Dershowitz et al v. The United States Of America

Filing 72

OPINION AND ORDER: For the aforementioned reasons, the Court finds the government 100% liable. The Court finds that Mrs. Dershowitz would have made $225,000 per year, at a 3.47% growth rate, starting on January 1, 2012 and working until her healthy-life expectancy, or age 80.89; her business expenses would have totaled a flat rate of $22,500 per year; her social security and pension benefits would have run from her death to her life expectancy, with social security i ncreasing at a 2.49% growth rate and her pension benefits increasing annually by $214.85 starting five years from her date of retirement; her personal consumption rate would have been 20% of her total earnings, pension benefits, and social security benefits, continuing through her life expectancy; and the value of her household services should be calculated at 25 hours per week based on the Dollar Value A Day Study, from the date of her death to her healthy-life expectancy. The Court awards the cost of Mrs. Dershowitz's funeral and burial expenses, awards her children $25,000 each for lost guidance and support, and $300,000 for Mrs. Dershowitz's conscious pain and suffering. The parties are direc ted to compute the final award, broken down into past and future amounts (discounted to present value), and submit their final calculations to the Court within 14 days of this opinion. (Signed by Magistrate Judge Sarah Netburn on 4/8/2015) (tn)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------------------------------------X
NATHAN DERSHOWITZ, Executor of the Estate
Of MARILYN DERSHOWITZ, deceased,
Plaintiff,
-against-

4/8/2015

12-CV-08634 (SN)
OPINION AND ORDER

THE UNITED STATES OF AMERICA,
Defendant.
-----------------------------------------------------------------X
SARAH NETBURN, United States Magistrate Judge:
The plaintiff Nathan Dershowitz, as executor of the Estate of Marilyn Dershowitz, filed
suit against the defendant United States of America, pursuant to the Federal Torts Claim Act (the
“FTCA”), 28 U.S.C. §§ 1346(b) and 2671, et seq., for the alleged wrongful death of his wife,
Marilyn Dershowitz. Mrs. Dershowitz died on July 2, 2011, as a result of injuries she sustained
in a tragic bike accident that same day. The plaintiff alleges that Ian Clement, a U.S. Postal
Service (the “Postal Service”) driver who was on-duty and driving a Postal Service truck (the
“Postal Truck”), collided with Mrs. Dershowitz, and that Mr. Clement was negligent in his
operation of his vehicle, causing the accident and her death. The plaintiff also alleges that the
Postal Service was negligent for its placement of a Postal Service trailer (the “Postal Trailer”),
which was directly adjacent to where the accident occurred, and protruded over the sidewalk and
into the street, obstructing traffic. In turn, the defendant alleges that Mrs. Dershowitz’s own
actions were a superseding proximate cause of the accident, or, at the very least, a substantial
contributing factor.
The Court has federal question jurisdiction over this case pursuant to 28 U.S.C. § 1331.

The parties consented to my jurisdiction pursuant to 28 U.S.C. § 636(c), and the Court
conducted a bench trial February 3, 2015 through February 13, 2015.1 Having considered all of
the evidence and assessed the credibility of the witnesses, the Court makes the following
findings of fact and reaches the following conclusions of law pursuant to Federal Rule of Civil
Procedure 52. The Court finds the government 100% liable. Based on the conclusions below, the
parties are directed to compute the final award, broken down into past and future amounts
(discounted to present value), and submit their final calculations to the Court within 14 days of
this opinion.
FINDINGS OF FACT
The accident occurred at approximately 11:59:52 a.m., on Saturday, July 2, 2011, on
West 29th Street between Ninth and Tenth Avenues in Manhattan, New York. The contested
events span from 11:59:38 a.m. to 11:59:52 a.m., no longer than fourteen seconds.
Four video cameras, attached to Postal Service facilities to the north and south of the
accident, captured different angles of the relevant portion of 29th Street within the time period in
question. They did not capture every portion of the roadway, however, and did not capture the
area of the actual impact or Mrs. Dershowitz in the crucial seconds surrounding the accident. The
Postal Truck driver, Mr. Clement, was beyond the Court’s subpoena power and did not testify at
trial, although portions of his September 27, 2013, deposition testimony were entered into
evidence.

1

On January 26, 2015, the parties submitted their proposed findings of fact and conclusions of law. (ECF
Nos. 52-53.)
2

I.

The Day of the Accident
A.

Layout of West 29th Street Between Ninth and Tenth Avenues

The accident occurred on West 29th Street between Ninth and Tenth Avenues. TwentyNinth Street runs east to west and, on that block, is a single lane street, although there is room for
two cars to drive side-by-side for the first 175 feet of the street. (Tr. 165:7-8; Pl’s Ex. 14E). The
street is thirty-four feet wide curb-to-curb. (Tr. 323:20-21.) There is no standard width for a
single lane street in New York City, but dual or multi-lane roads are required to be delineated by
white dotted lines, which 29th Street does not have. (Tr. 326:23-327:14; Clement Dep. 107:812.) The street has no bike lane. (Id. at 143:2-4.)
Postal Service facilities known as the Morgan Mail facilities extend the length of the
block on both the south and north sides of the street. (Tr. 51:17-22; Pl’s Ex. 14E.) One hundred
and seventy-five feet from the west curb of Ninth Avenue, there is an overpass above 29th Street
that connects the two Morgan Mail facilities. (Tr. 475:14-18, 478:4-7; Pl’s Ex. 14E.) On the day
of the accident, up until the overpass, there were no vehicles parked on either side of the street.
(Pl’s Ex. 14E.) Mr. Clement stated that a sign on the overpass indicated that the speed limit was
five miles an hour. (Clement Dep. 111:17-112:6.)
Looking west on 29th Street from Ninth Avenue, there are two no parking signs affixed
to the overpass above the southern (left) and northern (right) curbs. (Tr. 478:19-479:9; Gov’t Ex.
23.) See also Appendix A. The signs were posted by the Postal Service. (Tr. 479:6.) On the
southern (left) side of the overpass, the sign states: “THIS SIDE OF THE STREET U.S.
POSTAL TRAILER PARKING ONLY.” (Tr. 59:15-18; Gov’t Ex. 23.) Under the sign and
continuing westward, U.S. Postal Service trailers were parked, in a row, parallel to the southern
curb and the flow of traffic. (Tr. 315:21-24; see Trailer labeled “019” in Pl’s exhibit 14Q.) These

3

trailers were eight feet wide and parked a couple of inches from the curb. (Tr. 322:17-18.) They
are parked there “constantly.” (Clement Dep. 108:14-18.)
On the northern (right) side of the overpass, the sign states: “THIS SIDE OF THE
STREET NO PARKING AT ANY TIME. TOW AWAY ZONE.” (Tr. 60:2-3; Gov’t Ex. 23.)
Under this sign, the relevant Postal Trailer was backed into a loading dock, perpendicular to the
street: it blocked the curb entirely and extended south six feet and three inches into the street.
(Tr. 54:23-55:24, 315:21-24, 316:7-11, 321:24-322:1; Pl’s Exs. 3C, 14Q, 14S.) See also
Appendix B. Mr. Clement, Postal Police Officer Rosemary Jones, and New York Police
Department Officer Scott Doerzbacher all stated that the Postal Service trailers were regularly
parked in such a manner. (Tr. 57:11-13, 61:1-5, 316:20-317:6; Clement Dep. 109:24-110:6.) The
Postal Trailer was 200 feet from the west curb of Ninth Avenue, or 25 feet past the beginning of
the overpass. (Tr. 475:21-23.)
One effect of the Postal Trailer’s positioning was that pedestrians on the northern (right)
sidewalk or bikers on the right side of the street would have to go around the trailer, or more than
six feet left into the roadway, to continue down 29th Street. A second effect of the Postal Trailer
was that, in conjunction with the trailers parked parallel to the curb on the southern side of the
street, it narrowed the roadway from its unobstructed width of 34 feet to no more than 19 feet
and nine inches. (Tr. 326:1-3.) As a result, traffic had to funnel, or merge, into one center lane to
continue down 29th Street – whereas cars were able to drive side-by-side on the previous 29th
Street block, which is multi-laned, or even on the same block of 29th Street before reaching the
overpass. (Tr. 58:20-59:5, 281:15-18; Pl’s Ex. 14Q.)
There are three other pertinent markers on the southern (left) side of 29th Street before
the Morgan Mail overpass. First, there is a storm drain 65 feet west of the Ninth Avenue

4

intersection. (Tr. 489:7-9.). Second, there is a square window in the southern cement wall of the
Morgan Mail facility, past the storm drain. (Pl’s Ex. 14E; Appendix B.) This is a security
personnel station, known as “Post 4.” (Tr. 53:13-23; Pl’s Ex. 14E.) Third, just west of Post 4, but
before the overpass and the parallel parked trailers, is a driveway. (Tr. 53:24-54:1; Pl’s Ex. 14E.)
This is an exit-only driveway for Postal Service vehicles. (Tr. 54:7-9.) To enter the southern
Morgan Mail facility, vehicles continue west on 29th Street, under the overpass, to a driveway
entrance that is closer to Tenth Avenue, then loop back – or east – within the building, and exit
through the driveway next to Post 4. (Tr. 54:10-18; Clement Dep. 101:22-102:11.)
B.

Before the Accident on July 2, 2011
1.

Mr. and Mrs. Dershowitz

On July 2, 2011, the Saturday of the July 4th holiday weekend, the Dershowitzes set out
from their apartment for a bike ride. (Tr. 160:20, 161:9-10.) Mrs. Dershowitz was a “very
comfortable” and avid biker. (Tr. 161:23-162:14.) Mr. Dershowitz testified that, “she was
meticulous about abiding by the rules and regulations, making sure that she always rode to the
right, [and] stopped at stop signs. If there was anything that you had [to] yield, she would yield
. . . .” (Id.) She regularly biked to and from work during the week, and the couple would ride
together a couple of times a week, as well. (Tr. 161:23-162:5-14.) Mrs. Dershowitz rode a 26inch Fuji bike with thick tires, although not as thick as those on a mountain bike. (Tr. 162:1521.) Her bike had reflectors on each pedal and under the seat in back. (Tr. 164:1-4.) It also had a
bike basket, which she often used to pick up groceries on the way home from work. (Tr. 173:68.) Mr. Dershowitz rode a standard 28-inch hybrid bike. (Tr. 163:3-4) The Dershowitzes had
serviced both of their bicycles that spring. (Tr. 163:8-13.)

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It was a “very pretty, sunny, nice Saturday” with dry road conditions. (Tr. 164:16-20;
Clement Dep. 98:15-99:7.) Their plan was to bike to the West Side promenade along the Hudson
River where “Marilyn had never ridden.” (Tr. 164:24-25.) They set out from their apartment in
Tudor City, located between 40th and 44th Streets and between First and Second Avenues in
Manhattan. (Tr. 160:10-12.) Their first stop was a bicycle shop to check the air pressure in their
bicycle tires. (Tr. 163:16-19.) They then biked down Second Avenue and continued across, or
west, on 29th Street. (Tr. 165:4-6, 11.) Both Dershowitzes were wearing bicycle helmets. (Pl’s
Ex. 1.)
On 29th Street between Second and Fifth Avenues, there were few to no cars.
(Tr. 165:22-25.) Between Fifth and Sixth Avenues, there were some commercial vehicles, and by
Ninth Avenue, there were fewer cars again. (Id.) When Mr. Dershowitz reached the intersection
of 29th Street at Ninth Avenue, he biked through it before the light changed and continued west
to Tenth Avenue. (Tr. 167:6-15.) To pass the Postal Trailer protruding from the right and into the
street, he looked to his left to see if any vehicles were coming, moved left towards the middle of
the road to pass the Postal Trailer, and then moved back to the right hand side of the road.
(Tr. 171:20-24.) Meanwhile, Mrs. Dershowitz had stopped at the Ninth Avenue intersection at a
red light. (Tr. 167:6-18.)
2.

Mr. Clement and the Postal Truck

On the day of the accident, Mr. Clement was driving the 25-foot long and eight-foot wide
Postal Truck. (Tr. 479:24-480:8; Pl’s Ex. 12A.) The Postal Truck had six wheels: two in front
and four in back, two side-by-side on both the left and right. (Clement Dep. 59:21-60:7.) The
Postal Truck also had four mirrors: a flat and round mirror on each side. (Id. at 60:11-21.) Sitting
in the cab and looking into the flat mirror, Mr. Clement could see the ground from where the

6

Postal Truck’s box began, right behind the cab, all the way to the end of the box. (Id. at 63:1864:6.) The round mirror allowed him to see farther out, and to the sides, of the Postal Truck. (Id.
at 65:11-21.) In the cab, Mr. Clement sat about seven to eight feet above ground level.
(Tr. 514:19-21.) The cab has a large front windshield with a panoramic view that allows a driver
to “see great distance not only straight ahead of [him], but also down to the ground.” (Tr. 334:58, 515:4-8, 523:18-23; Pl’s Exs. 14F, 14M.)
Mr. Clement had driven a seven-ton postal truck, like the Postal Truck, for five years
before the accident and had been a driver for the Postal Service since October 1988. (Clement
Dep. 13:21, 21:8-21, 25:14-18.) Before that, he was a driver for Alexander’s Department Store,
where he also drove a seven-ton truck for five or six years. (Id. at 14:9-25; 16:21-17:2.) As part
of his driver training, he was taught methods for scanning the road, “to try to get the big picture
. . . [to] scan the area for motor vehicles, pedestrians,” and bicyclists. (Id. at 26:11-21.) He was
taught to “constantly check [his] side mirrors [], every five or six seconds,” and to look through
the windshield ahead of him and to the left and right through the side windows. (Id. at 26:2527:2, 29:6-13, 32:14-17, 69:15-70:12.) He had picked up and dropped off mail at the Morgan
Mail facility, and driven down 29th Street to do so, hundreds of times in his career. (Id. at 100:2101:5.) While driving, he also saw bicyclists on a daily basis, and his custom was to slow down
and to move into a different lane to pass bicyclists to ensure a safe distance between them and his
truck. (Id. at 129:2-11, 129:24-130:8, 131:2-12, 132:17-25.)
On July 2, 2011, the Postal Truck “was in proper working order.” (Tr. 333:23-24;
Clement Dep. 85:6-9, 96:24-97:23.) Mr. Clement started work at 9:00 a.m., and made his first
trip to Peter-Stuy Station to pick up mail at 9:30 a.m. (Clement Dep. 80:8-13, 114:6-10.) He then
returned to Morgan Mail facility to drop off mail around 10:15 a.m. (Id. at 115:20-25.) He drove

7

west on 29th Street, and entered Morgan Mail South through the entrance closer to Tenth
Avenue. (Id. at 116:14-24.) He next exited the building from the 29th Street driveway near Post
4, and proceeded to drive west to Eleventh Avenue, and then onto 28th Street between Tenth and
Eleventh Avenues, where he stopped for breakfast. (Id. at 119:2-22.) He next drove to 29th
Street between Eight and Ninth Avenues, where he parked for an hour and 25 minutes and took a
nap. (Id. at 120:9-20; 126:15-23.) He then resumed his route, heading west to again enter
Morgan Mail South.
C.

The Approach

At 11:59:38 a.m., Mrs. Dershowitz had just passed through the Ninth Avenue intersection
and was adjacent to the northwest curb of 29th Street and Ninth Avenue. (Tr. 485:6-486:9; Pl’s
Exs. 1A, 1B.) She was “well in control of her” bicycle and “traveling on the right side of the
road,” “fairly close to the curb,” continuing west down 29th Street. (Tr. 485:10-14.) At 11:59:44
a.m., the Postal Truck passed the same location with a silver minivan to its immediate left.
(Tr. 486:18-487:20; Pl’s Exs. 1C, 1D.) At 11:59:46 a.m., Gina Costa’s red vehicle passed the
same location, closer to the southern curb, behind and to the left of the Postal Truck. (Tr. 295:214, 490:10-17; Pl’s Exs. 1E, 1F.) At 11:59:47 a.m., Ahmed Benomar’s yellow taxi, transporting
passengers Jessica Sunshine and her husband Sean Hopkins, passed, closer to the northern curb,
behind and to the right of the Postal Truck. (Tr. 491:4-12; 492:11-16; Pl’s Ex. 1G.) Using the
northwest curb as a marker, Mrs. Dershowitz was six seconds ahead of the Postal Truck, eight
seconds ahead of Ms. Costa’s car, and nine seconds ahead of the taxi.
At 11:59:42 a.m., Mrs. Dershowitz was still riding westbound, “about four feet from the
north curb” and across from the storm drain, “in complete control of her” bicycle. (Tr. 493:3-6,
494:11-17; Pl’s Ex. 1H.) The available street-bed was still 34-feet wide. (Tr. 494:20-22.) Only

8

four seconds later, at 11:59:46 a.m., the Postal Truck passed the same location, adjacent to the
storm drain. (Tr. 495:2-9; Pl’s Ex. 1I.) Mr. Clement was looking out the window to his left
(south). (Clement Dep. 161:10-13.) The silver minivan cannot be seen in this footage,
presumably blocked by the Postal Truck. At 11:59:48 or 49 a.m., Ms. Costa’s red car passed the
same location, almost in the center of the roadway. (Tr. 496:2-10; Pl’s Ex. 1L.)
At 11:59:48 a.m., the Postal truck passed Post 4. At that moment, the silver minivan was
very close to the Postal Truck’s southern (left) side, and slightly ahead of the truck. (Tr. 499:1321, 502:6-12; Pl’s Ex. 1M.) At 11:59:49 a.m., Ms. Costa’s red car passed Post 4, and the taxi was
behind it and to the right (north). (Pl’s Exs. 1N, 1O.) Mr. Clement testified that after he noticed
the silver minivan to his left, he was “constantly” looking in his left hand mirror because the
minivan was “moving fast and coming closer and closer” to his vehicle. (Clement Dep. 147:1420, 148:16-17.) He stated that he had been driving at a constant rate of speed but took his foot off
the accelerator when he saw the minivan. (Id. at 160:20-23, 162:9-16.)
In a short distance, due to the parallel parked trailers to the south and the protruding
perpendicular Postal Trailer to the north, cars would not be able to travel side-by-side: the Postal
Truck or silver minivan would need to yield to allow the other to go first. (Tr. 501:1-20.) From
Post 4, Officer Jones testified that she saw Mrs. Dershowitz “riding her bicycle, and at the same
time the vehicles were [] going into the narrow roadway,” competing to be first. (Tr. 70:17-71:8,
105:12-14.) She testified that the Postal Truck “didn’t slow down.” (Tr. 74:1-3.) Ms. Costa
testified that from her position, to the left of and behind the Postal Truck, all of the vehicles
(including her own and the Postal Truck), were veering to the right to be able to fit into the
roadway. (Tr. 682:18-20, 711:1-11, 717:16-18; Pl’s Exs. 1S, 1T, 1U.) Although the Postal Truck

9

had been slightly behind the silver minivan at 11:59:48 a.m., the Postal Truck entered the
narrowed roadway first. (Tr. 501:16-19; Pl’s Ex. 1.)
D.

The Accident

At 11:59:51 a.m., the Postal Truck was directly under the overpass, with its back end just
passing beneath it. (Tr. 504:19.) Measuring from the front edge of the overpass, the Postal
Trailer was situated 25 feet away, and a blood stain from the accident was located 29 feet away.
(Tr. 505:3-506:13; Pl’s Exs. 3C, 14T.) Thus, at 11:59:51 a.m., the moment the 25-foot long
Postal Truck fully passed under the overpass, the front of the truck would be four feet from
where, later, that blood would rest. The taxi was on the right side of the road, adjacent to the
storm drain, and Ms. Costa’s vehicle was in front of and to the left of the taxi. (Tr. 503:23-25,
521:6-11; Gov’t Ex. 31.)
Ms. Sunshine testified that she was seated in the back seat of the taxi and a little bit
toward the center, directly behind the Postal Truck. (Tr. 596:14-17, 598:9-11.) Because she was
interested in directions and street signs, she was looking forward, or west, through the center
console window separating the driver from the passengers, and out the front windshield.
(Tr. 596:21-23, 597:2-4.) Her husband was behind the passenger seat. (Tr. 596:19.) She was not
looking to her left. (Tr. 607:16.) The taxi was travelling toward the right northern side of the
street. (Tr. 598:7-8.) She saw a bicyclist, Mrs. Dershowitz, in front and to the right of her taxi.
(Tr. 598:18-20.) She also saw the Postal Trailer protruding into the street in front of her.
(Tr. 599:10-11.)
Ms. Sunshine testified that Mrs. Dershowitz continued to bike westward but had to veer
left to continue around the Postal Trailer. (Tr. 620:10-13.) Although the taxi was facing west,
Ms. Sunshine explained that Mrs. Dershowitz had been “coming out to go around [the Postal

10

Trailer] . . . so she wasn’t exactly, we weren’t all exactly facing forward.” (Tr. 620:10-13.) Ms.
Sunshine testified: Mrs. Dershowitz “caught my attention because I was concerned that she was
losing her balance. I saw her put down her left foot off the pedal . . . . Then she picked up her left
foot, but she still wasn’t balanced. She put her foot back on the pedal but she still wasn’t
balanced, and she proceeded to ride even though she was off balance.” (Tr. 599:17-600:4,
615:11-15, 621:16.) Ms. Sunshine did not know why Mrs. Dershowitz lost her balance but
watched her “try to steady herself.” (Tr. 615:7-12.)
By then, the Postal Truck seemed to be merging to the right, into the taxi’s lane; the
Postal Truck and Mrs. Dershowitz were directly to the left of the Postal Trailer. (Tr. 600:21-22,
601:16-17, 609:3-4, 11-12.) Ms. Sunshine saw Mrs. Dershowitz “list” to the left, and she gasped,
covering her eyes, not wanting to witness what was about to happen. (Tr. 600:5-6, 615:1.) As a
result, she did not see whether or how the Postal Truck hit Mrs. Dershowitz. (Tr. 614:15-615:7.)
The Court finds Mrs. Sunshine credible. She also was the only credible witness to have an
uninterrupted line of sight to Mrs. Dershowitz.
From her car behind and to the left of the Postal Truck, Ms. Costa caught sight of Mrs.
Dershowitz when “she was already going down. She wasn’t high, she was inches from the floor.”
(Tr. 691:8-10.) She could not see the front of the Postal Truck or what made Mrs. Dershowitz
fall. (Tr. 691:18, 707:18.) Mrs. Dershowitz and her bicycle ended up “in between the right front
tire and the right rear tire” of the Postal Truck. (Tr. 534:10-25.) Ms. Costa saw the Postal Truck’s
rear wheels run over Mrs. Dershowitz’s lower back, upper back, and shoulders. (Tr. 690:23-25,
691:8-10, 692:16-18.)
When Ms. Sunshine opened her eyes, she saw the cyclist laying on the ground, still
mounted on her bike. (Tr. 601:8-10.) Video footage taken under the overpass and facing east

11

shows the Postal Truck passing that point and proceeding down the Street. (Pl’s Exs. 1, 1P.) It
also appears to show that, at 11:59:52 a.m., the Postal Truck’s rear right (northern) tire rose and
then fell. (Tr. 502:23-503:16, 509:4-510:10; Pl’s Exs. 1, 1X.) This “bump” is presumed to be the
Postal Truck’s tire rolling over Mrs. Dershowitz and her bicycle. (Tr. 503:9-16.)
E.

Post-Accident
1.

Mr. Clement and The Postal Truck

Mr. Clement testified that when he felt the bump, he had been looking to his left and in
the left-side mirror, towards the minivan, for six seconds. (Clement Dep. 160:24-161:19.) He
described being distracted by the silver minivan for more than ten seconds. (Id. at 170:4-13.)
During the time he was distracted, he never saw a bicyclist. (Id. at 150:16-151:24.) He felt the
Postal Truck rock side to side, and he thought he may have “r[u]n over a small object.” (Id. at
166:7-18.) He looked in the right-side mirror and saw the truck’s box and the ground but did not
see a bicyclist. (Id. at 163:8-164:4.)
At 12:00:00, he stopped his Truck next to the parallel parked trailers on the southern
(left) side of the street. (Id. at 176:20-177:6; Tr. 508:1-5.) At 12:00:04 a.m., the silver minivan
came from behind and passed the Postal Truck on the right. (Tr. 508:1-5; Pl’s Ex. 1Q.) In his
right-side mirror, Mr. Clement did not see anyone on the ground but saw only cars. (Clement
Dep. 178:18-179:7.) No one approached him, and he did not get out of his truck. (Tr. 280:17-18,
282:3-10. Pl’s Exs. 8, 12D, 14G; Clement Dep. 166:3-19.) At 12:00:25 a.m., he pulled forward
but because the honking had increased, he stopped again on the right side of the street for two to
three minutes. (Tr. 286:2-10; Clement Dep. 179:18-180:19, 181:4.) He then proceeded west,
made a left into Morgan Mail South, looped back east within the building, and exited the
driveway by Post 4, where he was told to proceed east (the wrong way down 29th Street)

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because a serious accident had occurred. (Tr. 282:6-10, 288:4-8, 289:12-22; Clement Dep.
183:13-24.) Mr. Clement proceeded to pick up mail at Radio City Station, after which it occurred
to him that his Postal Truck may have been involved in the accident. (Id. at 190:22-191:10.) He
returned to the Morgan Mail facilities to ask his supervisor about the accident. (Tr. 277:15-25,
289:16-20; Clement Dep. 183:13-24, 187:7-12.)
At his deposition, Mr. Clement stated numerous times that, before and after crossing
Ninth Avenue, he never saw a bicyclist, and he never told anyone that he had seen a bicyclist.
(Id. at 77:23-78:4, 139:2-19, 142:13-16, 150:16-151:24, 153:20-25, 156:1-6, 169:23-170:3.)
2.

At the Scene

On duty at Post 4 at the time of the accident, Officer Jones saw the Postal Truck bump
over what she believed to be the bicyclist and ran out of the post. (Tr. 51:5-10, 90:13-15.) She
saw Mrs. Dershowitz laying in the street and radioed headquarters: “pedestrian hit by postal
truck.” (Tr. 92:18-20, 93:16-17.) Ms. Sunshine stopped the taxi she was in. (Tr. 601:12-13,
710:3-5.) Her husband called 911, while she paid the fare, and Mr. Benomar drove away. (Tr.
601:12-13, 661:17-20.) Ms. Costa also immediately pulled over to the right, past Mrs.
Dershowitz’s body. (Tr. 692:24-693:4.) Her passengers got out of her car and yelled for the
Postal Truck to stop. (Tr. 700:8-9.)
Ms. Costa went to Mrs. Dershowitz. (Tr. 681:18, 693:4-10.) Ms. Costa has been trained
in CPR, advanced CPR, and first aid for the past fourteen years for volunteer work she did at a
senior center. (Tr. 681:13-18.) She also has medical experience because her daughter has a heart
condition known as tachycardia, which is “a racing of the heart, [] uncontrollabl[y].” (Tr. 714:20715:7.) Ms. Costa testified that Mrs. Dershowitz was still on her bicycle and was not moving.
Her torso, chest, and face were facing down on the pavement. (Tr. 693:5-17.) Ms. Costa pulled

13

Mrs. Dershowitz’s right shoulder back and leaned her sideways in an attempt to keep her airways
clear. (Tr. 693:23-694:1, 712:14-15.) Mrs. Dershowitz was “bleeding out of her ears, nose, and
mouth” and gasping for air. (Tr. 693:19-694:1.) Ms. Costa checked Mrs. Dershowitz’s pulse, and
it was beating rapidly. (Tr. 694:18-24, 714:20-715:13.)
Meanwhile, when Mrs. Dershowitz had not reached Tenth Avenue, Mr. Dershowitz
looked back and saw a commotion. (Tr. 171:1-11.) He turned around and quickly biked back.
(Tr. 171:7-8.) Ms. Costa testified that Mr. Dershowitz arrived a “couple of minutes” after the
impact. (Tr. 697:1-4.) Mrs. Dershowitz’s heart was still beating, but it was slowing down.
(Tr. 714:16-19, 697:18-22.) Mr. Dershowitz saw his wife’s “mangled bike” and Ms. Costa
cradling her. (Tr. 172:6-11.) He kneeled with Mrs. Dershowitz and held her hand. (Tr. 172:9-18.)
He took off her glasses and touched her shoulder and upper arm. (Tr. 714:3-4.) He testified, “I
told her I loved her and I told her that she’s a fighter, that she’ll make it through. I told her that
the ambulance was coming. . . . She was making noises, but I couldn’t tell what the words were,
what she was saying or even whether it was verbalization, but there were some sounds coming
from her mouth.” (Tr. 121:2-6, 172:15-18.) He continued, “I squeezed her hand. There was a
response, there was a squeeze by her right [hand,] which I took to be an acknowledgment of
what I was saying and my squeezing of her hand.” (Tr. 172:23-25, 175:13-16.)
Mrs. Dershowitz did not speak and, other than blinking and squeezing Mr. Dershowitz’s
hand, did not move her body in any way. (Tr. 694:4, 14-20.) Ms. Costa testified that from the
time of the accident, when she kneeled next to Mrs. Dershowitz, until the ambulance arrived, she
repeatedly took Mrs. Dershowitz’s pulse. (Tr. 697:18-698:1.) Although Ms. Costa initially
“couldn’t even count what her pulse was” because it was so rapid, it then slowed drastically.
(Tr. 697:18-698:3.) At some point, one to three minutes before the ambulance arrived, Ms. Costa

14

could no longer detect a pulse. (Tr. 698:2-18.) The Court found Ms. Costa’s testimony regarding
her observations of Mrs. Dershowitz and her own experience during that time credible.
The parties stipulated and agreed that when paramedic Timothy Boyle reached Mrs.
Dershowitz, at 12:06:22 a.m., she was not conscious and lacked a pulse or respiration.
(Tr. 676:1-8.) She never regained consciousness. (Id.) Mr. Boyle moved Mrs. Dershowitz’s
bicycle away from her immediate position to permit him to better treat her. (Id.) An ambulance
transported Mrs. Dershowitz to Bellevue Hospital Center where she died. (Tr. 176:8-10, 177:21178:8.)
Four feet from the eastern edge of the Postal Trailer, or 29 feet after the overpass, a pool
of Mrs. Dershowitz’s blood remained on the roadway. (Tr. 506:4-5; Pl’s Exs. 3C, 14T.) One of
the bicycle’s reflector lenses was pulverized, and its remnants lay on the ground. (Tr. 528:6-8,
532:22-533:1; Pl’s Exs. 14U, 14Y, 14V.) Scrape marks of metal on asphalt could be seen in a
forward, westward trajectory parallel to the Postal Trailer’s end. (Tr. 528:9-16; Pl’s Ex. 14Y.)
An autopsy report revealed that Mrs. Dershowitz suffered fractures to her skull, ribs, and
sacroiliac joint, in addition to other contusions, abrasions, and hemorrhaging. (Tr. 535:15-20;
Pl’s Ex. 16.) The report states that Mrs. Dershowitz appeared to be a “well-nourished, 5’1”, 110
pound” woman “whose appearance is younger than the reported age of 68.” (Pl’s Ex. 16.)
3.

Additional Testimony
i.

New York Police Department Detective Victor Rivera

Later that afternoon, New York Police Department Detective Victor Rivera arrived at the
scene of the accident. (Tr. 314-15.) Detective Rivera is part of the Accident Investigation Squad,
which investigates accidents involving serious physical injuries or fatalities. (Tr. 276:2-9.) He
and a Manhattan Assistant District Attorney interviewed Mr. Clement when he returned to Postal
Service headquarters. (Tr. 278:13-18.) Detective Rivera explained, “we have investigated
15

accidents like this . . . where a driver or operator[] has a large vehicle and a lot of times they
really don’t know that they actually hit someone – a pedestrian – and it is obvious. I mean, it is a
large vehicle so we understand that.” (Tr. 283:4-8.)
In his first statement, Mr. Clement told the Detective that “a car was coming very close to
[his] truck on the left hand side.” (Gov’t Ex. 10.) Mr. Clement continued that when he was
travelling through the narrowed portion of the roadway, he had slowed down to allow the silver
minivan to his left to go first. (Tr. 279:23-280:1, 283:23-25.) Mr. Clement told them that he had
seen a bicyclist up ahead, but his attention had been drawn away by the car to his left.
(Tr. 280:10-15.) After speaking with Mr. Clement, Detective Rivera watched video footage for
the first time. (Tr. 283:13-15, 19-25; 288:9-12.) In doing so, Detective Rivera learned that
although the silver minivan was initially slightly ahead of the Postal Truck, the Postal Truck had
gone first into the narrowed roadway, not the silver minivan. (Tr. 283:20, 284:15-22, 285:2; Pl’s
Ex. 1M.) As a result, weeks later on August 5, 2011, Detective Rivera showed the video to Mr.
Clement, after which Mr. Clement gave a second statement. (Tr. 286:20-23; 288:16-289:23; Pl’s
Ex. 11.) In that statement, Mr. Clement indicated that his truck, not the silver minivan, went first.
(Pl’s Ex. 11.)
ii.

New York Police Department Officer Scott Doerzbacher

Also later that afternoon, Officer Doerzbacher arrived at the scene. (Tr. 314:15-19.) The
area was a “frozen zone,” meaning it had been cordoned off by police tape or barriers to preserve
the scene and prohibit the public from entering. (Tr. 314:15-315:6; Pl’s Ex. 14Q.) Officer
Doerzbacher is a member of the Highway Patrol unit that focuses on New York Vehicle and
Traffic Law (the “VTL”) violations, including any accidents with serious physical injuries or
fatalities. (Tr. 306:23-307:8.) He is a certified accident investigator and is certified in Motor

16

Carrier Safety, which concerns safety regulations for large box trucks, trailers, and commercial
vehicles. (Tr. 312:1-8.)
Officer Doerzbacher took measurements at the scene and drew the diagram in Plaintiff’s
Exhibit 13C. (Tr. 318:8-326:12; Pl’s Ex. 13C.) He determined that there were no major defects
in the roadway or any physical obstacles, other than the parked trailers, that would have
contributed to an accident. (Tr. 317:13-19.) Mrs. Dershowitz’s bicycle, still on the scene, was in
a mid-range gear for normal peddling on a flat surface. (Tr. 331:19-20; Pl’s Ex. 14Z.) Officer
Doerzbacher also examined Mr. Clement’s Postal Truck, but by the time he did so, there was no
biological evidence on it. (Tr. 332:17-25; Pl’s Exs. 14A-C.) He explained that, pursuant to the
VTL, “the operator of a vehicle attempting to overtake a bicyclist has to be able to ensure there is
enough room for the overtaking of the bicycle, to assure that when he would initiate his passing
procedure, he can initiate, do the passing procedure and complete the passing procedure and then
encroach back into the center portion of the roadway without causing any undue risk of accident
or injury or harm to the bicycle operator.” (Tr. 338:12-21.)
iii.

Accident Reconstruction

Robert Genna, the director of the Suffolk County Crime Laboratory in Long Island,
testified as the plaintiff’s expert accident reconstructionist. (Tr. 466:17-21, 467:9-569:23,
470:23-471:3.) Mr. Genna explained that “[a]n accident reconstructionist is an individual who
evaluates data from a motor vehicle accident and attempts to determine different factors, perhaps
how and why the incident occurred, by studying the evidence if there is evidence, reviewing
transcripts, witness statements, photographs, scene inspections, vehicle inspections, taking all of
that material and reducing it down to an analysis.” (Tr. 466:10-16.)

17

Mr. Genna testified that Mrs. Dershowitz was likely travelling parallel to the north curb
when, at some point, she moved to her left to avoid striking the protruding Postal Trailer.
(Tr. 634:10-12.) He opined that because “she was forced to move a little bit over to her left,” the
Postal Trailer “was a contributing factor as well.” (Tr. 538:15-20, 540:1-5.) Meanwhile, as Mrs.
Dershowitz proceeded forward, Mr. Clement was preoccupied “trying to position his vehicle
adjacent to the [silver mini]van and was not paying full attention to the road ahead.” (Tr. 534:1018.) Based on video footage, Mr. Genna testified that Mrs. Dershowitz had been ahead of the
Postal Truck from at least 11:59:39 a.m. until the moment of contact, estimated to be 13 seconds
later. (Tr. 537:19-538:1.) At 11:59:49 a.m., two to three seconds before the impact, Mr.
Clement’s “attention was not [] focused on the road ahead” but “focused on the van,” which
meant that he “would not have been able to see Mrs. Dershowitz even though she was there to be
seen.” (Tr. 523:1-5.) Because the bicycle’s metal scrape marks on the asphalt were consistent
with a biker still riding as far to the right, or near the Postal Trailer, as possible, Mr. Genna
reasoned that the Postal Truck must have “veer[ed] a little bit over to the right.” (Tr. 531:15-20.)
He concluded that Mr. Clement’s driving “was a significant contributing factor” or “major
cause” “as to why the incident occurred because his attention was [] distracted by jockeying with
the [silver mini]van” at the same time that he “was encroaching . . . onto Mrs. Dershowitz.”
(Tr. 522:14-19, 537:8-9.)
Mr. Genna took measurements to analyze, in greater detail, how the accident likely
occurred. He testified that the handlebars of Mrs. Dershowitz’s bicycle, based on other bicycles
of the same type, were likely 41-42 inches high. (Tr. 516:15-20.) He also measured the Postal
Trailer, which had been moved from the scene of the accident to a separate Postal Service
facility. (Tr. 544:20-545:2.) At the facility, the bottom of the Postal Trailer was 46 inches off the

18

ground. (Id.) Because the roadway is lower than the sidewalk, Mr. Genna determined that the
height from the roadway to the bottom portion of the Postal Trailer had been more than 46
inches. (Tr. 525:17-20, 526:5-10, 546:19-23; Pl’s Exs. 13B, 13C.) As a result, he concluded that
Mrs. Dershowitz’s right handlebars had not come into contact with the Postal Trailer to her right
because the handlebars would have been five to six inches below the bottom edge of the Trailer.
(Id.) Mr. Genna could not say, however, whether the Postal Trailer’s stilts had been adjusted
from the day of the accident until the time that he measured them and therefore could not testify
to a reasonable degree of certainty whether Mrs. Dershowitz’s right handlebars made contact
with the Postal Trailer.
Mr. Genna also measured the Postal Truck’s right front wheel well, which is the metal
portion of the truck that circumvents the wheel. The diameter of the front tire was three feet and
four inches and the wheel well protruded one to two inches off the side of the vehicle.
(Tr. 481:20-22; Pl’s Ex. 12C.) The wheel well begins to circumvent the tire at two feet and two
inches above the ground and continues to a height of four feet and eight inches at its apex.
(Tr. 481:20-25, 482:8-10; Pl’s Ex. 12C.) Based on the height of Mrs. Dershowitz’s handlebars,
Mr. Genna opined that Mrs. Dershowitz’s initial contact with the Postal Truck occurred when her
left handlebars came into contact with the Postal Truck’s right wheel well. (Tr. 513:24-514:4.)
Mrs. Dershowitz was facing westward, and Mr. Genna stated that her front tire had not been
turning left because there was no evidence that the bicycle tire was struck by the Postal Truck.
(Tr. 529:12-25.) He explained that the impact to the handlebars would have “pivot[ed] the front
tire very quickly . . . stopping the forward motion of the cyclist and throwing her body and the
cycle under and in-between” the Postal Truck’s right tires. (Tr. 517:13-18:1, 534:10-25.) Mr.
Genna explained that the fall would have been instantaneous: “There is no wobbling, no back

19

and forth. You’re pivoting and you’re going down. Period.” (Tr. 530:20-24.) The Court finds Mr.
Genna’s testimony credible and scientifically supportable.
The night before he was scheduled to testify, the government decided not to call its own
accident reconstructionist.
iv.

Rosemary Jones

On July 13, 2011, eleven days after the accident, Officer Jones wrote a statement for the
Postal Service Human Resources Department, at its request, about what she saw the day of the
accident. (Tr. 79:7-80:11.) She testified that she took her time preparing her statement and was
careful to portray accurately what she witnessed. (Tr. 80:9-81:25.) In her statement and at trial,
Officer Jones indicated that from her position in Post 4, on the southern side of the street, she
saw a woman riding her bicycle. She also saw three vehicles – the Postal Truck, a yellow taxi,
and a third vehicle – “vying to be the first one down the street.” (Tr. 86:23-87:2, 105:12-14; Pl’s
Ex. 7.) In her July 13, 2011 statement, she wrote that she “saw the Postal Truck veer to the right,
and at the same time saw the [bicyclist] hit by the truck.” (Tr. 89:13-14; Pl’s Ex. 7.) The
statement continued: “As the [Postal Truck] tried to straighten up and avoid hitting the [Postal
Trailer on the north side of the Street], it bumped over what [she] believe[d] was the [bicyclist]
or debris from the accident.” (Tr. 90:13-15, 91:1-2; Pl’s Ex. 7.) Upon questioning by the
government at trial, Officer Jones explained that what she meant by “veer to the right” was that
“[t]he postal truck was tilting to the right back down, it tilted. It did not move to the right. Bad
wording I believe I put here, but it actually was tilting on the side and came back down.” (Tr.
113:20-23.)
Officer Jones testified that the Postal Service Accident Investigation Board later asked
her questions about her statement. (Tr. 107:25-108:5.) Because the Postal Truck had been

20

between Officer Jones and the bicyclist at the time of impact, a board member said to her, “well,
you didn’t actually see her hit by the truck.” (Tr. 111:12-18.) As a result of that conversation, on
July 20, 2011, Officer Jones amended her statement to read: “I saw the postal truck veer to the
right and at the same time saw the [bicyclist] hit by the truck.” (Tr. 109:5-15, Gov’t Ex. 10.) She
did not change or revise the portion of the statement that she “saw the postal truck veer to the
right.” (Tr. 116:2-5, Gov’t Ex. 10.) The Court finds Officer Jones’s July 13, 2011 statement,
written close in time to the accident and before it was revised, to be the most credible account of
Officer Jones’s experience that day. It does not credit her explanation at trial that she meant
something different by “veer to the right.”
v.

Ahmed Benomar

The only witness to have a different narrative of the events surrounding the accident was
taxi driver Mr. Benomar, a government witness. Mr. Benomar’s testimony was contradicted by
video footage, as well as other eyewitness accounts, and was not credible. The Court relied on no
information that he supplied.
Mr. Benomar was born in Morocco, moved to the United States in 1982, and has been a
cab driver for 23 years. (Tr. 626:21-24, 627:21-22.) His first language is French. In a deposition
before trial, he spoke in English. (Tr. 637:16-638:5.) At trial, he used a French interpreter during
direct examination but at times answered before the interpreter had translated and also answered
in English. (Tr. 625:10-13, 627:17-20.) On cross-examination and re-cross, the plaintiff’s
attorney questioned him in English, and on re-direct, the government’s lawyers did the same.
(Tr. 637:16-674:4.) Although Mr. Benomar’s comprehension of the English language did not
require him to testify in English when he stated a preference for testifying in his native language,

21

he was plainly comfortable enough with English. The Court does not believe that there were
language barriers or translations issues that would explain or justify his testimony.2
Mr. Benomar testified that on July 2, 2011, as his taxi proceeded westward on 29th Street
between Ninth and Tenth Avenues, the traffic was back-to-back and crawling. (Tr. 645:6-21.) He
testified that his taxi came to a complete stop for 2-3 minutes, and the Postal Truck came to a
complete stop two to three times, as well. (Tr. 641:13-15, 645:6-21, 651:11-13, 652:16-22.) After
passing Ninth Avenue, he saw two bicyclists riding side-by-side and moving faster than the
traffic. (Tr. 631:22-632:2, 647:20-648:25.) Video footage, however, shows that this testimony is
demonstrably false: traffic was moving continuously, at a moderate speed, and never stopped;
and Mr. and Mrs. Dershowitz were never riding side-by-side, nor even one in front of the other,
between Ninth and Tenth Avenues. (Pl’s Ex. 1.)
On the day of the accident, Mr. Benomar left the scene as soon as Ms. Sunshine paid him.
(Tr. 661:17-20.) Sometime later, he sent a letter to the Postal Service explaining what he saw
“[s]o that the truck driver doesn’t lose his job.” (Tr. 636:15-25; Gov’t Ex. 6.) He wrote, in
English, that Mrs. Dershowitz had stopped her bicycle next to the Postal Trailer, waited
patiently, then continued biking just as the Postal Truck passed, and that she was “dumb,
irresponsible, and suicidal.” (Id.) Mr. Benomar testified that he voluntarily sent this letter to the
Postal Service because he did not want the driver to lose his job. (Tr. 636:21-25.) Given Mr.

2

Although it is within the sole discretion of the Court to allow a witness to use an interpreter, a witness’s
use, or lack thereof, of an interpreter may bare on that witness’s credibility. The Court of Appeals has
held that a district court did not err in allowing a prosecuting witness to use an interpreter even though the
witness spoke fluent English and even though the interpreter was used more in cross-examination than in
direct. United States v. Frank, 494 F.2d 145, 145 (2d Cir. 1974). In so holding, however, the Court
acknowledged, “we are disturbed by [the witness’s] occasional resort to the interpreter when a crossexaminer seemed to approach at least a minor success.” Id. at 157.
22

Benomar’s unreliable memory and motivation in drafting his letter, the Court credits none of his
testimony.
II.

About Mrs. Dershowitz
Mrs. Dershowitz was born on February 27, 1943. She was 68.34 years old at the time of

her death. (Tr. 349:2-4, 748:17-18.)
A.

Mrs. Dershowitz Personally
1.

Marriage, Home Life, and Health

Mr. Dershowitz met Mrs. Dershowitz at summer camp when he was 13 years old and she
was 12. (Tr. 125:21-24.) Later, Mr. Dershowitz’s brother married Mrs. Dershowitz’s sister, and
they came to know each other’s families. The Dershowitzes started seriously dating when he was
19 years old and a student at Brooklyn College, and she was 18 and about to enter Barnard
College. (Tr. 127:5-7.) They married on December 29, 1963. (Tr. 127:13.) On May 1, 1967, their
son Adam Lee Dershowitz was born, and on May 5, 1970, their daughter Rana Dershowitz was
born. (Tr. 130:10-12, 131:10-11.) The Dershowitzes’ two nephews from their siblings’ marriage
were an intimate part of their immediate family and often around. (Tr. 135:13-22.)
Mr. Dershowitz testified that he was raised in a close-knit family, where relatives lived
nearby and were always in and out of one another’s homes and that the family celebrated
occasions together. (Tr. 122:3-20.) That family life was important to him and Mrs. Dershowitz.
As a married couple, the Dershowitz family home in Tudor City – where the Dershowitzes
moved in 1986, and where Mr. and Mrs. Dershowitz lived until her death (Tr. 160:5-14.) –
became the family focal point for their extended family. In addition to providing regular support
and guidance to their nephews, the Dershowitzes, for example, took over hosting Thanksgiving
dinner, for which Mrs. Dershowitz would cook for days, and which their immediate family, their

23

nephews, Mrs. Dershowitz’s mother, and many extended family members and friends always
attended.(Tr. 179:3-23.) After Mrs. Dershowitz died, their son Adam, his wife, and their two
children moved into the Dershowitzes’ apartment. Mr. Dershowitz moved two blocks away to be
close to his son and grandchildren. (Tr. 178:13-16.)
Mrs. Dershowitz worked throughout her children’s young lives, while also taking care of
the household. She cooked meals, oversaw her children do their homework, took them on
outings, spent time with them, and gathered the extended family for holidays. (Tr. 130:10-17,
131:14-16, 134:23-135:12.) While her daughter was in high school and her son about to go to
college, around 1983, Mrs. Dershowitz “decided one day that she was going to go to law
school.” (Tr. 136:8.) She continued to cook and clean every evening and “stud[ied] well into the
night until she would fall asleep with [] books on her.” (Tr. 136:17-19.)
Mr. Dershowitz testified that in the years before Mrs. Dershowitz’s death, she worked
full time and was in “spectacular health.” (Tr. 179:24.) In the mornings, she rode a stationary
bike and read the newspaper. (Tr. 180:1-2.) She frequently biked to work. (Tr. 162:4-8, 173:6-8.)
She worked long hours and often “fell asleep with briefs on her chest.” (Tr. 158:3-5.) She played
tennis, biked, hiked, and swam. (Tr. 157:22-158:2, 162:9-12, 180:2-8.) When visiting Rana in
Colorado, she loved to ski. (Tr. 195:10-16.) Mrs. Dershowitz also spent time with her mother,
who was healthy enough to play tennis until age 92 and was still alive, at age 97, at the time of
the trial. (Tr. 128:21-22, 361:24-363:3.) “She bought virtually nothing for herself.” (Tr. 183:8184:19.) When she did spend money, it was for her children or grandchildren. (Tr. 184:3-7.)
2.

The Dershowitz Children

Adam Dershowitz was 44 years old when his mother died. (Tr. 129:10-12, 348:23.) He is
an engineer and is married with two children. (Tr. 350:17, 357:16-20.) He received a Bachelor’s

24

Degree, Master’s Degree, and his Ph.D. from the Massachusetts Institute of Technology (MIT)
School of Engineering, Department of Aeronautics and Astronautics. (Tr. 350:8-20.) He also was
on MIT’s ski team. (Tr. 353:10-14.) Following graduation, he worked at NASA. (Tr. 350:20-22.)
Currently, he is a managing engineer at Exponent, a consulting firm, and is a registered
professional engineer in numerous states. (Tr. 374:25-375:11.) He is a black belt in Aikido,
certified in scuba diving, and an accomplished cook. (Tr. 375:18-376:2.)
Mrs. Dershowitz travelled to be with Adam and his wife upon each of his children’s
births. (Tr. 358:11-13.) At the time of his mother’s death, Adam spoke with his mother weekly,
if not daily, and “every time [he] had an important decision to make.” (Tr. 182:19-24, 360:15,
368:9-13.) At trial, he recounted the story of his greatest professional disappointment: learning
he had a non-fatal anatomical abnormality that prevented him from satisfying the final
requirements of his life-long dream to become a NASA astronaut. (Tr. 355:7-356:14.) He turned
to his mother to support him through it. (Tr. 356:14-23.) Adam continued to turn to Mrs.
Dershowitz for professional guidance and advice, including on how to raise a teenage daughter.
(Tr. 360:15-24.)
Rana Dershowitz was 41 years old when her mother died. (Tr. 558:10.) She lives in
Colorado with her husband and two children, one of whom was born after Mrs. Dershowitz’s
death. (Tr. 555:25-556:8.) Rana was a student athlete who graduated from Harvard College and
Harvard Law School. (Tr. 556:10-557:11.) After law school, she worked as an attorney for Fried,
Frank, Harris, Shriver & Jacobson, LLP and Grubman, Indursky & Shire, PC, as the director of
legal and business affairs and then vice-president at Madison Square Garden, and as deputy
general counsel for the U.S. Olympic Committee. (Tr. 556:15-557:11.) Currently, she is the
general counsel to the Aspen Skiing Company. (Tr. 564:1-3.)

25

Rana testified how she needed her mother’s guidance most when she became a mother: “I
am part of a generation of women professionals [], many of whom like me didn’t have kids until
later in life. [I]n many ways, yes, I am an adult, I am capable [of] taking care of myself. . . . [but]
parenting is part of that growing-up process. . . . [Y]ou do feel like an adult in a lot of different
ways, but you’re no different than the 20-year old who is having their first kid or the 18 year-old
. . . or the 30-year-old. . . . [B]ringing the next generation into the world . . . was where I turned
to my mom most.” (Tr. 564:11-565:2.) Rana recounted, “I really struggled to figure out how I
could balance being the mom that I wanted to be, and that really was the mom that [my mother]
had been, and have the career that I wanted to have.” (Tr. 559:6-9.) Her mother was the best
guide: she talked Rana through her professional struggles and helped with Rana’s son’s night
terrors and child rearing generally, while also modeling for Rana how to juggle both. (Tr.
558:23-24, 559:17-20, 560:10-18, 562:16-24.)
Mr. Dershowitz testified that as his children grew older, “I don’t think my children made
any major, significant decisions without discussing them with Marilyn. . . . Whether it was
decisions about the children, decisions about professions, decisions about everything. . . .”
(Tr. 182:15-20.)
B.

Mrs. Dershowitz Professionally
1.

Work History

After Mrs. Dershowitz graduated from Barnard College, she worked until her son Adam
was born. (Tr. 127:5-7, 129:21-22.) Following his birth, she went back to school at New York
University and got a vocational counselor degree. (Tr. 131:24.) She then worked at various social
services organizations, including a methadone clinic and the New York Organization for New

26

Americans. (Tr. 132:11-18.) At the latter, she worked with refugees from the Soviet Union and
Cambodia to help them integrate into American society. (Id.)
At age 42, she went to law school. (Tr. 133:1-4.) At the time, Adam had started college
and Rana was in high school. Upon graduating, she briefly worked for her husband’s firm.
(Tr. 136:23-24.) She was then hired by State Supreme Court Justice Lewis Friedman as his
principal law secretary. (Tr. 137:7, 18.) Described as his “partner,” Mrs. Dershowitz brought “a
couple of hours’ worth of work” home every night. (Tr. 138:9-15, 225:4-7.) On Fridays, Mrs.
Dershowitz and Justice Friedman would divide up the court’s motions, split the piles and each
take one home, write draft decisions on the motions over the weekend, switch the piles and
review each other’s opinions on Monday, and issue the opinions by Thursday, before beginning
all over again. (Tr. 137:21-139:4.) She worked in that position for twelve years, until December
1994. (Tr. 143:11-15, 228:11-16.)
She then became a Special Referee at the State Supreme Court, a position that she held
for the next eleven years until the end of 2010. (Tr. 139:2, 143:15, 150:5-10.) Her salary was
$127,438.96 when she left. (Tr. 192:17.) As a Special Referee, she was “not a Judge with all the
full regalia of a Judge,” but she had “the power to hear issues in a matrimonial case . . . hear all
the witnesses, take in all the briefs, hear all the arguments, hear all the testimony, and then write”
a public, binding decision. (Tr. 230:24-231:4, 232:3-7.) She had no staff, secretary, or law clerk
but typed, researched, and wrote everything herself. (Tr. 204:5-12.) Matrimonial lawyer Harriet
Cohen, a friend and colleague of Mrs. Dershowitz for forty years, described Mrs. Dershowitz as
“a very, very hard worker. She enjoyed what she was doing. That was very obvious from my
observations of her. She was the first one in in the morning and the last one out at night.”
(Tr. 232:10-16.) Mr. Dershowitz testified that, in addition to the cases that were automatically

27

assigned to Mrs. Dershowitz, “an arrangement was made with the approval of” Chief
Administrative Judge Jackie Silberman, “that if the two parties agreed,” they could send their
case to Mrs. Dershowitz by consent: the arrangement “was primarily pushed by the people who
were practicing matrimonial law because they knew Marilyn [] had experience.” (Tr. 141:8-19.)
During her time as a Special Referee, she lectured at continuing legal education (“CLE”) courses
and for the State and City bar associations, where she served on numerous committees.
(Tr. 144:19-24, 229:24-230:1.)
Mrs. Cohen explained that Mrs. Dershowitz was a “very, very skilled” referee because
“[s]he had great intelligence, great training, tremendous education . . . tremendous stamina[,] and
was indefatigable.” (Tr. 226:3-4, 231:12-14, 271:16-24.) “Whatever her determination was going
to be, for you or against you, [Mrs. Cohen] knew it was going to be on the law and the facts and
it was going to be fair.” (Tr. 231:23-25.) Describing Mrs. Dershowitz’s specific mediation skills
and “diplomacy,” Mrs. Cohen explained how Mrs. Dershowitz listened, and “[s]he would talk
either separately or together to us. She would express what were weaknesses in one case, what
was the strength in one case. She would see issues that were there – that need[ed] to be resolved
perhaps in money situations by splitting some differences. She could see that some issues that
were causing great agitation were really not big issues at all.” (Tr. 227:17-228:3.) She was
someone who could “make each of the attorneys give u[p] a little bit of what they think [they
wanted] to achieve.” (Tr. 228:4-8.) Mr. Dershowitz also testified that Mrs. Dershowitz was a
very skilled mediator: she was a “psych and art history major in college[,] so she used her
psychology knowledge, her vocational counseling knowledge, [] her legal knowledge, and there
was a confluence of knowledge that made her so good at what she was doing.” (Tr. 158:20-24.)

28

Mrs. Dershowitz retired from her work as a Special Referee when the State Supreme
Court offered certain senior employees buyouts as a cost savings measure. (Tr. 145:20-146:13.)
The State Court system offered Mrs. Dershowitz either (1) a monthly sum for the duration of her
lifetime, or (2) a lesser monthly sum for the duration of her lifetime, but if she passed away, an
amount still to be paid to her surviving spouse. (Tr. 146:24-147:8.) After consulting with at least
her son and husband, Mrs. Dershowitz chose the first option. Mr. Dershowitz explained:
“recognizing that Marilyn’s mother was in her 90s, her father had lived well into his late 80s and
Marilyn was in excellent health, the decision was made that it was economically more reasonable
to take the top dollar amount for the rest of her life on the expectation that she will live at least as
long as her mother does.” (Tr. 147:12-17, 365:1-15.)
In February of 2011, Mrs. Dershowitz began to volunteer as a mediator at the Appellate
Division of the New York State Court. (Tr. 151:19-22.) Mr. Dershowitz testified that Justice
Gische “convinced or suggested to Marilyn that [she] become a mediator in the appellate
division as a transition to her setting up her own practice.” (Tr. 151:17-19, 200:11-16.) He
continued that, “Marilyn loved what she did . . . [and she] was incapable of [] sitting around.
This was an opportunity. And she also thought it would be very valuable for her for purposes of
getting clients. . . . [It] was a specific nice thing to have on [her] resume. . . . [I]t opened her up to
meeting and dealing with mediation in a slightly different context, that’s on the appellate level,”
and opened her to cases for which she would serve only as a mediator “without the threat of or
the power to decide a case.” (Tr. 200:11-201:21.) Mrs. Cohen also testified that Mrs.
Dershowitz’s volunteer work at the Appellate Division was a temporary position that was
valuable to starting her business. (Tr. 243:16-20.) Mrs. Dershowitz continued to network, “did a
lot of meeting and greeting,” stayed active in bar associations, read the New York Law Journal

29

daily, and attended CLE programs. (Tr. 155:7-17, 245:7-15, 572:1-573:3.) Until the time of her
death, her work ethic “never let up.” (Tr. 157:19-20, 243:25, 573:15-16.)
2.

Future Private Mediation Practice
i.

Mrs. Dershowitz’s Plans

Mr. Dershowitz, Rana, Adam, and Mrs. Cohen all testified that Mrs. Dershowitz accepted
the retirement buyout from the State Supreme Court but did not plan to stop working. (Tr. 151:56, 236:20, 366:1, 23.) Mr. Dershowitz testified that “one of the [] reasons why she accepted the
buyout was because she wanted to set up a mediation practice on her own. . . . [T]here was just
not a chance in the world that she was going to sit down and do nothing.” (Tr. 150:18-20, 152:46.) He continued, “There is just no doubt. I mean, there was just simply no doubt that that’s what
she was going to do.” (Tr. 156:16-17.) “[W]e talked about it. That was her intent. She said
so. . . . She never would have accepted the buyout . . . if it meant sitting on a couch. . . . It meant
that it gave her a base for her to do what she really wanted to do, and she wanted that flexibility.
Flexibility was very important. But she also wanted to work.” (Tr. 204:23-205:5.)
Rana testified, “she never would have retired, and she talked to me about how she even
felt uncomfortable it was called retiring from the court because that is not who she was, and she
so defined herself by [her work]. She was moving into the next phase of what she was going to
do.” (Tr. 571:18-22.) Mrs. Cohen testified that over a lunch at the end of 2010, Mrs. Dershowitz
told her that “she had just accepted a package from New York State Supreme Court and . . . was
going to have a second career.” (Tr. 233:5-9.) In accepting the buyout, Mrs. Dershowitz wanted
flexibility to spend time with her aging mother, her children, and her grandchildren. (Tr. 194:712, 573:7.) She wanted the flexibility to take long weekends in Colorado. (Tr. 573:9-10.)

30

Mr. Dershowitz testified that Mrs. Dershowitz planned to start her own private mediation
practice in September 2011. (Tr. 156:13-15.) They had not made vacation plans for September,
October, November, or December to allow her to do so. (Tr. 156:13-15, 202:18-25.) Mrs. Cohen
also testified that Mrs. Dershowitz planned to start her business after the summer. (Tr. 243:6-7.)
The Dershowitzes had discussed that “the advantage of mediation [], aside from the actual
sessions where she had to be with the parties,” was that “preparation work” and “writing the
decisions . . . could be done anywhere.” (Tr. 203:10-14.) This work would be “much more
flexible, and that was the critical element.” (Tr. 203:25-204:1.) Mr. Dershowitz testified that
Mrs. Dershowitz wanted to work 20-25 hours a week, but “[k]nowing Marilyn, I am not sure she
would have stuck to that.” (Tr. 156:16-20, 195: 24-25.) Mrs. Cohen testified that for Mrs.
Dershowitz, “part time” likely meant that she might work for ten days but then take five days off
where she would not be available at all. (Tr. 272:6-16.)
In terms of how she would set up her business, Mr. Dershowitz testified that Mrs.
Dershowitz considered a few options: (1) accepting a position with a law firm that does
matrimonial mediation work; (2) doing mediation through a mediation provider, such as the
Judicial Arbitration and Mediation Services (“JAMS”); or (3) working on her own. (Tr. 152:11153:7, 366:23-367:6.)
Mrs. Dershowitz was offered and rejected the first option. Mrs. Cohen testified that she
had just founded a new law firm and wanted Mrs. Dershowitz to join. (Tr. 236:1-20.) She
thought Mrs. Dershowitz would be an asset to her firm because she “was extremely well known
in the field [of matrimonial law],” and “was revered and respected,” and thought that it would
“be a great marketing thing.” (Tr. 236:5-9.) She offered Mrs. Dershowitz a yearly salary of
$225,000. (Tr. 152:18, 196:20, 258:15-21.) Mr. Dershowitz explained that Mrs. Dershowitz

31

rejected the offer because “it was a litigation [position], and that’s what she didn’t want to do.”
(Tr. 196:15-19.) Mrs. Dershowitz also did not want to work fulltime and wanted the flexibility to
choose her own hours. (Tr. 258:22-259:11.) Mrs. Cohen explained, “it is not that she was going
to slow down, it was that she was going to tailor her work around her life.” (Tr. 244:13-25.)
Mrs. Dershowitz also rejected the second option of working through an intermediary such
as JAMS. (Tr. 196:6-12.) Accustomed to working without administrative support, she did not
want to pay a percentage of her income to an organization for support services she did not need.
(Tr. 204:12-16.)
Mr. Dershowitz testified that Mrs. Dershowitz planned to pursue the third option:
establishing a solo mediation practice. Mrs. Cohen testified that her firm would rent an office to
an independent practitioner for approximately $1,800 per month. (Tr. 246:1-3.) Mr. Dershowitz
and Mrs. Cohen both testified, however, that Mrs. Dershowitz had decided not to rent an office
from a law firm. She did not want to be associated with a firm and lose the business of the firm’s
competitors. (Tr. 153:5-7, 236:15-25.) Instead, Mrs. Dershowitz was considering working out of
their apartment, using Mr. Dershowitz’s home office, and renting space by the hour for
mediation sessions. (Tr. 153:10-25, 206:6-14, 367:1-3.)
At the time of her death, Mrs. Dershowitz had not entered into any contracts to open a
private mediation practice. (Tr. 197:21-22.) She had not leased office space, had no clients, had
not formed a legal entity or registered a business name, had not taken out liability insurance
(assuming any was required), or drafted a business plan. (Tr. 198:5, 263:24-264:16.)

32

ii.

Mrs. Dershowitz’s Future Earnings

At the time of her death, Mrs. Dershowitz was 68.34 years old with a statistical life
expectancy of 17.43 additional years. (Tr. 415:7-8.) Mr. Dershowitz was 69.16 years old with a
statistical life expectancy of 14.49 additional years. (Tr. 441:22-25.)
a.

Testimony on Mrs. Dershowitz’s Hourly Rate

Based on the rate “organizations charged when [he] took cases to mediation,” Mr.
Dershowitz testified that he thought the going hourly rate for a private mediator would be
between $400 to $800 or $900 an hour. (Tr. 205:16-21.) When Mrs. Dershowitz accepted the
buyout, “she knew friends who were working as mediators working significantly less hours and
making significantly more. . . . They were getting paid $450 an hour. Some of the judges were
making $600, $650 an hour.” (Tr. 156:23-157:8.)
Mrs. Cohen testified that Mrs. Dershowitz would make “[n]o less than $600 an hour” as a
solo practitioner. (Tr. 242:20.) A rate of “$450 an hour would be for a less luminary of a
mediator.” (Tr. 242:10-13.) Mrs. Cohen based this on the rates of other practitioners she knows
and on Mrs. Dershowitz’s experience. She discussed former judges who had become mediators
and were still practicing in their late 70s and 80s. (Tr. 240:18-241:10, 762:1-18.) For example,
she testified that Betty Ellerin provided mediation services through her firm, Alston & Bird,
LLP, as well as JAMS, and charged $800 per hour in 2013. (Tr. 273:5-7, 241:16-21.) She
believed Saralee Evans charged $600 per hour. (Tr. 242:5.) In addition to hiring mediators
through organizations such as JAMS, Mrs. Cohen testified about litigators who also provide
mediation services through their law firms. She noted by way of example William Zabel, a
founding partner at Schulte Roth & Zabel LLP. (Tr. 241:5-10.) She testified that “[t]here is a
need for good mediators . . . [and] there was room for Marilyn Dershowitz.” (Tr. 241:13-15.)

33

There was no testimony or evidence concerning the billing rates for solo practitioners, the
demand for services from solo practitioners, or the size of the private mediation bar.
b.

Economic Expert Testimony

The analysis of overall economic loss was offered through the testimony of economic
experts: Dr. Gary M. Crakes for the plaintiff, and Dr. Leonard Freifelder for the government. In
reaching their conclusions, both experts relied on deposition testimony concerning the likely
range of hourly rates that Mrs. Dershowitz could demand, with plaintiff’s expert considering
economic losses based on both a $450 hourly rate and $600 hourly rate, while the government’s
expert assumed only a $600 hourly rate. Neither expert independently determined the appropriate
hourly rate for a private mediator, or conducted any empirical analysis of start-up and operating
costs of a private mediation practice or percentage rates of billed and collected hours.
(Tr. 457:25-459:1, 735:2-15.) Both experts reviewed Mrs. Dershowitz’s earnings record for
approximately three to four years, information concerning her date of birth and death, her
pension benefits, social security benefits, deposition transcripts from Mr. Dershowitz and Mrs.
Cohen, as well as various governmental and statistical publications. (Tr. 408:9-20, 729:20730:10.)
1)

Dr. Crakes3

The plaintiff’s expert, Dr. Crakes, testified first and made the following assumptions.
Mrs. Dershowitz’s life expectancy at the time of her death was an additional 17.43 years, or to
the age of 85.77 years. (Tr. 415:7-8, 423:22-25.) He explained that life expectancy is a statistical

3

Dr. Crakes received an undergraduate degree in economics from Central Connecticut State College in
1975, and a Master’s Degree and Ph.D. in economics from the University of Connecticut in 1976 and
1984, respectively. He has taught a variety of courses, including economics, public finance, and economic
statistics at the University of Connecticut and Southern Connecticut State University, where he is now a
professor emeritus. He has published approximately 22 articles in different areas of economics and has
conducted appraisals of economic loss since 1981. (Tr. 403:16-407:18.)
34

average calculated by the federal government’s National Center for Health Statistics and takes
into account age, gender, and race. (Tr. 409:4-7.) In contrast, work-life expectancy is “the period
of time used for the purposes of estimating the earning capacity that an individual would have
had available to them absent their death or injury.” (Tr. 408:24-409:2.) Calculated by the Journal
of Forensic Economics and Journal of Legal Economics, it does not take into account the health
or specific occupation of a particular individual but does take into account educational
attainment. (Tr. 409:8-11, 416:12-18, 417:4-9.) Based on her work-life expectancy, Mrs.
Dershowitz could be expected to work to age 75. (Tr. 415:19-24.) Because of Mrs. Dershowitz’s
work ethic and interest in her work, Dr. Crakes also ran analyses based on her working until age
78. (Tr. 415:19-416:7; Pl’s Exs. 21, 21A-E.)
Dr. Crakes began Mrs. Dershowitz’s earning calculations as of January 1, 2012.
(Tr. 417:20-418:11.) Dr. Crakes assumed she would work a part-time schedule of 22 billable
hours per week, or 1,100 billable hours in a 50-week year. (Tr. 419:1-2.) She would earn either
$450 hourly (or $495,000 annually) or $600 hourly (or $660,000 annually). (Tr. 418:17-19,
420:13-16.) He bifurcated her earnings into two categories: past earnings (January 1, 2012 to
February 5, 2015, the date of his testimony) and future earnings (after February 5, 2015 until she
attained age 75 and 78). (Pls. Exs. 21B-21E.) He assigned her earnings a growth rate of 2%,
which he considered conservative and deducted 10% of her earnings for business expenses (as an
average, though admittedly without any actual analysis or information to rely upon). (Tr. 419:19420:4, 421:2-4.)
Dr. Crakes also calculated Mrs. Dershowitz’s pension and social security benefits based
on the assumption that they would continue to her life expectancy. (Tr. 423:22-424:13.) The
undiscounted value of her past and future pension benefit for 17.43 years was $1,653,469.

35

(Tr. 424:7-13.) Mrs. Dershowitz received $1,822 a month in social security, and the
undiscounted value of her past and future social security benefit for 17.43 years was $458,101.
(Tr. 424:14-23.)
Dr. Crakes then deducted a value for personal maintenance from all her income –
earnings from her mediation practice, pension and social security benefits. Based on the U.S.
Department of Labor’s Consumer Expenditures publication, personal maintenance is a statistical
average based upon the decedent’s share of household expenses for things such as housing, food,
clothing, entertainment, services, transportation, and medical care. (Tr. 425:13-24, 726:3-9.) Dr.
Crakes and Dr. Freifelder, the government’s expert, used the same personal maintenance rate of
20%. (Tr. 426:12-20, 727:12-14.) Dr. Crakes, however, deducted that rate through till Mrs.
Dershowitz life expectancy, or for 17.43 years from her death; whereas Dr. Freifelder assumed
that the rate would rise to 100% – that is, personal maintenance would consume all of Mrs.
Dershowitz’s income – at the time of Mr. Dershowitz’s death, estimated at 14.49 years from
Mrs. Dershowitz’s death.
Finally, Dr. Crakes sought to value the household services performed by Mrs.
Dershowitz, which would be added to the total pecuniary loss. The value of household services is
“the economic value of the capacity to perform services in and about the home,” and it is an
average based on the U.S. Bureau of Labor Statistics’ American Time Use Survey. (Tr. 427:1218.) Because of Mrs. Dershowitz’s occupation, Dr. Crakes assumed that she would perform
fewer household services than the average female in her grouping. Therefore, he calculated her
lost value of household services at 50% of the Survey’s valuation, or at $120,922 for the duration
of her life expectancy. (Tr. 427:19-25, 443:15-16; Pl’s Ex. 21.)

36

Dr. Crakes then calculated past and future earnings, based on a $450 and $600 hourly rate
and working to age 75 and 78. Based on a $450 hourly rate, Mrs. Dershowitz’s total net
undiscounted economic loss would have been $4,050,752 working to age 75, and $5,233,027
working to age 78. (Tr. 428:6-11; Pl’s Exs. 21, 21B, 21C.) At $600 per hour, her total net
undiscounted economic loss would have been $4,797,609 working to age 75, and $6,373,976
working to age 78. (Tr. 430:18-22; Pl’s Exs. 21, 21A, 21D, 21E.)
2)

Dr. Freifelder4

The government’s economic expert Dr. Leonard Freifelder explained that in conducting
his analyses, he was trying to capture the “pecuniary loss of financial support[, or] the difference
between the economic income Mrs. Dershowitz would have brought into the household from
various sources less her own personal consumption costs.” (Tr. 725:20-25.)
Dr. Freifelder’s analyses differed from Dr. Crakes’s in several significant ways. First, he
assumed that when Mrs. Dershowitz worked a part-time schedule of 22 hours per week, or 1,100
a year, only 600 of those hours would be billable (whereas Dr. Crakes assumed all 22 hours
would be billed and collected). (Tr. 732:18-23.) The non-billable hours would be time spent on
the telephone to potential clients, marketing, billing, non-billable client communications, and
networking. (Tr. 733:15-19.) He also ran calculations only at a $600 hourly rate (and not $450).
(Tr. 731:20-21.) He assumed she would have $60,000 of business expenses (as opposed to Dr.
Crakes, who assumed 10% of earnings in business expenses). (Tr. 802:1-4.) He acknowledged
on cross examination, however, that this figure was based on an assumed $5,000 per month

4

Dr. Freifelder received an undergraduate degree from the Wharton School of Business, with a major in
actuarial science, and a Master’s Degree and Ph.D. from the University of Pennsylvania, with a major in
operations research and statistics. He has worked as a professor at Temple University, the University of
Connecticut, and Baruch College. He is an associate of the Society of Actuaries, which requires a series
of five examinations, and a member of the National Association of Forensic Economics. He has been selfemployed as a forensic analyst for the past 18 years. (Tr. 719:1-723:6.)
37

expense not grounded in any analysis of actual likely business expenses. Dr. Freifelder
concluded that Mrs. Dershowitz’s gross revenue would be $360,000 a year minus $60,000 for
business expenses, or $300,000 in net income. (Tr. 731:20-732:3.) From that number, he then
deducted her personal consumption. (Tr. 732:13-15.)
Second, Dr. Freifelder calculated Mrs. Dershowitz’s lost earnings until ages 75 and 80 (as
compared to 75 and 78, as Dr. Crakes performed). (Tr. 735:21-23.) Age 75 was based on Mrs.
Dershowitz’s statistical work-life expectancy, or the average period of time that a woman of her
age and education would be expected to work. (Tr. 735:25-736:17.) This number was based on
The Markov Process Model of Labor Force Activity: Extended Tables of Central Tendency,
Shape, Percentile Points, and Bootstrap Standard Errors from the Journal of Forensic Economics,
August 2011. (Tr. 736:12-20.) Age 80 was based on Mrs. Dershowitz’s healthy-life expectancy,
which measures the expected number of years an individual of a given age, race, and sex is
expected to be healthy enough to do basic activities of normal living. (Tr. 737:6-25, 797:10-14.)
Mrs. Dershowitz’s healthy-life expectancy is 80.89 years old, and Dr. Freifelder rounded down
to age 80. (Tr. 737:2-3, 765:17-25.) Healthy-life expectancy numbers were based on the Healthy
Life Expectancy 2009 Tables published by Expectancy Data. (Tr. 737:12-14.)
Third, Dr. Freifelder used higher growth rates than Dr. Crakes. (Tr. 795:17-20.) He
assumed a growth rate for earnings of 3.47% (not 2%, as used by Dr. Crakes). (Tr. 780:3-7.)
That higher rate was the average increase in the cost of legal services over the ten year period
2003 through 2013 based on the Consumer Price Index. (Tr. 793:22-794:3.) He used a 2.49%
growth rate for social security retirement benefits based on the average increase of the social
security cost of living index over the ten years 2004 through 2014. (Tr. 794:17-20.) And he
assumed a flat cost of living increase in her pension of $214.85 per year, starting five years after

38

Mrs. Dershowitz retired from the state court system. (Tr. 794:24-795:2.) Finally, he used a
2.15% growth rate for household services, which was the increase in wages and salaries of
private industry workers in service jobs over the last ten years. (Tr. 794:21-23.)
Fourth, Dr. Freifelder used Mr. Dershowitz’s life expectancy and Mrs. Dershowitz’s
healthy-life expectancy as the cutoff for certain non-earnings economic loss calculations,
whereas Dr. Crakes used only Mrs. Dershowitz’s life expectancy. (Tr. 728:10-15.) He calculated
household services as beginning on the date of Mrs. Dershowitz’s death and running to her
healthy-life expectancy, when it is expected that she could no longer perform activities of normal
living. (Tr. 742:1-7, 747:14-18, 749:21-750:21.) Using the Dollar Value A Day Study, he
estimated that Mrs. Dershowitz would spend 25 hours per week on household chores when
working, and 28 hours after retiring, until her healthy-life expectancy. (Tr. 740:8-17.) In total,
the value of her household services was $208,261 assuming a work life to age 75, and $198,001
assuming a work life to age 80. (Tr. 750:17-21; Gov’t Ex. 27.)
Like Dr. Crakes, Dr. Freifelder started Mrs. Dershowitz’s lost retirement and social
security benefits on the date of her death. (Tr. 747:15-18.) But Dr. Freifelder calculated those
benefits to end at Mr. Dershowitz’s life expectancy, when he predicted that Mrs. Dershowitz’s
income would be entirely consumed by household expenses. Thus, although Dr. Freifelder used
the same personal maintenance rate of 20% initially, he explained that personal consumption
costs do not include shared household expenses, such as a mortgage or utility bill. (Tr. 726:3-23.)
As a result, when a two-member household becomes a one-member household, “almost all of the
expenses of the household [] become personal consumption.” (Tr. 727:3-8.) Thus, “if Mr.
Dershowitz died before his wife, his wife would then be a household of size 1 and the personal
consumption – the costs, the items that are considered to be personal consumption would now

39

include items that normally would have, while he was alive, have been shared economic goods.”
(Tr. 755:8-13.) For this reason, Dr. Freifelder concluded that after Mr. Dershowitz’s death, Mrs.
Dershowitz’s personal consumption rate would be 100%; that is, all of her pension and social
security benefits would be spent for household consumption. (Tr. 755:13-18.) Dr. Freifelder,
however, acknowledged that he did not have any information regarding the Dershowitzes’
household expenses or the family finances, which would be “relevant” to this assumption.
(Tr. 756:3.) Using a cutoff of Mr. Dershowitz’s life expectancy of 14.49 years from the date of
Mrs. Dershowitz’s death, the undiscounted total value of Mrs. Dershowitz’s past and future
pension benefit was $1,894,311. (Gov’t Ex. 27.) The undiscounted total value of her past and
future social security benefit was $553,232. (Id.)
In sum, Dr. Freifelder concluded that Mrs. Dershowitz’s net undiscounted economic loss
would have been $3,209,452 working to age 75, and $4,786,209 working to age 80. (Id.) Dr.
Freifelder repeatedly acknowledged that his calculations assume that Mrs. Dershowitz was able
to open a mediation practice and that she could demand $600 an hour for her services.
CONCLUSIONS OF LAW
I.

The Federal Torts Claim Act
Under the FTCA, a person may bring a claim against the United States for “personal

injury or death caused by the negligent or wrongful act or omission of any employee of the
government while acting within the scope of his office or employment, under circumstances
where the United States, if a private person, would be liable to the claimant in accordance with
the law of the place where the act or omission occurred,” or in this case, the law of New York
State. 28 U.S.C. § 1346(b); Millbrook v. United States, 133 S. Ct. 1441, 1444 (2013); Liranzo v.
United States, 690 F.3d 78, 85 (2d Cir. 2012).

40

II.

Wrongful Death and Negligence
“[A] wrongful death action belongs to the decedent’s distributees and is designed to

compensate the distributees themselves for their pecuniary losses as a result of the wrongful act.”
Heslin v. Cnty. of Greene, 14 N.Y.3d 67, 76 (2010) (citing N.Y. EPTL § 5-4.3). Under New
York law, to establish a claim for wrongful death, “[t]he personal representative . . . of a
decedent who is survived by distributees” must establish the “wrongful act, neglect or default
which caused the decedent’s death against a person who would have been liable to the decedent
by reason of such wrongful conduct if death had not ensued.” N.Y. EPTL § 5-4.1. See Garcia v.
Dutchess Cnty., 43 F. Supp. 3d 281, 298-99 (S.D.N.Y. 2014) (quoting Hollman v. Taser Int’l
Inc., 928 F. Supp. 2d 657, 683 (E.D.N.Y. 2013)). A plaintiff may demonstrate causation by
showing that a defendant’s acts or omissions were negligent.
“Negligence . . . is a failure to use that degree of care that a reasonably prudent person
would have used under the same circumstances; negligence may arise from doing an act that a
reasonably prudent person would not have done under the same circumstances, or from failing to
do an act that a reasonably prudent person would have done under the same circumstances.”
Silva v. United States, 08 Civ. 4114 (JBW), 2010 WL 3731172, at *4 (E.D.N.Y. Sept. 20, 2010)
(citing New York Pattern Jury Instructions 3d ed. 2:10 et seq. (2010) (“NYPJI”)). Under New
York law, to establish a claim of negligence, the plaintiff must demonstrate (1) that the defendant
owed the decedent a duty of reasonable care, (2) a breach of that duty, and (3) an injury
substantially caused by the breach. See Lombard v. Booz-Allen & Hamilton, Inc., 280 F.3d 209,
215 (2d Cir. 2002); Elmaliach v. Bank of China Ltd., 971 N.Y.S.2d 504, at *5 (1st Dep’t 2013).
“The mere happening of the accident does not establish liability on the part of the defendant.”
Lewis v. Metro. Transp. Auth., 472 N.Y.S.2d 368, 372 (1st Dep’t 1984). Rather, the plaintiff

41

bears the burden of proving by a preponderance of the evidence that the injuries in question were
proximately and substantially caused by the defendant’s negligence. See, e.g., Caraballo v.
United States, 830 F.2d 19, 22-23 (2d Cir. 1987) (holding that an adult swimmer’s decision to
dive head first into three feet of water was an unforeseeable superseding cause of his injuries,
barring liability of the United States for its failure to post signs or adequately patrol the area).
Proximate cause is that “which in a natural sequence, unbroken by any new cause, produces that
event and without which that event would not have occurred.” Id. at 22 (citation omitted).
In a wrongful death action based on negligence, the plaintiff “is not held to as high a
degree of proof as is required in a case where the injured person may take the stand and give
their version of the occurrence.” Maura v. ACL Leasing, LLC, 12 Civ. 8909 (RWS), 2014 WL
7250952, at *3 (S.D.N.Y. Dec. 19, 2014) (citing Noseworthy v. City of New York, 298 N.Y. 76,
78 (1948)). “The plaintiff’s evidence is deemed sufficient to make out a prima facie case if it
shows facts and conditions from which the negligence of the defendant and the causation of the
accident by that negligence may be reasonably inferred.” Maura, 2014 WL 7250952, at *3
(quoting In re Lattimore’s Estate, 316 N.Y.S.2d 363, 364-65 (4th Dep’t 1970)).
III.

Liability
The plaintiff raises three theories of the defendant’s alleged breach of a duty of care: (1)

Mr. Clement drove negligently in violation of VTL § 1146(a), which requires that drivers
“exercise due care to avoid colliding with any bicyclist,” and VTL § 1122-a, which requires a
vehicle overtaking a bicycle to “pass to the left of such bicycle at a safe distance until safely
clear thereof”; (2) Mr. Clement drove negligently in violation of New York common law
because he failed to see what was ahead of him; and (3) the Postal Service negligently parked the
Postal Trailer causing the dangerous road conditions that led to Mrs. Dershowitz’s death. The

42

plaintiff seeks $8,987.632.15 in damages. In turn, the government argues that Mrs. Dershowitz’s
own actions were the sole proximate cause of the accident, or alternatively, that her actions were
a substantial contributing cause of the accident. The government further argues that if found
liable, lost earnings damages are too speculative to be awarded.
The Court finds that the plaintiff has established by a preponderance of the credible
evidence that the government’s negligence – both Mr. Clement’s driving and the Postal Trailer’s
placement – was the sole, proximate cause of the decedent’s injuries. Mrs. Dershowitz was not
contributorily negligent.
A.

Mr. Clement’s Negligence

As set out by the VTL, New York common law, and New York City law, Mr. Clement
owed Mrs. Dershowitz – a biker sharing the roadway – a duty of reasonable care. He breached
that duty, contributing to the accident that took Mrs. Dershowitz’s life.
1.

New York State Vehicle and Traffic Laws

The Postal Service, its drivers, and bicyclists are subject to the provisions of VTL Title II.
See VTL §§ 1103(a), 1231. A violation of a standard of care imposed by the VTL constitutes
negligence per se. Michael Dalton as Adm’r of the Estate of Aileen McKay-Dalton v. United
States, 12 Civ. 506 (NGG)(JO), 2014 WL 7423760, at *21 (E.D.N.Y. Dec. 31, 2014). See, e.g.,
Gray v. Wackenhut Servs., Inc., 721 F. Supp. 2d 282, 290 (S.D.N.Y. 2010); Delgado v. Martinez
Family Auto, 979 N.Y.S.2d 277, 279 (1st Dep’t 2014); Barbieri v. Vokoun, 900 N.Y.S.2d 315,
318 (2d Dep’t 2010). If one party establishes prima facie a violation of the traffic law, the burden
shifts to the other party to produce evidence showing that there was no violation or offering a
sufficiently reasonable explanation or excuse for the violation. See Delgado, 979 N.Y.S.2d at
279.

43

VTL Section 1146(a) provides that, “[n]otwithstanding the provisions of any other law to
the contrary, every driver of a vehicle shall exercise due care to avoid colliding with any
bicyclist . . . upon any roadway and shall give warning by sounding the horn when necessary.”
VTL § 1146(a) (emphasis supplied). “Due care is that care which is exercised by reasonably
prudent drivers.” Kane v. United States, 189 F. Supp. 2d 40, 52 (S.D.N.Y. 2002) (quoting
Russell v. Adduci, 528 N.Y.S.2d 232, 234 (3d Dep’t 1988)). Section 1146(a) places the burden
on the driver to avoid bicyclists. If a driver “causes serious physical injury while failing to
exercise due care . . . there shall be a rebuttable presumption that, as a result of such failure to
exercise due care, such person operated the motor vehicle in a manner that caused such serious
physical injury.” VTL § 1146(c)(2). See also N.Y.P.L. § 10.00(10) (defining “serious physical
injury” in part as “physical injury . . . which causes death”).
Here, as set forth in the Court’s Findings of Facts, the preponderance of credible evidence
introduced at trial demonstrates that Mr. Clement violated VTL § 1146(a) as he did not exercise
due care to avoid colliding with Mrs. Dershowitz. For fourteen seconds after passing Ninth
Avenue, Mrs. Dershowitz was ahead of the Postal Truck. In Mr. Clement’s deposition, he
testified that he never saw a bicyclist. Mrs. Dershowitz was there to be seen, however, and a
reasonably prudent driver would have seen her. Instead of navigating his truck around her, Mr.
Clement was vying to be the first vehicle to enter the narrowed portion of the roadway, and his
attention was on the minivan to his left. Multiple witnesses testified that as the cars merged into
one lane, the Postal Truck moved right. The government has not rebutted the presumption that
Mr. Clement’s failure to exercise due care caused Mrs. Dershowitz’s death.
For the same reasons, Mr. Clement violated VTL Section 1122-a. Section 1122-a
provides that the “operator of a vehicle overtaking, from behind, a bicycle proceeding on the

44

same side of a roadway shall pass to the left of such bicycle at a safe distance until safely clear
thereof.” Video footage demonstrated that Mrs. Dershowitz was biking close to the right,
northern curb and ahead of the Postal Truck at all times. As a conscientious biker, she followed
the rules of the road and stopped at the Ninth Avenue light. She was “in control” and proceeding
at a safe speed. (Tr. 485:10-14.) Thus, if any driver wanted to overtake her, it was that driver’s
duty to do so only if he could maintain a “safe distance” between his vehicle and her bicycle. Mr.
Clement did not maintain such a distance.
2.

New York City Traffic Rules and Regulations

A violation of the New York City Traffic Rules and Regulations, codified in Chapter 4 of
Title 34 of the Rules of the City of New York (the “RCNY”), constitutes “some evidence of
negligence.” See Elliott v. City of New York, 95 N.Y.2d 730, 734-35 (2001). Where inconsistent
or in conflict with the VTL’s right of way provisions, RCNY supersedes the VTL. See VTL
§ 1642(a)(10). Under the RCNY, “[n]o person shall operate a vehicle in a manner that will
endanger any person or property.” 34 RCNY § 4-02(c). For the reasons already stated, Mr.
Clement violated this provision as well.
3.

Common Law

New York common law also holds that “[a] driver is negligent when an accident occurs
because he or she failed to see that which through the proper use of his or her senses he or she
should have seen.” Michael Dalton, 2014 WL 7423760, at *23 (quoting Katanov v. Cnty. of
Nassau, 936 N.Y.S.2d 285, 287 (2d Dep’t 2012)). The credible evidence introduced at trial all
but requires the Court to infer that Mr. Clement should have seen that which was there to be
seen: Mrs. Dershowitz, biking continuously and calmly, hugging the right hand side of the
roadway. After passing Ninth Avenue, Mrs. Dershowitz was ahead of him by at least six

45

seconds. Had Mr. Clement scanned the roadway through his large panoramic windshield or used
his right side mirror, he would have seen her.
B.

The Negligently Parked Postal Trailer

As set out by New York common law and New York City laws, the Postal Service had a
duty to maintain its premises in a safe condition and properly park the Postal Trailer in a nonnegligent manner. The Postal Service breached this duty, contributing to Mrs. Dershowitz’s
death.
1.

New York Law

Under New York law, occupiers of land, including the Postal Service, have a general
duty “to maintain their properties in reasonably safe condition” in light of the circumstances.
Krull v. United States, 9 F. Supp. 3d 298, 302-03 (W.D.N.Y. 2014) (citing Di Ponzio v. Riordan,
89 N.Y.2d 578, 583 (1997)); Delano v. United States, 859 F. Supp. 2d 487, 502 (W.D.N.Y.
2012) (quoting Robinson v. United States, 330 F. Supp. 2d 261, 287 (W.D.N.Y. 2004) (quoting
Michalski v. Home Depot Inc., 225 F.3d 113, 117 (2d Cir. 2000))); Galindo v. Town of
Clarkstown, 2 N.Y.3d 633, 636 (2004). See also Haskin v. United States, 569 F. App’x 12, 16
(2d Cir. 2014) (citing Zuckerman v. State, 618 N.Y.S.2d 917, 918 (2d Dep’t 1994) (“[T]he
owner or possessor of property [has] the duty to make reasonable efforts to inspect the property
so as to determine the presence of dangerous conditions.”)). In determining the scope of the
Postal Service’s duty, the New York Court of Appeals has directed courts to consider “whether
the relationship of the parties is such as to give rise to a duty of care, whether the plaintiff was
within the zone of foreseeable harm and whether the accident was within the reasonably
foreseeable risks. The nature of the inquiry depends, of course, on the particular facts and

46

circumstances in which the duty question arises.” Di Ponzio, 89 N.Y.2d at 583 (citations
omitted). See also Galindo, 2 N.Y.3d at 636.
Generally, a landowner has no duty “to warn against a condition that can readily be
observed by those employing the reasonable use of their senses, ‘the situation being, in such a
case, a warning in itself.’” Robinson, 330 F. Supp. 2d at 288 (quoting Olsen v. State, 25 N.Y.2d
665, 667 (1969)). “Even where the condition is open and obvious,” however, “a landowner’s
duty to maintain property in a reasonable safe condition is not obviated.” Phelan v. State of New
York, 804 N.Y.S.2d 886, at *10 (Ct. Cl. 2005). The exercise of reasonable care “may include
warning other motorists” and road users “of the hazards posed by the obstruction.” Jones v. G &
I Homes, Inc., 927 N.Y.S.2d 206, 208 (3d Dep’t 2011).
Here, the Court considers the Postal Trailer’s size, placement blocking the sidewalk, and
the distance it protruded into the street to determine “issues of foreseeability and proximate
cause.” Reuter v. Rodgers, 648 N.Y.S.2d 989, 989 (2d Dep’t 1996). See Boehm v. Telfer, 672
N.Y.S.2d 959, 960 (3d Dep’t 1998) (denying summary judgment where testimony raised
questions of fact as to whether the defendant “was negligent in the manner in which he parked
[his] truck given its size, proximity to the corner, distance from the curb, the angle at which it
was parked and the width of the road”) (emphasis supplied). The Postal Trailer blocked the
entire northern sidewalk and extended six feet and three inches into the roadway, or right lane of
traffic. Its placement forced pedestrians to leave the sidewalk and enter the roadway to
circumvent it. It also forced any vehicles travelling in the right-hand lane, including bicycles, to
merge left and into traffic in order to go around it. Its placement also contributed to a narrowing
of the roadway such that the street diminished to a one-lane road. The portion of 29th Street
where the Postal Trailer was parked was also well-travelled. In addition to lay traffic, Postal

47

Service vehicles regularly transversed the street, as evidenced by Mr. Clement’s having driven
the street several times that same day to make rounds and pick up deliveries. These observations,
and the dangerous condition the Postal Trailer’s placement created, were reasonably foreseeable.
The Postal Service violated its duty to maintain its premises in a safe condition in view of the
circumstances.
Further, “owners of improperly parked cars,” including the federal government as owner
of the Postal Trailer, “may be held liable to plaintiffs injured by negligent drivers of other
vehicles, depending on the determinations by the trier of fact of the issues of foreseeability and
proximate cause unique to the particular case.” Reuter, 648 N.Y.S.2d at 989 (collecting cases).
See Hopkins v. Ambrose, 903 N.Y.S.2d 784, 785 (3d Dep’t 2010) (reversing grant of summary
judgment where “evidence presented by plaintiff created questions of fact regarding whether [the
defendant] negligently parked his vehicle . . . thereby obstructing the roadway and contributing
to the accident”); In re Yavkina, 874 N.Y.S.2d 235, 236 (2d Dep’t 2009) (“The issue of whether
the [] defendant’s employee was negligent in double-parking his delivery truck and, if so,
whether the negligence was a proximate cause of the accident should be submitted to the jury.”);
Smalls v. N.Y.C. Transit Auth., 889 N.Y.S.2d 507, *2 (Sup. Ct. 2009) (denying summary
judgment where it remained a question of fact “whether the illegally parked cars, which forced
the passengers to disembark in the street, were the proximate cause of the plaintiff’s” injury).
“The common-law rule imposing liability for improperly parked vehicles ‘is not limited to
statutory violations but also applies to circumstances evidencing ordinary negligence.’” Perry v.
Pelersi, 689 N.Y.S.2d 772, 773 (3d Dep’t 1999) (quoting Boehm, 672 N.Y.S.2d at 960). For the
reasons mentioned, the Postal Service’s negligently parked trailer was a proximate cause of the
accident.

48

The Postal Trailer’s placement also was not so apparent that it obviated the Postal
Service’s duty to warn travelers. In Buccino v. City of New York, for example, the Appellate
Division, First Department, held that where the plaintiff regularly bicycled the same route to
work, “a speed bump on the 20-foot-wide roadway . . . coupled with a car [legally] parked near
the speed bump, which car plaintiff had seen in the same location many times before,” were
“plainly observable and did not pose any danger to someone making reasonable use of his or her
senses.” 923 N.Y.S.2d 322, 322-23 (1st Dep’t 2011) (quoting Rivera v. City of New York, 870
N.Y.S.2d 241, 243 (1st Dep’t 2008)). Here, unlike the plaintiff in Buccino, the Postal Trailer’s
presence was not previously known to Mrs. Dershowitz. There is no evidence that Mrs.
Dershowitz had biked 29th Street before. Although the Postal Trailer was plainly observable, it
posed a danger to Mrs. Dershowitz despite use of her senses. Further, there is no evidence that
the Postal Service signs, or any other signs along West 29th Street between Ninth and Tenth
Avenues, warn pedestrians, bicyclists or vehicles that the roadway has obstructions or advise
them to use a different route instead. To the contrary, the right overpass sign clearly states that
there is no parking at any time, which suggests that the roadway will be clear. Mr. Clement
stated that other than a speed limit sign, there were no other signs prohibiting or warning
pedestrians and bicyclists about proceeding down 29th Street. The Postal Service had a duty to
warn travelers of the reasonably foreseeable dangerous situation.
2.

New York City Traffic Rules and Regulations

The RCNY provides that “[n]o person shall stop, stand or park a vehicle, whether
attended or unattended, other than in accordance with authorized signs, pavement markings, or
other traffic control devices.” 34 RCNY § 4-08(a)(1). “When official signs, markings or traffic
control devices have been posted prohibiting, restricting or limiting the parking of vehicles, no

49

person shall park any vehicle in violation of the restrictions posted on such signs, markings or
traffic control devices.” 34 RCNY §§ 4-07(b), (d). The Postal Trailer was parked in direct
violation of the Postal Service’s own official regulations.
While the sign on the left, southern portion of the 29th Street overpass provided, “THIS
SIDE OF THE STREET U.S. POSTAL TRAILER PARKING ONLY,” the sign on the right,
northern side provided, “THIS SIDE OF THE STREET NO PARKING AT ANY TIME. TOW
AWAY ZONE.” (Gov’t Ex. 23.) A reasonable reader would understand the signs to indicate that
on the left, southern side of the street, Postal Service trailers are allowed to parallel park and
other vehicles are not; whereas on the right, northern side of the street, neither Postal Service
trailers nor any other vehicles are allowed to parallel park. The Postal Service appears to use the
northern side of the street and sidewalk to reach its loading bays in Morgan Mail North,
however, in direct contravention of its own sign.
That the Postal Trailer was parked in violation of the Postal Service’s own sign further
supports the Court’s finding that the Postal Trailer was parked in a negligent manner. See 34
RCNY §§ 4-07(b)(1), (d); Sullivan v. Locastro, 577 N.Y.S.2d 631, 634 (2d Dep’t 1991) (finding
that “various prohibitions against parking [between 7:00 A.M. and 9:00 A.M.] where the bus was
parked did not impose a higher standard of care than the common law standard, but essentially
merged with the common law standard – i.e., ordinary care commensurate with the existing
circumstances.” (internal quotations and citation omitted)). See also Sieredzinski v. McElroy,
756 N.Y.S.2d 761, 762 (2d Dep’t 2003) (granting summary judgment for the defendants where
“there was no evidence to support a finding of negligence on the part of the moving defendants,
whose tractor trailer was legally parked at the time of the accident”). It was certainly reasonably
foreseeable that a bicyclist, or pedestrian, would use the right lane on 29th Street at the same

50

time that that the Postal Trailer was parked, and the roadway subsequently narrowed, while
steady vehicular traffic proceeded down the street. But for the Postal Trailer’s placement, Mrs.
Dershowitz would have not have had to travel into the center lane of traffic, which afforded a
negligent driver, Mr. Clement, the opportunity to hit her. Absent its placement, the traffic would
not have been forced to merge into one, narrowed center lane, and Mrs. Dershowitz might have
had space to maneuver and avoid any accident. The negligently parked Postal Trailer, along with
Mr. Clement’s negligent driving, were the proximate causes of the accident.
C.

Contributory Negligence

Under New York’s pure comparative negligence scheme, there can be more than one
proximate cause of an accident. See Saint v. United States, 483 F. Supp. 2d 267, 279-83
(E.D.N.Y. 2007); Caraballo, 830 F.2d at 22. A plaintiff’s culpable conduct will not bar recovery
but only diminishes it proportionally. N.Y. CPLR 1411. See Goodlett v. Kalishek, 223 F.3d 32,
35-36 (2d Cir. 2000). The defendant bears the burden of proving contributory negligence on the
part of the plaintiff by a preponderance of the evidence. Kane, 189 F. Supp. 2d at 52 (citing 1B
NYPJI 2:275.1 (2000)). See, e.g., Galvin v. Zacholl, 755 N.Y.S.2d 175, 177 (4th Dep’t 2003)
(finding no liability where, in dry, sunny and clear weather, the straightaway vehicle was
traveling four miles per hour over the speed limit, and there was no evidence that the driver
could have avoided the collision had she traveled at the speed limit). The government has failed
to meet its burden that Mrs. Dershowitz was contributorily negligent.
VTL § 1231 provides that, “[e]very person riding a bicycle . . . upon a roadway shall be
granted all of the rights and shall be subject to all of the duties applicable to the driver of a
vehicle by this title . . . .” Consequently, “[a] bicyclist is required to use reasonable care for his or
her own safety, to keep a reasonably vigilant lookout for vehicles, and to avoid placing himself

51

or herself in a dangerous position.” Palma v. Sherman, 867 N.Y.S.2d 111, 113 (2d Dep’t 2008)
(citing VTL § 1146). See also Kane, 189 F. Supp. 2d at 52 (“A plaintiff must exercise the
reasonable care that a reasonably prudent person would use under similar circumstances to
protect herself from injury.”) (citation omitted). VTL § 1234(a) also provides that bicyclists shall
bike in a designated lane, or, if a bicycle lane “has not been provided, near the right-hand curb
or edge of the roadway . . . in such a manner as to prevent undue interference with the flow of
traffic except . . . when reasonably necessary to avoid conditions that would make it unsafe to
continue along near the right-hand curb or edge.” VTL § 1234(a) (emphasis supplied).
Here, in all respects, the evidence produced supports the conclusion that Mrs. Dershowitz
was an experienced biker who did just what the VTL instructed: she wore a helmet, rode near to
the curb, travelled at a reasonable speed, stopped at the Ninth Avenue traffic light, and appeared
to be a vigilant, cautious, and rule-abiding rider. See also VTL § 1234(b) (requiring bicyclists to
ride “single file when being overtaken by a vehicle”); VTL § 1236(d) (requiring that bicycles be
equipped with reflectors). When Mrs. Dershowitz did leave the curb, she did so only “to avoid
conditions that would make it unsafe to continue”: namely, the protruding and perpendicular
parked Postal Trailer. VTL § 1234(a).
The Court credits Ms. Sunshine’s testimony that she saw Mrs. Dershowitz “losing her
balance” and continue to ride even though “she still wasn’t balanced.” (Tr. 599:17-600:4.) This
observation could support the government’s argument that Mrs. Dershowitz negligently chose to
enter a dangerous situation when she herself was unsteady. But the Court finds it more probable
that Ms. Sunshine observed Mrs. Dershowitz wobbling before impact. All the evidence suggests
that Mrs. Dershowitz was a careful, competent and rule-abiding biker. To the extent she wobbled
before she was fatally struck, she may well have lost her balance as she sensed the Postal Truck’s

52

close proximity. Alternatively, Ms. Sunshine may reasonably recollect the moment of impact
played out more slowly than Mr. Genna believed it would have – a common experience when
people witness tragic events. Whatever happened, the government has not offered proof beyond
a preponderance of the evidence that Mrs. Dershowitz’s own negligence was at fault. The
government declined to call its own reconstructionist expert who presumably would have offered
an alternative narrative contradicting Mr. Genna’s hypothesis and explaining why Mrs.
Dershowitz herself was negligent. Because the government did not, the only reliable evidence
that supports its contention is Mrs. Sunshine’s testimony. That is not enough to meet its burden.
IV.

Damages
Having determined that the government is 100% liable for Mrs. Dershowitz’s death, the

Court turns to damages. The plaintiff has proven by a preponderance of the evidence that Mrs.
Dershowitz would have worked and would have started her own mediation business. Indeed, the
testimony was overwhelming that Mrs. Dershowitz was not at the end of her career but at the
beginning of a new professional stage. Having reinvented herself several times, including going
to law school when her first child was already in college, it is plain that Mrs. Dershowitz was not
someone who let age limit her.
Thus, it has established lost economic earnings beyond the realm of pure speculation.
Because the assumption that Mrs. Dershowitz would make $450 or $600 per hour is not fairly
inferable from the evidence, however, the Court does not adopt either expert’s complete financial
estimates.
Under the FTCA, damages are determined using the law of “the place where the
[tortious] act or omission occurred.” 28 U.S.C. § 1346(b)(1). In New York, damages in wrongful
death actions are awarded pursuant to the New York Estates, Powers and Trusts Law. Section 5-

53

4.3 provides that the Court shall award damages in the amount it “deems to be fair and just
compensation for the pecuniary injuries resulting from the decedent’s death to the persons for
whose benefit the action is brought.” N.Y. EPTL § 5-4.3. See Hyung Kee Lee v. New York
Hosp. Queens, 987 N.Y.S.2d 436, at *3 (2d Dep’t 2014).
New York “steadfastly restrict[s]” recovery to pecuniary losses. See Ferrarelli v. United
States, 90 Civ. 4478 (JMA), 1992 WL 893461, at *7 (E.D.N.Y. Sept. 24, 1992) (citing Gonzalez
v. N.Y.C. Housing Auth., 77 N.Y.2d 663, 667 (1991) (“Gonzalez I”)). Pecuniary losses include
loss of past and future earnings, household services, parental guidance, funeral expenses incurred
as the result of the decedent’s death, and conscious pain and suffering. See Ferrarelli, 1992 WL
893461, at *7. “Pecuniary” is “used in distinction to those injuries to the affections and
sentiments which arise from the death of relatives, and which, though most painful and grievous
to be borne, cannot be measured or recompensed by money.” Gonzalez I, 77 N.Y.2d at 668
(quoting Tilley v. Hudson Riv. R.R. Co., 24 N.Y. 471, 476 (1862)). Therefore, pecuniary loss
excludes “grief, lost society, lost companionship, [and] lost affections.” Ferrarelli, 1992 WL
893461, at *7.
The award for future losses is fact-specific, problematic, and necessarily “indefinite,
prospective, and contingent.” McKee v. Colt Elec. Co., 849 F.2d 46, 52 (2d Cir. 1988) (quoting
Houghkirk v. Delaware Hudson Canal Co., 92 N.Y. 219, 225 (1883); Ferrarelli, 1992 WL
893461, at *13. See also Riley v. Capital Airlines, 247 N.Y.S.2d 427, 445 (Sup. Ct. 1963)
(“[T]here is no mathematical formula for computing damages” in a wrongful death case.)). To
calculate the proper compensation, New York courts have enumerated several factors to
consider, including “the decedent’s age; his health; his expectations; his earning ability; his
income; the possibility of additional income; and the number, age, and situation of those

54

dependent upon the decedent for support, and the manner in which he would have supported
them.” Morgan Guar. Trust Co. v. Texasgulf Aviation, Inc., 604 F. Supp. 699, 700 (S.D.N.Y.
1985). See also Mono v. Peter Pan Bus Lines, Inc., 13 F. Supp. 2d 471, 478 (S.D.N.Y. 1998)
(citing Greenspan v. East Nassau Med. Group, 611 N.Y.S.2d 580, 581 (2d Dep’t 1994)). When
determining appropriate damages, the Court is “bound by a standard of reasonableness.”
Mastrantuono v. United States, 163 F. Supp. 2d 244, 258 (S.D.N.Y. 2001). Ultimately, “the
calculation rests within the province of the fact-finder.” Ferrarelli, 1992 WL 893461, at *7
(citation omitted).
A.

Past and Future Lost Earnings

Like damages more broadly, determining lost earnings “is necessarily speculative and
fraught with difficulties.” Kavanaugh v. Nussbaum, 129 A.D.2d 559, 563 (2d Dep’t 1987)
(citation omitted). See also Sinkov v. Americor, Inc., 419 F. App’x 86, 90 (2d Cir. 2011)
(“Estimates of a deceased person’s future earning capacity are inherently speculative to some
degree.”). As a result, trial courts have “great latitude in deciding whether to admit or exclude
expert testimony.” Id. at 90 (citing United States v. Onumonu, 967 F.2d 782, 786 (2d Cir. 1992)).
“[A]n expert’s testimony should be excluded as speculative if it is based on unrealistic
assumptions regarding the plaintiff’s future employment prospects.” Boucher v. U.S. Suzuki
Motor Corp., 73 F.3d 18, 21 (2d Cir. 1996).5 If the testimony is admitted, the Court has
discretion to determine “whether the expert acted reasonably in making assumptions of fact upon
which he would base his testimony.” Sinkov, 419 F. App’x at 90 (citing Shatkin v. McDonnell
Douglas Corp., 727 F.2d 202, 208 (2d Cir. 1984) (citing Fed. R. Evid. 703)). The Court may

5

On October 21, 2014, the government moved in limine to exclude evidence of future lost earnings,
which the plaintiff opposed on October 28, 2014. (ECF Nos. 38-42.) At the November 26, 2014, final
pretrial conference, the Court denied the government’s motion, finding that the government’s argument
went to the weight of the evidence and not the admissibility. (ECF No. 50.)
55

reduce damages, or not award them at all, “when they are based on contingencies which are
‘uncertain, dependent on future changeable events and, thus, inherently speculative.’” Phelan,
804 N.Y.S.2d at *13 (quoting Mono, 13 F. Supp. 2d at 478 (quoting Farrar v. Brooklyn Union
Gas Co., 73 N.Y.2d 802 (1988))). See, e.g., Carroll v. United States, 295 F. App’x 382, 385 (2d
Cir. 2008) (holding that where the decedent never worked as a physician’s assistant and never
took the licensing exam necessary to practice medicine and did not show that he accepted or
worked in such a position in the past, earnings as a physician’s assistant were wholly
speculative); Tassone v. Mid-Valley Oil Co., 5 A.D.3d 931, 932-33 (3d Dep’t 2004) (holding
that where an expert relied on the injured plaintiff’s age and income level at the time of the
accident, his work-life expectancy for an individual in plaintiff’s profession, his work experience
and track record as a hard worker, and a letter from the plaintiff’s employer about his prospects,
“the jury’s award of $4,264,578 for future loss of income” did not “deviate[] materially from
what would be reasonable compensation”); Kirschhoffer v. Van Dyke, 173 A.D.2d 7, 10 (3d
Dep’t 1991) (upholding an award for lost future earnings based upon the earning capacity of a
teacher where the plaintiff demonstrated that there were jobs available in her local school district
that required no further training or education).
The starting point to determine the value of past and future lost earnings is a “decedent’s
gross income at the time of death.” Imbierowicz v. A.O. Fox Memorial Hosp., 841 N.Y.S.2d
168, at *4 (3d Dep’t 2007). See also Phelan, 804 N.Y.S.2d at *13. The factfinder may also
consider expected changes in the decedent’s future earnings where it is sufficiently probable that
such changes were forthcoming. Id. at *13; Kirschhoffer, 173 A.D.2d at 10 (“Recovery for lost
earning capacity is not limited to a plaintiff’s actual earnings before the accident . . . and the
assessment of damages may instead be based upon future probabilities.”). See also Boucher, 73

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F.3d at 21; Mono, 13 F. Supp. 2d 471; Imbierowicz, 841 N.Y.S.2d at 173 (citing Farrar, 73
N.Y.2d at 804).
The Court finds that Mrs. Dershowitz had not left the New York State Supreme Court
with the intent to stop working completely. Although Mrs. Dershowitz’s only income at the time
of her death was her social security and pension benefits, the evidence at trial overwhelmingly
demonstrated her intent to continue working. Mr. Dershowitz, Adam, Rana, and Mrs. Cohen all
testified credibly that she planned to move on to the next phase of her career as a private
mediator. Relying on the testimony of Mrs. Dershowitz’s noteworthy work ethic, that she already
changed her career once (at age 42) to become a lawyer, and that she had always worked, the
Court is confident that Mrs. Dershowitz intended to keep working. The government presented no
evidence, and elicited no testimony on cross-examination, that challenged this conclusion.
The next inquiry is more complicated: the probability, likely success, and form that Mrs.
Dershowitz’s future work as a private mediator would take. Mr. Dershowitz testified that Mrs.
Dershowitz’s private mediator friends were paid $450 an hour, while “[s]ome of the judges were
making $600, $650 an hour.” (Tr. 157:7-8.) Mrs. Cohen testified that based on Mrs.
Dershowitz’s intelligence, training, education, life experiences, and reputation she would make
“[n]o less than $600 an hour.” (Tr. 242:20.) She testified about former judges who practiced
through JAMS and charged that rate or higher.
Specifically, Mrs. Cohen referred to three mediators to predict Mrs. Dershowitz’s hourly
rate: Betty Ellerin, Saralee Evans, and Milton Mollen – all of whom had been judges in the past
and had been practicing as private mediators for some time. Although Mrs. Dershowitz’s may
have functioned as a “partner” to Justice Friedman, she was never a judge. All three judges also

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functioned out of firms or intermediaries, such as JAMS, where the hourly rate might have been
higher given those institutions’ reputations as well as necessary overhead costs.
Unfortunately, no evidence was produced regarding the rates of private solo mediators –
especially ones who are not former judges – other than Mr. Dershowitz’s belief that mediators
were being paid around $450. The Court would have valued evidence concerning the economics
of a solo mediator’s practice. Relatedly, there was no evidence as to how much former judges
Ellerin, Evans, or Mollen made when they began their practices as compared to what they make
now, or how much of their rate goes to their institution. The economic experts’ rates are based on
a profile that is not Mrs. Dershowitz.
Consequently, the Court finds the testimony that Mrs. Dershowitz would have earned
$450 or $600 per hour for a set number of hours far too speculative to support a basis for Mrs.
Dershowitz’s lost earnings. See, e.g., Boucher, 73 F.3d at 20-22 (finding that an expert’s
testimony as to lost earnings, where the plaintiff worked sporadically in the eleven years before
the accident but the expert calculated the lost earnings assuming the plaintiff would have worked
full-time until retirement, were based on “a complete break with [the plaintiff’s] work history,”
were not of “probative value,” and were speculative); Wanamaker v. Pietraszek, 486 N.Y.S.2d
523, 524 (4th Dep’t 1985) (holding that where the plaintiff introduced the testimony of an
employee receiving training in a field decedent was scholastically ineligible for, that witness’s
salary level was non-probative of the decedent’s future salary level and lost earnings). Convinced
that Mrs. Dershowitz would have been prone to work long hours if she was in town but would
have taken chunks of time off to visit her grandchildren, the Court finds that the parties’
evidence regarding the average number of hours Mrs. Dershowitz would have worked per week
is also too speculative.

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The only non-speculative evidence of Mrs. Dershowitz’s future earnings is the historical
data of what her salary had been and what salary had been affirmatively offered to her: (1) her
$127,438.96 salary before she retired as a Special Referee, and (2) Mrs. Dershowitz job offer, as
a full-time contract partner, making $225,000 per year. There is undoubtedly a difference
between the public sector salary Mrs. Dershowitz had been making as a Special Referee and the
salary that mediators make in private practice: Mrs. Dershowitz took the buyout, in part, to make
more money than she had been making while working more flexible hours. As a result, Mrs.
Dershowitz’s past salary is an inappropriate measure of her lost earnings. Turning to Mrs.
Cohen’s job offer, there is no evidence that Mrs. Dershowitz turned it down because it was less
than she believed she could earn as a private mediator. Rather, the only evidence presented
shows that Mrs. Dershowitz turned it down because she did not want to litigate and wanted
greater flexibility with her time. Thus, Mrs. Cohen’s salary offer is uncontroverted evidence of
the salary Mrs. Dershowitz could have earned, based on the testimony of a woman who knew
and highly valued Mrs. Dershowitz’s skills.
The court’s analysis in Mono v. Peter Pan Bus Lines, Inc. is helpful. 13 F. Supp. 2d 471.
In that case, the decedent had been a full-time bookkeeper from 1986 through 1994. Id. at 478.
During that time, she attended college and, at age 52, received a bachelor’s degree in accounting
with the goal of enhancing her earning capacity. Id. at 478-79. In 1994, after her employer went
out of business, she decided to freelance as a bookkeeper. Id. at 479. A friend of the decedent,
and a judge, testified that the decedent had decided that if, after two years, she could not earn as
much money as she had with her former employer, she would seek a full-time bookkeeper job
instead. Id. An economic expert then testified about the decedent’s future earnings had she
worked as a freelance bookkeeper until age of 65 ($28,245) or 70 ($51,993) versus as a fulltime

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bookkeeper until age 65 ($156,000) or 70 ($313,000). Id. The defendants argued that her
earnings as a fulltime bookkeeper were speculative because Mono had not worked fulltime
during the two years preceding her death. The court concluded that the expert “did not speculate
on whether her freelance business might flourish, nor were his projections derived from the
earnings of dissimilar individuals. Rather, [his] calculations were grounded in historical data of
[the decedent’s] earnings.” Id. at 479-80 (emphasis supplied). The court relied on the fact that the
plaintiff’s past earnings as a fulltime bookkeeper were a known entity: Mono had in fact earned
that salary and would go back to earning that salary if she could not succeed making more in her
(speculative) freelance business.
Here, like Mono, the hourly rate that Mrs. Dershowitz would have made and how many
hours she would have billed and collected in private practice is too speculative. See also Agron
v. Trustees of Columbia Univ., 88 Civ. 6294 (MJL), 1998 WL 427620, at *4 (S.D.N.Y. July 29,
1998) (finding an expert’s assumption, based on “the average salary of a ‘typical female college
graduate’ in 1986 . . . wholly unsupported” and speculative). Like Mono’s fulltime bookkeeping
salary, however, the Court knows how much, at the very least, Mrs. Dershowitz could have
earned in the private sector. The salary Mrs. Cohen offered Mrs. Dershowitz is evidence of the
market rate Mrs. Cohen assigned to this highly skilled lawyer. Consequently, the Court finds that
annual earnings of $225,000 are sufficiently probable and the appropriate measure.
The Court recognizes that Mrs. Cohen offered to pay Mrs. Dershowitz $225,000 for fulltime litigation work, and that Mrs. Dershowitz declined the offer because she wanted neither to
work fulltime nor to litigate. Even so, it does reflect the value of her services as supported by the
evidence at trial. Moreover, although the Court declines to award a salary based on a lodestar
calculation, in light of the testimony, it is reasonable to find that Mrs. Dershowitz – as a solo

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mediator with a stellar reputation in the field but no private sector experience – could demand
$300 per hour. Thus, if she billed and collected 15 hours each week, her gross income would
amount to $225,000 (assuming a 50-week year, or 750 hours). This cross-check further satisfies
the Court of the reasonableness of an annual earnings of $225,000.
Next, the Court must determine the appropriate growth rate and work-life expectancy for
Mrs. Dershowitz. First, the Court adopts Dr. Freifelder’s 3.47% growth rate. That rate was based
in the Consumer Price Index and took into account the fluctuations in the legal services sector
between 2003 and 2013. Although Dr. Crakes used a 2% growth rate, he testified that he chose
2% because it seemed “reasonable” and was lower than the typical growth rate. (Tr. 420:2-4.).
Second, the Court adopts Dr. Freifelder’s analysis that Mrs. Dershowitz would have
worked until her healthy-life expectancy, although the Court adopts the statistically exact
number of 80.89, rather than rounding down to age 80. Given Mrs. Dershowitz’s health at the
time of her death, her healthy lifestyle, and her family genetics, the Court finds that Mrs.
Dershowitz would have been healthy enough to do basic activities of normal living until age
80.89. Given her work ethic, the Court also finds that Mrs. Dershowitz would have worked as
long as she was able.
B.

Business Expenses

Business expenses are an appropriate deduction from a decedent’s gross earnings. See,
e.g., Molter v. Gaffney, 710 N.Y.S.2d 654, 656 (3d Dep’t 2000); Bielich v. Winters, 464
N.Y.S.2d 189, 190 (1st Dep’t 1983). For business expenses, Dr. Crakes assumed Mrs.
Dershowitz would pay 10% of her earnings, whereas Dr. Freifelder deducted a flat rate of
$60,000. Here, the Court finds that business expenses would include rent for space to hold
mediations, advertising, CLE programs, phone and administrative needs, and legal research.

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Although there was no evidence about any of these costs, the Court does not believe that a solo
mediator working primarily from home would reasonably spend $60,000 to run her business.
Moreover, whatever these expenses are, they would not fluctuate significantly based on Mrs.
Dershowitz’s income and work level. Thus, the Court adopts a flat rate. Because 10% of
$225,000 is a reasonable measure, the Court finds that the business expenses should be
calculated at a flat rate of $22,500 per year.
C.

Personal Consumption

A decedent’s personal consumption also is an appropriate deduction from projected
earnings. See, e.g., Ferrarelli, 1992 WL 893461, at *11. Both Drs. Crakes and Freifelder
assumed Mrs. Dershowitz’s personal consumption rate would be 20% of her total earnings,
pension benefits, and social security benefits. As a result, the Court adopts this rate.
D.

Payments from Collateral Sources

Courts also award plaintiffs the fringe benefits, including social security and pension
benefits, that a decedent’s family would have received but for the decedent’s death. See, e.g.,
Saint, 483 F. Supp. 2d at 288; Ferrarelli, 1992 WL 893461, at *2; Caban v. City of New York,
848 N.Y.S.2d 40, 42 (1st Dep’t 2007). Mrs. Dershowitz received a monthly social security
benefit of $1,822.00 beginning in March 2011. (Pl’s Ex. 18.) She also received pension benefits
that stopped at the time of her death in the amount of $7,558.30 per month, or $90,699.60 per
year. The Court finds Dr. Crakes’s measurements – calculating these benefits to the end of Mrs.
Dershowitz’s life expectancy – the appropriate measure. The Court found Dr. Freifelder’s careful
consideration of the effect on expenses when a two-person household becomes a one-person
household helpful. Although Mrs. Dershowitz’s personal consumption costs would rise at Mr.
Dershowitz’s death, there was no evidence to support Dr. Freifelder’s assumption that they

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would rise so substantially as to, in effect, result in Mrs. Dershowitz consuming 100% of her
pension and social security benefits. There was no evidence at trial concerning, for example,
whether the Dershowitzes owned their apartment out right, had a mortgage, or rented; or whether
there were already funds saved to cover such household expenses. Without any evidence, Dr.
Freifelder’s conclusion is too speculative.
The Court adopts Dr. Freifelder’s 2.49% growth rate for social security retirement
benefits because it was grounded in the average increase of the social security cost of living
index between 2004 through 2014, and adopts Dr. Freifelder’s COLA increase for Mrs.
Dershowitz New York pension as also similarly grounded in fact.
E.

Household Services

Mrs. Dershowitz’s estate is entitled to recover for the past and future loss of personal
services that Mrs. Dershowitz would have provided Mr. Dershowitz, measured by the cost of
replacing those services. See Ferrarelli, 1992 WL 893461, at *7 (citing Gonzalez, 77 N.Y.2d at
668); Hyung Kee Lee, 987 N.Y.S.2d 436. Based on Dr. Freifelder’s analysis, the Court finds that
Mrs. Dershowitz would have spent 25 hours per week on household services, based on the Dollar
Value A Day Study, calculated from the date of her death to her healthy-life expectancy. The
Court also adopts Dr. Freifelder’s well-reasoned 2.15% growth rate, and values Mrs.
Dershowitz’s past household services at $51,067 and future household services at $146,934.
F.

Lost Nurture, Care, and Guidance

Recovery for wrongful death in New York includes compensation for loss of guidance
that a decedent would have provided her children. See, e.g., Shu-Tao Lin v. McDonnell Douglas
Corp., 742 F.2d 45, 52 (2d Cir. 1984); Ferrarelli, 1992 WL 893461, at *13-14. While children
“may not recover for loss of a parent’s companionship, they may recover for the pecuniary loss

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suffered as a result of the lost nurture, care, and guidance they would have received if the parent
had lived.” McKee, 849 F.2d at 50. The nebulous concept of pecuniary loss has been
characterized as the premature “loss of training and education that the deceased parent might
have given . . . [that] would have enhance[d] the child’s future pecuniary interests and worldly
prospects.” Ferrarelli, 1992 WL 893461, at *14 (quoting 37 New York Jurisprudence 2d, Death
§ 321 (1984)). See also Mono, 13 F. Supp. 2d at 477 (quoting Gonzalez v. N.Y.C. Hous. Auth.,
555 N.Y.S.2d 107, 108-09 (1st Dep’t 1990) (“Gonzalez II”)); Plotkin v. N.Y.C. Health & Hosp.
Corp., 633 N.Y.S.2d 585, 586 (2d Dep’t 1995).
Out of recognition for “the realities of an increasingly complex society where children
rely more heavily, and for a greater number of years, on the guidance of their parents,” there is
no prohibition barring recovery by an adult child. McKee, 849 F.2d at 52; Gonzalez, 77 N.Y.2d
at 668-69 (explaining that financially independent adult grandchildren constitute “distributees”
entitled to recover under the EPTL). The key requirement for recovery is proof of pecuniary loss.
“[F]ixing the proper amount for this award” is inherently “problematic,” “sometimes arbitrary
and often speculative.” Ferrarelli, 1992 WL 893461, at *13 (citing Shu-Tao Lin, 742 F.2d at 52).
“[B]ecause direct evidence of pecuniary injury is often unavailable,” a court should consider, in
part, “the degree of dependency of the distributees upon the decedent and the probable benefits
they would have received but for the untimely death.” McKee, 849 F.2d at 52.
While the damages award must fit the plaintiff’s particular circumstances, the Court
looks to verdicts in other cases to provide guidance. Gasperini v. Ctr. for Humanities, Inc., 518
U.S. 415, 425 (1996) (“To determine whether an award deviates materially from what would be
reasonable compensation, New York State courts look to awards approved in similar cases.”
(internal quotations and citation omitted)). Awards in loss of guidance cases generally range

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from $0 to $75,000 per child, with the larger sums being granted to younger children as well as
adult children who lived with or received financial and household assistance from the deceased
parent. Compare McKee, 849 F.2d 46 (awarding a total sum of $294,000 to decedent’s four
children who were aged 14-22 at the time of their father’s death – or $73,500 per child);
Ferrarelli, 1992 WL 893461, at *14 (awarding three minor children a total award of $225,000 –
or $75,000 per child) with Mono, 13 F. Supp. 2d at 477-78 (reducing $240,000 jury award to
$75,000 to decedent’s 29 year-old son where son had been living across the country for the past
six years, worked fulltime for NBC News, talked to his mother two to five times a week, and
suffered from compulsive personality disorder and a learning disability with which his mother
assisted him; the 27 year-old son who lived with his parents at the time of his mother’s death
recovered no damages); Perez v. St. Vincents Hosp. & Med. Ctr. of N.Y., 886 N.Y.S.2d 486 (2d
Dep’t 2009) (vacating two $200,000 awards to decedent’s adult son and daughter where “there
was no evidence as to any pecuniary injury”); Rubin v. Aaron, 594 N.Y.S.2d 797, 799 (2d Dep’t
1993) (limiting adult child’s loss of parental guidance to $25,000); Wood v. State, 492 N.Y.S.2d
481, 484 (3d Dep’t 1985) (awarding adult children $25,000 each because decedents “were loving
parents who helped their children in every way possible,” even though there was no proof of the
parents’ financial assistance). But see McHugh v. N.Y.C. Transit Auth., 943 N.Y.S.2d 891 (1st
Dep’t 2012) (awarding decedent’s two adult sons $497,664 where decedent mother had resided
with one son, providing him financial assistance and household help, and maintained regular
contact with her other son, whom she visited frequently, provided career and life advice, and
assisted financially with student loans).
Here, neither child lived with Mrs. Dershowitz. At the time of her death, Adam and his
family lived in California, and Rana and her family lived in Colorado. As a result, Mrs.

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Dershowitz did not provide meals or childcare for their families on a regular basis. Adam and
Rana are also exceptionally accomplished: they received doctoral degrees respectively from
M.I.T. and Harvard Law School, and are highly established in their respective fields of
engineering and sports law. Their personal and professional accomplishments are a testament to
their parents, and it is clear that their pecuniary interests and worldly prospects have been greatly
enhanced by the training, education, and guidance that they already received from their mother.
Ferrarelli, 1992 WL 893461, at *14. These personal and professional successes lie in stark
contrast to the prospects of younger children, in the peak of their self-actualization and
development, who are more likely to be stunted by the premature loss of a parent.
Still, Adam and Rana relied on their mother in other ways. Adam relied on her for his
personal development, for professional advice, and on how to be a father. Rana testified
eloquently about needing her mother now more than ever as she has become both a mother and a
working-mother. Thus, in at least two areas where their mother had personal experience – laterstaged career decisions and raising a family while maintaining an active professional life – her
children now yearn for guidance. This type of parental support is different than what parents
provide for their young children; but no less important.
The plaintiff argued that Rana and Adam, as distributees of Mrs. Dershowitz’s estate,
were entitled to $1,050,000 each for the past loss of guidance up to the date of the Court’s
decision and for future loss of guidance for thirty years thereafter. This extraordinary amount is
in gross deviation from awards in other cases, which generally range from $0 to $75,000 –
amounts that underscore the requirement that loss be pecuniary. Although the Court finds Adam
and Rana’s testimony credible and sincere, it cannot award money for their emotional
devastation in losing a parent. It is clear from their professional and personal success that Adam

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and Rana have benefitted tremendously from their mother’s training and guidance. The Court
awards $25,000 each to Rana and Adam Dershowitz.
G.

Funeral Expenses

Under New York law, a wrongful death plaintiff is entitled to recover “the reasonable
funeral expenses of the decedent paid by the distributees.” N.Y. EPTL § 5-4.3. Plaintiff incurred
$13,632.15 in funeral and burial expenses. The final award in this case will include that
reasonable amount.
H.

Conscious Pain and Suffering

Finally, damages for “conscious pain and suffering” refer to a decedent’s injuries before
death and must be brought on behalf of the decedent’s estate. See Heslin, 14 N.Y.3d at 77. “A
cause of action for conscious pain and suffering is separate and distinct from one for wrongful
death.” Lancaster v. 46 NYL Partners, 651 N.Y.S.2d 440, 444 (1st Dep’t 1996). To establish this
claim, a plaintiff must prove that the plaintiff was conscious for some period of time following
the accident. See Cummins v. Cnty. of Onondaga, 84 N.Y.2d 322, 324-25 (1994). “When the
interval between injury and death is relatively short, the degree of consciousness, severity of
pain, apprehension of impending death, along with duration are all elements to be considered.”
Phelan, 804 N.Y.S.2d at 901 (internal quotations and citation omitted).
The Court again reviews pain and suffering awards in other cases. See Saint, 483 F.
Supp. 2d at 292-93. See also Sinkov, 419 F. App’x at 92-93 (upholding a $300,000 jury award
where the jury relied on common sense and common experience to conclude that an inmate
“struggled and suffered in the period between when he placed his homemade noose around his
neck and when he lost consciousness”); Gonzalez, 77 N.Y.2d at 670 (upholding a $350,000
award for conscious pain and suffering even though the medical examiner noted that two causes

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of her death – a contusion of the scalp and fracture of the cervical spine – were consistent with a
simultaneous loss of consciousness and death, because there was sufficient circumstantial
evidence to support the conclusion that decedent was conscious when most of the injuries were
inflicted); Filipinas v. Action Auto Leasing, 851 N.Y.S.2d 550, 550 (1st Dep’t 2008) (upholding
$750,000 award where decedent was struck in head by a minivan’s side mirror, sustained serious
head injuries, but “was heavily medicated and/or sedated” within an hour of the accident); Rodd
v. Luxfer USA Ltd., 709 N.Y.S.2d 93, 94 (2d Dep’t 2000) (upholding $300,000 award where
decedent “suffered severe and massive injuries” from an explosion but “any period of
consciousness was limited in duration”); Phelan, 804 N.Y.S.2d at 900-01 (denying conscious
pain and suffering awards where the decedent died within five minutes of her bicycle accident
and other than “gurgling on her own blood,” there was no evidence that decedent had some level
of awareness during those minutes).
Mr. Dershowitz and Ms. Costa both testified regarding Mrs. Dershowitz’s condition after
the accident. Following the impact, at 11:59:52 a.m., Ms. Costa testified that Mrs. Dershowitz
had a pulse. At some point in the five and half minutes before the paramedics arrived at 12:06:22
a.m., however, her pulse stopped. Ms. Costa testified that she could no longer detect a pulse one
to three minutes before the paramedics arrived. During those minutes, Mrs. Dershowitz was
gasping for air, and in doing so, blood came out of her mouth, ears, and nose. She did not speak.
Other than blinking her eyelids, Ms. Costa testified that Mrs. Dershowitz never moved. Mr.
Dershowitz testified that he squeezed her hand, and she squeezed his hand back. For these
reasons, the plaintiff is due damages for the conscious pain and suffering Mrs. Dershowitz
experienced during the final two and a half to five and a half minutes of her life.

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The plaintiff argued that Mrs. Dershowitz’s estate was entitled to $500,000 for her
conscious pain and suffering. Commensurate with awards in other similar cases, but mindful of
the specific facts surrounding Mrs. Dershowitz’s last minutes, the Court awards $300,000.
I.

Calculating and Discounting the Award

Any wrongful death award must be reduced to its present value. See, e.g., Saint, 483 F.
Supp. 2d at 294-95 (citing McCrann v. U.S. Lines Inc., 803 F.2d 771, 773 (2d Cir. 1986));
Ferrarelli, 1992 WL 893461, at *16-17. Accordingly, any judgment must be discounted to
present value.
CONCLUSION
For the aforementioned reasons, the Court finds the government 100% liable.
The Court finds that Mrs. Dershowitz would have made $225,000 per year, at a 3.47%
growth rate, starting on January 1, 2012 and working until her healthy-life expectancy, or age
80.89; her business expenses would have totaled a flat rate of $22,500 per year; her social
security and pension benefits would have run from her death to her life expectancy, with social
security increasing at a 2.49% growth rate and her pension benefits increasing annually by
$214.85 starting five years from her date of retirement; her personal consumption rate would
have been 20% of her total earnings, pension benefits, and social security benefits, continuing
through her life expectancy; and the value of her household services should be calculated at 25
hours per week based on the Dollar Value A Day Study, from the date of her death to her
healthy-life expectancy. The Court awards the cost of Mrs. Dershowitz’s funeral and burial
expenses, awards her children $25,000 each for lost guidance and support, and $300,000 for Mrs.
Dershowitz’s conscious pain and suffering.

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The parties are directed to compute the final award, broken down into past and future
amounts (discounted to present value), and submit their final calculations to the Court within 14
days of this opinion.
SO ORDERED.

DATED: New York, New York
April 8, 2015

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APPENDIX A

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APPENDIX B

72