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______________ Copyright � 1998-2008 The Burbank Group
Last modified: January 9, 2008