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Bailey Kohl v. Young

United States District Court, N.D. New York

June 22, 2018

JEANIE LYNN BAILEY KOHL, as the executor of the ESTATE OF JAMES ELWOOD KOHL, JR., deceased, Plaintiff,
v.
DERRICK D. YOUNG, Defendant.

          Attorney for Plaintiff: E. David Hoskins Law Offices of E. David Hoskins, LLC.

          MEMORANDUM-DECISION AND ORDER

          Hon. Brenda K. Sannes, United States District Court Judge.

         I. INTRODUCTION

         On June 27, 2017, Plaintiff Jeanie Lynn Bailey Kohl, executor of the estate of the decedent, James Elwood Kohl, Jr. (“Decedent”), brought this diversity action against Defendant Derrick D. Young asserting a wrongful death claim and a survival claim for pain and suffering. (Dkt. No. 1).[1] Defendant has not answered the Complaint or otherwise appeared in this action. Plaintiff obtained a clerk's entry of default on July 25, 2017. (Dkt. No. 6). Plaintiff then moved for default judgment as to Defendant's liability, (Dkt. No. 8), which the Court granted on March 29, 2018, (Dkt. No. 10). On June 8, 2018, the Court held an evidentiary hearing to assess Plaintiff's damages for wrongful death and pain and suffering. (See Text Minute Entry, June 8, 2018).

         II. BACKGROUND

         The facts of this case, as alleged in the Complaint, are set forth in the Court's March 29, 2018 Decision. (Dkt. No. 10, at 2-4).

         III. DISCUSSION

         “[I]t is well established that ‘[w]hile a party's default is deemed to constitute a concession of all well pleaded allegations of liability, it is not considered an admission of damages.'” Cement & Concrete Workers Dist. Council Welfare Fund v. Metro Found. Contractors Inc., 699 F.3d 230, 234 (2d Cir. 2012) (quoting Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992)). On a motion for default judgment, a court must “conduct an inquiry in order to ascertain the amount of damages with reasonable certainty.” Credit Lyonnais Sec. (USA), Inc. v. Alcantara, 183 F.3d 151, 155 (2d Cir. 1999) (citing Transatl. Marine Claims Agency, Inc. v. Ace Shipping Corp., 109 F.3d 105, 111 (2d Cir. 1997)). “There must be an evidentiary basis for the damages sought by plaintiff, and a district court may determine there is sufficient evidence either based upon evidence presented at a hearing or upon a review of detailed affidavits and documentary evidence.” Cement & Concrete Workers Dist. Council Welfare Fund, 699 F.3d at 234 (citing Fed.R.Civ.P. 55(b)(2)). “Magistrate judges and district courts have interpreted this to mean that . . . damages must be based on admissible evidence.” House v. Kent Worldwide Mach. Works, Inc., 359 Fed.Appx. 206, 207 (2d Cir. 2010). Therefore, “a court may not rubber-stamp the non-defaulting party's damages calculation, but rather must ensure that there is a basis for the damages that are sought.” Overcash v. United Abstract Grp., Inc., 549 F.Supp.2d 193, 196 (N.D.N.Y. 2008) (citing Credit Lyonnais, 183 F.3d at 155).

         At the June 8, 2018 evidentiary hearing, Plaintiff presented evidence indicating that Decedent's wrongful death caused $3, 442, 170 in pecuniary losses.[2] Plaintiff did not submit any evidence in support of her damages claim for Decedent's conscious pain and suffering.

         A. Wrongful Death

         In a wrongful death action, damages are limited to fair and just compensation for pecuniary injuries suffered because of the decedent's death. See Klos v. N.Y.C. Transit Auth., 240 A.D.2d 635, 637 (2d Dep't 1997). Under New York law, several factors inform a court's determination of the amount of recoverable damages: “the age, health and life expectancy of the decedent at the time of the injury; the decedent's future earning capacity and potential for career advancement; and the number, age and health of the decedent's distributees.” Johnson v. Manhattan & Bronx Surface Transit Operating Auth., 71 N.Y.2d 198, 203-204 (1988); N.Y. Est. Powers & Trusts Law § 5-4.3. Pecuniary losses include “the economic value of the decedent to each distributee at the time decedent died and include[] loss of income and financial support, loss of household services, loss of parental guidance, as well as funeral expenses and medical expenses incidental to death.” Milczarski v. Walaszek, 108 A.D.3d 1190, 1190 (4th Dep't 2013); see also Gonzalez v. N.Y.C. Hous. Auth., 77 N.Y.2d 663, 668 (1991).

         Plaintiff seeks $3, 442, 170 in pecuniary damages for the wrongful death of her husband, James Elwood Kohl, Jr., who held the rank of staff sergeant in the U.S. Army at the time of his death. (Dkt. No. 1, ¶¶ 36-54; Ex. 24, at 27). The report by Plaintiff's expert economist, Kristin Kucsma, indicates that this amount includes several categories of Decedent's projected income and economic loss caused by his death: (i) Decedent's adjusted past and future income, [3] both while in the Army and after leaving active duty; (ii) Decedent's retirement income; (iii) the cost of health insurance; (iv) household services performed by Decedent; and (v) parental services Decedent provided to his three children. (Ex. 23, at 10; Ex. 24, at 2).

         1. Past and Future Income

         The expert report indicates that, in determining the amount of income lost for past Army pay, Kucsma considered Decedent's W-2 wage and tax statements, Army pay statements, and many governmental sources of data. Kucsma also considered Decedent's gross yearly earnings as a staff sergeant at the E-6 pay grade from July 2015 to June 2018, including Decedent's years of service, base pay, allowance for food and housing, monthly clothing allowance, and special duty assignment pay. (Ex. 23, at 14; Ex. 24, at 2-4). The report indicates that Kucsma then deducted from that amount any actual income received by the family following Decedent's death and applied an “adjusted income factor, ”[4] resulting in a final figure of $121, 395 for Decedent's past income from the Army. (Ex. 23, at 14; Ex. 24, at 4). The report further indicates that, using the same methodology to ...


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