New York State Court of Claims

New York State Court of Claims

SCHMIDT v. THE STATE OF NEW YORK, #2009-013-505, Claim No. 98418


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
Attorney General of the State of New York
BY: THOMAS G. RAMSAY, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
August 19, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


On November 16, 2005, after a trial on liability in this matter, I concluded that the Claimant[1] and the State of New York both were negligent and that their negligence proximately caused the accident (21 Misc 3d 1114[A]). Liability was apportioned at 60% on the part of Claimant and 40% on the part of the Defendant. After entry of an interlocutory judgment, denial of an appeal and cross-appeal (39 AD3d 1237) and the requisite pretrial discovery and disclosures, a trial on the issues relating to damages was conducted. This matter was vigorously and ably litigated by all parties, with significant disagreement about the impact of his injuries on Claimant’s earning capacity after the accident. What was not heavily contested, and is generally recited below, are the injuries claimant sustained on June 25, 1996, and his treatments thereafter.

The medical records from the Erie County Medical Center (ECMC) detail Claimant’s condition and the circumstances of his initial emergency room visit (medical records paginated in Exhibit 2). The records report that Claimant was the driver of a mid-size car which was “T-Boned” at a high rate of speed by a tractor-trailer with an intrusion of 12 to 18 inches on the driver’s side, that he was pinned for some 75 minutes, requiring extensive extrication, and that he was amnesic to the events and was perseverating in the field. Dr. John LaDuca, a trauma surgeon at ECMC, examined Claimant and summarized some twenty injuries he sustained, with the supplemental testimony and records of Dr. Chase Miller and Dr. David Stahl, reporting complaints of back pain, left arm and left knee pain; a visible deformity in the mid-humerus area of the left arm; laceration over the elbow with the tip exposed, a valgus deformity of the left knee; a thoracic fracture at T8; multiple left side rib fractures; rupture of the hemidiaphragm with herniation of the stomach into the left hemithorax; a 4- to 5-centimeter serosal tear of the stomach that was sutured; lacerations of the spleen, bruising of the stomach and tail of the pancreas; a 6-centimeter laceration of the diaphragm, a fractured skull and subdural hematoma, etc. Claimant was admitted in critical condition, was intubated and placed on a ventilator, and given a variety of medications for pain. Surgeries were performed on his ruptured spleen, diaphragm, stomach and other internal injuries, and then there was surgery on the humerus fracture of the left arm with a permanent rod inserted. Additional surgery was performed on Claimant’s fractured knee, tibia plateau, specifically with Dr. LaDuca noting a radial lateral meniscus tear, and bone grafts utilized in the surgery.

Claimant was taken off the ventilator on July 2, 1996 and transferred out of intensive care on July 4. He was discharged from the hospital on July 16, after some 21 days. Dr. LaDuca authorized Claimant to return to work on January 13, 1997, without any heavy lifting, and he first returned to his old job at the Merrill-Grinnell Funeral Home, Inc. (Merrill-Grinnell) on January 20, 1997. Dr. LaDuca next examined him early in 2006, when Claimant related a description of an inability to carry caskets downstairs, especially backwards, feeling instability in his knee, and related a daily regimen of eight to ten Advil until approximately 1½ to 2 years prior thereto when he was prescribed an arthritic anti-inflammatory and two extra-strength Tylenol tablets. This new course of medications “would take the edge off, but he was still having discomfort . . . pain in his knee with stiffness” (Trial Transcript - p. 258). Limitations in walking, particularly on inclines, and an inability to hunt or run were referenced, as was increased pain and throbbing with changes of weather. A review of x-rays of the knee from 2004 noted, among other things, scarring and bony fragments which cause pain and considerable discomfort, along with a loss of motion of the knee. In describing his January 2006 examination, Dr. LaDuca noted that Claimant appeared healthy and in no acute distress, walking without a limp or discomfort. He observed an 8-centimeter scar over the left shoulder and a 9-centimeter scar on his elbow, both of which were healed. The range of motion of his shoulder and elbow, fingers and wrist were completely normal (Trial Transcript - pp. 265-266). There was no limitation in the range of motion in Claimant’s back. The left knee has a laterally placed 22-centimeter scar, and was maintained in 17 degrees of flexion and no hyperextension, which the doctor described as a loss of perhaps 25 degrees of motion.

Dr. LaDuca noted that it was very probable that there would be increasing arthritic complaints relating to the left leg injury that would shorten his ability to work in the future. At a final pretrial examination on October 29, 2007 (see Exhibit 147), more than eleven years after the accident, Claimant walked with a limp, favoring his left leg. He was 44 years of age and weighed 394 pounds. He reported a pain level of six or seven out of ten, daily pain primarily in his back and knee, which worsened as the day progressed. He was able to work daily, sometimes perhaps 50 to 60 hours per week, but he was limited because of his symptoms and he had less strength in his arms and legs than a year previous, and was having difficulty in lifting things, although he appears to have been able to lift 50 pounds or so, and was able to assist in the transfer of a deceased weighing approximately 150 pounds with the help of his assistants. He noted that he was unable to stand for periods of time of more than 15 or 20 minutes, as he would shift his weight from side to side, and then had to sit for ten minutes or so, which caused stiffness.

Dr. LaDuca recited Claimant’s then current medications, including hydrochlorothiazide daily, Pepcid daily, Daypro (two pills at bedtime), Tylenol Arthritis (two pills in the morning), Bayer aspirin (one daily) and Advil (two tablets daily at noon). He described this course of pharmaceuticals as an increase from prior reports. His examination showed no change in previously documented scars (i.e., see Exhibits 105 through 115); noted a limp favoring his left leg; normal cervical spine motion; 10 degrees less external rotation in his shoulder; an approximate 15- degree lack of elevation in his left hip and 5-degree lack of internal rotation; an increase from his previous measure of flexion in the left knee from 17 to 25 degrees, and generally described an increase in the loss of motion of his left knee and ankle. Dr. LaDuca opined a partial and permanent disability related to the accident, with symptoms of progressive arthritic changes in the knee, symptoms to his back and shoulder and limitation in his work ability, an inability to run, and pain and a limp that becomes worse when Claimant walks or stands for a period of time. He further opined increasing limitations on Claimant’s ability to work in the future, with a shortened work life expectancy.

On the other hand, Dr. LaDuca acknowledged in his notes from an office visit on April 30, 1997 (Exhibit RRR), some seven months after Claimant’s discharge from the hospital, inter alia, that he was walking with “barely a perceptible limp” with no complaints of pain. Claimant did not seek any further treatment from Dr. LaDuca for some ten years thereafter, observing that a deterioration of his condition, including the development of arthritis, takes time, and that his current condition was one that could reasonably have been expected given the injuries sustained in the accident.

Dr. Chase Miller, a board-certified otolaryngologist, operated on Claimant for hearing loss in October 1996, performing an exploratory tympanotomy and ossicular chain reconstruction, using a Plastipore prosthesis. Consequently, Claimant’s hearing was restored to approximately 85%, with some high frequency sensory neural hearing loss in his right ear, and some tinnitus, an intermittent ringing in the ear that is more prominent when it is quiet. These conditions were described as permanent. Following surgery, for which continuity of care was not required, Claimant received no further treatment. As described by Dr. Miller, the operation was successful in restoring most of Claimant’s hearing in his left ear, that he would hear most sounds, but miss some high- frequency vowels and consonants primarily of female voices. Claimant does not need a hearing aid, but, like “all of us will have decline of our hearing as we age” and because of normal aging and starting at a suboptimal level, “his hearing could drop” and eventually he might need a hearing aid. It would appear that other than mild tinnitus, and a modest hearing loss, any need for a hearing aid would somewhat parallel the normal aging process and would not be accentuated as a result of this accident.

Dr. David Stahl became Claimant’s primary care physician in January 1999 after the retirement of Dr. Hussain. His recorded testimony and transcript (Exhibits 159 and 160) addressed Claimant’s treatment for an acid reflux problem (gastroesophageal reflux disease - GERD) which had existed since the accident some three years earlier. Claimant was first taking Prilosec (then a prescription but now an over-the-counter antacid-type pill) for his symptoms of heartburn and some nausea which could worsen when he lay down. Dr. Stahl, aware of the medical records from the accident which reference a 6-centimeter stomach laceration, ruptured diaphragm, a 6-centimeter tear of the esophagus, and the surgical repairs which can cause adhesions, opined that Claimant’s acid reflux is a permanent condition that did not pre-exist, and was proximately caused by, the accident. Dr. Stahl acknowledged that while being overweight, such as Claimant, could be a cause of GERD symptoms, based upon the undisputed facts that Claimant had no GERD symptoms prior to the accident, he found the accident to be the competent producing cause of Claimant’s GERD, and I so find. Dr. Stahl also noted that despite Claimant’s weight, which approached 400 pounds, because of the all scarring, he would not be a candidate for gastric bypass surgery to help reduce his weight.

Before going further, Claimants raise yet another hotly contested issue, seeking a missing witness inference for the Defendant’s failure to have called the physician who performed an Independent Medical Examination, Dr. Timothy Collard (Exhibit 158). As I noted above, Claimant’s injuries are not much in dispute, but the failure to call Dr. Collard does not lead to Claimants’ proffered sweeping conclusion that Claimants’ medical proof is uncontroverted. At the very least Claimants’ witnesses were subject to cross-examination. Defendant advises that Dr. Collard’s report would be “cumulative,” which I accept. It also does not follow that the failure to call Dr. Collard results in a lack of a basis for the opinion of the State’s vocational and economic experts. Indeed each of them relied upon numerous reports, records, etc., as did Claimants’ experts, and no part of their testimony is so inextricably and foundationally reliant on Dr. Collard’s report as to subvert their testimony and opinions. Claimants’ request is denied.

Claimant, who has no conscious memory of the accident itself, described his first post-accident recollection in the hospital of sipping something cold and hearing his father’s voice. He was in a regular hospital room, not the intensive care unit. He described his injuries, the skull fracture, the subdural hematoma, the loss of hearing in his left ear, fractured left humerus, fractured ribs and thoracic vertebrae, ruptured spleen, stomach, diaphragm and bowel, bruised pancreas, and crushed left tibia plateau. He remembered lots of oozing, scars and bruises. He felt much pain, particularly in his knee, arm and back, which was alleviated only when Percocet was administered. He started physical therapy a few days before he was discharged, and generally graduated from a wheelchair, to a walker, to crutches and then a cane. During his first month at home he was regurgitating any food he ingested, seemingly because of his GERD, and basically only drank liquids. He started out-patient physical therapy and described excruciating pain as they tried to increase the range of motion in his arm and leg, and breaking down scar tissue. He never missed a session for eight months, which started at two or three times per week, but eventually the frequency lessened. Claimant had difficulty sleeping and vividly described the pain he felt during his hospitalization and recuperation.

Claimant described limitations in his normal activities, particularly an inability to hunt because of an inability to walk on uneven ground and for long distances. His previous enjoyment of playing golf was so compromised by the injuries to his back and knee that he had to give it up, and he was unable to jog or run, with recreational walking limited to perhaps two blocks. He reported difficulty in sleeping through the night, waking due to discomfort and the need to reposition his leg. As noted above, he ingests a significant daily regimen of pain medications. It appears that generally by the end of a typical work day, his limp worsens and his stamina decreases, requiring more frequent periods of sitting. He described difficulty in carrying a casket downstairs without assistance, and noted his inability to bend when doing so, as well as limitations in his embalming and other work-related activities.

This does not imply that Claimant is not industrious. After having served as a coroner since 1990, in March 2007, he became the Chief Coroner of Orleans County, a position for which his injuries had no impact. He has avoided related responsibilities which might require lifting. He works for the Department of Health and Human Services, in the National Disaster Medical System and is the Training Officer for the Disaster Mortuary Operational Response Team for Region II. He responded to the Egypt Air crash off Nantucket Island, Massachusetts, in 1999 and the World Trade Center attack on September 11, 2001. He served in Mississippi and Louisiana after Hurricane Katrina as what he characterized as a “Personal Protective Equipment Compliance Officer.” He has occasionally served as a per diem harvest technician. He is the President of the New York State Association of County Coroners and Medical Examiners. He has served on the SUNY-Canton Mortuary Science Curriculum Advisory Committee for 12 years. He is the Chaplain for the local fire department, is a member of the Albion Elks and Lions Club, as well as being the organist for his church. Needless to say, Claimant is active in a myriad of local volunteer and paid activities, is respected in his profession and active at local, state and federal levels. Indeed, this surfeit of activities calls into question his announced 24/7 availability at his current employer, the Christopher-Mitchell Funeral Home, but it appears that just as accommodations are made for his physical limitations, accommodations are made to allow him to participate in the activities noted above, as many are related to his profession and provide a level of experience and professionalism that would benefit his employer. It is an impressive array of dedicated service.

At the time of the accident, Claimant had been married to Claimant Elizabeth Schmidt since 1990 and they have a daughter, Hayley. They have since divorced, and Claimant has remarried and has another child. Elizabeth Schmidt testified that prior to the accident Claimant did household chores, all the cooking and food shopping, as well as remodeling. She described his stay in intensive care for some 10 to 12 days after the accident, and recalled various surgeries that he endured. She visited Claimant on each of the four daily visiting periods of 30 minutes each, never missing one. She also described some handwritten “notes” that she testified had been written by Claimant during the initial period of his stay at the hospital when he was on a ventilator and could not speak (Exhibit 144). There was some dispute with respect to the notes, as they occurred during a period when Dr. LaDuca described Claimant as being in an induced coma, although he might have been able to write messages when he was “lightened up” on his medications (Trial Transcript - p. 290). Regardless, the contents of these notes are difficult to interpret, given his medically induced state, and have little or no probative value in demonstrating or allowing a non-speculative assessment of Claimant’s conscious pain and suffering in the intensive care unit even though he has no present memory of that experience.

In that regard, this is an opportune time to review Claimant’s proffer of the testimony of Dr. Terrence R. Burns, an anesthesiologist who testified at the liability trial. Dr. Burns was previously a trauma anesthesiologist at the Erie County Medical Center, and, while he did not treat the Claimant, his group managed the Claimant's care in 1996 after this accident. Dr. Burns testified that he was retained to determine whether or not the Claimant sustained a memory loss as a result of his accident. Defendant has objected to the admissibility of his liability trial testimony primarily because it is offered here to demonstrate the severity of the trauma sustained by Claimant, and that Dr. Burns’ testimony at the liability portion of the trial was presented in furtherance of the application of the doctrine articulated in Noseworthy v City of New York (298 NY 76), and thus Defendant’s cross-examination concerned that issue only. Claimant had elicited the statement, over objection, based upon Dr. Burns’ review of the complete chart of ECMC, some outpatient imaging studies, and a single interview with Claimant some eight years after the accident, that “this injury pattern puts him among the most critically injured patients . . . [within] any given year . . . in the top ten percent in terms of severity” (Liability Trial Transcript - p. 83, July 12, 2004).

After reviewing the transcript of Dr. Burns’ testimony at the liability trial (Trial Transcript - pp. 71-99, July 12, 2004), I find that that testimony was admitted in its entirety, and Defendant was in no way limited in the scope of its cross-examination. Thus, as I indicated (Trial Transcript - pp. 722-23), it is admitted for consideration in my deliberations.

Claimant was released from the hospital after 21 days and returned home, where a handicapped ramp had been built for the wheelchair. He slept in a hospital bed in the living room until the Christmas tree went up in December 1996. He then slept on the couch, as he did not climb the stairs to the bedroom. Elizabeth Schmidt described caring for his lacerations, changing bandages, and cleaning him in conjunction with toiletting; she fed him, gave him his medication, as well as doing all the chores around the house and transporting him to various physical therapy and other medical appointments. Eventually, in November 1996 he used Canadian crutches provided by Lakeside Hospital. Ultimately, on January 20, 1997, he returned to work, using a cane and driving himself. Elizabeth noted that Scott continued to limp, never resumed any of the household chores like lawn mowing, snow removal, or caring for the animals after the accident, although eventually he did some shopping and cooking. She described a noticeable change in their relationship after the accident, describing Scott’s somewhat detached behavior and his inability to resume sexual relations, a loss of consortium. Elizabeth and Scott separated on July 1, 2000 and were divorced in May 2001. While Defendant is correct in noting that no evidence was presented regarding sexual relations prior to the accident, the evidence with respect to the post-accident period until the divorce does suffice to reflect an adverse effect due to the accident.

Claimant had been employed as a licensed funeral director with the Merrill-Grinnell Funeral Home, Inc. (Merrill-Grinnell) in Albion since 1982 , working five days per week. His duties at Merrill-Grinnell included general building and ground maintenance, in addition to duties in the retrieval of remains, the carrying of bodies and moving caskets, embalming, often attending wakes and religious services, and directing and supervising funerals. Claimant testified that after the accident he had difficulty in standing for extended periods, genuflecting during Catholic church services, lifting and carrying bodies, including specifically one instance when a body had to be brought down stairs. Claimant also described his pre-accident activities at his farm home, tending to animals, homeowner cleaning, chores and repairs, and most of the shopping and cooking, primarily as his wife worked outside of the home. He played golf, skated some and enjoyed hunting.

Claimant offered the testimony of Warren Seager, a coworker and employee at Merrill-Grinnell, for which I reserved decision on Defendant’s motion to strike. That motion is now denied. Mr. Seager had worked part time primarily during winter months at Merrill-Grinnell since the fall of 1990, at which time Claimant was already employed as a funeral director. He helped mow the lawn, wash vehicles, and assisted Claimant in the removal of bodies. At the time of the accident he had been working as a construction worker, a position he thereafter left to work full time at the funeral home, and seemingly often worked with Claimant. During Claimant’s first month back on the job, Seager described an instance where Claimant, using a cane, encountered difficulty in removing a body from a trailer. Seager also addressed a business opportunity that he and Claimant pursued, specifically the purchase of another funeral home, the Barnes and Tuttle Funeral Home in Medina. Claimant and Seager anticipated the use of Claimant’s ability, experience and license, combined with Seager’s physical abilities to successfully operate that facility. Negotiations to purchase Barnes and Tuttle eventually fell through.

Thereafter there were direct discussions with the owner of Merrill-Grinnell, Jim Nealons, who had been a passenger in the vehicle that Claimant was driving on the night of the accident. Nealons offered to sell Merrill-Grinnell for $1.2 million, but when Claimant and Seager were unable to come up with the money, both of them were “let go.” Claimant argued that the evidence established that Claimant was “fired” from his job at Merrill-Grinnell because of his physical limitations. Defendant urged that Claimant and Seager were let go when their attempts to buy a funeral home in Medina, a nearby town some ten miles away, became known to Nealons, implying a disloyalty in attempting to purchase a competing funeral home in close proximity combined with the speculative (and unproven) notion that Jim Nealons was unhappy because the car driven by Claimant in the accident was owned by Merrill-Grinnell and Nealons was a passenger. My impression is that the Claimant and Seager were let go because they sought to purchase Barnes and Tuttle, and in turn could not afford to purchase Merrill-Grinnell, as proposed by Nealons. There was no direct testimony on the subject one way or the other from Nealons, who did not testify in either the liability or damages trials, but the reason for termination is readily inferable from the circumstances and timing. Shortly after the end of his employment at Merrill-Grinnell, Claimant sought and obtained employment at another local funeral home, the Christopher-Mitchell Funeral Home in Albion, commencing in August 1997.

Lee Minier has been a licensed New York State funeral director since 1990.[2] Prior to that licensing, he was employed between 1987 and 1990 at the Merrill-Grinnell Funeral Home, where he worked on a daily basis with Claimant, who had been a licensed funeral director there since 1982. His testimony was taken by videotape (the transcript of which was admitted into evidence as Exhibit 163 [Trial Transcript - p. 568]). Mr. Minier described the general procedures in retrieving a body, and his work experience with Scott during that three-year period, as well as the general duties of staff at small rural funeral homes like those in the Albion area. Mr. Minier left Merrill-Grinnell in August 1990 and became employed at the Christopher-Mitchell Funeral Home in Albion at that time.

In the summer of 1997, when Claimant sought employment at Christopher- Mitchell, Mr. Minier and the owner were aware that he had certain physical limitations, but felt he would be an asset to the business, in part because he was an experienced funeral director, licensed for some 15 years and was coming from a local competitor. It was Minier’s impression that Claimant was started at a salary that was approximately $10,000.00 less than he had been earning at Merrill-Grinnell.[3]

Mr. Minier described Claimant’s post-accident work duties and performance at Christopher-Mitchell, including the accommodations with respect to heavier weight and ascending or descending stairs, often made in consideration of Claimant’s limitations and observing what he perceived as pain in facial expressions or pain. He noted, however, that Claimant always “gets the job done” but tires as the day progresses, moving more slowly, having a more pronounced limp, etc. Other staff would often perform lifting and climbing duties, as well as shoveling, mowing, vehicle cleaning, etc., but if necessary, Claimant always made himself available. Mr. Minier spoke admiringly of Claimant’s work ethic and determination.

Another purpose of Mr. Minier’s testimony was to reflect his 2006 salary of approximately $52,000.00 [4] as a funeral director with some 17 years of experience, as a contrast to Claimant’s lesser salary as a funeral director at the same funeral home with many more years of experience. This contrast was instructive, but not compelling, as it does not address Mr. Minier’s longer tenure (by seven years) at Christopher-Mitchell, where his starting salary in 1990 was approximately $23,000, or his status as vice president, although I note that Mr. Minier, in a post-transcript submission dated October 24, 2007, pointedly clarified that he does not function as an officer or have any managerial duties, and the title is in name only (Exhibit 163, p. 12, Lines 16-17).

Claimant is employed at the Christopher-Mitchell Funeral Home where he works somewhere between 50 to 60 hours per week. When he saw Dr. LaDuca at the end of October 2007, he was using a cane as a brace for his leg because he couldn’t put his total weight on the knee. Claimant testified that when he was let go by Merrill-Grinnell his salary was $39,000, and that his salary at the time of trial from Christopher-Mitchell was $34,000. A review of his income tax returns (Exhibit 124) reflects a salary plus a fluctuating annual bonus from Christopher-Mitchell that totaled, in 1999, $32,917 (r); 2000 , $31,940 (r); 2001, $37,923 (r); 2002, $37,899; 2003, $37,621; 2004, $39,448; 2005, $39,480(r); and 2006, $37,954, or an average income derived from employment at Christopher-Mitchell of $36,898 (r) over that eight-year period. During that same eight-year period, Claimant earned varying and fluctuating amounts of income from employment as the County Coroner, as a church organist and from the Federal Government, which averaged $15,578 (r)[5], and thus his average annual income from all sources of employment was $52,476 (r). No other salary or income tax records prior to the accident or prior to 1999 were offered into evidence, and thus, in determining any diminution of salary or earning capacity, I must rely upon those for the eight-year period supplied in Exhibit 124, and Claimant’s testimony with regard to his pre-accident wages, along with Mr. Minier’s.

Thomas Rick, a vocational expert and Certified Rehabilitation Counselor, submitted a Vocational Evaluation of Claimant dated June 19, 2007 (Exhibit 119) along with an Addendum dated October 26, 2007 (Exhibit 142), and testified with respect to lower residual earning capacity. In simpler terms, he seeks to demonstrate that Claimant’s injuries and permanent partial disability, proximately caused by the accident, have resulted in past, and will result in future, diminished earnings. Dr. LaDuca testified that Claimant has a shortened work life expectancy (Trial Transcript - p. 283), and Mr. Rick then concluded and quantified that Claimant will suffer a shortened work life of five to seven years, due to his injuries, and adjusted his calculations accordingly. It must be noted here that there were dichotomous views on this question, as Defendant’s vocational expert and economist did not diminish his work life expectancy (Trial Transcript - pp. 602-603).

Mr. Rick, in contrast to Defendant’s expert, utilized physical vocational tests in addition to standardized tests. Thus he tested Claimant directly, using a variety of six such tests including a simulated light duty test, an upper extremity range of motion test, a simulated assembly test, another that measured eye/hand/foot coordination, a dynamic physical capacities (lifting) test, and last, a test that measures strength in a static measure. After all of his testing and review of medical records, Claimant’s history, etc., Mr. Rick found Claimant to be well motivated to continue as a funeral director while having to endure persistent pain and a permanent partial occupational disability (Exhibit 119). Claimant will work as long as he can, but Mr. Rick concluded that if he lost his position at Christopher-Mitchell, the likelihood of his finding another position as a funeral director would be poor because of his physical limitations. He felt that Claimant could transfer his skills into sales positions, but in his opinion that would be at entry level wages which he calculated at the time of trial as $26,760 (Trial Transcript - p. 392).

He analyzed potential income for all funeral directors in the State of New York and provided median income estimates for 2004 to 2007. He examined 2007 wages in the Western New York region and the Finger Lakes region, provided wage estimates for four categories: entry level, median, mean and experienced funeral directors.[6] There was consideration regarding Claimant’s opportunity to maximize his earning potential by relocating and or commuting to less rural communities, possibly in Monroe County. Similarly, there was evidence regarding Claimant’s “adoption” of his home in Albion, allowing him to enjoy open spaces, the outdoors, animals, etc., in the more rural environment of that community, and benefitting from being a “bigger fish in a smaller pond.”

I find it more likely, given Claimant’s local and evident appreciation of the Albion environment as the County Coroner, organist in local churches, membership in local civic organizations, family interests, etc., that, irrespective of his injuries sustained in the accident, he would remain in that community and maximize the benefit of what appears to be a stellar personal and professional reputation in his adopted community. Accordingly, to the extent that Mr. Rick’s projections of future earning potential as diminished by his injuries relied upon relocation or commuting longer distances, they are rejected as speculative and unrealistic.

It appears that Claimant was not let go from Merrill-Grinnell because of his disability, a notion for which there is no concrete evidence. It seems that Claimant has provided different explanations. Claimant’s explanation to Mr. Rick was that he was fired when Nealons sold the business (Trial Transcript - p. 418). However, when he was interviewed by Peter Capotosto, Defendant’s vocational expert, as memorialized in his report (Exhibit PPP) and testimony (Trial Transcript - pp. 662-63), Claimant indicated that when the owner of Merrill-Grinnell became aware of the fact that he was negotiating to purchase the Barnes and Tuttle Funeral Home, he was immediately terminated. Claimant did testify about a brief and unsuccessful discussion with Nealons, following disclosure about the Barnes and Tuttle Funeral Home, about purchasing Merrill-Grinnell, but when Mr. Seager and Claimant could not meet Nealons’ price, that is when they both were let go. It does appear that Claimant’s termination was related to the ultimate sale of Merrill-Grinnell to a third party.

This issue is quite compelling, because if Claimant had been terminated because of his physical disability, then his putative loss of income would be more attributable to disability rather than being affected by other factors, i.e., starting work as the most recently hired funeral director employed at a new funeral home, and its salary structure, as well as keeping in mind that Claimant had lost his job, was unemployed and sought out employment.

This conclusion affects my review of the claim for past and future lost wages, as it suggests that the lower salaries Claimant has experienced were not solely the result of his injuries, but the available openings and salary structure in his chosen field in the community where he had lived and worked for so many years. Mr. Rick anticipated that Claimant’s injuries would worsen as he aged, and irrespective of putative diminution of earning capacity, determined that Claimant will have a shortened work life of five to seven years of employability in total due to his injuries.

Peter Capotosto, a Vocational Rehabilitation Counselor employed by the New York State Office of Vocational and Educational Services for Individuals with Disabilities (VESID), testified on Defendant’s behalf. His methodology for vocational evaluation and assessment differed from that of Mr. Rick, in that Mr. Rick performed physical testing on Claimant, whereas Mr. Capotosto noted that “if there is real work that can be focused on and evaluated, then it is not necessary to do a simulated work sample in order to do a vocational evaluation” (Trial Transcript - p. 654). Claimant’s objection to the contrary, I find him to be a qualified expert. He interviewed Claimant for some three hours, administered certain vocational interest, aptitude, achievement and similar tests (see Exhibit CCC) and then rendered an opinion on his employability and future prospects.

Claimant addressed his difficulties with the more physical aspects of his job, but noted that with help from coworkers he could carry out his duties. Mr. Capotosto assessed Claimant as one who is a good candidate to stay in his current employment as a funeral director, and has the experience and skill to more than compensate for his physical limitations. He also suggested that his skills were transferable to other fields such as counseling, customer service, sales, etc., and believed he would be very employable outside of the funeral industry, with some additional vocational training for which he thought Claimant had good potential. He opined that Claimant would be employable in positions with a pay range of $40,000 to $60,000 annually. More controversially he opined, over objection, that Claimant should be able to continue working without a reduction in work life expectancy (Exhibit PPP - p. 14, and Trial Transcript - pp. 695-698).

This somewhat crystallized a dispute at trial. It is true that Dr. LaDuca did state that Claimant would have a shortened work life expectancy (Trial Transcript - p. 283), and that no other medical expert disputed that statement. On the one hand Mr. Rick, Claimant’s expert, quantified that at five to seven years due to his injuries, and adjusted his calculations accordingly (see Exhibit 142). On the other hand, Mr. Capotosto, assessing Claimant’s vocational prospects, did not apply any shorter work life expectancy, noting that Claimant was able to perform certain duties, i.e., as a coroner, if they did not involve heavy lifting and that Dr. LaDuca’s written report only said he was “likely to have a shortened work life” (Trial Transcript - pp. 714-715, and see Exhibit 139) and thus did not diminish his work life expectancy (Trial Transcript - p. 602-603). That equivocation did not exist in Dr. LaDuca’s trial testimony (Trial Transcript - p. 283), to which Mr. Capotosto was not privy. While there was a dispute over Mr. Rick’s quantification of those years, I think the issue here is that Dr. LaDuca opined a shortened work life expectancy, not limited to Claimant’s current field of endeavor. While Defendant’s expert essentially sidestepped that opinion to suggest more sedentary types of employment, Mr. Rick provided a realistic measure of quantification. I find that Claimant will have a shortened work life of six years, for which compensation must be awarded.

As is usually the case, there is a great disparity in the testimony of the experts. I discounted Dr. Ronald Reiber’s testimony (Claimant’s economic expert) to the extent that he relied upon median wages for funeral directors that were inclusive of owners, branch managers and staff funeral directors and implied that but for his injuries he would not have remained a staff director (Trial Transcript - p. 543). That reliance is misplaced as, inter alia, I have found that Claimant has not suffered a direct diminution of salary due to his injuries.

In terms of projecting salary, I decline the inference that Claimant might become more than a staff funeral director. I found Defendant’s approach more persuasive, as Claimant’s salary projections urge that but for these injuries, given Claimant’s experience, he would be an owner/manager of his own funeral home. That argument is belied by the 12 or so years of employment at Mitchell-Grinnell where he apparently was contently a staff director, and, save for failed attempts contemporaneous with the termination of his employment roughly one year after the accident, has remained so. Moreover, Claimant offered as a witness Lee Minier who started at Christopher-Mitchell at $23,000 as a staff funeral director, and 17 years later remained a staff funeral director making $52,000. Moreover, Dr. Reiber also understood the term “experienced funeral directors” to apply simply “[to] people that have more experience than the average” (Trial Transcript - p. 544). That reliance was similarly misplaced, as Mr. Rick acknowledged that in the experienced category of funeral directors by income for the top two-thirds “had not been directly calibrated to the number of years on the job” (Trial Transcript - p. 468).

Dr. Miner looked at but did not rely on occupational and educational statistics by the US Department of Labor, but rather relied upon the more detailed studies of the National Funeral Directors Association, which distinguishes three types or levels of workers in the area of funeral direction: the owner/managers who tend to have the highest salaries; branch managers having somewhat lower salaries, and staff funeral directors, such as Claimant, tending to have the lowest salaries.

I accept Dr. Miner’s calculation applying Claimant’s earnings at Christopher-Mitchell in 1998 and increasing them by 4.7% annually and got to $47,500 for 2007. For the future he projected an annual increase of 2.8%, the projected rate of inflation by the Social Security Administration (Trial Transcript - p. 586).

Addressing the diminution of Claimant’s income due to his injury from the time of the accident until the time of the trial of damages (past lost wages), Claimant was not cleared to return to work until January 13, 1997. He returned to Merrill-Grinnell on January 20, 1997 until his termination on June 13, 1997. He was re-employed at Christopher-Mitchell on August 1, 1997. Given my determination that he was terminated for reasons unrelated to his injury, there can be no compensation for the period of unemployment. Moreover, it is unclear to me that his initial salary at Christopher-Mitchell of $29,000.00, which was about $10,000.00 less than he had been making, is a reflection of diminution of earning capacity or the reality of the marketplace for an unemployed funeral director in a rural area like Albion.

Interestingly, Lee Minier started in 1990 in his first position as a funeral director for a salary of $23,000.00, and in 2007, his salary was $52,000.00. At the time of trial, there were four licensed funeral directors at Christopher-Mitchell, it appearing that Claimant was the most recently hired in 1997 (Exhibit 163 - pp. 34-35), and it also appearing that after the owner, salaries were higher for the directors with more seniority at the home.

While the proof is unpersuasive to establish that Claimant’s past income at Christopher-Mitchell has been diminished as a direct consequence of his injuries, I decline to totally reject the same, since both parties’ experts concurred albeit to varying degrees. Both parties’ experts calculated past loss of earning capacity from the date of the accident to the end of 2007, a date sufficiently contemporaneous with the conclusion of trial to allow for simpler calculations.

Accordingly, as to Claimant’s past loss, from the date of the accident to the end of 2007, I accept Defendant’s calculation that Claimant sustained a total loss of $23,248.00 (Exhibit UUU), which must be reduced by 60% to $9,300.00(r).

As for Claimant’s loss of future earning capacity, I again adopt Defendant’s calculations, except as they address the final six years of Claimant’s work life expectancy. Dr. Miner calculated Claimant’s work life expectancy to the year in which he turns 65, calculating it through Claimant’s 65th birthday. Since I have accepted Claimant’s opinion and found that Claimant will suffer the loss of six years of employability, and have accepted the Defendant’s projected earnings of uninjured earnings and injured earnings (Exhibit UUU), I accept Defendant’s annual calculation of net earnings loss from the year 2008 ($9,147.00) through the first six months of 2022, prorating the loss for 2022 ($13,464 at 50% or $6,732) for a total of $160,922.00. As additional future lost earnings, extrapolating Dr. Miner’s calculations for the last full six years of Claimant’s work life expectancy, starting with his uninjured earnings prorated for 2022 ($71,877 at 50% or $35,939 [r]) through his 65th birthday in 2028 at $42,415) for a total of $469,079.00.

Accordingly, for all future lost earnings, from the date of trial until the end of his work life expectancy when he turns 65, Claimant is awarded the sum of $630,001.00, which must be reduced by 60% to $252,000.00 (r).

Considering the entire trial testimony and evidence presented concerning the injuries, permanent limitations of his enjoyment of life, and enduring pain sustained by Claimant Scott M. Schmidt, I award the sum of $2,380,000.00, reduced by 60% for his culpable responsibility, for a total of $952,000.00 for his past pain and suffering from the day of the accident on June 25, 1996, until the final date of the trial on damages, a period of nearly 11½ years. For his future pain and suffering and the loss of enjoyment of life from the trial on damages for some 32 years thereafter, I award the sum of $3,726,400.00, reduced by 60% for his culpable responsibility, for a total of $1,490,560.00. While there was mention of possible knee replacement surgery in the future and of medications, no claim is made for past or future medical expenses, and as such, none are awarded.

As to household expenses, the Court of Appeals in Schultz v Harrison Radiator Div. Gen. Motors Corp. (90 NY2d 311, 320-321), held “that future damages for loss of household services should be awarded only for those services which are reasonably certain to be incurred and necessitated by plaintiff's injuries... [and do] not require him to be dependent on the charity of others.” Defendant’s interpretation of Schultz, id., is rejected.

Claimant’s expert rehabilitation counselor, Thomas Rick (Trial Transcript - pp. 404-408) estimates that Claimant’s ability to perform his customary and usual household services was diminished by an estimated 50%. Claimant’s economist, Dr. Ronald Reiber (see Trial Transcript - pp. 531, et seq.), utilizing the “Cornell Study,” calculated an average of 12.74 hours of work around the house per week, applied Mr. Rick’s estimate of a loss of ability to do 50% of that household work, or 6.37 hours, and provided the “average cost of replacing those hours in today’s dollars [is] about $10 per hour” (Trial Transcript - p. 533). He started his calculations in 2008 and ended when Claimant would be 77, for a total of $182,440.00 (Exhibit 150). The Defendant’s economist, Dr. Jerry Miner, accepted Mr. Rick’s estimation of a loss of 50% of household services, concurred with a life expectancy for Claimant to age 77, as well as concurring with the value of the replacement services at $10.00 per hour. He utilized the Vola Value of the Day (Trial Transcript - pp. 592-593), which measures average weekly hours for a married male in Claimant’s circumstances at 13.6, but he deducted time which would ordinarily be spent on lawn maintenance and snow removal, as well as suggesting somewhat lesser maintenance for Claimant’s current residence. After reducing 13.6 hours per week by 50% to 6.8, from which he deducted 2.8 hours reflecting the time for lawn maintenance, he based his calculations at four hours per week and found the total loss of household services to be $104,736.00 (Exhibit GGG). The deduction of 2.8 hours per week, however, was premised upon the fact that there was no documentation of the costs incurred by Claimant in contracting out those services and as such, he concluded they could not be included in the hours projected as needed for providing all household services. Moreover, Dr. Miner considered Claimant’s other “gainful activities” such as coroner, church organist, etc., as reducing the time he would have available for providing these household services (Trial Transcript - pp. 595-596).

Claimant’s proof on this subject is more compelling, and I find no basis to deduct the hours that would have been spent on services now contracted out or any other diminution. Accordingly, I award the sum of $182,440.00, reduced by 60% for Claimant’s culpable responsibility, for a total of $72,976.00 for the cost of future household services.

Claimant Elizabeth Schmidt is entitled to an award for her derivative damages, including loss of consortium, relating to the period of time starting with the accident and ending with the separation and eventual divorce in 2001. It is clear that she provided dutiful and loving care to Scott during his hospitalization and recuperation, and her life was dramatically altered as she had to adjust to performing and being responsible for household chores, shopping and cooking, and transportation for his medical needs, all of which were assumed as a direct consequence of the accident (see Zavaglia v Sarah Neuman Center for Healthcare and Rehabilitation, 2009 WL 2252338, July 29, 2009). Accordingly, she is awarded the sum of $325,000.00, which must be reduced by 60% for the culpable responsibility of her former husband, Scott Schmidt, for a total of $130,000.00.

Interest on Claimant Scott Schmidt’s awards and Claimant Elizabeth Schmidt’s derivative award shall run from November 16, 2005, the date of the liability determination (see Love v State of New York, 78 NY2d 540).

Since the amount of future damages exceeds $250,000.00, a structured judgment is required and thus judgment, inclusive of past damages and the derivative claim, will be held in abeyance pending a hearing pursuant to CPLR article 50-B.

The parties are urged to consult and agree upon the discount rate to be applied and to formulate a structured settlement of their own (CPLR 5041[f]). With respect to the Workers’ Compensation award to Claimant of $75,000.00, for which Defendant seeks a set-off and from which Claimant seeks a diminution for the proportionate share for attorney fees and disbursements, that should be addressed by the parties in their consultations. To the extent that there is a lien resulting from Claimant’s bankruptcy, this can be the subject of such further proceedings as may be required. In the event that the parties cannot reach such an agreement, each party will submit a proposed judgment in writing, conforming to the requirements of CPLR article 50-B within 45 days of the service of a file-stamped copy of this decision upon them by the Clerk of the Court. A hearing will thereafter be scheduled at the mutual convenience of the parties and the Court.

All motions not hereinbefore decided are now denied.

August 19, 2009
Rochester, New York

Judge of the Court of Claims

  1. [1]Because the claim of Elizabeth L. Schmidt is derivative, “Claimant” shall refer to Scott M. Schmidt only unless otherwise indicated.
  2. [2]Defendant withdrew its objection to the Minier testimony (Trial Transcript - p. 567).
This testimony only has probative value to the extent that no tax records for the period of Claimant’s employment at Merrill-Grinnell were offered into evidence, and it supplies a degree of support/corroboration of that alleged differential.
  1. [4] As amended for accuracy by Mr. Minier on October 24, 2007, two days after the videotaped testimony.
  2. [5]He earned a low of $8,695 in 2000 and a high of $25,973 in 2005.
  3. [6] When Claimants realized, after receipt of Defendant’s expert witness disclosures, that they had utilized salary information from the Western New York Region, rather than the Finger Lakes Region into which Albion falls, they provided Amended Supplemental Expert disclosures and salary recalculations (particularly Exhibit 152) for which both parties argued inordinately regarding timeliness and prejudice. Defendant’s objection to the introduction of Exhibit 152, for which I had reserved decision, is now overruled and it is admitted into evidence.