Dan Gristwood Ruling

7/30/2019 Dan Gristwood Ruling

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STATE OF NEW YORK COURT OF CLAIMS

- FILEDAPR 3 0 2013

STATE COURT OF CLAIMsAlBANy N.Y.ANIEL G. GRISTWOOD,Claimant, DECISION

-v-Claim No. 114040THE STATE OF NEW YORK,

RECEIVEDDefendant. NYS OFFICE OFTHE

BEFORE:

APPEARANCES:

AITORNEY GE:NER.i\LCLAIMS 8UFIEAUHON. NICHOLAS V. MIDEY JR.

Judge of the Court of Claims

For Claimant:LYNN LAW FIRM, LLPBY: Thomas F. Shannon, Esq., andWilliam F. Lynn, Esq.,Of Counsel.For Defendant:HON. ERIC T. SCHNEIDERMANAttorney GeneralBY: Bonnie G. Levy, Esq., andRay A. Kyles, Esq.,Assistant Attorneys GeneralOf Counsel.

In a decision dated April 1, 20 I l l , this Court found the State liable to the claimant fordamages caused by claimant's unjust conviction and imprisonment under Court ofClaims Act 8-b.

A trial limited to the issue of the damages suffered by claimant has now been held, and this decisionaddresses that issue.

1 Gristwoodv State o/New York, uro #20 11-009-109 [Ct CI, Midey, J., April!, 20 11], Unpublished decisionsand selected orders of the Court of Claims are available via the Internet at http://www.nyscourtofclaims.state.ny.us.


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Claim No. 114040 Page 2

As set forth in more detail in this Court's liability decision, claimant was convicted by ajuryverdict on August 20, 1996 of attempted murder in the second degree and criminal possession of aweapon in the fourth degree following a vicious assault against his wife, which occurred on January12, 1996. Claimant was sentenced on September 27, 1996 to a tenn of 12Y2 to 25 year's on theattempted murder conviction, and one year on the criminal possession of a weapon conviction. Thejudgment of conviction was vacated in 2005 and ultimately dismissed in 2006, after another personhad independently confessed to this assault. During this time, claimant had been incarcerated forover nine years.

It is acknowledged that the primary evidence upon which claimant was convicted at hiscriminal trial was a statement that he had signed, given after many hours of police interrogation,implicating himself in the assault upon his wife. In its liability decision, this Court found that thestatement signed by claimant was not voluntarily given, and that by signing said statement, claimanthad not contributed to his conviction so as to preclude him from obtaining relief from under Courtof Claims Act 8-b.

At the damages trial, claimant testified that he was born on December 2, 1966, and grew upin Central Square. He testified that he met his wife Christina during high school, and they weremarried in 1986. They had five children together, ranging in age from almost one to almost 10 yearsat the time of his conviction. He testified that at the time of his sentencing, he was 29 years of age,and that he and Christina had been married for 10 years. He testified that he had no prior criminalrecord.

Claimant further testified that prior to his arrest, he had been employed at Syracuse LabelCo., having started working there in 1986 or 1987, at wages of approximately $4,50 to $5,00 per


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hour. He testified that at the time of his arrest, his hourly pay had increased to $12.75 to $13.75 perhour. Claimant also testified that prior to his arrest, he worked part-time at Burdick Mobile, anautomobile repair shop, and also worked for himself in the repair of small engines.

Claimant acknowledged that he worked long and varied hours, and that his wife Christinawas the primary caretaker of their children, especially since he worked the night shift at SyracuseLabel (2:15 p.m. to 11 :00 p.m.).

Claimant testified that following his arrest in January 1996, he was detained in the OnondagaCounty Justice Center until his conviction (August 20, 1996) and sentencing (September 27, 1996).He testified that after his conviction and sentencing, he was transferred to Elmira CorrectionalFacility, a maximum security prison, and that he spent approximately six years at this facility. Hetestified that he was then transferred to Gouverneur Correctional Facility, a medium security prison,for a period of six months to one year, but then was transferred to Attica Correctional Facility,another maximum security prison. Claimant testified that he spent most of the last year of hisincarceration at the Onondaga County Justice Center, where he was incarcerated during the pendencyof several court hearings related to his eventual exoneration and release. He was released from theOnondaga County Justice Center on August 30, 2005.

As a result, claimant spent a little more than nine years incarcerated between his conviction(August 20, 1996) and ultimate release from custody (August 30, 2005).

Claimant also described the nine years that he spent incarcerated following his conviction.He described this experience as a "living hell,"2 and that he was nervous, scared, and depressed

2 Unless otherwise indicated, ali references and quotations are taken from the Court's trial notes.


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during this time. He testified that although he was not attacked or assaulted during his incarceration,he witnessed many acts of violence, and saw inmates get their face cut. He testified that while inprison, he was constantly on edge, and constantly looked over his shoulder.

Claimant testified that due to his incarceration, his relationship with his young children wasdestroyed, and that he only saw his children approximately six times during the nine years that hewas incarcerated. Under cross-examination, however, claimant admitted that he did see his childrenon a more frequent basis than what he had stated during his direct testimony.

Claimant also testified that when he began his sentence, he was most certainly aware that hiswife had suffered severe head trauma at the hands of her assailant, and that she was not capable ofcaring for their children. He testified that since his wife could not care for their children, thosechildren were eventually placed with his aunt and stepmother.

Claimant testified, however, that during his incarceration he experienced several traumaticfamily events. He testified that his wife obtained a divorce against him, his aunt passed away in 2002or 2003, and his stepmother passed away in 2004. As a result, his children had to move in with acousin with whom they resided until claimant obtained his release from incarceration on August 30,2005.

Claimant testified that shortly after his release, he began working for Burdick Mobile as aI n1echanic and that he continued to work for Burdick Mobile for the balance of2005, the entire years

of2006 and 2007, and the early part of2008. He testified that in early 2008, he left Burdick Mobilein order to open his own business, called Gristwood General Services, which he continues to operate.He testified that in this business, he fixes cars, trucks, snow blowers, and lawn mowers, and also


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Page 5Claim No. 114040

does some landscaping work. He testified that he also does some scrap metaling through thisbusiness as well.

Claimant testified that when he was released from prison, his relationship with his childrenwas very strained, as he was virtually a stranger to them. He indicated, however, that over time hisrelationships with each of his children are growing stronger, and that he is on speaking terms withall of his children.

Gerald Gristwood, a brother of the claimant, also testified at the trial. During the time thatclaimant was incarcerated, Gerald Grist\vood resided in Rochester, New York, \vhere he worked forEastman Kodak Company. He described claimant as a hard-working, devoted family man, who wasa very loving parent to his five children. Gerald Gristwood testified that during claimant'sincarceration, he took claimant's children to visit with him in prison, and also visited with clainlantwithout the children on other occasions. He testified that claimant was an "angrier" person whileincarcerated, with demonstrable "mood swings" that he observed during his visitations. He alsotestified that upon claimant's release, there was considerable tension between claimant and hischildren, but that this tension has lessened over time.

Daniel Gristwood, Jr., one of claimant 's children, also testified at the trial. He testified thathe was four years old at the time that his mother was assaulted, and therefore does not have manymemories of their family life together prior to his father 's arrest and conviction. He testified that hedid remember visiting his father in State prison, and that these meetings were "awkward." Hetestified that it was "rough" growing up without parents.


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Daniel Gristwood, Jr. a lso testified that when his father was released from custody in 2005,he was fourteen or fifteen years of age and admitted that it was tough taking orders and beIngdisciplined from a "stranger."

Norman J. Lesswing, a licensed psychologist, was found qualified by the Court as an expert,and testified on behal fof the claimant. Dr. Lesswing testified that his opinions were based upon areview of records and documents, and six separate interviews and sessions with claimant.Dr. Lesswing also stated that during his sessions with claimant, he administered certainpsychological tests. In addition, Dr. Lesswing indicated that he had interviewed claimant's brother,Gerald Gristwood, as well as a friend of the claimant and his criminal defense attorney.

Dr. Lesswing testified that in his opinion, claimant did not suffer from any mental healthissues prior to his arrest and wrongful conviction, and that the "psychological impact" of hiswrongful conviction was "catastrophic."

Dr. Lesswing opined that claimant, as a direct result of his wrongful conviction andconfinement, developed several mental health disorders. Dr. Lesswing diagnosed claimant assuffering from posttraumatic stress disorder, depressive disorder, and anxiety disorder. Dr. Lesswingalso testified that claimant had developed ingrained patterns ofpersonality maladjustment, includingavoidant and paranoid traits, as well as catastrophic stressors directly related to his wrongfulconviction and incarceration.

Dr. Lesswing acknowledged that it is difficult to detennine exactly when claimant developedhis posttraumatic stress disorder, but that the events leading to the disorder certainly began onJanuary 12, 1996, when claimant found his wife severely injured, followed shortly by his extensive


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interrogation and subsequent arrest for that assault. Dr. Lesswing testified that all of these eventswere interwoven in claimant's situation, and that all of them led to claimant's condition.

Under cross-examination, Dr. Lesswing acknowledged that finding his wife severely beaten,as well as being interrogated and then arrested for that assault, naturally caused trauma and stress toclaimant, and that as he awaited trial for this assault, he believed that claimant was suffering frommajor depression.

As for prognosis, Dr. Lesswing testified that claimant continues to suffer from posttraumaticstress disorder, and that his symptoms and impairments are chronic. Dr. Lesswing believes thatclaimant is in need of regular psychotherapy, and that with treatment, he believes that claimant willexperience some improvement in his condition. Dr. Lesswing acknowledged that claimant had beenopposed to either psychotherapy or antidepressant medication, but that in the past few months priorto trial, claimant had finally begun to see a therapist. Dr. Lesswing opined that claimant is in needof long-term therapy, and that such therapy could, and in all likelihood should, go on for the rest ofhis life. He indicated that the cost of such therapy would be $125.00 per hour on a weekly basis.

Stacy Reilly Davison, a licensed clinical social worker, testified for claimant as his treatingsocial worker. Ms. Davison testified that she has recently begun treating claimant based upon areferral from Dr. Lesswing, and that she has met with claimant four times, on a weekly basis, priorto this trial. She testified that during her four sessions with claimant, she has observed symptomsof depression, insomnia, irritability, anger, and in general, a guarded condition.

Ms. Davison indicated that she hoped to meet with claimant on a weekly basis for theforeseeable future, and she believes that claimant could very well require lifelong treatment. Shetestified that she charges claimant $105.00 per session.


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Daniel McGowan, Ph.D., was found qualified by the Court as an expert economist, andtestified on behalf of claimant. Dr. McGowan offered testimony both as to the projected cost offuture counseling, as well as to the lost earnings suffered by claimant as a result of his wrongfulconviction and incarceration.

With regard to projected future counseling costs, Dr. McGowan assumed that claimant wouldrequire counseling on a biweekly basis at a cost of approximately $200.00 per session for the restof his life, projected to be 32 years. Therefore, lie calculated these costs until claimant reached theage of 77, and factored in a 3.950/0 increase per year. He calculated that the total amount for futurecounseling costs for the balance of claimant's life is $319,666.00.

Dr. McGowan also testified with regard to claimant's economic loss due to his wrongfulincarceration. This economic loss relates both to claimant's lost income during his nine years ofincarceration following his conviction, as well as to the impairment ofhis earning capacity from thetime of his release until the end of his work life expectancy. Dr. McGowan's calculations withregard to lost earnings are set forth in Exhibit 4, which shows an estimated loss of earnings,including both past and future losses, of $1 ,536,626.00.

In determining claimant 's economic loss, Dr. McGowan relied upon certain facts, as well asnecessarily making certain assumptions regarding claimant's work life expectancy. Dr. McGowanrelied upon claimant's date of birth of December 2, 1966 and the date of his sentence ofSeptember 27, 1996 in determining that claimant had a life expectancy at the date of sentencing of46.4 years, with a work life expectancy of 30.6 years. Dr. McGowan also relied upon claimant'sincome for his last full year of employment at Syracuse Label prior to his arrest, conviction, andsentencing, and that claimant had earned $25,826.00 at Syracuse Label in ]995.


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In his calculations, Dr. McGowan made an assumption that claimant 's wages would haveincreased by 3.68% per year (which he based on the fact that from the years 1988 through 1995,claimant's income at Syracuse Label had increased at this annual rate of 3.68%) and also assumedthat fringe benefits amounted to 25% of each year's income.

Dr. McGowan also acknowledged that in computing claimant's expected earnings followinghis release from prison, he utilized the income reported by claimant in his 2010 tax return, when hewas self-employed, and that he did not consider the wages earned by claimant when he wasemployed by Burdick ~ v 1 0 b i l e . Dr. ~ 1 c G o w a n also assumed that these post incarceration earningswould increase at 4% annually.

Bud C. Ballinger, III, Ph.D., a licensed psychologist, was qualified as an expert in psychologyand testified on behalf of the State. Dr. Ballinger prepared a report (Exhibit H) based upon hisreview of records and documents, his review of Dr. Lesswing's report and the tests performed byhim, his interview with claimant, as well as interviews from friends and relatives. In addition,Dr. Ballinger administered additional psychological tests to claimant, as more fully set forth in hisreport.

Based upon his interviews, his review of court documents and records, and the tests resultsfrom both Dr. Lesswing as well as his own testing, Dr. Ballinger diagnosed claimant withPosttraumatic Stress Disorder, chronic, as well as Depressive Disorder, not othervvise specified.

Although Dr. Ballinger agreed with Dr. Lesswing that claimant suffers from chronicposttraumatic stress disorder, he disagreed with Dr. Lesswing as to the traumatic events causing thiscondition. Dr. Ballinger opined that claimant's posttraumatic stress disorder was caused by threetraumatic events, namely (1) finding his wife in a badly beaten and bloody condit ion after the assault


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against her, (2) the extensive and aggressive interrogation leading to his arrest, and (3) his wrongfulconviction, subsequent incarceration and separation from his family. Dr. Ballinger testified that allthree of these events worked in concert to create the posttraumatic stress disorder suffered byclaimant.

Furthermore, although Dr. Ballinger agreed with Dr. Lesswing that claimant suffered fromchronic posttraumatic stress disorder, he believed that this condition was treatable with counseling.Dr. Ballinger testified that in his opinion, psychotherapy could be effective in successfully treatingthe posttraumatic stress disorder in a much shorter period of time than the lifetime counselingrecommended by Dr. Lesswing.

On the basis of this opinion, as well as Dr. Ballinger 's finding that claimant is a motivated,hardworking person, Dr. Ballinger testified that he would recommend regular therapy for a periodof one to one and one-half years, and then intermittently thereafter on an "as needed" basis.

Matthew C. McCabe was found qualified as an expert economist, and testified on behalf ofthe State. Similarto the testimony ofDr. McGowan, Mr. McCabe provided testimony not only withregard to the costs of projected psychological treatment, but also as to the lost income suffered byclaimant, both past and future (see Exhibit K and accompanying charts).

, Based on the testimonyofDr. Ballinger that claimant would benefit from psychotherapy overa limited period o f t i m ~ , NIr. McCabe projected the costs for 100 sessions of therapy at 90 minutesper session, based upon a rate of$130 per hour. Based upon Dr. Ballinger's testimony, Mr. McCabebased his calculations on the assumptions that the bulk ofthese sessions would occur during the firstyear, with less frequent sessions over the next three years, followed by additional sessions, as


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needed, for the balance ofhis life. Based on these assumptions, Mr. McCabe calculated the cost offuture therapy at $20,622.00 (Exhibit K, Table 11).

Mr. McCabe also provided expert testimony with regard to claimant's lost earnings.Mr. McCabe testified that the starting base salary for his calculations was the 1995 salary whichclaimant earned at Syracuse Label, which was the last full year that he worked prior to hisincarceration. He then projected this income for the years in which claimant was incarcerated,utilizing annual growth rate percentages for the manufacturing sector.

Mr. McCabe set forth the earnings loss suffered by claimant from September 27, 1996 (thedate of his sentencing) through the date of his release (August 30, 2005) (Exhibit K, Table 1).

With regard to fringe benefits, Mr. McCabe utilized the yearly percentage of wages that anemployer contributed to fringe benefits in the nati'onal manufacturing sector, as well as adding to thispercentage the 6.20% that an employer was required to contribute towards claimant's social security.

Mr. McCabe therefore disagreed with certain assumptions that had been utilized byDr. McGowan in his analysis. Specifically, Mr. McCabe indicated that his calculations had beenmade on a calender year basis, and that Dr. McGowan had made his annual calculations fromSeptember to September. Mr. McCabe stated that the economic data relied upon by him is compiledon a calender year basis, and that it was therefore appropriate to also represent claimant's lostearnings on a calender year basis as well. Mr. McCabe also disagreed with the 3.680/0 figure usedby Dr. McGowan to determine claimant's annual increase in salary, since that figure did not take intoaccount actual economic conditions in the manufacturing section. Similarly, Mr. McCabe alsodisagreed with Dr. McGowan's use of a flat 25% figure for fringe benefits, as that assumption alsodid not accurately represent the national average for fringe benefits in the manufacturing sector.


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Based upon his assumptions and calculations, Mr. McCabe concluded that claimant, had hecontinued with his job at Syracuse Label, suffered a loss of $332,400.00 in wages and fringebenefits, from the date of his sentencing to the date of his release (Exhibit K, Table 1).

Mr. McCabe, utilizing the same basic assumptions and calculations, also calculatedclaimant's expected lost earning capacity from the time that he was released from incarcerationthrough his work life expectancy. Mr. McCabe testified that claimant's work life expectancy afterbeing released was 15.30 years, until March 28, 2027, and that claimant's life expectancy was 72.72years, until August 21,2039.

Mr. McCabe testified that he calculated the post incarceration earnings that claimant wouldhave been expected to earn, had he not been incarcerated and had he continued to work at SyracuseLabel until the end of his work life expectancy. He also calculated claimant's actual and projectedearnings, based upon claimant's two full years of employment at Burdick Mobile following hisrelease from incarceration.

Based on these calculations (and as set forth on Exhibit K), Mr. McCabe concluded thatclaimant's potential economic loss, from the time that he was incarcerated through the end of hiswork life expectancy, was $765,394.00. As previously indicated, Mr. McCabe determined that$332,400.00 represented earnings lost by claimant during the time that he was incarcerated, whilethe balance of$432, 994.00 represented claimant's economic loss for his future lost earning capacity.

DISCUSSION

Pursuant to Court of Claims Act 8-b(6), a claimant who has been found to have beenunjustly convicted and imprisoned is entitled to an award ofdamages "in such sum ofmoney as the


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court determines will fairly and reasonably compensate him." The amountofany such award shouldbe determined in accordance with "traditional tort and other common-law principles" (Carter vStateo/New York, 139 Misc 2d 423, afJd 154 AD2d 642). The relevant period of time for determiningdamages is from the date of conviction to claimant's release from incarceration, but damages mayalso be awarded for "any subsequent or continuing damages shown to have proximately resultedfrom those incurred during said period" (id, at 429).

Any award made by the Court should provide compensation for lost wages, any physical ormental problems caused by the incarceration, pain and suffering, loss of freedom while incarcerated,separation from children, humiliation and damage to reputation (Johnson v State o/New York, 155Misc 2d 537).

In this particular matter, claimant seeks pecuniary damages for his lost wages during hisincarceration, his impairment of future earning capacity after his release from incarceration, and theexpenses incurred and to be incurred for the treatment of the psychological injuries suffered by himduring his confinement. Claimant also seeks non-pecuniary damages for his pain and sufferingincurred during his nine years of incarceration, as well as for the lasting effects of the psychologicaldamage suffered by him.

The Court notes, with interest, that both parties, in their post-trial submissions, have maderepeated references to the Baba-Ali case, and the damages decision of my esteemed and learnedcolleague, Hon. Melvin Schweitzer (Baba-Ali v State ofNew York, 24 Misc 3d 576).3 As noted,

3 The Court is well aware that the Appellate Division, Second Department, reduced the award made by JudgeSchweitzer (76 AD3d 940), and that the Court ofAppeals has recently reversed the prior decision of the Court ofClaimswhich granted summary judgme nt on the issue of liability in that case (19 NY3d 627). Nevertheless, the analysis on theissue of damages made by Judge Schweitzer, the factors considered by him in making his award, and the extensive andthorough references to prior awards (see Baba-Ali at page 594, footnote 7) were of the utmost benefit to this Court in


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Judge Schweitzer provided a comprehensive review of damages awards previously made in unjustconviction claims (see Baba-Ali, page 594, footnote 7), and these cases have been reviewed by thisCourt in detennining a fair and reasonable compensation for the claimant. Nevertheless, the Courtis aware that damages must be determined on a case-by-case basis, and that the amount ofdamagesmay vary depending upon the individual and particular circumstances ofeach case (Carter, 139 Misc2d 423).NON-PECUNIARY DAMAGES

As mentioned above, claimant seeks damages not only for his pain and suffering whileincarcerated, but also for the psychological injuries that he continues to suffer from subsequent tohis release.

In this particular matter, from his conviction to his release, claimant was incarcerated for aperiod of nine years, the vast majority of which was spent at a maximum security facility. Clearlyclaimant, through his loss of liberty for nine years, also lost the fundamental right to enjoy his life,and instead faced nine years of strict confinement in a maximum security prison with a loss of allof his civil rights and liberties. This loss of liberty for nine years, in and of itself, justifies asubstantial award, even though any amount awarded cannot adequately compensate claimant for hisloss of freedom.

In addition. claimant also provided testimony with regard to the mental anguish suffered byhim during this time. Claimant testified that at all times during his incarceration, he was nervous,scared, and depressed, and that prison life was like a "living hell." He witnessed several violent acts

its consideration herein.


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committed against others while in prison, and testified that an inmate had to always be on thelookout to keep from being randomly assaulted.

Compounding this mental anguish was the realization that his five young children had beeneffectively deprived of their parental relationship as a direct result ofhis incarceration and the factthat his wife suffered severe brain damage as a result ofthe vicious assault against her. Furthermore,this separation from his children was even more traumatic, having occurred during their formativeyears, as the children ranged in age from one to ten years at the time of his sentencing. As a directresult ofhis incarceration, claimant was deprived ofhis role as father to his five children for a periodofnine years. Testimony established that he rarely saw his children while incarcerated, although hedid manage to speak with them by telephone on almost a weekly basis.

Claimant was also acutely aware that his wife, the mother of his children, was also unableto care for their children as a result of the severe brain damage suffered by her in the assault forwhich claimant had been convicted. Although claimant's aunt and stepmother obtained custody ofthe children, and were able to provide a safe and secure home environment for them, both passedaway during his period of incarceration. Not only was claimant unable to attend the funerals of thesetwo women who meant so very much to him, he now had to worry about the fate of his children.Fortunately, a cousin assumed physical custody of the children until claimant's release.

Finally, even though claimant's life with his wife would have been drastically changed as aresult of the severe injuries suffered by her in this assault, claimant was unable to provide anycomfort, care, or assistance to her due to his conviction and incarceration, and the marriage wasterminated by divorce during his incarceration.


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Therefore, as damages for claimant's loss of liberty, mental anguish, and loss of hisrelationship with his family, all as described above, this Court finds that claimant should be awardedthe sum of $2,700,000.00.

Claimant also testified as to the continuing loss of enjoyment of life, as well as thecontinuing psychological damage, directly attributable to his nine years of incarceration. Claimanttestified that his parental relationship with his children has been pennanently altered due to hisincarceration, and this was confirmed by the testimony ofone ofhis children, Daniel Gristwood, Jr.

Claimant also testified that his relationships vvith friends had been severed, and that he haddeveloped a mistrust which prevented him from developing new friendships and relationships.

Testimony was also presented as to the psychological injuries suffered by claimant as a resultof his wrongful conviction and incarceration. The Court finds it significant that both Dr. Lesswing(claimant's expert) as well as Dr. Ballinger (defendant's expert), agree that claimant suffers fromposttraumatic stress disorder, as well as depressive disorder, not otherwise specified. However, theseexperts disagree as to the causation of these disorders.

Dr. Ballinger, the defendant's expert, testified that three separate, although related, eventscould have each independently been the cause of claimant 's posttraumatic stress disorder. Hetestified that (1) the trauma of finding his wife in her bloody and beaten condition, or (2) claimant'ssubsequent arrest and lengthy interrogation, or (3) his conviction and subsequent incarceration couldindependently, or in combination, caused his condition. He testified that it was not possible todetennine which of these events triggered claimant's posttraumatic stress disorder as well as theother mental disorders suffered by him.


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Dr. Lesswing, claimant's expert, while acknowledging that all three events were"interwoven," attributed claimant's posttraumatic stress disorder to the unjust conviction and thenine years of incarceration resulting from that conviction. Dr. Lesswing opined that ifclaimant hadnot been convicted and had not served nine years in prison for a crime which he did not commit, hewould not have developed posttraumatic stress disorder.

After considering the testimony from both experts, as well as reviewing their respectivereports, it is the opinion of this Court that the most significant factor in the development ofclaimant 's chronic posttraumatic stress disorder was his unjust conviction, and most significantly,the nine years of incarceration that he was forced to endure for a crime that he did not commit.Although the shock of discovering his wife in her badly beaten condition and the stress ofundergoing an exhausting interrogation most certainly were factors, this Court is absolutelyconvinced that claimant's posttraumatic stress disorder, as well as his other mental conditions, canbe directly attributed to his nine years of incarceration. The Court must therefore consider claimant'smental health status in its determination of continuing non-pecuniary damages.

Accordingly, based upon this finding that the Court must consider claimant's psychologicalcondition, together with his continued loss of enjoyment of life and his altered relationships withfriends and family, the Court awards the sum of $1,920,000.00 as damages representing continuingpain and suffering.PECUNIARY DAMAGES

A. Treatment of Post-Incarceration Psychological IssuesBoth experts also disagreed as to the extent of recommended therapy for claimant to address

his mental issues. Specifically, although both experts agreed that claimant will benefit from regular


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and frequent therapy sessions, they disagreed as to the length of such recommended treatment.Dr. Lesswing opined that since claimant's condit ion is chronic, claimant will in all likelihood requireregular therapy sessions on an indefinite and long-term basis, potentially for the rest ofhis life. Eventhough he agreed with Dr. Lesswing that claimant was in need of immediate counseling, however,Dr. Ballinger was of the opinion that such intensive (weekly) counseling would only be necessaryfor a period of one year to one and a half years, and that claimant might then only require therapyon an "as needed" basis thereafter.

Having previously determined that claimant's present mental health issues are a direct resultofhis unjust conviction and subsequent incarceration, and after having considered the testimony ofboth experts, it is the finding of this Court that claimant should receive, at his option, the benefit ofmental health counseling sessions to address his posttraumatic stress disorder as well as hisdepression disorder.

Based upon the testimony of Ms. Davison (claimant's therapist), the testimony of claimant,as well as the Court's observation of claimant's demeanor during this trial, the Court agrees withboth experts that immediate and regular counseling sessions will hopefully provide meaningful andsubstantial benefit to the claimant in addressing his mental health issues. While the Court agreeswith Dr. Ballinger that claimant in all likelihood will not require such counseling on a regular basisfor the balance of his life, the Court is also of the opinion that a one to one and half year period ofregular counseling is too short a time in which to make significant progress. The Court agrees withDr. Lesswing's opip jon that claimant will benefit from sessions over a longer period of time in orderto address his chronic posttraumatic stress disorder. The Court, however, does not believe that


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claimant, a highly motivated person, will require such intensive and regular sessions on a weeklybasis for the remainder of his life.

Therefore, taking into account the anticipated expenses projected by claimant's expert(Dr. McGowan) as well as from defendant's expert (Mr. McCabe) for future psychotherapeuticcounseling, the Court hereby awards the sum of $100,000.00 to cover the cost of treatment forcontinuing psychological issues.B. Lost Earnings While Incarcerated

The parties do not contest the fact that claimant is entitled to payment for the potentialearnings that he would have made had he not been incarcerated for a period of nine years.Defendant's expert, Mr. McCabe, calculated claimant's lost wages, including fringe benefits, at$332,400.00 (Exhibit K, Table 1). Claimant' s expert, although he did not separately total claimant'slost earnings while incarcerated, apparently calculated claimant's lost earnings, while incarcerated,at $349,601.00 (Exhibit 4, Years 1-9).

After reviewing the respective reports, as well as the testimony provided by each economicexpert, the Court finds that the calculations made by Mr. McCabe of$332,400.00 more accuratelyrepresent the earnings lost by claimant during his incarceration, and the Court hereby awards suchamount to the claimant.C. Impaired Earning Capacity

With regard to lost earning potential, testimony established that shortly after his release,claimant obtained a job as a mechanic with Burdick Mobile, for whom he had previously workedpart-time prior to his conviction. He worked at Burdick Mobile for approximately two years as a


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mechanic, until he decided to leave that employment and start his own engine repair business.Testimony established that claimant has maintained his self-employment up to the date of trial.

Although the economic experts for both parties were very close in their calculations of lostearnings during claimant's period of incarceration, there are substantial differences between the twoin their respective calculations of impaired earning capacity. Claimant's expert, Dr. McGowan,calculated a total economic loss suffered by claimant of $1 ,536,626.00 (including claimant's lossofearnings during incarceration), while Mr. McCabe, defendant's expert, calculated claimant's totallost earnings capacity of$765,394.00 (also including claimant's lost earnings \vhile incarcerated).

The difference between these calculations can be attributed primarily to the calculations andassumptions regarding expected post-incarceration earnings. The most significant differencebetween the two is that Mr. McCabe utilized the wages earned by claimant at Burdick Mobile in thetwo years following his release from custody to determine post-incarceration earnings, whileDr. McGowan utilized the income reported by claimant from his self-employment as his startingpoint in calculating expected earnings.

Furthermore, after considering the testimony from claimant, as well as the testimony fromboth expert psychologists, the Court finds that claimant has established, by a preponderance of theevidence, that he has suffered a diminution in his earning capacity as a direct result of hisincarceration.

After a consideration of the reports submitted by each economic expert, as well as theirrespective testimony, it is the opinion of this Court that the actual wages earned by claimant atBurdick Mobile provide a more accurate and reliable indication of claimant's actual earningspotential following his release from incarceration. The Court further finds that other assumptions


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made by Mr. McCabe regarding fringe benefits and potential percentage increases in salary are alsomore accurate and reliable.

Accordingly, the Court finds that the total potential economic loss due to claimant'sincarceration of$765,394.00, as calculated by Mr. McCabe, is the more accurate projection. Takinginto account the Court's prior detennination that claimant suffered lost earnings, while incarcerated,of $332,400.00, the Court hereby finds and awards the sum of $432,994.00 for impaired earningcapacity.

The awards made herein can therefore be summarized as follows:NON-PEClJNIARY DAMAGESLoss of Liberty, Mental Anguish, and loss of FamilyRelationships while Incarcerated. $2,700,000.00Continuing Pain and Suffering, including PostIncarceration Psychological Issues $1,920,000.00PECUNIARY DAMAGESTreatment of Post-Incarceration Psychological Issues $100,000.00Lost Earnings While Incarcerated $332,400.00Impaired Earning Capacity $432,994.00

TOTAL $5,485,394.00The amount awarded herein shall carry interest at the rate of9% per annum from the date of

the detennination of liability on April 1, 2011 (Dingle v Prudential Prop. & Cas. Ins. Co., 85 NY2d657; Love v State o/New York, 78 NY2d 540). Additionally, to the extent claimant has paid a filingfee, it may be recovered pursuant to Court of Claims Act, II-a(2).

LET JUDGMENT BE ENTERED ACCORDINGLY.


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Syracuse, New YorkApril 4, 2013tJ/ ~

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Dan Gristwood Ruling