(This story by Bob Audette was published in the Brattleboro Reformer on April 26, 2017.)
[B]RATTLEBORO — The Brattleboro Retreat is asking a federal judge to dismiss from a wrongful death lawsuit two siblings of a teenager who died from injuries she sustained following a suicide attempt while at the mental health facility.
The Retreat’s attorneys are also asking the U.S. District Court for the District of Vermont to exclude the testimony of Gary M. Crakes — “a retained damages expert” — and all other evidence of alleged economic damages addressed by him.
The lawsuit, filed on behalf of the family by Joel Faxon, of Faxon Law Group in New Haven, Connecticut, accuses the Retreat of negligence in the death of the teenager. “The injuries and death sustained … were caused by the Retreat’s failure to exercise reasonable care and skill in the care, monitoring, supervision and treatment provided … in connection with [the girl’s] depression and suicidal ideation.”
Because of her death, the teen has been deprived of the ability “to carry on and enjoy life’s activities and her earning capacity has been destroyed,” wrote Faxon. “As a further result of the aforesaid negligence and carelessness by the Retreat, [the teen’s] next-of-kin … have incurred substantial pecuniary loss, grief, anguish, loss of support, pain and suffering all to their detriment.”
According to the Retreat’s motion for partial summary judgment, which was filed on Tuesday, the two siblings are not the girl’s “next of kin” under Vermont’s Wrongful Death Act, and, therefore, they are not entitled to recover damages under the act.
On July 1, 2014, the teenager died of injuries she received on May 5, 2014, while in the care of the Brattleboro Retreat. In the suit, which was filed in March 2015, the teen’s parents, her brother and her stepsister were listed as claimants. According to court documents, the four family members are claiming they have lost “the love, affection, care, comfort, companionship, etc. of Laura due to her death.” However, noted the motion for partial summary judgment, “Vermont’s Wrongful Death Act specifically limits who may recover damages to the decedent’s spouse and ‘next of kin.’” Because the phrase “next of kin” in the act carries the “same meaning as it does in the laws of descent,” claimants are limited to “the person or persons entitled to inherit personal property from a decedent who has not left a will …” Under Vermont’s laws of descent, her next of kin are her parents, wrote Nicole Andreson, of Dinse Knapp and McAndrew, a Burlington law firm representing the Retreat in the U.S. District Court for the District of Vermont. Because neither of the teenager’s siblings are next of kin under the law, they are not entitled to recover any damages, wrote Andreson.
The Retreat’s legal counsel is also asking the federal court to exclude Crake’s testimony because it is “irrelevant” and was not filed in a timely manner.
Crakes was expected to testify about the mother’s “lost future earnings and fringe benefits for the remainder of her work-life … based on her claimed impaired earning capacity following [her daughter’s] and … the value of [the mother’s] total household services for the remainder of her life based on the assumption that she can no longer perform any household services and will never regain the ability to do so.” Based on his calculations, the mother’s total economic losses range from $2,243,138 to $2,901,912. Crakes calculated the teenager’s lifetime earnings and fringe benefits as between $1,963,882 to $2,580,532.
But, wrote Andreson, the mother “is not entitled to recover damages for her claimed impaired earning capacity, loss of fringe benefits, or inability to perform her own household services under Vermont’s Wrongful Death Act.” In addition, according to Vermont’s Survival Statutes, the teenager’s estate “is not entitled to recover damages for Laura’s lost earning capacity, fringe benefits, or household services …” “Dr. Crakes’ analysis is based on the assumption that [the girl] would obtain a bachelor’s degree, master’s degree, or professional degree. He did not calculate [her] alleged lifetime earnings with only a high school diploma.”
Based on Vermont’s loss to the survivors statute, “the critical question is whether the claimed economic damages represent the lost value of probable financial contributions and services that would have been provided by the decedent to his or her next of kin. Where they do not, recovery is not allowed. … None of these alleged losses are recoverable under the Wrongful Death Act. The economic damages available under the Act are limited to the value of the probable contributions and services that [the daughter] would have provided to her mother (and father) had she lived. [The mother’s] claimed lost future wages, fringe benefits, and household services are not contributions or services that [her daughter] would have provided … had she lived. As a result, they are not recoverable under the Act.”
The Retreat’s attorneys are also asking the court to exclude evidence related to the mother’s alleged economic losses “because she failed to timely disclose that claim for these damages in discovery.” According to the April 25 filing, the mother took 21 months following the original filing of the lawsuit “to disclose her intent to seek damages for impaired earning capacity, loss of fringe benefits, and loss of her own household services; and to provide plainly relevant documentation in support of those claimed damages (such as her tax returns and receipts to the extent she has hired someone to perform the household services she claims she can no longer perform).
“There is no justification — much less ‘substantial justification’ — for [the mother’s] failure to timely and properly disclose these claimed damages in discovery. She filed this action and it is her burden to determine the damages she is seeking and to timely disclose that information in response to the Retreat’s written discovery requests. … If defense counsel had known about these alleged damages, counsel would have explored several additional areas of questioning with [the mother] at her deposition. Defense counsel would have also requested the underlying documentation relevant to those damages …”
In addition, the plaintiff provided Crakes with no evidence to support his findings, wrote Andreson. “[H]e was simply told to make that assumption in doing his calculations. … [H]e based that calculation on the assumption that she cannot perform any household services and will never regain the ability to do so. … [T]here is absolutely no evidence to support the unrealistic and speculative assumptions that Dr. Crakes was directed to make in calculating … alleged economic losses, making his opinions inadmissible …”
