BRENDA K. SANNES, District Judge.
On June 27, 2017, Plaintiff Jeanie Lynn Bailey Kohl, executor of the estate of the decedent, James Elwood Kohl, Jr. ("Decedent"), brought this diversity action against Defendant Derrick D. Young asserting a wrongful death claim and a survival claim for pain and suffering. (Dkt. No. 1).
The facts of this case, as alleged in the Complaint, are set forth in the Court's March 29, 2018 Decision. (Dkt. No. 10, at 2-4).
"[I]t is well established that `[w]hile a party's default is deemed to constitute a concession of all well pleaded allegations of liability, it is not considered an admission of damages.'" Cement & Concrete Workers Dist. Council Welfare Fund v. Metro Found. Contractors Inc., 699 F.3d 230, 234 (2d Cir. 2012) (quoting Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992)). On a motion for default judgment, a court must "conduct an inquiry in order to ascertain the amount of damages with reasonable certainty." Credit Lyonnais Sec. (USA), Inc. v. Alcantara, 183 F.3d 151, 155 (2d Cir. 1999) (citing Transatl. Marine Claims Agency, Inc. v. Ace Shipping Corp., 109 F.3d 105, 111 (2d Cir. 1997)). "There must be an evidentiary basis for the damages sought by plaintiff, and a district court may determine there is sufficient evidence either based upon evidence presented at a hearing or upon a review of detailed affidavits and documentary evidence." Cement & Concrete Workers Dist. Council Welfare Fund, 699 F.3d at 234 (citing Fed. R. Civ. P. 55(b)(2)). "Magistrate judges and district courts have interpreted this to mean that . . . damages must be based on admissible evidence." House v. Kent Worldwide Mach. Works, Inc., 359 F. App'x 206, 207 (2d Cir. 2010). Therefore, "a court may not rubber-stamp the non-defaulting party's damages calculation, but rather must ensure that there is a basis for the damages that are sought." Overcash v. United Abstract Grp., Inc., 549 F.Supp.2d 193, 196 (N.D.N.Y. 2008) (citing Credit Lyonnais, 183 F.3d at 155).
At the June 8, 2018 evidentiary hearing, Plaintiff presented evidence indicating that Decedent's wrongful death caused $3,442,170 in pecuniary losses.
In a wrongful death action, damages are limited to fair and just compensation for pecuniary injuries suffered because of the decedent's death. See Klos v. N.Y.C. Transit Auth., 240 A.D.2d 635, 637 (2d Dep't 1997). Under New York law, several factors inform a court's determination of the amount of recoverable damages: "the age, health and life expectancy of the decedent at the time of the injury; the decedent's future earning capacity and potential for career advancement; and the number, age and health of the decedent's distributees." Johnson v. Manhattan & Bronx Surface Transit Operating Auth., 71 N.Y.2d 198, 203-204 (1988); N.Y. Est. Powers & Trusts Law § 5-4.3. Pecuniary losses include "the economic value of the decedent to each distributee at the time decedent died and include[] loss of income and financial support, loss of household services, loss of parental guidance, as well as funeral expenses and medical expenses incidental to death." Milczarski v. Walaszek, 108 A.D.3d 1190, 1190 (4th Dep't 2013); see also Gonzalez v. N.Y.C. Hous. Auth., 77 N.Y.2d 663, 668 (1991).
Plaintiff seeks $3,442,170 in pecuniary damages for the wrongful death of her husband, James Elwood Kohl, Jr., who held the rank of staff sergeant in the U.S. Army at the time of his death. (Dkt. No. 1, ¶¶ 36-54; Ex. 24, at 27). The report by Plaintiff's expert economist, Kristin Kucsma, indicates that this amount includes several categories of Decedent's projected income and economic loss caused by his death: (i) Decedent's adjusted past and future income,
The expert report indicates that, in determining the amount of income lost for past Army pay, Kucsma considered Decedent's W-2 wage and tax statements, Army pay statements, and many governmental sources of data. Kucsma also considered Decedent's gross yearly earnings as a staff sergeant at the E-6 pay grade from July 2015 to June 2018, including Decedent's years of service, base pay, allowance for food and housing, monthly clothing allowance, and special duty assignment pay. (Ex. 23, at 14; Ex. 24, at 2-4). The report indicates that Kucsma then deducted from that amount any actual income received by the family following Decedent's death and applied an "adjusted income factor,"
At the evidentiary hearing, Plaintiff testified that Decedent planned to pursue a career as a substance abuse mental health counselor after retiring from the Army. Using Bureau of Labor Statistics data, Kucsma calculated the income Decedent would have likely earned in this post-Army career, from the time of his retirement from the Army on November 26, 2026 until his statistically projected date of retirement on October 18, 2044.
Decedent planned to retire in 2026 after twenty years of service in the Army, at which point he would have been eligible to receive retirement benefits. (Ex. 23, at 20). Kucsma's report indicates that, upon Decedent's retirement from the Army, he would have received $2,516 per month from November 25, 2026 to February 8, 2058.
The expert report indicates that, in calculating losses stemming from Decedent's health insurance, Kucsma considered, inter alia, the dates upon which Plaintiff and Decedent's children will lose their current health insurance benefits from the Army, (Ex. 23, at 7), Decedent's children's future eligibility for health insurance benefits, and the projected value of comparable individual and family plans extending through Decedent's projected date of retirement, (Ex. 23, at 24). Kucsma calculates that the present value of the replacement cost of health insurance that Decedent would have provided is $414,135. (Ex. 23, at 24-25; Ex. 24, at 13-14).
Kucsma's calculations of the value of Decedent's household services run from July 5, 2015 to February 8, 2058, Decedent's statistically projected date of death. (Ex. 23, at 26-27; Ex. 24, at 14-15). In her analysis, Kucsma considers, inter alia, the number of hours per week that a married, fully employed male typically contributes to normal household work. (Ex. 23, at 26). Kucsma notes that this figure varies depending on the age of the youngest child in the household and the spouse's employment, if any, and accounts for the probability that an individual might become disabled during the course of his remaining life expectancy. (Ex. 23, at 26). Kucsma sets the value of this labor by multiplying the hours worked by a reasonable hourly rate in the market place for those services, adjusted for inflation. (Ex. 23, at 26). Kucsma calculates that the present value of Decedent's household services is $33,882 for past years and $455,263 for future years. (Ex. 23, at 28-30; Ex. 24, at 16-18).
Kucsma's report considers the value of Decedent's "parental nurturing and guidance services" that Decedent, "had he lived, would have continued to provide for his children." (Ex. 23, at 31). The report calculates the value of such services from the date of Decedent's death to the time of Decedent's statistically projected natural death in 2058. (Ex. 23, at 31-35; Ex. 24, at 20-22). Decedent had three children—two with Plaintiff, R.K. and V.K., and one from a previous marriage, P. (Ex. 23, at 9). At the evidentiary hearing, Plaintiff and Decedent's mother testified that V.K. was born after Decedent's death and that, due to distance and other circumstances, Decedent did not have a relationship with P. at the time of his death. Accordingly, Kucsma's report contains separate analyses of Decedent's parental services with respect to each of the three children, taking into account the time that Decedent would have provided to each child for services similar to that of a therapist, teacher, and financial planner. (Ex. 23, at 9, 31-33). Kucsma then calculates the pecuniary value of this time by examining the hourly rates for comparable professional services in the market. (Ex. 23, at 32-33). Thus, with respect to R.K. and V.K., the report indicates that the present value of Decedent's parental services lost amounts to $135,567 for past years and $865,025 for future years. (Ex. 23, at 33-35; Ex. 24, at 20-22). With respect to P., Kucsma estimates the present value of parental services lost to be $5,784 for past years and $75,321 for future years. (Ex. 23, at 37-39; Ex. 24, at 24-26).
Upon careful consideration of the evidence and testimony presented at the June 8, 2018 hearing, the Court finds that Plaintiff has established a sufficient evidentiary basis for the following pecuniary damages:
Accordingly, Plaintiff is awarded $3,442,170 in pecuniary damages associated with the wrongful death of the Decedent, James Elwood Kohl, Jr. (Dkt. No. 1, ¶¶ 36-54; Ex. 24, at 27).
In addition to the pecuniary losses set out above, Plaintiff seeks damages for Decedent's conscious pain and suffering. In a wrongful death case, damages for conscious pain and suffering are available only where a plaintiff offers proof of a decedent's cognitive awareness before death. See Keenan v. Molloy, 137 A.D.3d 868, 871 (2d Dep't 2016); see also Annexstein v. Inzerilli, No. 10-cv-3655, 2012 WL 526647, at *2, 2012 U.S. Dist. LEXIS 19884, at *2-5 (E.D.N.Y. Feb. 16, 2012) (explaining that "no damages could be awarded without supporting documentation" of pain and suffering), report-recommendation adopted as modified, 2012 WL 827007, 2012 U.S. Dist. LEXIS 32154 (E.D.N.Y. Mar. 9, 2012).
At the evidentiary hearing, Plaintiff acknowledged that she was unable to produce evidence, medical or otherwise, demonstrating that Decedent was conscious for any amount of time after he was shot, but referred the Court to Glaser v. County of Orange, 54 A.D.3d 997, 998 (2d Dep't 2008). (See Text Minute Entry, June 8, 2018). Glaser, however, stands for the proposition that a court may award conscious pain and suffering damages where expert medical testimony indicates that the decedent suffered for as little as two minutes before death. 54 A.D.3d 997, 998 (2d Dep't 2008). Here, in the absence of any evidence indicating that Decedent was conscious following the gunshot, Plaintiff's claim for damages for Decedent's conscious pain and suffering must be denied. See Kevra v. Vladagin, 96 A.D.3d 805, 806 (2d Dep't 2012) ("Mere conjecture, surmise, or speculation is insufficient to sustain a cause of action to recover damages for conscious pain and suffering." (citing Cummins v. County of Onondaga, 84 N.Y.2d 322, 324 (1994))).
For these reasons, it is hereby
