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discussion slides for economic loss and wrongful death actions in new York State
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5/27/2018 Economic loss and death damages in tort - New York State Remedies Prof. George W. Conk Fordham Law School Spring 2014 - slid...
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RemediesNY Wrongful death , collateral sources, liens, interest
Prof. George W. Conk
gconk@law.fordham.edu
Room 8-122212-636-7446
Elected Member, American Law Institute
Adjunct Professor of Law & Senior FellowStein Center for Law & Ethics
1Damages - wrongful death, collateral
sources, liens, etc.
mailto:gconk@law.fordham.edumailto:gconk@law.fordham.edu5/27/2018 Economic loss and death damages in tort - New York State Remedies Prof. George W. Conk Fordham Law School Spring 2014 - slid...
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The Wrongful Death and
Survival ActionsNew York statutes
2Damages - wrongful death, collateral
sources, liens, etc.
5/27/2018 Economic loss and death damages in tort - New York State Remedies Prof. George W. Conk Fordham Law School Spring 2014 - slid...
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NY CLS EPTL 11-3.2 (2008)
Action for injury to person or property survives
despite death of person in whose favor or
against whom cause of action existed
(a) Action against personal representativefor injury to person or property.
(1) No cause of action for injury toperson or property is lost because of
the death of the person liable for theinjury.
3Damages - wrongful death, collateral
sources, liens, etc.
5/27/2018 Economic loss and death damages in tort - New York State Remedies Prof. George W. Conk Fordham Law School Spring 2014 - slid...
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NY CLS EPTL 11-3.2 (2008)
Action for injury to person or property survives
despite death of person in whose favor or
against whom cause of action existed
(b) Action by personal representative forinjury to person or property.
No cause of action for injury to person orproperty is lost because of the death of
the person in whose favor the cause ofaction existed.
4Damages - wrongful death, collateral
sources, liens, etc.
5/27/2018 Economic loss and death damages in tort - New York State Remedies Prof. George W. Conk Fordham Law School Spring 2014 - slid...
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Elements for which recovery is allowed
in the survival action
Losses end at death
Wages/earnings/profits - doa to dod
Medical care
Property damage
Lifetime Pain, suffering, disability,
impairment
Prejudgment interest 5Damages - wrongful death, collateralsources, liens, etc.
5/27/2018 Economic loss and death damages in tort - New York State Remedies Prof. George W. Conk Fordham Law School Spring 2014 - slid...
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NY CLS EPTL 5-4.3
The Wrongful Death Action
Rights of Members of Family Resulting fromWrongful Act, Neglect or Default Causing Death
of Decedent
(a) The damages awarded to the plaintiffmay be such sum as the jury orthecourt deems to be fair and just
compensationfor the pecuniary injuriesresulting from the decedent's death to thepersons for whose benefit the action isbrought.
6Damages - wrongful death, collateral
sources, liens, etc.
5/27/2018 Economic loss and death damages in tort - New York State Remedies Prof. George W. Conk Fordham Law School Spring 2014 - slid...
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Allowable Elements of damage
The Wrongful Death Action
Medical expenses
Reasonable funeral expenses paid orpayable by the estate or distributees
Loss of financial contributions
Lost services
Loss of parental care, advice, andguidance
Loss of inheritance
7Damages - wrongful death, collateral
sources, liens, etc.
5/27/2018 Economic loss and death damages in tort - New York State Remedies Prof. George W. Conk Fordham Law School Spring 2014 - slid...
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Types of lost services compensable
Household maintenance activities - house cleaning, meal preparation, clothing
care, home repairs; child care; health care;household finance; and chauffeur services
Value of spouses services Measure of damage: the cost of employing a
third person for household service
Loss of parental* care, advice andguidance.
- intellectual, moral, religious, physical training8
Damages - wrongful death, collateralsources, liens, etc.
5/27/2018 Economic loss and death damages in tort - New York State Remedies Prof. George W. Conk Fordham Law School Spring 2014 - slid...
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Elements for which recovery is
Denied in NY wrongful death
Pain, suffering of decedent
Grief
Loss of consortium Emotional injuries suffered by the
survivors *
No enhancement of loss of servicesdamages due to character of provider
9Damages - wrongful death, collateral
sources, liens, etc.
5/27/2018 Economic loss and death damages in tort - New York State Remedies Prof. George W. Conk Fordham Law School Spring 2014 - slid...
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NY CLS EPTL 5-4.3
The Wrongful Death Action
Interest upon the principal sumrecoveredby the plaintiff from thedate of the decedent's death shallbe
added to and be a part of the totalsum awarded.
Punitive damages
10Damages - wrongful death, collateral
sources, liens, etc.
5/27/2018 Economic loss and death damages in tort - New York State Remedies Prof. George W. Conk Fordham Law School Spring 2014 - slid...
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Statutory erosion
NY CLS CPLR 4545
(a) Action for medical , dental or podiatricmalpractice
In any action for medicalmalpractice where theplaintiff seeks to recover for the cost of medical
care loss of earnings or other economic loss,
evidence shall be admissible
to establish that any such past or future cost or
expense was or will, with reasonable certainty,be replaced or indemnified, in whole or in part,from any collateral source
11Damages - wrongful death, collateral
sources, liens, etc.
5/27/2018 Economic loss and death damages in tort - New York State Remedies Prof. George W. Conk Fordham Law School Spring 2014 - slid...
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NY CLS EPTL 5-4.3
Net damage in med mal cases
(c)(i) In any action in which the
wrongful conduct is medical
malpractice or dental malpractice,evidence shall be admissible to
establish the federal, state and local
personal income taxes which thedecedent would have been obligated
by law to pay.12
Damages - wrongful death, collateralsources, liens, etc.
5/27/2018 Economic loss and death damages in tort - New York State Remedies Prof. George W. Conk Fordham Law School Spring 2014 - slid...
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Collateral SourcesInsurance, liens, etc.
13Damages - wrongful death, collateral
sources, liens, etc.
5/27/2018 Economic loss and death damages in tort - New York State Remedies Prof. George W. Conk Fordham Law School Spring 2014 - slid...
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The Collateral Source Rule
Evidence of collateral sources of
compensation available to the
plaintiff is not admissibleby the
defendant to reduce the amount of
damages recoverable
14Damages - wrongful death, collateral
sources, liens, etc.
5/27/2018 Economic loss and death damages in tort - New York State Remedies Prof. George W. Conk Fordham Law School Spring 2014 - slid...
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Statutory erosion
NY CLS CPLR 4545
insurance (except for life insurance) social security (except retirement benefits)
workers' compensation or employee
benefit programs (exceptsuch collateral sources entitled by
law to liensagainst any recovery of the
plaintiff)
15Damages - wrongful death, collateral
sources, liens, etc.
5/27/2018 Economic loss and death damages in tort - New York State Remedies Prof. George W. Conk Fordham Law School Spring 2014 - slid...
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Liens
Workers compensation
Funded benefit plans governed by
ERISA
Medicare
Medicaid
16Damages - wrongful death, collateral
sources, liens, etc.
5/27/2018 Economic loss and death damages in tort - New York State Remedies Prof. George W. Conk Fordham Law School Spring 2014 - slid...
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Other liens
Welfare
Public defender
Child support
letters of protection
17Damages - wrongful death, collateral
sources, liens, etc.
5/27/2018 Economic loss and death damages in tort - New York State Remedies Prof. George W. Conk Fordham Law School Spring 2014 - slid...
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Statutory erosion
NY CLS CPLR 4545
Operation The Court shall reduce the amount of
the award by such finding, minus an
amount equal to the premiums paidby the plaintiff for such benefits forthe two-year period immediately
preceding the accrual of such actionand minusan amount equal to theprojected future cost to the plaintiffof maintaining such benefits.
18Damages - wrongful death, collateral
sources, liens, etc.
5/27/2018 Economic loss and death damages in tort - New York State Remedies Prof. George W. Conk Fordham Law School Spring 2014 - slid...
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Statutory erosion
NY CLS CPLR 4545
(b) Certain actions against a publicemployer for personal injury andwrongful death.
evidence shall be admissible forconsideration by the court to establishthat any such cost or expense was
replaced or indemnified, in whole or inpart, from a collateral source provided orpaid for, in whole or in part, by the publicemployer
19Damages - wrongful death, collateral
sources, liens, etc.
5/27/2018 Economic loss and death damages in tort - New York State Remedies Prof. George W. Conk Fordham Law School Spring 2014 - slid...
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Statutory erosion
NY CLS CPLR 4545
including but not limited to paid sick leave
medical benefits
death benefits dependent benefits
disability retirement allowance
social security (except retirement benefits) but shall not include those collateral
sources entitled by law to liens againstany recovery of the plaintiff.
20Damages - wrongful death, collateral
sources, liens, etc.
5/27/2018 Economic loss and death damages in tort - New York State Remedies Prof. George W. Conk Fordham Law School Spring 2014 - slid...
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Statutory erosion
NY CLS CPLR 4545
(c) Actions for personal injury, injuryto property or wrongful death.
In any action brought to recover
damages evidence shall be admissiblefor consideration by the courtto establishthat any such past or future cost orexpense was or will, with reasonablecertainty, be replaced or indemnified, inwhole or in part, from any collateralsource, etc.
21Damages - wrongful death, collateral
sources, liens, etc.
5/27/2018 Economic loss and death damages in tort - New York State Remedies Prof. George W. Conk Fordham Law School Spring 2014 - slid...
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Spousal obligation The Necessaries
Doctrine
MBA v. Steiner, 588 N.Y.S.2d 890 (1992)
a spouse who has incurred a debt for necessarygoods or medical treatmentis primarily liable for
that debt a creditor seeking to recover for necessaries
must demonstrate that necessaries werefurnished on the nondebtor spouse's credit
responsibility to pay for a spouse's debts mustremain limited by the nondebtor spouse's abilityto do so
22Damages - wrongful death, collateral
sources, liens, etc.
5/27/2018 Economic loss and death damages in tort - New York State Remedies Prof. George W. Conk Fordham Law School Spring 2014 - slid...
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NY CLS CPLR 5001
Interest
NYprejudgment interest
Not in personal injury
except in wrongful death actionsAllowed in:
breach of contract
Actions re interfering with title to, orpossession or enjoyment of, property
Discretionary in equity actions
23Damages - wrongful death, collateral
sources, liens, etc.
5/27/2018 Economic loss and death damages in tort - New York State Remedies Prof. George W. Conk Fordham Law School Spring 2014 - slid...
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NY CLS CPLR 5002. Interest from
verdict, report or decision to judgment
Interest shall be recovered upon the totalsum awarded, including interest to verdict,report or decision, in any action, from the
date the [liability] verdict was renderedorthe report or decision was made to thedate of entry of final judgment.
The amount of interest shall be computedby the clerk of the court and included inthe judgment.
24Damages - wrongful death, collateral
sources, liens, etc.
5/27/2018 Economic loss and death damages in tort - New York State Remedies Prof. George W. Conk Fordham Law School Spring 2014 - slid...
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NY CLS CPLR 5003
Interest
Every money judgment shall bear interest
from the date of its entry. Every order
directing the payment of money which has
been docketed as a judgment shall bear
interest from the date of such docketing.
25Damages - wrongful death, collateralsources, liens, etc.
5/27/2018 Economic loss and death damages in tort - New York State Remedies Prof. George W. Conk Fordham Law School Spring 2014 - slid...
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Periodic PaymentsIn Medical Malpractice Cases
26Damages - wrongful death, collateralsources, liens, etc.
5/27/2018 Economic loss and death damages in tort - New York State Remedies Prof. George W. Conk Fordham Law School Spring 2014 - slid...
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Article 50-a. Periodic Payment of Judgments in
Medical and Dental Malpractice Actions
NY CLS CPLR 5031 Basic rule: lump sum awards of damages
in personal injury and wrongful deathclaims
Exceptions:
Med mal recoveries over $500,000
- 35% or $500k in a lump sum
- balance over 8 years
27Damages - wrongful death, collateralsources, liens, etc.
5/27/2018 Economic loss and death damages in tort - New York State Remedies Prof. George W. Conk Fordham Law School Spring 2014 - slid...
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Periodic payments
(d) The findings of future economic andpecuniary damages except in wrongful deathactions, shall be used to determine a stream of
payments for each such item of damages byapplying
(i) the growth rate, to the (ii) annual amount incurrent dollars, for the (iii) period of years, all of
such items as determined by the finder of factfor each such item of damages.
28Damages - wrongful death, collateralsources, liens, etc.
5/27/2018 Economic loss and death damages in tort - New York State Remedies Prof. George W. Conk Fordham Law School Spring 2014 - slid...
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Present value discount
(e) US Treasury rate for the ten-year UnitedStates Treasury Bond on the date of the verdict.
If over 20 years the discount rate to be used indetermining the present value shall becalculated by averaging, on an annual basis, therate in effect for the ten-year United StatesTreasury Bond on the date of the verdict for the
first twenty years and two percentage pointsabove the ratein effect for the ten-year UnitedStates Treasury Bond on the date of the verdict
for the years after twenty years.
29Damages - wrongful death, collateralsources liens etc
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