse and dysthymia (Exhibit 1, p 880). A week later, the records state that Ende changed his impression to cannabis dependence, alcohol abuse and dysthymia. Still later, in December 1999, his diagnosis was posttraumatic stress disorder, and abuse of alcohol and cannabis (Exhibit 1, p 850). Claimant was discharged from treatment with Lis and Ende in June 2000 because his symptoms had been reduced (Exhibit 1, p 851).

In November 2000 claimant was admitted to Berkshire Medical Center after a physical altercation with his father. After the altercation, claimant spent six days walking the streets and staying with friends. He consumed a large bottle of Seagrams over a 24-hour period and smoked marihuana daily. He also took LSD, although he claims that he was "mickied" when a friend gave it to him on a graham cracker. Notably, in the history portion of his hospital record, claimant stated that his father was a recovering alcoholic but resumed drinking after claimant's accident.[4]
He reported that his mother and grandmother suffer from anxiety disorders and take tranquilizers. Claimant also reported unpleasant memories of the accident in August 1999. During his hospitalization, he was treated by psychiatrist William White and diagnosed with major depression. Although he noted cannabis and alcohol abuse, White ruled out dependency, bipolar II disorder, impulse-control disorder, intermittent explosive disorder, personality change due to possible past head injury, and attention deficit/hyperactivity disorder.
In January 2001, Lis noted that after claimant's hospitalization in November, he remained sober for only one week. He also decreased his medications against medical advice. She stated that claimant could only return to treatment with her after he addressed his alcohol and drug issues (Exhibit. 1, p 844). Thereafter, the only other notes at Berkshire Medical Center reflect treatment for physical injuries unrelated to the accident.

On August 17, 2002, claimant was admitted to Samaritan Hospital for heavy drinking, assaultive behavior and cutting his wrist (suicidal ideation) (Exhibit 11, p 604). The emergency room admission notes indicate that claimant had been diagnosed with bipolar disorder but had stopped his medications for it three months prior to the admission (Exhibit 11, p 604). The history section indicates that claimant consumed 6-8 beers 2-3 times a week, smoked marihuana and admitted past use of cocaine (Exhibit 11, pp 574, 576). The record also notes that there is a strong family history of bipolar disorder and alcoholism (Exhibit 11, p 572). The progress notes during this hospitalization state: "[f]luctuates between saying he wants to work but why should he if he can get disability for mental and physical disabilities. He discussed [the] possibility of being on disability and working 'under the table' " (Exhibit 11, p 584).[5].
He was hospitalized for six days and seen by physician Sabrira Ghauri, who discharged him with a diagnosis of bipolar disorder and alcohol dependency (Exhibit 11, pp 614-615).
In reviewing the testimony and exhibits, the Court notes that claimant's testimony regarding his use of alcohol and marihuana, and his pain after the accident contradicts much of the hospital records. He testified that he tried alcohol and marihuana in the fifth grade and continued using it through the eighth grade, but did not, at that time, use marihuana on a daily basis. Further, he claimed that he would only have a few sips of beer if his friends had it available when he visited with them (990-996). He does, however, admit to huffing gasoline twice. He described his depressed moods diagnosed in 1997, as "I was sad a few times. It was not a depression" (999). He classified his temper before the accident as "mild to moderate" (1000). Contrary to his medical records, claimant classified his pain the week after the accident, on a scale of 1 to 10, as a 10. His mother also testified that he remained in pain the entire time in the hospital and throughout the remainder of 1999 (113).

The Court also heard evidence regarding claimant's scholastic and work history. His mother testified that claimant had a normal childhood but in the fifth grade he was diagnosed with a learning problem regarding math (83). In the sixth or seventh grade, he was given extra help in math through a school program and he continued in that program until the accident occurred. Claimant enjoyed school sports and played soccer, baseball and wrestled. She claimed that she first learned of claimant smoking marihuana and drinking alcohol in 1997, when the family was in counseling due to problems with her son Jake.[6]
She testified that she was not aware of claimant being angry or depressed before this period of family counseling (96). After the family counseling in 1997, she thought he was only an occasional user (97).
She testified that after the accident, claimant was angry and depressed all the time. He kept trying to remove his neck brace because he did not want to live. Counseling was arranged immediately after he returned home. Although claimant started to take antidepressants, many were not effective. He received a tutor for the month of September, but his school work was exhausting for him. It is noted that Bruce Weiner, a psychologist from the Berlin School District, testified that prior to the accident, in May 1999, claimant was tested for cognition and academics. The test results led to claimant's placement for the next school year in an individual education plan, a step up in remediation from his prior program.

Claimant, however, quit high school in November 2000, achieving only the tenth grade. His mother described her son at this time as fearful and not wanting to be alone. He had uncontrollable rages. He would scream and throw things. Although drugs would help alleviate some of the rage, the episodes could vary in their frequency from several daily to a few per week. Once claimant calmed down, he would become depressed over his actions. Claimant had difficulty sleeping and awaking in the morning. He dropped out of school when he was hospitalized for three weeks at Berkshire Medical Center for his depression and suicidal ideations. While at the hospital, Mrs. Beckwith observed her son in a straightjacket after one particular rage.

Contrary to Ende's notes (Exhibit 1), claimant testified that he did not begin using marihuana daily until about the time that he was admitted to Berkshire Medical Center. He claims his temper became worse in the tenth grade because he was upset about various things in his life. Contrary to his hospital records, he testified that he only had suicidal ideations after, not before, the accident. He testified that he still has flashbacks and nightmares of the accident. His concentration ability has diminished, making his performance at his present and prior places of work, a restaurant, a meat processing plant and a farm, much slower.

Ultimately, claimant obtained a GED and attempted to take courses at a local community college, but he found the class load and content difficult. In Summer 2001, claimant worked in the kitchen of a restaurant. Mrs. Beckwith testified that her son wanted to be in school but "he knew he could not handle it....And he is extremely paranoid, so he thinks everyone is talking and looking at him" (159). In Spring 2002, he was hospitalized again at Samaritan Hospital for psychiatric problems. Claimant went into a rage at home, and his parents called the police for assistance in bringing him to the hospital. In Summer 2002, he worked as a farm hand in Massachusetts where he lived in a boarding house with his girlfriend. He moved back home, however, one year later when the job started to overwhelm him. In Summer 2003, claimant was drinking at a family party, went into a rage and put his hand through a window at his aunt's house. The police were called and they transported him to a psychiatric unit at a hospital in Massachusetts. Prior to trial, claimant had worked in restaurants and for the family meat processing company, where he wraps meat but has difficulty distinguishing the types of meat cuts. To this day, claimant has problems with his memory and concentration. His oldest brother, Benjamin, who supervises him at work, described claimant as forgetful, paranoid, angry and depressed.

To substantiate his claim for psychological damages, claimant offered the testimony of psychiatrist George Litchford.[7]
He also offered a report by neuropsychologist Sarah Marshall.[8] Marshall's report recites that claimant's mother was concerned that some of her son's symptoms were secondary to a brain injury sustained in the accident. After conducting tests that are not discussed in the report, she summarized her testing as "patient is having moderate to severe deficits in new learning and patchy moderate to severe deficits in short-term-memory [sic] and complex processing. . . .[This] pattern of deficits is quite typical of patients who have experienced a traumatic brain injury. . . . Additionally, the behavioral changes that the patient's mother described of decreased frustration tolerance and moodiness is also quite characteristic of a post-[concussive] syndrome" (Exhibit 1, pp 931-932). This report was the first mention of the possibility of a traumatic brain injury and postconcussive syndrome in his medical records. The only other mention of a traumatic brain injury is on February 27, 2002 by Ende, who referred claimant to Marshall in 2001.
With respect to Litchford, he administered neuropsychological tests to claimant and found that claimant had overall average cognitive ability with moderate to severe cognitive impairment in processing speed, attention concentration, working memory and higher level inductive reasoning (672-673). Pursuant to these tests, he diagnosed claimant with cognitive disorder NOS, postconcussive disorder;[9]postconcussive syndrome (see 561, 563, 612, 657).
posttraumatic stress disorder; chronic mood disorder due to general medication condition with mixed depressive and manic features; personality change due to general medical condition: paranoia with anger; cannabis dependency: early remission; alcohol dependency: early remission; learning disability NOS (Exhibit 20, p 25). Litchford concluded that the postconcussive syndrome, the posttraumatic stress disorder and the mood disorder were chronic conditions since they had existed in various forms for over four years (689). Litchford believed that claimant had serious problems with depressed mood, specifically related to rage and anger management, as well as a serious problem with nonverbal problems (676, 686). He opined that claimant was a moderate risk for suicide, and that the motor vehicle accident was the cause of his problems (685, 689).
Litchford acknowledged, however, that a person can be damaged by living in a dysfunctional family and by the long-term use of cannabis and alcohol. Further, he opined that use of alcohol could produce fatigue, occupational issues at work, and psychological problems. Similarly, alcohol and cannabis abuse could also produce problems with attention and concentration. He noted that there is always an issue of family linkage to depression and that claimant had suicidal ideations before the accident. He acknowledged that a person who suffers from posttraumatic stress disorder would go to great lengths to avoid a situation that triggers the symptoms (840-841), and that claimant never told him that in April 2000 he was stopped by a State trooper while riding an ATV. Litchford admitted that he assumed that claimant completed his freshmen year in college for the purposes of one test in the neuropsychological battery in which claimant scored poorly. He chose this grade because claimant obtained his GED and attended a community college for three weeks. He agreed, however, that a GED is not the same as a high school diploma.

Testifying for defendant was psychologist Robert McCaffrey, who also ran many neuropsychological tests on claimant.[10]
He opined that the accident did not cause neuropsychological deficits in claimant because claimant was not presenting with a pattern of neuropsychological findings that are indicative of a traumatically induced brain injury (Exhibit C, p 8). He agreed with claimant's 1999 school psychoeducational evaluation, which found claimant to be of average intelligence. He believed that claimant used alcohol, drugs and sports to cope with his home life. After the accident, he only had the illegal substances to help him cope.
Additionally, McCaffrey found problems with Litchford's testing. Specifically, Litchford assumed that claimant completed his freshmen year of college, when he only completed ninth grade. McCaffrey attributed claimant's lower testing on Litchford's tests to claimant's lack of completion of school, preexisting learning disabilities and a history of substance use/abuse (Exhibit C, p 8).[11]
He found that claimant's academic records showed a few episodes of formal disciplinary actions due to claimant's "acting out behavior".[12] He testified that alcohol and marihuana produce problems with attention, concentration, memory and learning difficulties. He believed that the "medical records do not substantiate the degree of emotional trauma associated with the accident that he is now reporting" (Exhibit C, p 8). McCaffrey opined that a test he gave to claimant indicated that he was exaggerating his current level of psychological distress. He concluded that claimant has had "longstanding psychological issues, emotional distress and psychosocial issues" but now focuses on the accident as "the sole factor for all the problems in his life." (Exhibit C, p 9). McCaffrey believed that the accident ceased being a problem for claimant when he resumed riding his ATV and was stopped by a State trooper in April 2000, and no longer experienced any significant increases in symptoms or hospitalizations (1529-1530). Based upon the April 2000 incident, he did not believe that claimant suffered from posttraumatic stress disorder (1676). He opined that claimant had the IQ to graduate from high school and to attend college but "whether or not he had the stick-to-itiveness" to continue with things was not clear (1487).
Defendant also offered the testimony of psychiatrist Melvin Steinhart.[13]
He found that, long before the accident, claimant had many behavioral problems and poor judgment, including a temper. Steinhart opined that claimant came from a chaotic family background with a considerable amount of violence and a history of psychiatric illness, and this type of history could lead to self-medicating conduct (1232). Although his temper appears to have worsened after the motor vehicle accident, "this may have been due to the frustration secondary to his physical injuries rather than to a brain injury. It was also made worse by his reuse of marihuana and alcohol...His behavior also seems to have improved secondary to aging and maturity" (Exhibit B, p 8). Steinhart further opined that alcohol and marihuana can lead to cognitive difficulties, depression and distort the way a person sees the world (1240).
Steinhart noted that the physical injuries from claimant's accident prevented him from using his usual coping mechanism (sports and drugs) to deal with his family. Having to find other methods to deal with his family stress, claimant used anger. "His frustration would result in exploding and getting very upset" (1236). Steinhart diagnosed claimant with adjustment disorder with anxiety and depression, . . . . possible bipolar disorder, alcohol and marihuana abuse, in recovery, personality disorder NOS with self-defeating features, learning disorder NOS (Exhibit B, p 9). He testified that one of the characteristics of posttraumatic stress disorder is that a person tends to avoid the things that remind him of the original incident that caused the trauma (1243), and claimant never informed Steinhart about being stopped by a State trooper in April 2000. Steinhart believed that there was some indication in the record that claimant may have had posttraumatic stress disorder, but he did not have such disorder at the time of his interview with him in February 2004 (1287). He also concluded that, based on claimant's history, he had postconcussive syndrome (1307). Steinhart defined postconcussive syndrome as something that clears up within a year (1310).
To begin, the Court addresses certain objections made by the parties during the course of trial. During the trial, claimant sought to preclude testimony of McCaffrey that was not disclosed pursuant to CPLR 3101(d). Claimant also argued that Steinhart's testimony should be limited to the confines of the disclosure provided by defendant. Specifically, testimony should not be admitted regarding posttraumatic stress disorder because such testimony was not contained in a CPLR 3101(d) disclosure. D
efendant counters that it did not file a response for McCaffrey because the parties agreed that only reports would be filed (1346) and, furthermore, the expert disclosure reports filed by claimant were nothing more than cover letters for the reports that were attached.
CPLR 3101(d)(1)(i) requires timely
disclosure of expert witness information so that parties can thoroughly prepare for trial (see Silverberg v Community Gen. Hosp. of Sullivan County, 290 AD2d 788 [3d Dept 2002]). Although the statute does not set forth a time frame for compliance, a trial court has the discretion to preclude expert testimony for failure to reasonably comply with the statute (see id.). Before precluding testimony, the court must consider the reasons for the delay and whether the failure to disclose was intentional (id.). Testimony can be admitted even if it deviates from the expert witness statement, so long as the other party was not deliberately deceived or misled (see Citron v North Dutchess Hosp., 198 AD2d 618 [3d Dept 1993], lv denied 83 NY2d 753 [1994]).
The Court admits the testimony of McCaffrey and Steinhart since the record amply demonstrates that there was no willful intent to mislead. Further, given that references to

posttraumatic stress disorder are replete throughout the record provided to these witnesses, claimant cannot be surprised that these witnesses discussed it during their respective testimony. As such, claimant has failed to persuade the Court that he would be prejudiced by the admission of their testimony.
Claimant's reliance on
Valentine v Lopez (283 AD2d 739 [3d Dept 2001]) to the contrary is misplaced. In Valentine, the Court determined that it was not an abuse of discretion to preclude defendant's expert testimony regarding plaintiff's left wrist when the expert disclosure did not reveal a diagnosis for this wrist. The Court further stated that plaintiff's surprise was compounded because plaintiff's medical records reviewed by the expert referred to only the right wrist. Here, McCaffrey and Steinhart reviewed all the medical and psychological records of claimant, including Marshall's diagnosis of postconcussive syndrome and traumatic brain injury. Their respective reports reflect diagnoses that did not include posttraumatic distress order,
postconcussive syndrome or traumatic brain injury. The Court determines that these experts were not required to exhaustively discount other potential diagnoses such as posttraumatic stress disorder. Further, unlike in Valentine and as stated previously, claimant's medical records are replete with references to posttraumatic distress order, postconcussive syndrome and traumatic brain injury, so claimant is hardly prejudiced by testimony elicited from these witnesses with respect to these diagnoses.[14]
The Court next addresses defendant's objection to the testimony of claimant's expert, psychiatrist Jeffrey DeLisle. Defendant argued that DeLisle was an improper rebuttal witness who was brought in at the end of defendant's case as a trial tactic. Claimant offers DeLisle's testimony to rebut McCaffrey's testimony regarding posttraumatic stress disorder. Given that claimant placed posttraumatic stress disorder to the forefront of his case, and he was required to present all of his evidence during his case in chief on this issue, he may not add to it by rebuttal evidence (
see Marshall v Davies, 78 NY 414; Kapinos v Alvarado, 143 AD2d 332 [3d Dept 1988]). Rebuttal expert testimony to merely counter another expert is not permitted (see Yeomans v Warren, 87 AD2d 713 [1982]; compare Ruso v Osowiecky, 256 AD2d 839 [3d Dept 1998]). Thus, the Court precludes this testimony. The fact that McCaffrey testified about this disorder, after reviewing records that discussed it, does not allow claimant to reopen his case when the issue was initially raised by claimant.
Turning to the merits, the Court reiterates the often-stated rule that claimant must establish his claim for damages by a preponderance of the evidence (
see e.g. Consolidated Rail Corp. v Cosgrove, 227 AD2d 689, 690 [3d Dept 1996]). In determining whether claimant has carried his burden, the Court, as fact finder, must weigh the evidence presented after assessing witness credibility and resolving factual disputes (see e.g. Burton v State of New York, 283 AD2d 875, 877 [3d Dept 2001]). Thus, when faced with conflicting expert testimony, the Court is entitled to accept the theory that it believes best explains the point in issue and is supported by the evidence (see Shaw v Binghamton Lodge No. 852, B.P.O. Elks Home, 155 AD2d 805; see also Finn v Cassidy, 165 NY 584 [1901]).
After the Court's review of the record, the testimony and demeanor of the witnesses, including experts, the Court does not find that claimant has chronic psychological injuries including posttraumatic stress disorder. Rather, the Court credits Steinhart, who opined that claimant experienced posttraumatic stress disorder for only approximately six months, and that he most likely suffered from postconcussive syndrome for approximately one year. In so doing, the Court does not credit Litchford's testimony that claimant's posttraumatic stress disorder and postconcussive syndrome are chronic, or Marshall's report that he endured a possible traumatic brain injury. Litchford's testimony, which was very disjointed, was more quantity over quality. He ran every test imaginable upon claimant, but his method regarding one test was properly questioned by defendant, leading the Court to wonder how many of the other tests were also compromised. In short, his credibility regarding his methods is in doubt.[15]
Likewise, the Court does not credit Marshall's diagnosis as she fails to explain the tests she utilized in making that diagnosis. Indeed, her report notes that "a neuropsychological evaluation [cannot] determine the etiology of cognitive deficits [but] it can identify typical patterns and suggest causes of deficits" [Exhibit 1, p 932]. Thus, the report admits that her conclusions are not exact diagnoses.
Further, the record is replete with facts that claimant had significant emotional problems before this accident. Indeed, his parents were so concerned about him, they thought the ATV accident may have been a suicide attempt. While attempting to trace the source of his emotional problems, his family's troubled history cannot be ignored. Claimant, despite his minimization at trial of his alcohol and marihuana use, clearly abused each substance before this accident. The exact toll of that use cannot be precisely measured, but the Court agrees with Steinhart and McCaffrey that it has affected his life today. He has been diagnosed several times with bipolar disorder, which surely impacts his current status. Given the family history regarding alcohol, depression and bipolar disorders, it is difficult to conclude that the ATV accident is the proximate cause of claimant's psychological problems. Likewise, his pre-accident school record indicates that he had learning problems before the accident. The Court concurs with McCaffrey that claimant's ability to maintain an interest in schooling is in doubt. He could have returned to the community college and undertaken a lighter curriculum, but there was no evidence that this was explored.

As a final matter, the Court recognizes that claimant's troubled family has endured much heartache over claimant's problems; nevertheless the Court determines that the precise cause of all of his emotional troubles has not been proven by a preponderance of the credible evidence.

The Court does, however, make an award for claimant's physical injuries, which include a broken jaw, fractured clavicle, and nondisplaced occipital condyle, as well as for posttraumatic stress disorder and postconcussive syndrome, suffered for a short period after the accident. After reviewing awards for injuries similar to claimant's (see Atkinson v Buch, 17 AD3d 222 [1st Dept 2005]; McKithen v City of New York, 292 AD2d 352 [2nd Dept 2002]); Mahoney v NAMCO Cyberentertainment, 282 AD2d 949 [3d Dept 2001]; Dulmer v Lange, 272 AD2d 507 [2nd Dept 2000]; Krafton v Mazzarese, 255 AD2d 826 [3d Dept 1998]; Duff v Mariani, 248 AD2d 905 [3d Dept 1998]; Duncan v Hillenbrandt, 239 AD2d 811 [3d Dept 1997]; Thoda v Arcaleo, 179 AD2d 508 [lst Dept 1992]; Sorensen v Nazarian, 175 AD2d 417 [3d Dept 1991]; Nautel v Crates, 173 AD2d 936 [3d Dept 1991]; Holbrook v Jamesway Corp., 141 AD2d 905 [3d Dept 1988]), the Court awards $310,000.00 for past pain and suffering and $240,000.00 for future pain and suffering, for a total of $550,000.00.[16] This amount has been reduced by 10% to address claimant's own culpable conduct. The Court also awards claimant's parents, claimant Richard Beckwith and claimant Paula Beckwith, the sum of $50,000 for their derivative loss.[17] The amounts awarded herein shall carry interest from the date of the determination of liability on August 11, 2003 (see Love v State of New York, 78 NY2d 540 [1991]). In addition, to the extent Claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act § 11-a (2). All trial motions or objections not heretofore decided are now deemed denied.
Let judgment be entered accordingly.

November 21, 2005
Albany, New York
Judge of the Court of Claims

[1]Although the hospital notes from the emergency room also indicate a C-1 fracture, a radiological consultation provided by physician Rosa V. Samson on August 12, 1999, contradicts this diagnosis. The consultation indicates that there was no cervical spine fracture but, rather, an oblique nondisplaced fracture of the left occipital condyle. (Exhibit 7, pp 556-558). Likewise, the findings of claimant's treating orthopedist Alan Carl do not reveal a C-1 fracture.
[2]Unless otherwise noted, all page references are to the consecutively paginated eight-volume transcript.
[3]Claimant's history taken at that time showed that his maternal aunt was bipolar,his maternal grandfather was depressed and his paternal uncles suffered from alcoholism (1071).
[4]His father's alleged resumption of drinking alcohol is listed as an injury in the Bill of Particulars.

[5]The Court notes that it does not admit this statement for its truth, but rather as evidence of claimant's state of mind, which is relevant to his psychological diagnosis and treatment (see e.g. Tomanelli v Lizda Realty, 174 AD2d 889, 890 [3d Dept 1991]).

[6]There was testimony that the family started counseling in 1997 because claimant was huffing gasoline.
[7]Based on Litchford's background, the Court accepts this witness as an expert in his field.
[8]Defendant objected to Marshall's report as it was not produced at trial. Her report was incorporated within the certified records of Berkshire Medical Center (Exhibit 1, p. 928-932). The Court admits the report into evidence inasmuch as it is a hospital record that contains a medical diagnosis (see People v Bailey, 252 AD2d 815 [3d Dept 1998]; CPLR 4518). In so doing, the Court is unpersuaded by defendant's assertion that a psychologist, who is not a medical doctor, cannot make a medical diagnosis (see Uhl v Sofia, 245 AD2d 988 [3d Dept 1997] [allowing chiropractor to provide medical opinion]; Matter of Harvey U, 116 AD2d 351 [3d Dept 1986], revd on other grounds 68 NY2d 624 [1986] [holding records of psychiatric social workers are admissible]; see also Martin v Fitzpatrick, 19 AD3d 954 [3d Dept 2005]; Trotter v Hart, 285 AD2d 772 [3d Dept 2001]), Tsivikas v Budget Rent-A-Car Systems, 278 AD2d 405 [2d Dept 2000]).

[9]Based on the testing, the Court determines that Litchford can make the crossover medical diagnosis of

[10]Based on McCaffrey's background and experience, the Court accepts him as an expert in his field.
[11]Based on McCaffrey's testimony that claimant reported that he wore glasses, there was much discussion at trial about whether claimant wore reading glasses, but failed to wear them for certain tests in order to lower his score on such tests. Claimant testified that he only wears glasses for driving (1693-1695), and the Court credits this testimony.
[12]The Court does not attribute much significance to claimant's boyhood disruptions of class in grade school even though he may have been suspended twice for two incidents. Also, the Court does not attribute much to the record of a 56 GPA in the 8th grade since Mr. Lynn, a school counselor at the Berlin Junior/Senior High School, testified that only reflected a grade obtained in Spanish not claimant's cumulative GPA (Tr, 952-960).
[13]Based on his background, the Court accepts Steinhart as an expert in his field.
[14]Likewise, the Court admits Steinhart's testimony regarding claimant's pre-accident depression. Claimant argues that Steinhart's CPLR 3101 (d) disclosure does not place a time frame on this diagnosis and, therefore, Litchford did not have an opportunity to address this issue during the case in chief. The Court notes only that Litchford reviewed the same records as Steinhart, which discussed pre-accident depression.

[15]Contrary to claimant's assertion, the Court does not find that Calderon v Irani (296 AD2d 778 [3d Dept 2002]) compels a different result. In Calderon, the Court stated that a fact finder cannot arbitrarily reject an expert's opinion unless there is conflicting foundational facts or opinion. Here, the Court discredits Litchford's opinion because the record does not support his opinion and his credibility regarding his tests is in doubt.

[16]Given that the Court does not credit claimant's evidence of chronic psychological injuries, it does not make an award for future damages for either posttraumatic stress disorder or postconcussive syndrome.
[17]Although claimant's parents alleged damages for nursing services while claimant was incapacitated, no proof as to the value of such services was presented to the Court.