work force in terms of walking, climbing ladders or doing any heavy manual work. Plaintiff has suffered destruction of the bones in both feet, and his problems are compounded even more by the multiple compression fractures in his back. His work capacity, therefore, will be limited to use of his upper extremities in a sitting position. He is unable to lift objects heavier than ten or fifteen pounds. At the time of the hearing plaintiff was ambulatory for short distances with the use of a walker or cane. Plaintiff testified that he tries to walk without any aids, but after about a block the pain becomes too severe. He tries to accompany his wife to do shopping, but must use a wheelchair. Dr. Andolino said plaintiff will always have pain; some days will be better than others, but the more he tries to exert himself, the more he will suffer afterwards. While plaintiff continually asks Dr. Andolino for pain medication, the doctor now refuses to allow him anything stronger than Advil or Tylenol because of the problems of potential addiction.
Plaintiff was married in July 1985 and has a son who was eight months old at the time of the accident. He and his wife had planned to have one or two more children, but the accident has made fulfillment of their plans unlikely. Plaintiff has been unable to engage in sexual intercourse since the accident. He spends most of his day on a couch with constant pain in both feet and, apparently, intermittent pain in his back. He explained that when he stands on his feet the pain goes up his legs and into his back. He is, however, unable to stay seated for lengthy periods because of the back pain. Plaintiff had a relatively active lifestyle prior to the accident. He has five brothers and engaged in various sports on weekends. He says he liked being a construction worker because it kept him fit and allowed him to work outdoors.
Mrs. Sales works as an assistant manager at New Jersey Bell Telephone Company. When she is not at work or doing shopping for the family, she stays home doing chores and tending to plaintiff. She has not gone out for fun or relaxation "for even an hour" since the accident. (Transcript of inquest, p. 50.) While she is at work, her mother and father, aged 66 and 71, come to stay with plaintiff and their young grandson because plaintiff cannot take care of the boy by himself. He is unable to run or even walk after him. He does some cooking for his son, but must kneel or sit on a chair by the stove to do so. He bathes him in the kitchen sink because he cannot bend over the bathtub.
Dr. Valerie J. Ellien is a "rehabilitation counselor and a vocational economic analyst" (Transcript of inquest, p. 18) with impressive credentials, including a master's degree in rehabilitation assessment, a doctorate in rehabilitation counseling and postdoctoral studies in economics. She is certified as a diplomate by the American Board for Vocational Experts. She has worked at varied jobs in the rehabilitation counseling field and was an associate professor in New York University's Department of Rehabilitation Counseling, specializing in the placing of disabled people. She currently maintains her own private practice. Her expertise lies in knowledge of the physical and intellectual demands of jobs in the workplace and the effects of disabilities on jobs. She also claims an expertise in "how to project lost earnings," requiring an "understanding of wage growth and interest rates, the relationship between those in determining lost capacity to earn money." (Transcript of inquest, p. 19.)
Dr. Ellien was retained by plaintiff to compute his loss of future earnings. To do so, she took into account the following. Plaintiff was 30 years old at the time of the hearing and had only a ninth-grade education. He had worked twelve years as a construction worker, earning a yearly salary of $ 30,000 - $ 31,000 prior to the accident. Dr. Ellien assessed plaintiff's work capabilities to be those in an unskilled or semiskilled category and, as limited by the injury, to those of a sedentary nature. Then, using Bureau of the Census statistics, she determined that unskilled to semiskilled sedentary jobs represented less than 1% (0.44%) of the labor market in the New York-New Jersey metropolitan area. This small percentage of jobs in this category leads Dr. Ellien to conclude that plaintiff is essentially unemployable or "100% occupationally disabled as a result of injury." (Report dated October 14, 1991, admitted as Exhibit 3, p. 1.)
Dr. Ellien concluded that plaintiff's lost earnings over his lifetime will be $ 1,313,446.93. She arrived at this figure on the basis of the following data and assumptions: (1) his earnings as a Journeyman Mechanic in his union at the time of his injury would have yielded $ 39,706.16 for 1990 and, on the "assumption that future increases in real wage growth will be offset by the real rate of interest or discount over the remaining worklife expectancy" (Exhibit 3, p. 2), the same figure should be used for subsequent years; (2) an additional 20% should be added apparently to represent the value of fringe benefits; (3) based on Bureau of the Census statistics applicable to non-disabled 30-year-old males with plaintiff's educational level, plaintiff's work-life expectancy at the time of his injury was 27.566 years.
Plaintiffs request the following damages: lost wages in the amount found by Dr. Ellien, $ 1,313,446.93; $ 10,000,000.00 to plaintiff Christopher Sales for past and future pain and suffering; and $ 3,000,000.00 to plaintiff Carol Sales for loss of consortium.
CONCLUSIONS OF LAW
Initially, we must determine what forum's laws of damages should be applied to this case because federal law and New York state law would yield different results, largely because of differing concepts of discounting awards for future damages, application of interest rates and the manner in which judgments are to be calculated for payment.
For example, while a plaintiff under federal law is entitled to immediate payment of a judgment, under New York law he or she receives only a specified lump sum upon entry of a judgment with periodic payments of the remainder over the course of what could be many years. This New York "structured judgment" scheme, which will be discussed fully below, enables a defendant to satisfy a judgment with a far less monetary amount than would be due under federal law. The question turns on the jurisdictional basis for this action. Plaintiff rests jurisdiction herein on the Foreign Sovereign Immunities Act of 1976 ("FSIA") (codified as amended in 28 U.S.C. §§ 1330, 1332(a)(4), 1391(f), 1441(d), 1602-11).
The exceptions set forth in the FSIA provide the sole bases for obtaining jurisdiction over a foreign state in United States courts. Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 434, 443, 102 L. Ed. 2d 818, 109 S. Ct. 683 (1989); Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 488-89, 76 L. Ed. 2d 81, 103 S. Ct. 1962 (1983); see 28 U.S.C. §§ 1330(a, b), 1604-08. Section 1606 of the FSIA provides in pertinent part:
As to any claim for relief with respect to which a foreign state is not entitled to immunity . . ., the foreign state shall be liable in the same manner and to the same extent as a private individual under like circumstances. . . .