United States District Court, N.D. New York
JEANIE LYNN BAILEY KOHL, as the executor of the ESTATE OF JAMES ELWOOD KOHL, JR., deceased, Plaintiff,
DERRICK D. YOUNG, Defendant.
Attorney for Plaintiff: E. David Hoskins Law Offices of E.
David Hoskins, LLC.
MEMORANDUM-DECISION AND ORDER
Brenda K. Sannes, United States District Court Judge.
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.
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).
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).
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).
June 8, 2018 evidentiary hearing, Plaintiff presented
evidence indicating that Decedent's wrongful death caused
$3, 442, 170 in pecuniary losses. Plaintiff did not submit any evidence
in support of her damages claim for Decedent's conscious
pain and suffering.
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).
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,  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).
Past and Future Income
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, ” 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 ...