Opinion
# 2015-032-003 Claim No. 118320
05-27-2015
COLLEEN CASEY v. THE STATE OF NEW YORK
Luibrand Law Firm, PLLC By: Kevin Luibrand, Esq. Hon. Eric T. Schneiderman, NYS Attorney General By: Belinda A. Wagner, Assistant Attorney General, Of Counsel
Synopsis
Case information
| UID: | 2015-032-003 |
| Claimant(s): | COLLEEN CASEY |
| Claimant short name: | CASEY |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 118320 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | JUDITH A. HARD |
| Claimant's attorney: | Luibrand Law Firm, PLLC By: Kevin Luibrand, Esq. |
| Defendant's attorney: | Hon. Eric T. Schneiderman, NYS Attorney General By: Belinda A. Wagner, Assistant Attorney General, Of Counsel |
| Third-party defendant's attorney: | |
| Signature date: | May 27, 2015 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant is currently a senior court officer with the Third Judicial Department in the State of New York. The incident that served for the basis of the liability decision by this Court occurred on Friday April 24, 2009. The Court previously found defendant liable for false imprisonment during the events that unfolded that day. The following constitutes the Court's decision regarding damages stemming from that incident.
FACTS
Claimant testified that she was the oldest of eight children from a strict home. She testified that while she was in her mid-teens, she was raped by the father of a family for whom she regularly babysat. She did not discuss this matter with her family but ran away from home that summer. She returned to her family that September and completed high school. Claimant testified that she was sexually assaulted a second time in her youth at Prospect Park in Troy, New York. She did not discuss this attack with anyone. She married in 1979 and thereafter had three sons before divorcing in 1990. Claimant testified that she endured an emotionally and physically abusive relationship with her husband and was subjected to unwanted abusive sex by him. After one of said incidents, she went to the hospital and the police were called. The Troy Police wanted to charge her husband with assault and rape, but when she called her father from the hospital, he asked her not to press charges because it would embarrass the family. She married again, but her second husband was a crack abuser and the marriage, which was only 7 months long, ended in 1998.
Claimant started her career in the court system in 1994 as a Deputy Sheriff/Court Officer in the Rensselaer County Courthouse. She was promoted to corporal. In 2002 her title changed to Senior Court Officer when she joined the Office of Court Administration. She remained at the Rensselaer County Courthouse for 12 years until 2006. During this time she did not receive any counseling memos from her employer. She did not miss any work for mental issues. She asked to be transferred from that court to the Troy City Court in 2006 because she was "uncomfortable" at the Rensselaer County Courthouse (T: 48). She prided herself on knowing all 25 clerks and their families at the Troy City Court.
References to trial transcript are indicated by (T: ). She explained that she suffered from depression commencing in 2006 due to alleged sexual harassment taking place at the courthouse by one of the court officers who was involved in the April 24, 2009 incident (T: 75-76). Her request to be transferred from this position was granted so that the court officer who allegedly sexually harassed her was no longer her supervisor (T: 83).
The Monday after the April 24, 2009 incident, claimant was transferred to Family Court in the basement of the same building as the Troy City Court. There she only saw court officers coming and going to work, cleaners, and transport officers from the Sheriff's Office. People inquired about the incident that had happened the previous week and she could not tell them why it happened, as she was never informed of the reason. She was confused and embarrassed. She recalled that she had been paraded out of the building at approximately 1 o'clock in the afternoon on April 24, 2009 when people were outside eating their lunch. She testified that the bank teller of the next building was motioning with her hands as if asking if claimant was okay, and that police officers were coming in to get their paychecks, all watching her as if she was under arrest. At home, she just cried and slept most of the time. She sought treatment from her primary physician Dr. Victoria Angert and her psychologist Dr. Alex Marsal.
Claimant stopped going to work on June 8, 2009, and with the exception of doctor visits, she did not leave the house. On Monday June 22, 2009, claimant said goodbye to her son, who lived with her at the time, as he left for work. A physician had prescribed Xanax for her anxiety. Claimant had filled the prescription but did not take any of the pills. She had placed the filled prescription on top of her refrigerator. That morning, she was feeling lost and in emotional pain. As she passed the refrigerator, she thought taking all of the drug would fix her problems, so she swallowed 90 Xanax pills. She remembered lying on the floor next to her dog and seeing a phone nearby. She hit the redial number on her phone which called Sergeant Degenhardt who was the last person she had spoken to on the phone. Sergeant Degenhardt drove over to her house and called emergency personnel who took her to Samaritan Hospital in Troy, New York.
It is unclear who wrote the prescription for her. Claimant testified that her primary physician gave her a written prescription for it but her primary physician denied writing it (T: 63, 116, 359).
Claimant spent two weeks at Samaritan Hospital where she received medication and group therapy. She was discharged on July 7, 2009, and commenced outpatient treatment with Dr. Charles Van Meter that summer. Initially after discharge, she had a hard time getting out of bed. She felt like a criminal. Although she liked to go boating, play golf and ride horseback, she did none of these activities in the summer of 2009. She did not open her pool. Her daughter-in-law and her son took care of her house maintenance and household duties. Claimant's father did not believe her when she told him that she did not do anything wrong, which caused her embarrassment and resulted in the two of them becoming estranged (T: 71).
Claimant was out of work from Monday, June 8, 2009, until Tuesday, June 22, 2010. From Monday, June 8, 2009 until Wednesday, August 19, 2009, she used her personal accruals (sick time, vacation time and personal time) in order to be compensated. From August 20, 2009 until January 22, 2010, claimant used sick bank time from her place of employment, in order to be compensated. During January 25-29, 2010, claimant used her newly accrued sick time and thereafter, specifically, from Monday, February 1, 2010 until Monday, June 21, 2010, claimant took a leave of absence and was uncompensated.
Dr. Alex Marsal treated claimant for depression and anxiety issues from January 30, 2009 until March 19, 2012. She initially came to see him at the urging of friends to help her with relationship issues. He only saw her twice in the winter of 2009. At those visits, she talked with him about lifelong depressive and anxiety symptoms. His assessment in January 2009 was that claimant was struggling with symptoms consistent with "major depression, recurrent, severe; Posttraumatic Stress Disorder; Eating Disorder NOS (by history)..." (Exhibit 5 p. 2). On June 10, 2009, she presented in extreme distress, crying throughout the session. She was overwhelmed, agitated, and anxious. She explained what happened on April 24, 2009 and she indicated that she was frightened, embarrassed and humiliated by the incident. Claimant described the incident as being escorted out of the building, driven to her house by several coworkers, her house was searched and her guns confiscated (Exhibit 5, p. 2). She was unable to socialize or go back to work. He next saw her on June 12, 2009 at which time she was still crying and indicated that she was having difficulty sleeping. She could not believe that her coworkers unjustifiably did this to her. She indicated that when bad things happen to her, she just had to endure them. She was having flashbacks to her husband's rape of her and her father telling her not to say anything in fear of embarrassing the family. He believed that she was struggling with not feeling worthy of protection, which stems from the traumatic events of her past, against her yearning not to tolerate these situations anymore. Dr. Marsal believed that she derived most of her self-esteem from her job. She had an inability to express anger which derives from trauma. Dr. Marsal did not see claimant again until July 9, 2009 after the attempted suicide. At this appointment she continued to ruminate about the April 24, 2009 incident, her father's emotional abuse towards her, the alleged sexual harassment at work and her abusive marriages. Later progress notes reflect her struggle with severe anxiety and depression, and reference the April 24, 2009 incident, sexual harassment at work, as well as her sexual and emotional abuse as a teenager and as a young woman [Exhibit 5, pp. 7-9]. He continued to see her regularly until October 12, 2010 when she appeared to be less depressed and had returned to work. He saw her again on November 11, 2010, and then for the last time on March 19, 2012. He opined that the April 24, 2009 incident had caused her inability to work.
Dr. Marsal received his bachelor's degree from Seton Hall University, his master's degree from the University of the Pacific, and his Ph.D. from the University of South Dakota.
Dr. Victoria Angert is claimant's family practice physician. She first saw claimant for a physical on September 11, 2006. Almost a month later, claimant saw her for depression and anxiety and to obtain a refill for Celexa, a drug that a former physician had prescribed. Over the next year, Dr. Angert saw claimant for various physical ailments. The next pertinent appointment was June 10, 2009 during which claimant presented crying uncontrollably, extremely depressed, anxious, and jumping from one story to another. Dr. Angert testified that "She was absolutely out of the--out of her mind" (T: 342). Claimant told her that she felt people were after her at work and that someone came to her house and took her weapons. Claimant had complaints of anxiety, irritability, indecision, sadness, depression, a change in appetite, and her hair was falling out. Dr. Angert did not think that she was suicidal at that time. Dr. Angert next saw claimant, on July 14, 2009, after the suicide attempt. She was notified of the suicide attempt by Samaritan Hospital the day after claimant was admitted. Claimant's medications at this time included: Abilify, Zoloft, Ativan pills and Ativan injections (Exhibit 8). Her next appointment was on August 4, 2009, when claimant reported having developed agoraphobia. She was afraid to leave the house. Claimant continued to see her psychologist and psychiatrist. She continued on her medications (Exhibit 8).
Dr. Charles Van Meter, Jr., a psychiatrist, treated claimant as an outpatient at Samaritan Hospital after she was discharged from there in July 2009. On July 10, 2009, she presented to the outpatient clinic with anxiety, body aches, crying spells, depression, insomnia and stress. The note from the initial meeting states: "Her thought content is characterized by preoccupation with a recent event that led to the [patient's] home being searched and her guns removed." (Exhibit 4, p. 5). Also from that date, "Pt. reported that she developed depression and anxiety in 4/2009 when a co-worker was involved in a DWI accident and accused Pt. of being in the car with her and drinking during work hours. Pt. reported that her home was raided and her guns were removed. Pt. appeared preoccupied with discussing the details of this event . . ." (Exhibit 4, p. 6/see footnote 5 below). His Axis I principal diagnosis was depressive disorder (NOS) and post-traumatic stress disorder. From July 14, 2009 until May 2, 2011, she was treated by social workers or Dr. Van Meter at the clinic. She was treated with various drugs for her anxiety, depression and posttraumatic stress disorder, during the course of treatment with him. The Samaritan Hospital records contain notations concerning her hospitalizations, as depressed, tearful, sad and anxious, as well as references to problems at her job and the events of April 24, 2009. In his opinion, she endured a life stressor that triggered a psychiatric breakdown, which was having her guns taken away, paraded in front of her colleagues at work and forced to go to her home (T: 533-534). It seemed reasonable to him that this life stressor, for a patient with poor coping skills, may trigger an abrupt act like an overdose (T: 534).
Dr. Van Meter graduated from St. George's University Medical School in Grenada. He completed a four year residency and one year of fellowship in psychiatry at the University of Virginia. He has been working at Samaritan Hospital since 2008 after he left the University of Virginia. He is licensed in New York.
Claimant's close friend and coworker, Tina Rysedorph, is presently a Sergeant at Troy City Court. She met claimant when claimant was a litigant in Rensselaer County Family Court. Sergeant Rysedorph observed claimant's then husband push claimant's head into a desk as she was filling out papers. She took claimant aside and whenever claimant came back to Family Court, the court officers would have her sit by them in order to avoid any problems. At one court appearance, the Sergeant recommended that claimant take the court officer civil service test, which started claimant's career. Sergeant Rysedorph testified that she also experienced sexual harassment by the same court officer who sexually harassed claimant while she and claimant worked in County Court together. She did not report it because she felt there would be repercussions for females at that time. She testified that prior to April 24, 2009, claimant was a positive caring person who was not afraid to hug people and show compassion for victims. Both women were transferred to Troy City Court, where claimant thrived in a very busy court.
Sergeant Rysedorph worked on April 24, 2009 but did not see claimant being escorted from the building. She first saw her after the incident in the operations office in the courthouse, where she found claimant sobbing uncontrollably while she was gathering her coat and purse. Sergeant Rysedorph knew that other court officers had watched claimant's removal from the building through the video cameras placed throughout the courthouse. She next saw claimant on Monday April 27, 2009 when claimant had been transferred to the basement of the Rensselaer County Family Court. Claimant was still distraught. As time went on, claimant became worse, focusing solely on her embarrassment and humiliation. Claimant gouged her arms, had sores all over her face, and was losing her hair. On June 8, 2009, claimant parked her car outside the courthouse and Sergeant Rysedorph went out to talk with her. Claimant was crying and could not make eye contact. She told her that her doctor had taken her out of work. Sergeant Rysedorph saw claimant almost daily until she went on vacation just before claimant attempted suicide. When she returned from vacation, she visited claimant at Samaritan Hospital. Claimant, in her opinion, was heavily medicated and continued to be so until the Spring of 2010 when she started to wean herself off of the drugs.
Claimant's son, Dillon Beebe, and his wife, Angela Mainello, testified on behalf of claimant with regard to the effect of the April 24, 2009 incident upon claimant's life. Mr. Beebe testified that he lived with his mother during the time she was a Deputy Sheriff and a court officer. She took great pride in her job, rising early each day to walk the dogs before work and to prepare her uniform for the day. He was living with his mother on April 24, 2009. She called him midday to obtain the keys to the house but he could not leave work to deliver them to her. He testified that she sounded really nervous. When he got home from work that day, she was really quiet, which was not like her. She remained in her bedroom and was not interested in talking to him. The following Monday, he had to wake her up to go to work. Her uniform was wrinkled. He testified that his Mom "got really bad, really fast, and there's nothing I could do about it" (T: 396). Her hair started falling out, she was scratching herself and she could not focus. On June 22, 2009, he received a phone call at work from one of his mother's friends that his mother was in Samaritan Hospital. He testified that she really did not know what was going on when she was in the hospital. When she returned home a few weeks later, she was sad and apologetic. She had no interest in her former life. She had no daily routine.
During cross-examination of this witness, defense counsel attempted to elicit information concerning a car accident on August 21, 2008 involving a colleague of his mother, an incident concerning drinking in the courthouse and an incident concerning threats made to another court officer (T: 423-427). None of these incidents were mentioned or explored at the liability trial.
Angela Mainello, Mr. Beebe's wife, knew claimant since she was in high school. She described claimant as a strong and independent woman, whom she respected. Ms. Mainello and Mr. Beebe lived with claimant before and after April 24, 2009. After the incident, they had to wake her up to go to work. Claimant appeared numb. Her attitude changed. She did not bring home treats or cook dinner. She came home from work and went straight to her bedroom. She cried at night and Ms. Mainello would lie down with her in bed to calm her. She described claimant after the suicide attempt, as being in a "fog" and "shocked she was actually still here" (T: 449).
Defendant produced Dr. Robert McCaffrey, a psychologist, as its only witness. Dr. McCaffrey reviewed the records of Samaritan Hospital, Dr. Alex Marsal and Dr. Angert. On September 17, 2014, he conducted a psychological evaluation of claimant using the Minnesota Multiphasic Personality Inventory-2-RF test, which is 388 true/false items. Built within the test are certain "validity indices" that can tell the examiner whether a person is responding randomly, in a biased manner, or attempting to minimize their symptoms. Before the examination, claimant told him that she was feeling well. Without elaboration, he testified that the written examination results found her to be within normal limits (T: 627). Based upon his clinical examination of her, which included a review of the sexual and physical abuse by her first husband, the emotional abuse by her second husband, and her poor relationship with her father, he found that she sustained posttraumatic stress disorder from her past familial events but not from the April 24, 2009 incident (T: 635, 637). The DSM-IV-TR § 309.81, which was in effect when claimant was treated, states:
Dr. McCaffrey's undergraduate degree in psychology is from Slippery Rock State College. He received his master's degree and Ph.D. in psychology from the University of Georgia. He completed a residency at the University of Mississippi Medical Center. He is a member of various psychological associations and societies. He is an academic and author of multiple publications.
"A. The person has been exposed to a traumatic event in which both of the following were present:
(1) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others
(2) the person's response involved intense fear, helplessness, or horror . . ." (Exhibit L)
Dr. McCaffrey testified that claimant did not meet these primary criteria for a diagnosis of posttraumatic stress disorder in that claimant was not threatened with death or serious injury nor was her physical integrity threatened. Dr. McCaffrey opined that claimant had posttraumatic stress disorder from early lifetime abuses. The events of April 24, 2009 may have contributed to the subsequent negative events in her life but it was not a trigger for the posttraumatic stress disorder. In support of his opinion, he stated that the records do not reflect that she had issues with posttraumatic stress disorder. He opined that claimant managed to recover from the April 24, 2009 incident (T: 639).
Exhibit L is entitled: Diagnostic Criteria for 309.81 Posttraumatic Stress Disorder. The criteria are labeled A-F. According to Dr. McCaffrey, the criteria in subsection A must be met before the other criterion are addressed. Exhibit L is identical to the corresponding section of Exhibit 13 (T: 634). Exhibit L was admitted without objection at trial.
The objection, during cross-examination, regarding the mischaracterization of Dr. McCaffrey's testimony on this point, is sustained (T: 667).
Upon cross-examination, Dr. McCaffrey agreed that claimant had posttraumatic stress disorder by history, but she had no active posttraumatic stress disorder at the time of his examination of her in 2014 (T: 640-642). He testified that her posttraumatic stress disorder was in remission (T: 642). Dr. McCaffrey was confronted with the DSM-IV-TR discussion on Posttraumatic Stress Disorder (Exhibit 13, pp 463-468), specifically the following:
"The traumatic event can be reexperienced in various ways. Commonly the person has recurrent and intrusive recollections of the event (Criterion B1) or recurrent distressing dreams during which the event can be replayed or otherwise represented (Criterion B2). In rare instances, the person experiences dissociative states that last from a few seconds to several hours, or even days, during which components of the event are relived and the person behaves as though experiencing the event at that moment (Criterion B3). The episodes, often referred to as 'flashbacks,' are typically brief but can be associated with prolonged distress and heightened arousal. Intense psychological distress (Criterion B4) or physiological reactivity (Criterion B5) often occurs when the person is exposed to triggering events that resemble or symbolize an aspect of the traumatic event . . ." (Exhibit 13).
Exhibit 13 was admitted without objection (T: 666).
Dr. McCaffrey testified that claimant's incident on April 24, 2009, to wit: being accompanied without her consent out of her work location, accompanied by males and paraded through the view of colleagues and friends, would not qualify as an event triggering a post-traumatic stress disorder episode. Although he reviewed claimant's medical records, he had no knowledge of claimant's flashback episodes (T: 663-664). Dr. McCaffrey did not think that being forced by males to do something she did not want to do would trigger a posttraumatic stress disorder episode (T: 661-662). However in his report, he wrote that "given her early dysfunctional psychosocial development within her family of origin her reaction of extreme humiliation would not be unexpected..." (Exhibit 10).
Exhibit 10 was admitted to show a prior inconsistent statement for the limited purpose of contradiction (T: 645).
LAW AND ANALYSIS
At the conclusion of claimant's case, defendant moved to dismiss the case. Of note, it was argued: "there is nothing in the records that say that she [claimant] was distressed about being seen by persons in the parking lot, or being hustled, or surrounded by officers as she was moved from the jury room down the staircase in the courthouse, and then surrounded by court officers as she was moved from the courthouse entrance to the vehicle that was parked about a block away. Unfortunately, Ms. Casey has had some very traumatic events in her life, and I think that everyone feels for her, because of those traumatic events; however, those traumatic events are separate and apart from what happened on April 24, 2009, and the State moves to dismiss." (T: 617-618) The Court disagrees and the motion is denied. This oral argument succinctly professes the defense: its reliance on a limited perception and skewed parsing of the events that unfolded on April 24, 2009 and its failure to recognize that claimant is, using a legal colloquialism, an eggshell claimant.
There is an old axiom "that a defendant must take a plaintiff as he finds him and hence may be held liable in damages for an aggravation of a preexisting illness" (Bartolone v Jeckovich, 103 AD2d 632, 635 [4th Dept 1984], citing McCahill v New York Transp. Co., 201 NY 221 [1911]; see Owen v Rochester-Penfield Bus Co., 304 NY 457 [1952]), Reilly v Fulmer, 9 AD3d 818 [3d Dept 2004]; Martin v Volvo Cars of N. Am., 241 AD2d 941 [4th Dept 1997]). Defendant did not address this legal concept in either its motion to dismiss nor in its posttrial brief.
The Court finds that this legal premise applies to facts of the instant matter and that claimant had a pre-existing condition that was exacerbated by the events of April 24, 2009. The Court credits claimant's testimony that she was raped twice as a youth, had an emotionally abusive father, and married physically and emotionally abusive men. These unfortunate occurrences and troubling situations, clearly left claimant with lifelong depression, anxiety and posttraumatic stress issues. Dr. Marsal in January 2009 noted her lifelong depressive and anxiety issues. His assessment also included symptoms consistent with posttraumatic stress disorder.
In Matter of Tobin v Steisel, 64 NY2d 254 [1985] [citations omitted], a case concerning the onset of mental illness after an accident, the Court wrote : "The causation rule both in tort law and under the workers' compensation statute is that an accident which produces injury by precipitating the development of a latent condition or by aggravating a preexisting condition is a cause of that injury". Having established that claimant had past symptoms and a diagnosis of depression, anxiety and posttraumatic stress disorder, the Court finds that the events of April 24, 2009 clearly aggravated a pre-existing condition causing a psychiatric breakdown for claimant. On the work front, Sergeant Rysedorph's testimony demonstrates how distraught claimant was immediately subsequent to the event, and that such mental state continued, if not worsened, as the weeks progressed. Dillon Beebe and Angela Mainello, gave the Court a picture of claimant's behavior at home after April 24, 2009. Claimant had a hard time functioning, did not participate in household or family matters, and just retreated to her bedroom when she returned home from work. Their testimony supports that such behavior was unlike claimant's previous self.
Defendant's arguments that workers' compensation cases do not apply to this case is misplaced as the Court of Appeals noted that this causation rule applies to tort cases, too.
On June 10, 2009, claimant presented to Dr. Marsal in extreme distress. She was overwhelmed, agitated and anxious from being escorted out of the courthouse, driven to her house by several coworkers, and having her guns confiscated. Two days later she was ruminating about how her coworkers unjustifiably did this to her. During his June 12, 2009 appointment with her, she was having flashbacks to the past rapes and her father not supporting her at that time. After her suicide attempt, her visits with Dr. Marsal again reflect her struggle with the April 24, 2009 incident.
Contrary to defendant's parsing of events that triggered the breakdown, the event included the parading of claimant through the courthouse, pushing her outside the courthouse, seating her in an official vehicle surrounded by court officers, taking her to her house and the removal of her firearms (see Casey v State of New York, UID No. 2013-032-005 [Ct Cl, Hard, J., Oct. 10, 2013]).
Dr. Angert's testimony supports the finding that the events of April 24, 2009 related to claimant's hysterical state on June 10, 2009. She classified claimant as being out of her mind on June 10, 2009 and that claimant kept talking about the April 24, 2009 incident. Dr. Charles Van Meter's testimony also connects the April 24, 2009 event to her hospitalization. He treated her for anxiety, depression and posttraumatic stress disorder. The Samaritan Hospital records reflect her mood as depressive and anxious, as well as referencing the April 24, 2009 event. Dr. Van Meter opined that she endured a life stressor, that triggered a psychiatric breakdown for a patient with poor coping skills, which led to an overdose.
Dr. McCaffrey's testimony was tenuous at best. He never fully explained how the Minnesota Multiphasic Personality Inventory-2-RF test determined that claimant was within normal limits. He also opined that claimant had posttraumatic stress disorder from her past familial events and not from the events of April 24, 2009 based upon his clinical review, which was essentially a review of her medical records. The most problematic portion of his testimony, in this Court's view, was his conclusion that claimant did meet the definition of the primary criteria for posttraumatic stress disorder, in DSM-IV-TR § 309.81, in that claimant did not experience a threat to physical integrity or self on April 24, 2009. He also opined that claimant did not have dreams or flashbacks, contrary to the medical records in evidence. His report concedes that her reaction of extreme humiliation would not be unexpected.
"[P]sychological or nervous injury precipitated by psychic trauma is compensable to the same extent as physical injury" (Matter of Wolfe v Sibley, Lindsay and Curr Co., 36 NY2d 505, 510 [1975]). "As a general rule, the measure of damages for false arrest and confinement is such a sum as will fairly and reasonably compensate the injured person for injuries caused by the defendant's wrongful act" (Hallenbeck v City of Albany, 99 AD2d 639, 640 [3d Dept 1984]; accord Sanabria v State of New York, 29 Misc 3d 988 [Ct Cl, Debow, J., Aug. 3, 2010]; Ifill v State of New York, UID No. 2014-039-436, [Ct Cl, Ferreira, J., Jan. 22, 2015]). Shame, humiliation, injury to reputation, physical suffering, loss of earnings are all elements to be considered in fixing damages (Bert v Port Auth. of N.Y & N.J., 166 AD2d 351 [1st Dept 1990]; Kehrli v City of Utica, 105 AD2d 1085 [4th Dept 1984]; Tierney v State of New York, 266 AD 434 [3d Dept 1943]). The most significant aspect of a damage award in a wrongful confinement case is the humiliation endured by a person (Bert v Port Auth., 166 AD2d 351).
The Court finds that the troublesome removal of claimant from the courthouse, up to and including how she was treated at her home, was a threat to claimant's physical integrity and self on said date, given her background. She was surrounded by court officers with weapons and paraded out of the courthouse, pushed by one of them outside of the building and then placed in a middle seat of an official vehicle, again surrounded by court officers, and driven to her house, all in the presence of others. The Court is not so much concerned with why the court officers believed they were justified in taking claimant's weapons, but in how they executed their plan. The execution of the plan was calculated to be intimidating. If the court officers had any questions about the mental stability of claimant, a matter not presented in either the liability or damages trial, they should not have executed the plan in such a manner. Inexplicably, Dr. McCaffrey did not think that being forced to do something claimant did not want to do by mostly males, would trigger posttraumatic stress disorder in claimant, despite her prior rapes, and physical and emotional abuse by men.
As to being pushed, see Casey v State of New York, UID No. 2013-032-005 [Ct Cl, Hard, J., October 12, 2013].
Mental Anguish
The fact pattern of this case is highly unusual. Claimant cites many cases, stemming from sexual harassment, racial and employment discrimination, against the State Division of Human Rights, for an analysis of awards for mental anguish (Matter of New York City Tr. Auth. v State Div. of Human Rights, 78 NY2d 207 (1991); on remand 181 AD2d 891 [2d Dept 1992]; Matter of New York State Dept. of Correctional Servs. v New York State Div. of Human Rights, 53 AD3d 823 [3d Dept 2008]); Matter of Kondracke v Blue, 277 AD2d 953 [4th Dept 2000]; Matter of Town of Hempstead v State Div. of Human Rights, 233 AD2d 451 [2d Dept 1996]). The awards in these cases range from $200,000.00 to $500,000.00. Components of these awards are attributed to shame, humiliation and loss of earnings, which are shared elements for damages in wrongful confinement cases (Sanabria v State of New York, 29 Misc 3d at 993, citing 2 NY PJI2d 3:5.1, III [A] at 48 [2010]; Tierney v State of New York, 266 AD 434). Here, the effects of the wrongful confinement, upon an eggshell claimant, were monumental to claimant's psyche. Clearly, she suffered abject humiliation before her coworkers and peers, which led to shame and severe depression. Even Dr. McCaffrey's report indicates that her reaction of extreme humiliation would not be unexpected. The Court credits the testimony of Dr. Van Meter that it was reasonable that claimant, with poor coping skills, endured a life stressor that may trigger an overdose. Upon reviewing the direct testimonies of Drs. Angert, Marsal, Van Meter and the cross-examination of Dr. McCaffrey, and evaluating the demeanor of each witness the Court finds that the April 24, 2009 incident triggered a posttraumatic response in claimant that led to severe depression and anxiety. She was exposed to an event that was a threat to her physical integrity and her response involved intense helplessness and fear. She clearly experienced intrusive recollections about the event, had flashbacks and endured physiological distress and physical reactions. It is more reasonable than not, that the wrongful confinement and being forced to do something out of her control, triggered a posttraumatic response. While it is difficult to assign damages for the mental anguish borne by a person who attempts to take their own life, the Court awards claimant $350,000.00 for the mental anguish she endured.
Based on the Court's review of Exhibit L, the DSM IV-TR Diagnostic Criteria for 309.81 Posttraumatic Stress Disorder.
Loss of Earnings
As a result of the mental anguish claimant endured from defendant's wrongful confinement of her, claimant was out of work from June 8, 2009 (T: 29) until June 22, 2010 (T: 29, 35). During the first part of her absence, claimant used personal accruals and sick leave bank credits, which allowed her to continue receiving her salary. She thereafter was on an unpaid leave of absence.
1. Personal Accruals
From Monday, June 8, 2009 until Wednesday, August 19, 2009, and from Monday, January 25, 2010 until Friday, January 29, 2010, claimant was required to use her own personal accruals (sick time, personal time and vacation time) in order to continue to receive her salary (Exhibit 1). Claimant argues that said accruals, if not used, were hers to be used at retirement to purchase health insurance. Defendant argues that the use of such accruals in said manner constitutes only a potential loss of an undefined credit and the Court agrees. However, it is clear that claimant depleted all of her personal accruals such that if she needed to thereafter take time off from work, she would have been forced to do so without pay. Accordingly, the Court concludes that she is entitled to recover damages for the same.
Claimant's annual salary during the time in which she depleted her personal accruals was $62,446.00, which translates to $1,200.88 per week or $240.18 per day. She used her own personal accruals for 10 weeks and three days (from Monday, June 8, 2009 until Wednesday, August 19, 2009, and from Monday, January 25, 2010 until Friday, January 29, 2010). Using claimant's method of calculating said damages, which was not objected to by defendant, the Court awards claimant damages for the use of her personal accruals in the sum of $12,729.34.
Although claimant testified that she used her own personal accruals from June 8, 2009 until September 30, 2009, Exhibit 1, which was received into evidence, reflects that she used time from the sick leave bank beginning on August 20, 2009 and continuing until January 25, 2010, which is when she again had personal accruals to be applied.
Contrary to the argument of claimant, the Court declines to award claimant damages for the time period beginning Thursday, August 20, 2009, and continuing until Monday, January 25, 2010, as claimant used time from the sick leave bank, rather than her own personal accruals (see Exhibit 1).
2. Lost Wages
From Monday, February 1, 2010 through Friday, June 18, 2010, claimant was on an unpaid leave of absence (Exhibit 1). Her salary was $62,446.00 for all but one of said days, which translates to $1,200.88 per week or $240.18 per day. For the last day in which she was out of work, specifically, Monday, June 21, 2010, her salary was increased to $67,473.00, which translates to $1,297.56 per week or $259.51 per day. Using the same method of calculating claimant's damages as set forth above, the Court concludes that claimant suffered lost wages in the sum of $24,277.11 (20 weeks at her initial rate of pay and one day at the increased rate).
Medical Expenses
1. Co-Payments
Claimant testified that she paid $20.00 as a co-pay for each medical and psychological visit (T: 74). The evidence reflects that claimant had a total of 51 medical and/or psychological appointments as a result of the April 24, 2009 incident, to wit: 24 visits to Samaritan Hospital, including visits to Dr. Van Meter (Exhibit 4); 18 visits with Dr. Marsal (Exhibit 5); and 9 visits with Dr. Angert (Exhibit 8). Based upon the foregoing, and the Court's conclusion that but for the subject incident, claimant would not have incurred such expenses, the Court awards claimant damages in the sum of $1,020.00.
2. Other Medical Expenses
Claimant seeks to recover the sum of $18,886.00 as and for medical services rendered on her behalf by Samaritan Hospital. However, the Court cannot conclude from the evidence submitted (Exhibits 4 and 9), what services were rendered for each charge and whether said services were related to the subject incident. It is not the Court's obligation to parse out the billing charges to determine what was an expense related to the allegations herein. Moreover, of the charges that were decipherable to a layperson, it is clear that some concerned issues other than those resulting from the subject incident, such as a lyme screen on June 25, 2009 (Exhibit 9).
Based upon the foregoing, the Court declines to award claimant damages for the medical services rendered by Samaritan Hospital, except for the co-pays awarded hereinabove.
CONCLUSION
Therefore, upon review of all the testimony and observing the demeanor of the witnesses as they testified, the Court awards the following damages for the wrongful confinement of claimant:
Mental Anguish: $350,000.00
Personal Accruals: $ 12,729.34
Lost wages: $ 24,277.11
Medical co-pays: $ 1,020.00
Total: $388,026.45
Based upon the foregoing, the Court awards claimant damages in the total amount of $388,026.45. The amount of such award shall bear interest from October 10, 2013, the date of the Decision establishing liability (see Love v State of New York, 78 NY2d 540 [1991]; CPLR § 5002).
In addition, to the extent claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act § 11-a (2).
Any motions on which the Court may have previously reserved or which were not previously determined are hereby denied.
Let judgment be entered accordingly.
May 27, 2015
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims