to the wrongful death claim while the United States argues that at least a portion of the proceeds should be attributable to pain and suffering. An initial determination must be made whether the settlement proceeds should be allocated between the claims for pain and suffering and wrongful death, since these claims give rise to distinct property interests with differing consequences for creditors.
Under New York law, "cognitive awareness is a prerequisite to recovery" for pain and suffering on behalf of a decedent. McDougald v. Garber, 73 N.Y.2d 246, 255, 538 N.Y.S.2d 937, 940, 536 N.E.2d 372 (1989). The party asserting a claim for pain and suffering ordinarily has the burden of demonstrating that the injured person consciously experienced pain after the injury. Cummins v. County of Onondaga, 198 A.D.2d 875, 876, 605 N.Y.S.2d 694, 695 (4th Dep't 1993). As the court in Cummins explained: "while circumstantial evidence of consciousness can suffice ... there still must be some direct evidence of consciousness." Id. New York courts have routinely rejected claims for pain and suffering where there is no evidence that the decedent was conscious from the time of an accident until her death. See, e.g., Williams v. City of New York, 169 A.D.2d 713, 564 N.Y.S.2d 464 (2d Dep't 1991); Huertas v. State, 84 A.D.2d 650, 444 N.Y.S.2d 307 (3d Dep't 1981).
In this case, there is no evidence to support the Government's assertion that Adler was conscious at any time between the accident and his death. The police and medical reports and the sworn testimony of Goldie and Yehuda Deutsch all indicate that Adler sustained massive injuries from the accident and was unconscious when observed almost immediately after the accident. The medical records also indicate that by the time Adler was brought to the hospital emergency room half an hour after the accident, he had no cardiac or respiratory function. None of these reports gives any indication that Adler ever regained consciousness before being declared dead shortly after arrival at the hospital. The facts of this case are similar to those in Delosovic v. City of New York, 143 Misc. 2d 801, 812, 541 N.Y.S.2d 685, 693 (N.Y.Cty. Sup.Ct. 1989), aff'd, without op., 174 A.D.2d 407, 572 N.Y.S.2d 857 (1st Dep't 1991), where the court rejected a claim that the decedent was conscious "in the flash between contact" when struck by a truck and "loss of consciousness through crushing by the wheels." Here, as in Delosovic, the inference of cognitive awareness is simply too speculative.
The United States points to the fact that Mrs. Adler originally sought substantial damages for pain and suffering as support for its conjecture that Adler might have been conscious for a period of time immediately after impact. The assertion of a claim for pain and suffering is hardly evidence of consciousness since plaintiffs in wrongful death cases routinely seek damages for pain and suffering in the alternative. Moreover, since the allegations in the complaint against McArdle were made on information and belief, the unverified assertion of a claim for pain and suffering should not bind Mrs. Adler from now contending otherwise.
I note that it is not unfair to require the United States to come forward with direct evidence of consciousness to support its proposed allocution of the settlement proceeds. The burden of production, as well as the burden of persuasion, as to claims for pain and suffering is ordinarily imposed on the plaintiff since it is almost always the party asserting such a claim. Direct and indirect evidence of consciousness may be obtained from available witnesses who frequently are not parties (as in this case), from physical evidence and from expert testimony. If it exists, such evidence is as available to the United States, as the party now claiming pain and suffering on the part of the decedent, as it would have been to Mrs. Adler.
Although not framed as such by New York State courts, the requirement of conscious awareness as an element of any claim for pain and suffering essentially operates as a rebuttal presumption. Once the fact of death is established, the presumption arises that the decedent suffered no pain and suffering which can be rebutted by evidence of consciousness. See Jack B. Weinstein et ano, Weinstein's Evidence PP 300  and 301  (1993). Fed. R. Evid. 301 directs that "a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption..." By electing to rest on the documentary record, the United States failed to meet its burden of going forward with evidence of consciousness to rebut the applicable presumption. Compare Jamaica v. Narvaez, 604 N.Y.S.2d 209, 198 A.D.2d 476 (2d Dep't 1993) (expert testimony of consciousness for 20 minutes after car collision sufficient to establish conscious pain and suffering).
Based on the record before me, I conclude that Mordechai Adler did not regain consciousness after the accident. Therefore, I allocate all of the settlement proceeds to wrongful death and none to pain and suffering.
II. Effect of Mrs. Adler's Renunciation of Her Interest in the Wrongful Death Claim
The Adler claimants assert that because Mrs. Adler made a valid renunciation of her interest in the wrongful death claim, the liens against her and the Estate filed by the Internal Revenue Service, as well as the judgments and liens of other creditors, cannot attach to the wrongful death proceeds. They further contend that the entire settlement should be distributed to her children.
According to E.P.T.L., § 2-1.11(b) (McKinney 1981), "any beneficiary of a disposition may renounce all or part of his interest ... within nine months of the date of the disposition." When properly filed, a renunciation is considered "retroactive to the creation of the disposition" so that it "has the same effect with respect to the renounced interest as though the renouncing person had predeceased the creator or the decedent ... ." E.P.T.L., § 2-1.11(d) (McKinney Supp. 1994). A validly filed renunciation thus has the effect of wiping out the disposition as if it never existed.
At issue is whether Mrs. Adler's renunciation negates attachment of the federal tax liens upon her share of the wrongful death proceeds. Title 26 U.S.C. § 6321 provides:
If any person liable to pay any tax neglects or refuses to pay the same after demand, the amount (including any interest, additional amount, addition to tax, or assessable penalty, together with any costs that may accrue in addition thereto) shall be a lien in favor of the United States upon all property and rights to property, whether real or personal, belonging to such person.
Under section 6321, federal tax liens "reach every interest in property that a taxpayer might have," United States v. National Bank of Commerce, 472 U.S. 713, 720, 86 L. Ed. 2d 565, 105 S. Ct. 2919 (1985), including current and after-acquired property. Glass City Bank v. United States, 326 U.S. 265, 267, 90 L. Ed. 56, 66 S. Ct. 108 (1945). This section neither creates nor defines property rights, but attaches federally defined consequences to rights created under state law. United States v. Bess, 357 U.S. 51, 2 L. Ed. 2d 1135, 78 S. Ct. 1054 (1958). Thus, the determination of a property interest for purposes of a federal tax lien is governed by state law.
In United States v. Comparato, 22 F.3d 455, 457 (2d Cir.), cert. denied, 130 L. Ed. 2d 394, 1994 U.S. LEXIS 7864, 63 U.S.L.W. 3369, 115 S. Ct. 481 (1994) the Second Circuit rejected the argument that a renunciation made pursuant to state law eradicated a property interest encumbered by a federal tax lien. The Court affirmed a decision of Judge Reena Raggi holding that a married couple's renunciation of the proceeds of a malpractice action brought in the name of their deceased son was ineffective against federal tax liens. As Judge Raggi reasoned: "For purposes of enforcing a federal tax lien, state law is relevant only to the determination of whether a taxpayer has a right to certain property, not to whether he can thereafter renounce his right." United States v. Comparato, 850 F. Supp. 153, 159 (E.D.N.Y. 1993), quoting United States v. Rodgers, 461 U.S. 677, 683, 76 L. Ed. 2d 236, 103 S. Ct. 2132 (1983) ("once it has been determined that state law has created property interests sufficient for federal tax lien[s] to attach, state law 'is inoperative to prevent the attachment' of such liens"). The Second Circuit noted that "federal law controlled whether [the taxpayers'] interests were exempt from levy by the United States." 22 F.3d at 458 citing United States v. Rodgers, 461 U.S. 677, 683, 76 L. Ed. 2d 236, 103 S. Ct. 2132 (1983). Because the Second Circuit holding in Comparato governs this case, Mrs. Adler's renunciation is invalid as against the federal tax lien. But see, Mapes v. United States, 15 F.3d 138 (9th Cir. 1994) (holding that a renunciation pursuant to Arizona's Probate Code does determine whether a person has any interest in property for federal tax purposes). Consequently, any settlement proceeds to which she is entitled absent the renunciation are subject to the lien.
The reasoning of the Supreme Court in United States v. Irvine, 128 L. Ed. 2d 168, 114 S. Ct. 1473 (1994) lends further support for the result reached in Comparato. In Irvine, Sally Irvine filed a disclaimer of an interest in a family trust in August, 1979, on the eve of the distribution of the trust. The disclaimer was effective under Minnesota law, but not under Treas. Reg. § 25.2511-1(c)(2). The Supreme Court reaffirmed the principle followed in Comparato that "although state law creates legal interests and rights in property, federal law determines whether and to what extent those interests will be taxed." Id. at 1481. The Court then applied federal law in determining the validity of Irvine's disclaimer for federal gift tax purposes.
Even if Comparato did not spell doom for their argument, the Adler claimants' position still fails for the additional reason that Mrs. Adler failed to make a timely renunciation when she renounced her interest two years after Adler's death. Mrs. Adler admittedly failed to comply with the requirement of Section 2-1.11(a) of the E.P.T.L. that a renunciation in the proceeds of a wrongful death action be made within nine months of the date of the decedent's death.
The Adler claimants urge the court to extend the time for filing the renunciation pursuant to subsection (b)(2) of that provision. However, as Irvine makes clear, the determination of the validity of Mrs. Adler's disclaimer is governed by federal law, which, in this case, is set forth in 26 U.S.C. § 2518(b). On the facts here, Section 2518(b)(2) requires that a person making a disclaimer must do so "not later than the date which is 9 months after . . . the day on which the transfer creating the interest in such person is made." Unlike the E.P.T.L., federal law leaves no discretion for a court to extend the time for making a disclaimer.
As the Supreme Court in Irvine recognized, "state property transfer rules do not translate into federal taxation rules." Irvine, 114 S. Ct. at 1481. Unlike federal revenue laws which are designed to provide a nationwide scheme of taxation and to curb tax avoidance, "state-law tolerance for delay in disclaiming reflects a less theoretical concern" in barring creditors from reaching the disclaimed property. Id. at 1481-82. The Court thus emphatically rejected state law in favor of the Treasury regulation governing gift tax disclaimers:
Congress had not meant to incorporate state law fictions as touchstones of taxability with it enacted the Act. Absent such a legal fiction, the federal gift tax is not struck blind by a disclaimer.