Itemized Damages in Wrongful Death Actions
Medical Malpractice columnists Thomas A. Moore and Matthew Gaier write: A controversy has developed in recent years concerning the form of verdict sheets with regard to damages in wrongful death actions. Specifically, a question has arisen with respect to whether the verdict sheet should have specific interrogatories inquiring as to the wrongful death damages to be awarded to each of the decedent's distributees.
April 02, 2018 at 02:40 PM
12 minute read
A controversy has developed in recent years concerning the form of verdict sheets with regard to damages in wrongful death actions. Specifically, a question has arisen with respect to whether the verdict sheet should have specific interrogatories inquiring as to the wrongful death damages to be awarded to each of the decedent's distributees. It seems evident to us that such specificity in a verdict sheet can only shed greater clarity on the jury's findings in later efforts to assess whether the damages awarded are supported by the evidence. It seems equally evident that there can be no prejudice or harm to any party by having the jury make specific awards for wrongful death damages. Therefore, there is no reason why juries should not itemize wrongful death damages among distributees and, where appropriate, elements or items of pecuniary loss.
This is the view taken by the Fourth Department in Huthmacher v. Dunlop Tire, 309 A.D.2d 1175 (4th Dept. 2003). The plaintiff's decedent fell through an elevator shaft and died 69 days later. He was survived by his wife and three minor children. There was a finding of liability as a matter of law under Labor Law §240(1), and a trial was held on damages. The Appellate Division set aside the jury's awards for the decedent's pain and suffering and for his spouse's loss of consortium as excessive. The court also ordered a new trial as to wrongful death damages based upon errors in the verdict sheet. First, the award for past lost earnings improperly covered the period from the date of accident until the date of the verdict, without distinguishing between lost earnings that accrued while the decedent was alive (which is part of the personal injury cause of action) and that which accrued after his death (which is part of the wrongful death cause of action). Second, the past and future lost earnings applicable to wrongful death and the past and future loss of household services, were actually components of past and future pecuniary losses, but they were all treated as separate items on the verdict sheet. Third, only the past and future pecuniary losses were allocated among each of the four pecuniary dependents. Based on the form of the verdict, the court held:
Because we cannot determine what the jury would have done if it had been presented with a verdict sheet that incorporated past and future loss of earnings and past and future loss of services into the award for pecuniary loss, nor can we determine how it might have allocated such an award among the four survivors, we grant a new trial on damages for pecuniary loss. On retrial, the verdict sheet must direct the jury to make a separate award for past and future loss of earnings, past and future loss of services, past and future loss of parental guidance, and loss of inheritance to each survivor to whom such an award is applicable. The sum of each past and future loss component for each survivor will constitute that survivor's pecuniary loss sustained by reason of decedent's death.
A few years later, in Carter v. New York City Health and Hospitals, 47 A.D.3d 661 (2d Dept. 2008), a medical malpractice action seeking recovery for the decedent's conscious pain and suffering and wrongful death, the Second Department took a different view. The decedent was survived by nine children and approximately 59 grandchildren. While the jury found that the defendant departed from accepted medical practice and that this was a substantial factor in causing injury or death, it awarded zero damages for conscious pain and suffering and for past economic loss to any of the decedent's children. However, it did award past wrongful death damages to seven of the decedent's grandchildren. The Appellate Division set aside the zero damages award for conscious pain and suffering as against the weight of the evidence. It also set aside the wrongful death award to the grandchildren because a grandchild is only a distributee if a parent who would have been a distributee predeceased the decedent, and all of this decedent's children were alive at the time of her death. The court nevertheless ordered a new trial as to wrongful death damages, finding, based on the evidence and the jury instructions, that the awards to the grandchildren might have been intended as proper awards to the decedent's children. The court then went on to state that the jury's role in such cases should be limited to determining the total amount of wrongful death damages to all distributees and that the apportionment of its award is to be made by the court after a hearing:
As a new trial is required, we note that it was improper for the Supreme Court in this case to use a special verdict sheet requiring the jury to determine the amount of economic loss damages to be awarded to each individual distributee. The jury's role should have been limited to determining, based on the evidence presented at trial, the total amount of wrongful death damages to be awarded to all distributees (see EPTL 5-4.3). The apportionment of any award of economic loss damages made upon retrial should be determined by the Supreme Court, Kings County, or by the Surrogate's Court, Bronx County, after a hearing in accordance with applicable law (see EPTL 5–4.4; SCPA 2204; cf. Pollicina v Misericordia Hosp. Med. Ctr., 82 NY2d 332).
The statutory provisions cited by the court indicate that the ultimate distribution of a wrongful death damages award is to be determined by the court—either the Supreme Court or the Surrogate's Court. However, nothing in those sections either requires only a total award of all wrongful death damages or prohibits a jury from itemizing such an award.
Indeed, subsequent decisions by the Second Department have addressed itemized wrongful death damages awards while drawing attention to the itemization. See Vasquez v. County of Nassau, 91 A.D.3d 855 (2d Dept. 2012) (upholding awards of $140,000 for past lost household services, $1,800,000 for future lost household services, $100,000 for past loss of parental care and guidance, and $600,000 for future loss of parental care and guidance); Perez v. St. Vincents Hosp. and Medical Center of New York, 66 A.D.3d 663 (2d Dept. 2009) ($200,000 for the pecuniary losses sustained by each of the distributees).
Nevertheless, based upon the statement in Carter that the jury should return a general award for wrongful death damages and the ruling to the contrary in Huthmacher, the New York Pattern Jury Instructions contains a caveat to the wrongful death charge, PJI 2:320:
Caveat 2: As a general rule, the jury should allocate the total amount of economic loss among the distributees. In Huthmacher v Dunlop Tire Corp., 309 A.D.2d 1175, 765 N.Y.S.2d 111 (4th Dept. 2003), the Fourth Department held that the jury must allocate the amount of economic loss among the distributees. However, in Carter v. New York City Health and Hospitals Corp., 47 A.D.3d 661, 851 N.Y.S.2d 588 (2d Dept. 2008), the Second Department stated, in what appears to be dicta, that it was improper in a wrongful death case to ask the jury to itemize the amount of economic loss to be awarded to each distributee. The Carter court also stated that the jury's role is limited to determining the total wrongful death damages to be awarded to all distributees and that the apportionment of the award among the distributees is for the Supreme or Surrogate's Court after a hearing. In light of Carter, courts within the Second Department should consider modifying the charge and verdict sheet in wrongful death cases to require a single lump sum award to the distributees.
While the PJI has identified an apparent split between the Second and Fourth Departments, the Court of Appeals has since spoken on the subject and appears to favor an itemized verdict sheet for wrongful death damages. In Mazella v. Beals, 27 N.Y.3d 694 (2016), an action sounding in medical malpractice and wrongful death which we have previously discussed regarding other issues (see Moore & Gaier, “Court of Appeals Decision on Sufficiency and Admissibility of Evidence,” N.Y.L.J (Oct. 4, 2016)), the court, after holding that a new trial was required on liability based upon an evidentiary error, addressed asserted errors in the verdict sheet. It rejected the defendant's argument that the jury should have been submitted separate interrogatories on liability based upon three different theories, finding that it was actually a single theory of liability premised upon a “continuum of negligent treatment.” However, with regard to the damages section of the verdict sheet, the court stated:
Although defendant did not propose to the trial court the specific type of special verdict he now advocates, such a special verdict sheet itemizing the subcategories of damages may assist a court's review of the jury's monetary award (CPLR 4111 [d]; see Killon v. Parrotta, 125 A.D.3d 1220, 1223 [3d Dept. 2015]). On retrial, defendant should be afforded the opportunity to argue in support of a special verdict sheet on damages.
To be sure, this falls short of an unequivocal holding that an itemized verdict is required on wrongful death damages. However, the absence of an explicit ruling on the issue would appear to be a function of the fact that the defendant had not preserved the issue for the court's review—the Court of Appeals has no power to review an issue that is not preserved at the Supreme Court level. See Hecker v. State of New York, 20 N.Y.3d 1087, 1087-88 (2013); Merrill v. Albany Med. Ctr. Hosp., 71 N.Y.2d 990, 991 (1988). It is nevertheless very telling that the court saw fit to direct that the defendant be given an opportunity to preserve the issue in a new trial, and further that it expressly stated that a verdict sheet “itemizing the subcategories of damages may assist a court's review of the jury's monetary award.” In light of Mazella, we think that Carter can no longer be regarded as having vitality.
It should be noted that while Carter cited the requirement of EPTL §5-4.4(a)(1) that the determination of the proportions of wrongful death damages to the pecuniary dependents is to be done by a court after a hearing, permitting the jury to make specific findings on the verdict concerning the damages sustained by each of the dependents does no harm to that requirement. First, the jury necessarily makes findings as to the pecuniary losses sustained by each dependent in order to come up with the total pecuniary loss—recording those specific findings on the verdict sheet does not need to change anything in terms of how a court ultimately distributes the award. In fact, information of the jury's determinations in this regard could be helpful to the court making that ultimate determination. In Adamy v. Ziriakus, 231 A.D.2d 80 (4th Dept. 1997), aff'd, 92 N.Y.2d 396 (1998), the Appellate Division observed that “the verdict sheet listed the distributees for the purpose of complying with EPTL 5-4.4,” but found that each distributee was not entitled to a separate lump sum of $250,000 of future damages in a structured judgment under CPLR Article 50-B. Indeed, itemization of wrongful death among the distributees is required for structured judgments under Article 50-B because the jury must determine the number of years for each item of future damages for such a structured judgment to be calculated. See CPLR 4111(e). The number of years may well differ for each pecuniary dependent depending on their age and circumstances.
Finally, while EPTL §5-4.4(a)(1) requires that a court must make the determination of how to distribute wrongful death damages, there is no reason why that court should not consider the jury's determination when making its own. If the amount awarded for wrongful death damages is based on the jury's determination, why should the court not at least consider how and why the jury arrived at that amount? In fact, while the courts often utilize the formula of Matter of Kaiser, 198 Misc. 582 (Surr. Ct., Kings Co. 1950), in determining how wrongful death proceeds are to be distributed, neither that, nor any other mathematical formula, is mandated for making such determination, especially where equity would not thereby be served. See Matter of Duffy, 208 A.D.2d 1169 (3d Dept. 1994); Matter of Acquafredda, 189 A.D.2d 504 (2d Dept. 1993). The jury's specific findings that form the basis of the total award and are supported by the evidence at trial must surely be a fair and equitable basis for deciding how to distribute the award. This is particularly so where the award may be the product of some unique circumstance, like a distributee who suffers from some impairment or disability for which the decedent provided care or assistance. See, e.g., Hyung Kee Lee v. New York Hosp. Queens, 118 A.D.3d 750 (2d Dept. 2014); Vasquez v. County of Nassau, 91 A.D.3d 855 (2d Dept. 2012); Abruzzo v. City of New York, 233 A.D.2d 278, 279 (2d Dept. 1996).
There are thus multiple compelling reasons why wrongful death damages should be specifically itemized on verdict sheets. We can think of no reason for precluding such itemization.
Thomas A. Moore is senior partner and Matthew Gaier is a partner of Kramer, Dillof, Livingston & Moore.
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