The Burbank New York Award Developer
(For use in conjunction with the Valuation Models for New York Medical and Dental Malpractice Actions under NY50A. It is neither meant to be a legal guide to damage award elements, nor definitive or exhaustive list of award elements and offsets.)
The following is a guide to help the attorney in accumulating data for an Award to be valued. The categories of loss are those into which elements of loss are most often summarized. They are Pain and Suffering, Medical Expenses and Economic or Pecuniary Loss. Element titles may be any descriptive. Losses can be compensated by either periodic or lump sum payments (discrete), and discrete payments can be either one-time or recurring events.
Losses can either be past or future. Past Damages can be thought of in two parts, those expenses immediately incident to the event of loss and continuing expenses that are added to past damages through the passage of time. For purposes of developing a total Award, the attorney should take into consideration the timing of the event of loss, the amount of first payment in future dollars, the sequence of payment, and any annual inflation that occurs after the first year of payment (often referred to as COLA). For purposes of valuing an award for future damages, all payments for loss are considered periodic with initial payment occurring in the immediate future. (In fact, initial payments are first payable on the date of the verdict unless otherwise agreed by the parties or specified in the verdict.)
Case Information
a.) Case Caption: ________________________________________________
b.) County of Filing: _______________________________________________
c.) Docket: _____________________________________________________
d.) Plaintiff: __________________________________________________
e.) DOB: ___________ Sex: _________ Life Expectancy:_________________
f.) Decedent: _____________________ Date of Death:_______________
g.) DOB: ___________ Sex: _________ Life Expect. at Death Time:__________
h.) Date of Event: ___________ Date from which losses began: ___________
i.) 50A or Amended 50A: _________50A Wrongful Death: ___________
(In wrongful death actions under 50A as amended, future damages are to be paid as a lump sum without further reference to Section 5031. Section 5031 provides for discounting of future damages, deduction of litigation expenses and attorney fees and setoff of comparative negligence and settlements. Prior to amended 50A, the Awards were to be reported out without reference to the periods over which they were to be paid (Lump Sum). No mention is made of Collateral Source Offsets as set up under Sec. 4545, but, since there is no future expense against which collateral source is to be applied, there may be no offset.)
Litigation Expenses: _______________
Past Damages: ______________
1.) Pain and Suffering
a.) Damages Incident to Event of Loss-Amount: _____________
b.) Period for Future Payments: ____________ (Maximum 10 years- 8 years under Amended 50A)
c.) Amount: _______________
2.) Lost or Impaired Earnings
a.) Description: ____________________________________________
Periodic (Simple)
i.) Period for Payment _______Years, _____Months
ii.) Payment Sequence (Monthly etc.)_______________
iii.) First Payment Date_____________
iv.) Current Cost_____________
vi.) Annual Inflation (Cola) after first Payment
Periodic (Complex)
i.) Period for Payment _______Years, _____Months
ii.) Payment Sequence (Monthly etc.)_______________
iii.) First Payment Date_____________
iv.) Current Cost (Base) _____________
v.) Annual Inflation rate to be Applied to reach 1st. Payment______________
vi.) Annual Inflation (Cola) Age 21 to 30 ______________
vii.) Annual Inflation (Cola) Age 31 to 40 ______________
viii.) Annual Inflation (Cola) Age 41 to 50 ______________
ix.) Annual Inflation (Cola) Age 51+ ______________
x.) Commission Current ___________ expected % of Base ____________
xi.) Incentive Bonus ___________ expected % of Base ____________
xii.) Other Current ____________ expected % of Base ____________
xiii.) Other Current ____________ expected % of Base ____________
xiv.) Sustaining Expenses __________ expected % of Gross____________
xv.) Current Total Taxes Paid_______________
Taxes Associated with Lost Earnings (specified in Sec. 4546 for Actions under 50A.)
Statutory Rates: __Simple __ Pooled (Lower Level Taxes deducted before higher level taxes applied
Federal Rate______ applies to ______% of Earnings
State Rate_______ applies to ______% of Earnings
Local Rate_______ applies to ______% of Earnings
or Taxes Paid
Year 1 Year 2 Year 3
Earnings ________ ________ ________
Fed. Tax ________ ________ ________
State Tax ________ ________ ________
Local Tax ________ ________ ________
3.) Loss of Services. (These are services that are reasonably certain to be incurred and necessitated by plaintiff's injuries or loss of decedent. Under Sec. 4111, 50A Awards are to be returned by the jury in total without reference to period over which to be paid.)
a.) Description: ____________________________________________
b.) Periodic
i.) Period for Payment _______Years, _____Months
ii.) Payment Sequence (Monthly etc.)_______________
iii.) First Payment Date_____________
iv.) Current Cost_____________
v.) Annual Inflation rate to be Applied to reach 1st. Payment______________
vi.) Annual Inflation (Cola) after first Payment _________%
4.) Loss of Consortium (Generally, New York restricts payments to items of pecuniary loss, though there are references to Loss of Consortium in case law and in the statutes. To the extent that a claim can be made, it should be joined, where possible, with the underlying action. Under Sec. 4111, 50A Awards are to be returned by the jury in total without reference to period over which to be paid.)
a.) Description: ____________________________________________
b.) Periodic
i.) Period for Payment _______Years, _____Months
ii.) Payment Sequence (Monthly etc.)_______________
iii.) First Payment Date_____________
iv.) Current Cost_____________
v.) Annual Inflation rate to be Applied to reach 1st. Payment______________
vi.) Annual Inflation (Cola) after first Payment _________%
5.) Other Economic Loss
a.) Description: ____________________________________________
b.) Damages incident to Event of Loss-Amount: _____________
c.) Periodic
i.) Period for Payment _______Years, _____Months
ii.) Payment Sequence (Monthly etc.)_______________
iii.) First Payment Date_____________
iv.) Current Cost_____________
v.) Annual Inflation rate to be Applied to reach 1st. Payment______________
vi.) Annual Inflation (Cola) after first Payment _________%
d.) Discrete (Lump Sum Payments)
i.) Number of Events ____________
ii.) Payment Sequence (every 2, 3 or 4 years etc) _______________
iii.) First Payment Date_____________
iv.) Current Cost_____________
v.) Annual Inflation rate to be Applied to reach 1st. Payment______________
vi.) Annual Inflation (Cola) after first Payment ________%
6.) Medical Expenses
a.) Description:____________________________________________
b.) Damages incident to Event of Loss-Amount: _____________
c.) Periodic
i.) Period for Payment _______Years, _____Months
ii.) Payment Sequence (Monthly etc.)_______________
iii.) First Payment Date_____________
iv.) Current Cost_____________
v.) Annual Inflation rate to be Applied to reach 1st. Payment______________
vi.) Annual Inflation (Cola) after first Payment
d.) Discrete (Lump Sum Payments)
i.) Number of Events ____________
ii.) Payment Sequence (every 2, 3 or 4 years etc) _______________
iii.) First Payment Date_____________
iv.) Current Cost_____________
v.) Annual Inflation rate to be Applied to reach 1st. Payment______________
vi.) Annual Inflation (Cola) after first Payment
7.) Collateral Source Payments (Offsets). These are obligations to pay occasioned by the loss, e.g. Social Security Survivor Benefits. There must a reasonable certainty of payment (subject only to the continued payment of premium and such other financial obligations as occasioned by the agreement), and the source must not be entitled to a statutory lien. Collateral Source obligations may also apply to care, custodial care and rehabilitative care, though it is difficult to envision any where the only condition to delivery of care is continued premium payment.
i.) Description _________________________________________
ii.) Period for Payment _______Years, _____Months
iii.) Payment Sequence (Monthly etc.)_______________
iii.) First Payment Date_____________
iv.) Current Payment Amount_____________
v.) COLA Applicable _________%
vi.) Cost of Maintenance (last two years)___________
vii.) Ongoing Cost to Maintain______________
viii.) Inflation on Ongoing Cost______________
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Last modified: January 9, 2008