J.C., Claimant, v. The State of New York, Defendant. (2025)

Claimant J.C., a formerly incarcerated individual, seeks damages for mental and emotional distress that he allegedly suffered when a female New York State Department of Corrections and Community Supervision (DOCCS) officer remained present in the operating room during claimant's diagnostic colonoscopy, which was performed at an outside hospital. Following a trial on the issue of liability, defendant was found 100% liable for violating claimant's right to a reasonable expectation of privacy under Article 1, § 12 of the State Constitution (see J.C. v State of New York, UID No. 2022-015-013 [Ct Cl, Mar. 3, 2022] [Collins, J.]).¹ The claim seeks recovery for the mental anguish and related physical manifestations of this emotional distress that claimant allegedly suffered as a result of this violation, as well as for the aggravation of claimant's multiple preexisting mental health conditions. Without objection from defendant, this Court granted claimant's application to increase the claim's ad damnum clause from $50,000 to $500,000, but noted that claimant must establish his entitlement to damages at trial (see J.C. v State of New York, UID No. 2023-062-015 [Ct Cl, May 31, 2023]). At the ensuing damages trial, claimant testified and called his treating physician, as well as an expert, and several of claimant's exhibits were received in evidence.² Defendant called the female corrections officer, Officer Tracy Duncan, as its sole witness and proffered no other evidence. After carefully considering the testimony and documentary evidence received at trial, as well as reviewing the parties' arguments and the applicable law, the Court finds that claimant suffered cognizable harm as a result of the privacy violation for which defendant was previously found liable and is entitled to some measure of damages. However, the evidence does not support a finding of the extent and degree of damages asserted by claimant. Accordingly, for his past and future pain and suffering, the Court finds that claimant is entitled to an award of $10,000.

Trial Testimony

By way of background, claimant pleaded guilty to criminal charges in 2017. He was initially held in the custody of the New York City Department of Correction at the Brooklyn Detention Complex and, in August 2018, was transferred to state custody and held in facilities operated by DOCCS until his release in December 2019. The colonoscopy which is the subject of this claim occurred at Albany Medical Center on May 20, 2019, while claimant was incarcerated at Greene Correctional Facility. The details regarding the colonoscopy are set forth more fully in the liability decision; the testimony received at the damages trial about the procedure will be discussed here to the extent relevant to the issue of damages.

Claimant testified that he had previously been diagnosed with "precancerous anal dysplasia" and was "extremely concerned" that his condition could progress into anal cancer (Transcript, Vol 1 ["T.1"], at 34-35). He was looking forward to the May 2019 colonoscopy so that he could obtain clarity about whether or not he had cancer. On the day of the procedure, while claimant was in the pre-op room, he noticed that Officer Duncan was dressing in scrubs and protective gear and preparing to accompany him into the operating room. Claimant objected to Officer Duncan's presence in the operating room, asserting that he had a right not to "be viewed by a correctional officer of the opposite sex" while "undergoing this type of procedure" (id. at 35). Claimant reminded Officer Duncan that he would be fully sedated throughout the procedure. Despite claimant's protests, Officer Duncan entered the operating room and remained present for the 65-minute duration of the procedure. Claimant testified that, once he learned "from the medical records" the details about the procedure, he felt "horrible," "humiliated," "demoralized," "demeaned," and "dehumanized" (id. at 43-44). He felt that his valid concerns had been "sidelined" by Officer Duncan and that his rights meant nothing to her (id.). Claimant acknowledged on cross-examination, however, that, because he was unconscious during the procedure, he did not have personal knowledge as to what Officer Duncan observed while the procedure was happening. He also agreed on cross-examination that what Officer Duncan actually saw would be relevant to assessing the degree to which his privacy was violated, acknowledging specifically that it would be a "more significant invasion of privacy" if Officer Duncan had seen him "entirely disrobed" rather than only "on the gurney covered up" (id. at 75-76).

Claimant also testified about significant trauma that he had experienced in his life before the 2019 colonoscopy, and stated that he had already been diagnosed with several psychiatric disorders before then. First, claimant had been shot while volunteering with a peace organization in the Middle East (see also Exh 14, at 7). He testified that he was "shell-shocked" and had nightmares as a result of that incident and, when he returned to the United States in 2011 or 2012, he resorted to drug use to cope with what he experienced abroad. In 2015, he was diagnosed with adjustment disorder after being hospitalized for a near overdose. Claimant was subsequently diagnosed in 2017 with post-traumatic stress disorder (PTSD), depression, and anxiety. In addition, claimant testified that he was sexually assaulted in 2018 by a New York City corrections officer at the Brooklyn Detention Complex who grabbed claimant's genitals through his clothing during a pat frisk. Claimant further testified that he was subjected to other unlawful strip searches at that facility during the same time period. Claimant acknowledged on cross-examination that the sexual assault and multiple strip searches exacerbated his preexisting mental health conditions and that he sought mental health counseling for those incidents. Records offered by claimant and received into evidence also documented these prior traumatic events that claimant had experienced (see Exh 3, at 14).

Claimant asserted that the colonoscopy further exacerbated his preexisting mental health conditions, including his PTSD, depression, anxiety, and sleep problems. He testified that, as a result of the colonoscopy, he sought "extensive additional mental health counseling" and was "put on additional medications" (T.1, at 45-46). During the remainder of claimant's incarceration between May 2019 and December 2019, claimant testified that he engaged in mental health counseling four times with Rachel Herzog, a licensed clinical social worker; two times with a Dr. Greenberg, a psychiatrist; and four times with Champagne Levine, another social worker. According to claimant, treatment with these providers consisted of counseling sessions where claimant "engaged in verbal processing" of the events relating to the colonoscopy (id. at 47). Claimant's sessions with Rachel Herzog also included discussions about the multiple strip searches and prior sexual assault claimant experienced while at the Brooklyn Detention Complex. In addition, Dr. Greenberg prescribed several medications for claimant. No treatment records from these providers were offered by claimant at trial, nor were they called as witnesses.

Upon his release from state custody in December 2019, claimant testified that he "completely turned [his] life around" (id. at 62). Shortly after his release, claimant obtained a job as a paralegal and worked in that position from 2020 to 2021. In 2020, he also served as a canvasser for the Biden presidential campaign. In 2022, he applied to ten law schools and was accepted into three of them. He chose to attend Albany Law School, which offered him a scholarship, and moved to Albany and began classes in August 2022. On cross-examination, claimant stated that he did not know that Albany Medical Center was within eyesight of Albany Law, but acknowledged that he did not visit the campus before deciding to enroll there or look on a map to see where it was located. During claimant's first semester of law school, he maintained a 3.41 grade point average. And in the summer of 2023, claimant successfully completed an internship with Prisoners' Legal Services which required him to work 35-40 hours per week, visit correctional facilities, and interact with facility staff. At the time of this trial, claimant was in his second year of law school and enrolled in 15 credit hours of courses. Claimant also testified that he has maintained his sobriety; he has not consumed alcohol since 2011 and has not used illegal drugs since November 2017.

Claimant acknowledged on cross-examination that he did not treat with any mental health providers for the nearly three-year period between his release from state custody in December 2019 and the time he started law school in Albany. He resumed treatment in October 2022 during his first semester of law school when he engaged in approximately eight mental health counseling sessions with Vanessa Sapien, a mental health specialist with Just Detention International.³ In November 2022, claimant began seeing Dr. Scott Abrahamson, a psychiatrist at Albany Medical Center. He saw Dr. Abrahamson seven times. Two of Dr. Abrahamson's treatment notes, dated November 30, 2022, and June 22, 2023, were received into evidence (see Exh 14). These records documented claimant's reasons for seeking treatment as his history of drug use, the 2018 sexual assault, and his experiences in the Middle East from 2003 to 2008, including "being shot and beaten," as well as the colonoscopy (id. at 6). Dr. Abrahamson's records state that claimant presented with symptoms of PTSD, but do not connect those symptoms to any specific traumatic event. Claimant testified that he treated with Dr. Abrahamson until June 2023, at which point claimant began treating with Dr. Wesley Henze, his current psychiatric provider.

At the time of trial, Dr. Henze had conducted eight psychotherapy sessions with claimant. Claimant testified that Dr. Henze continued his prior medications and also prescribed him prazosin, a drug to prevent nightmares, because claimant has recurring nightmares about the colonoscopy. In most of them, he sees the physician performing the colonoscopy on him while Officer Duncan is sitting or standing nearby, "always watching" him (T.1, at 51). Claimant described this particular nightmare as "frightening," and like an "out-of-body" experience, akin to watching a "horror movie" (id.). In other dreams, Officer Duncan comes into the restaurant where claimant used to work as a waiter, and begins behaving like an "unruly patron, throwing things, demanding things, yelling at [him]" (id. at 52). Claimant testified that he experienced these nightmares three to four times per month before starting prazosin, but that the drug helped "tremendously" and decreased their frequency to one or two times per month (id.). In addition to prazosin, claimant testified that Dr. Henze has prescribed him hydroxyzine for anxiety, and sertraline for PTSD and depression.

According to claimant, the biggest trigger for his anxiety is seeing the Albany Medical Center hospital where the colonoscopy was performed. He explained that the hospital, which is near Albany Law School, was visible through the window in each of his classes that he was enrolled in at the time of this trial, and that in one classroom there are no seats that do not have a view of the hospital. Photographs taken by claimant from inside his classrooms at Albany Law School and from other locations on the campus where the hospital could be seen were received into evidence (see Exh 12). Claimant testified that the presence of the hospital building "looming" over him (T.1, at 53) serves as a constant reminder of the events of the day the colonoscopy took place and causes him to experience increased anxiety, intrusive thoughts, and difficulty concentrating during his classes. Claimant testified that he takes two doses of hydroxyzine during the school day to relieve his anxiety. Claimant noted, however, that during the first year of law school, his classes were primarily held in classrooms which did not have any windows with a view of the hospital. Claimant further testified that his other major anxiety trigger is seeing DOCCS transport vans, similar to the one used to transport him to Albany Medical Center for his colonoscopy. Claimant stated that he sees the vans "a couple of times a week" driving to and from school and he is "always trying to see if Officer Duncan is in one of these vans" (id. at 54). He also testified that the vans park directly outside his apartment building, which is across the street from the District Attorney's office. A photograph taken by claimant of one such van was received in evidence (see Exh 10). At the conclusion of his testimony, claimant expressed that both of "these constant reminders" call to mind the "horrific" experience he went through, which "haunt[s] [him] on a daily basis" and makes him feel like he is still "paying a debt to society" and "constantly being punished . . . after already serving [his] time" (T.1, at 63).

Claimant's next witness was Dr. Wesley Henze, claimant's treating psychiatrist.⁴ Dr. Henze first testified about his credentials. After obtaining an Associate's degree from Western Iowa Tech Community College as a paramedic, Dr. Henze received his Bachelor's degree in anthropology from the University of South Dakota. Dr. Henze later graduated from the Sanford School of Medicine at the University of South Dakota in 2020. He completed two years of a neurology residency program between 2020 and 2022 at Albany Medical Center, and then transferred to the psychiatry residency program there in 2022, which he will complete in 2025. When Dr. Henze started the outpatient clinic portion of his training in the summer of 2023, he took over Dr. Abrahamson's patients, including claimant. Dr. Henze testified that he has had eight psychotherapy sessions with claimant, seven of those being in person and one virtual. During those sessions, they discussed the colonoscopy and the events leading up to it, as well as the "symptoms that [claimant] has had psychiatrically since that event" and "how they have affected his life" (id. at 96). Claimant's primary complaints included intrusive and "disturbing memories and dreams" related to the colonoscopy, which have resulted in "significant psychiatric distress," according to Dr. Henze (id.). Dr. Henze also testified about claimant's physical symptoms, such as difficulty concentrating and getting to sleep, as well as "persistent negative emotional states" (id. at 96-97). Dr. Henze further stated that claimant experiences nightmares that disrupt his sleep, causing tiredness and exhaustion during the day.

Dr. Henze testified that he diagnosed claimant with PTSD as his primary diagnosis, and that "[e]verything that [he] had just listed are the diagnostic criteria and the symptoms associated with [PTSD]" (id. at 97). On cross-examination, Dr. Henze clarified that his PTSD diagnosis was specifically "related to" claimant's colonoscopy (id. at 122), and when asked about the causal criteria for PTSD—actual or threatened death, serious injury, or sexual violence—Dr. Henze maintained that the privacy violation perpetrated by Officer Duncan constituted sexual violence. Dr. Henze also stated that claimant "appear[s] to have" a generalized anxiety disorder, but noted that their treatment sessions have focused on exploring claimant's PTSD (id. at 98). With respect to the triggers of claimant's trauma responses, Dr. Henze testified that seeing Albany Medical Center and the DOCCS transport vans causes claimant significant distress, including physical responses—such as elevations in heart rate, difficulty regulating his breathing, and nausea—as well as psychiatric responses, including difficulty thinking or concentrating. Claimant also discussed his pre-colonoscopy trauma during his sessions with Dr. Henze, who stated that claimant's prior trauma "greatly increased the risk" for claimant developing PTSD (id. at 102). Dr. Henze described claimant's past experiences—including his experiences overseas, as well as his experiences "as a youth, the difficulties that he suffered, both with his family discord and at school"—as a "weakening [of] his defenses, causing it to be more likely that he could develop [PTSD] from a later incident of trauma" (id.). Although Dr. Henze was generally aware of claimant's earlier traumatic experiences and his having received prior psychiatric treatment, Dr. Henze stated on cross-examination that he did "not recall" whether claimant had been diagnosed with, and treated for, PTSD before the May 2019 colonoscopy (id. at 122). In addition, he did not recall whether he reviewed any treatment notes pertaining to claimant's pre-colonoscopy psychiatric treatment.

Finally, Dr. Henze explained that PTSD is a "lifelong illness" (id. at 102). And although Dr. Henze noted that claimant's symptoms can be mitigated through medications and continued psychotherapy such that he could possibly "return . . . to a generally functional and capable state," claimant cannot be "cured" of his condition because "symptoms can return at any time" if there is a "sufficient trigger" (id.). Dr. Henze continues to prescribe claimant prazosin to control his nightmares, as well as sertraline, mirtazapine, and hydroxyzine. Dr. Henze noted that claimant's frequency of psychotherapy appointments had recently increased because he was experiencing acute stress related to the instant trial. Dr. Henze's treatment notes pertaining to care provided to claimant on July 19, 2023; July 28, 2023; August 18, 2023; August 28, 2023; September 13, 2023; September 25, 2023; and October 6, 2023, were received into evidence (see Exh 18). The "Subjective" sections of some of these records state that claimant reported nightmares and other sleep-related issues (see id. at 6, 12). However, as Dr. Henze acknowledged during cross-examination, in the "Mental Status/Behavioral Observations" section on each of these records, Dr. Henze noted that claimant reported no problems with respect to sleep. Thus, Dr. Henze's records are inconsistent on whether claimant suffered from sleep issues. The records further reflect that claimant is "overall stable" on his current medications, cooperative with treatment, and "works well in concert with therapy to overcome" his stressors (id. at 15).

Claimant's final witness was his psychiatric expert, Dr. Roy Lubit. After attending college at Cornell University, Dr. Lubit graduated from medical school at New York University. He is board certified in psychiatry and neurology; child and adolescent psychiatry; and forensic psychiatry. In addition, he holds a PhD in political science from Harvard University. His areas of expertise include emotional trauma, PTSD, adjustment reaction, and other trauma-related and stress-related disorders. Dr. Lubit interviewed claimant three or four times, primarily by video conference or telephone, to assess whether claimant sustained "emotional damages" as a result of the colonoscopy (Transcript, Vol 2 ["T.2"], at 9, 28). Dr. Lubit also reviewed claimant's deposition, Dr. Henze's treatment notes, and notes from some of claimant's prior mental health providers, but not all of them. Dr. Lubit testified that all of his opinions in this matter were being rendered to a reasonable degree of medical certainty.

Contrary to Dr. Henze's conclusion, in Dr. Lubit's opinion, the colonoscopy incident did not satisfy the causal criteria for PTSD—namely, a threat of serious injury or death, or sexual violence. Thus, Dr. Lubit characterized claimant as suffering from "other stressor-related disorder" (id. at 10)⁵ and major depression as a result of the colonoscopy. However, Dr. Lubit emphasized that, in forensic psychiatry, the particular diagnosis is less important than an assessment of the symptoms, and that the colonoscopy nevertheless could have been emotionally traumatic to claimant even if it did not itself cause PTSD. Dr. Lubit thus noted that claimant had "more than enough" of the symptoms used to diagnose PTSD, inasmuch as he reported intrusive recollections that create significant distress; nightmares and other sleep issues; negative alterations in cognition and mood, including feeling humiliated; avoidance; hyperarousal and changes in reactivity; lack of enjoyment in things; decreased concentration; and irritability (id. at 10-14). Dr. Lubit testified that, generally speaking, one of the worst and longest lasting symptoms of PTSD or emotional trauma is "decreased resilience" (id. at 14). To that end, Dr. Lubit explained that people who experience significant trauma view the world more dangerously and see themselves as being weaker, which renders them unable to deal with levels of the stress they could otherwise handle. As Dr. Lubit further explained, cortisol production increases under such high levels of stress and can weaken the parts of the brain that help manage an individual's reaction to stress. Dr. Lubit opined that such decreased resilience and "increased vulnerability to stress" could lead to "decreased social connections," as well as adversely affect claimant's "long-term enjoyment," concentration levels, and "ability to do his best" (id. at 17).

Dr. Lubit conceded on cross-examination that a person's ability to work and perform daily activities are relevant to assessing resilience, but maintained that an individual may still have decreased resilience even if working. With respect to claimant specifically, Dr. Lubit acknowledged that claimant's two years of work as a paralegal, admission to law school where he is successfully maintaining an above-average GPA, and ability to complete a full-time summer legal internship are relevant in determining claimant's resilience. And Dr. Lubit further acknowledged that his assessment of claimant's condition is based in large part upon claimant's own subjective reports of his experiences and symptoms and, thus, Dr. Lubit conceded that it was "possible" that claimant was catastrophizing and making the colonoscopy into something bigger than what it was (id. at 51). Although Dr. Lubit did not see any indications that claimant was exaggerating in this case, Dr. Lubit testified that he would have "expect[ed] that [claimant] would have done significantly better once he got out" of prison, and that "he continues to have substantial symptoms that I would not expect him to have" (id. at 29).

As to the long-lasting nature of such stress-related symptoms and the efficacy of treatment generally, Dr. Lubit testified that a "significant number of people . . . no longer have [PTSD] after treatment," but clarified that this does not mean an individual can be cured (id. at 17). He explained that even if a person no longer has intrusive thoughts, they are still "likely to have negative alterations in mood and cognition," as well as "increased arousal and reactivity" (id. at 18). With respect to claimant specifically, Dr. Lubit opined that his symptoms are "very unlikely to all go away" (id.). Although Dr. Lubit noted that some of claimant's symptoms, including intrusive recollections, may be mitigated through therapy, his issues with stress, irritability, concentration, sleep, and "negative opinions of the world and himself" are "likely to continue indefinitely" (id. at 18), and that "in all likelihood across the board, he is going to be less capable, more stressed than he would have been had it not been for what occurred" (id. at 19). As to treatment, Dr. Lubit testified that claimant will need "fairly intensive therapy," at least once a week, but that it was "hard to say how long he needs treatment" (id.). On cross-examination, however, Dr. Lubit equivocated and stated that it was unknown whether claimant's "negative alterations in mood and cognition" and "changes in arousal reactivity" would "get worse with time" or whether "they may well decrease with time" (id. at 58). Dr. Lubit also acknowledged that claimant's symptoms would "ease" once he graduates from law school and leaves the Albany area because he would no longer be exposed to his triggers (id. at 53).

Dr. Lubit also acknowledged on cross-examination that claimant had a diagnosis of PTSD that pre-dated the 2019 colonoscopy, and confirmed that the violence claimant experienced in the Middle East and the sexual assault at Brooklyn Detention Center both satisfied the causal criteria for PTSD. Although Dr. Lubit was unable to say whether claimant continues to meet the criteria for PTSD with respect to those prior traumatic experiences, he nevertheless testified that they could have caused long-term changes in claimant's brain which would have had an effect on his brain functioning. Dr. Lubit also discussed the ways in which they may have had an impact on claimant's current state, noting that "subsequent problems tend to have a synergistic impact and further decrease resilience" (id. at 42). As Dr. Lubit explained, a second violation can be more impactful than a first violation because one can rationalize the first violation as an "unusual" situation which is not likely to recur (id. at 20). In addition, Dr. Lubit explained that traumatic events, unlike other events, are stored in the portion of the brain called the amygdala, where "the emotion and the memory [of] what happened are intermixed" (id. at 24). Because the memory is stored in a visual way with the emotion attached, it tends to remain powerful in a person's mind and it is difficult to process it and "merge it with the rest of life experiences" (id.). Dr. Lubit testified that claimant's trauma as a result of the colonoscopy was further compounded by the denial of his prison grievances pertaining to the incident. Such denials, according to Dr. Lubit, caused "betrayal trauma"—a type of trauma that occurs when a person is hurt by someone who is supposed to protect them—which can on its own cause symptoms of PTSD even though it does not satisfy the causal criteria (id. at 23). Further, with respect to claimant's multiple traumas, Dr. Lubit explained that the violation that occurred during the colonoscopy is at the "center" of claimant's symptoms (id. at 22) and causing him the most problems because, among other reasons, it was of longer duration and he is constantly exposed to triggers related to that incident because of where he attends law school. In contrast, Dr. Lubit explained that the sexual assault incident at Brooklyn Detention Center was "brief" and "unexpected" (id. at 21), and claimant also reported to Dr. Lubit that "he was doing much, much better" after "he was no longer in the same facility" (id. at 20). Dr. Lubit additionally testified that another reason that the 2019 colonoscopy is of more significance in evaluating claimant's symptomology is that claimant reported that procedure accounts for 90% of his intrusive recollections, while those from his prior instances of trauma account for only 10%.

Significantly, however, on cross-examination, Dr. Lubit stated that he did not review any medical records pertaining to any treatment claimant may have received after being shot in the Middle East and the sexual assault at Brooklyn Detention Center. And the physician was unaware of the status of claimant's mental health before the colonoscopy; nor did he "specifically" know whether claimant had experienced similar symptoms as a result of those other traumatic events (id. at 58-59). Yet Dr. Lubit stated those events "had a negative impact" on claimant, making him an "eggshell" (id. at 58). When asked about whether he had been able to render an opinion as to what extent claimant's current suffering may have been a result of claimant's past traumas, Dr. Lubit acknowledged that was within the purview of his review but stated that "the problem [was], it's almost impossible to know how [claimant] would be doing if [the colonoscopy event] hadn't occurred other than to say that he is significantly worse as a result of this" (id. at 56). He added that "[e]xactly how much worse off he is than if it hadn't happened is very hard to say" (id. at 57), and he "[didn't] know to what extent the trauma from the other incidents may have resolved" (id. at 56).

Finally, Dr. Lubit testified that, for purposes of assessing claimant's damages, what actually occurred in the operating room with Officer Duncan is less significant than claimant's understanding of what happened. Dr. Lubit stated that claimant reported that Officer Duncan had seen him in a disrobed state with his legs spread and had seen images of his colon—this was "a psychological reality" to claimant according to Dr. Lubit (id. at 50). In other words, Dr. Lubit explained, from "a psychological point of view" it is what claimant "believes" that may cause trauma—even if he was "mistaken"—and not the "hard and fa[s]t facts" (id. at 47, 51). Dr. Lubit acknowledged, however, that such a distinction could matter "from a legal point of view" (id. at 51). In response to a question on redirect examination regarding how the extent of damages that claimant had suffered would change if claimant were to learn that Officer Duncan "was looking away the whole time," Dr. Lubit conceded that, "if [claimant's] belief about what happened changed, he might at this time have some decrease in symptoms" in the future, although it would not change what he had suffered in the past (id. at 65-66).

Defendant's sole witness at trial was Officer Duncan.⁶ Officer Duncan is currently a transportation officer who has worked at DOCCS for approximately 20 years. She was one of the two officers who accompanied claimant to the hospital for his colonoscopy in May 2019. Officer Duncan explained that there are always two officers who accompany incarcerated individuals being transported to medical facilities, and that one of them must be of the same gender as the incarcerated person in case the person must be stripped or unclothed. Upon their arrival, they went into a pre-op area. Officer Duncan testified that she was not present when claimant changed into his hospital gown. The male transport officer remained with claimant while he changed, and Officer Duncan waited outside the closed curtain of the pre-op room. Because the male officer was feeling unwell, Officer Duncan thereafter accompanied claimant into the operating room and testified that when she entered, she sat on a stool against the wall between the room's two entrances, approximately ten feet away from claimant. From her vantage point, she could see claimant lying on the gurney. Officer Duncan testified that the part of claimant's body that was closest to her was his head, and that this was the only portion of claimant's body that she could see at that time because the rest of his body was fully covered by a blanket. Before the procedure began, Officer Duncan was asked to remove claimant's leg irons; as she did so, she was able to see his feet and ankles. When she returned to her seat, she was once again only able to see claimant's head as his feet were covered back up.

Officer Duncan testified that at no point while she was in the operating room did she see any other part of claimant's body because only his head was uncovered "[d]uring the surgery" (T.2, at 82). Officer Duncan remained seated throughout the procedure and further testified that she could not see any part of the procedure that was performed on claimant. Officer Duncan did not recall seeing any monitors in the operating room or any portion of claimant's body displayed on a monitor, although she acknowledged on cross-examination that there could have been a monitor in the room. During the procedure, Officer Duncan testified that she was continuously "scan[ning] the room," moving her head from side to side, because claimant was fully unrestrained and it was necessary to "keep aware" of everything that was going on and keep an eye on the exits and all individuals in the room (id. at 83), given the various security concerns. Officer Duncan explained that, under DOCCS policy, an incarcerated person undergoing a medical procedure must be within eyesight of the accompanying officer "at all times" (id. at 98), and that she could not have seen claimant from a position outside the operating room. She testified that she understood that claimant was unconscious during the procedure but, because she was not a medical professional, she could not be certain whether it was possible that he could wake up. Once the procedure ended, Officer Duncan again approached claimant on the gurney to put his leg irons back on; and, once again, she stated that she did not see any portion of claimant's body other than his feet and ankles. After medical staff aroused claimant, Officer Duncan accompanied claimant to the post-op room and stated that she could not see any portion of his body other than his head while in that room. Finally, Officer Duncan confirmed that, other than claimant's head, feet, and ankles, she did not see any other part of claimant's body "[a]t any point in time when [she was] at Albany Medical Center" (id. at 85).

Findings of Fact and Conclusions of Law

The question of liability has already been determined by another Judge of this Court and is law of the case. Thus, the only issue now before this Court for consideration is whether claimant has established an entitlement to any monetary damages. Claimant seeks $425,000 for past and future pain and suffering for the mental and emotional distress that he allegedly suffered as a direct result of the privacy violation that occurred during his colonoscopy, predominantly for the "exacerbat[ion] and severe[ ] aggrava[tion]" of his "pre-existing mental health issues as a result of his past traumas" and which he claims caused him "to suffer and experience further and new symptoms of [PTSD], anxiety, and major depression" (T.2, at 127-129). Claimant also seeks separately to recover $75,000 for "loss of enjoyment" of life (id. at 129; see also Cl's Post-Trial Br, at ¶¶ 5-7, 11, 38, 46). There is no claimed physical component to the injury.

Defendant argues that claimant has not met his burden to establish damages that are causally related to the privacy violation or, alternatively, that only nominal damages are warranted at most (see Def's Post-Trial Br, at ¶ 13). More specifically, defendant argues that claimant had a reduced expectation of privacy during the colonoscopy because he was incarcerated, and that any privacy violation here was minimal because Officer Duncan did not see any private part of claimant's body during the procedure either directly or on a monitor (see id. at ¶¶ 5-12, 36). In addition, as to claimant's assertion of an "eggshell" claimant theory of damages, defendant contends that claimant failed to present non-speculative evidence that his past trauma and pre-existing conditions made him more vulnerable to harm from the present violation inasmuch as the testifying physicians conceded that they did not review claimant's past medical history or know whether or to what specific extent he had exhibited similar symptoms from those earlier experiences in order to establish "his baseline . . . prior to this incident" (id. at ¶ 31). Thus, defendant urges the Court to consider the nature of the invasion of privacy, as well as the extent to which claimant's mental health was already impacted before this violation in determining how much of his current mental health condition is attributable to his significant past traumatic experiences and what, if any, portion is a result of defendant's actions (see id. at ¶15; see also T.1, at 19).

As an initial matter, although defendant does not dispute the point, the Court notes that New York law is unclear with respect to the kind of damages that may be recovered in a State constitutional tort action brought pursuant to Brown v State of New York (89 NY2d 172 [1996]). Broadly speaking, recovery for mental or emotional distress without an accompanying physical injury is permitted in claims involving the violation of constitutional rights or statutory civil rights protections. For example, in actions against federal officers alleging violations of constitutional rights brought pursuant to Bivens v Six Unknown Named Agents of Federal Bureau of Narcotics (403 US 388 [1971]), "[c]ompensatory damages are available to plaintiffs . . . who suffer humiliation, embarrassment, and other emotional harm without accompanying physical or economic injuries" (Hicks v Ferreyra, 64 F4th 156, 175 [4th Cir 2023], cert denied 144 S Ct 555 [2024]; see also Matter of New York City Tr. Auth. v State Div. of Human Rights, 78 NY2d 207, 215, 216 [1991] [holding in discrimination action under New York Human Rights Law, that mental distress is compensable even where it is "sole" item of damages and may be proven by complainant's own testimony]). However, only "nominal damages should be awarded if the plaintiff was deprived of a constitutional right, without any resulting injury," whether physical, financial, or emotional (Hicks, 64 F4th at 175 [emphasis added]; see Bellamy v State of New York, UID No. 2000-010-066 [Ct Cl, Oct. 18, 2000] [Ruderman, J.] [awarding nominal damages of $3500 for unconstitutional search of room of the claimant's deceased son where she had not demonstrated any specific damages, including emotional damages]). Notably, Bivens served as a model for the remedy devised by the Court of Appeals in Brown (see 89 NY2d at 178, 192). Thus, the Court concludes that mental and emotional distress is compensable in a Brown claim such as this one.

"An award for pain and suffering is inherently a subjective inquiry, not subject to precise quantification, and generally presents a question of fact" (Petrilli v Federated Dept. Stores, Inc., 40 AD3d 1339, 1343 [3d Dept 2007]; see also McDougald v Garber, 73 NY2d 246, 257 [1989] [recognizing that "[t]ranslating" an individual's pain and suffering "into dollars and cents involves no mathematical formula"]; DeMarco v DeMarco, 154 AD3d 1226, 1228-1229 [3d Dept 2017]). The starting point in determining an appropriate damages award is examination of awards in "comparable cases" (Ciuffo v Mowery Constr., Inc., 107 AD3d 1195, 1197 [3d Dept 2013]; see Garcia v CPS 1 Realty, LP, 164 AD3d 656, 658 [2d Dept 2018]). If any such cases exist, they may serve to "guide and enlighten" a court in its consideration of the proper damages in a particular case, although they are "not binding" (Garcia, 164 AD3d at 658 [internal quotation marks omitted]). In evaluating the amount of damages to be awarded for pain and suffering, factors to be considered include "the nature, extent and permanency of the injuries, the extent of past, present and future pain[,] and the long-term effects of the injury" (Nolan v Union Coll. Trust of Schenectady, NY, 51 AD3d 1253, 1256 [3d Dept 2008], lv denied 11 NY3d 705 [2008]; see Fabiano v State of New York, 170 AD3d 1301, 1303 [3d Dept 2019]). Awards for emotional distress are widely variable and dependent on the particular facts and circumstances of each case (see Nolan v State of New York, UID No. 2018-030-034 [Ct Cl, Nov. 8, 2018] [Scuccimarra, J.] [noting range of $3,000 to $350,000 for claims of emotional distress caused by defamation]). As with any other type of factual finding, a "finding of damages for pain and suffering is generally left to a [fact finder's] common sense and judgment in light of its common knowledge and experience[,] and with due regard to the evidence presented at trial, including the demeanor and testimony of all witnesses" (Apuzzo v Ferguson, 20 AD3d 647, 648 [3d Dept 2005] [internal quotation marks omitted]).

Beginning with claimant's primary argument for recovery, the Court finds that claimant has not established by a preponderance of the credible evidence that the colonoscopy incident exacerbated his preexisting mental health conditions of PTSD, anxiety, and depression. Under the well-established principles governing such a recovery, a defendant may be held liable in damages where its tortious conduct aggravates a claimant's preexisting physical or psychological condition (see McCahill v New York Transp. Co., 201 NY 221, 223-224 [1911]; Bartolone v Jeckovich, 103 AD2d 632, 635 [4th Dept 1984]; AA v State of New York, 43 Misc 2d 1004, 1011 [Ct Cl 1964]; NY PJI 2:282; see also Matter of Tobin v Steisel, 64 NY2d 254, 259 [1985]; Matter of Makowski v New York State & Local Employees' Retirement Sys., 206 AD2d 657, 658 [3d Dept 1994]; Rivera v Kolsky, 164 AD3d 626, 628 [2d Dept 2018]). But where damages are sought under such a theory, a claimant may only recover for the increased injury caused by the defendant's tortious conduct; a claimant cannot recover for injuries or symptoms caused by the preexisting conditions themselves (see Oakes v Patel, 20 NY3d 633, 647 [2013]; Kirschhoffer v Van Dyke, 173 AD2d 7, 9 [3d Dept 1991]; Ortiz v Mendolia, 116 AD2d 707, 709 [2d Dept 1986]). In other words, here, only damages "proximately caused" by defendant's violation—above and beyond the injury caused by claimant's multiple, trauma-induced, preexisting mental health conditions—may properly be awarded (Oakes, 20 NY3d at 647; see also Stewart v Olean Med. Group, P.C., 17 AD3d 1094 [4th Dept 2005]). And competent medical evidence on such causation is required to establish entitlement to any aggravation damages where the issues are not commonly within the fact finder's knowledge (see De Mento v Nehi Beverages, 55 AD2d 794, 795 [3d Dept 1976]; Smolen v Pen Fa Lee, 111 AD2d 801, 801 [2d Dept 1985]; Mackey v State of New York, UID No. 2000-015-501 [Ct Cl, Mar. 20, 2000] [Collins, J.], citing De Mento and Aragones v State of New York, 247 AD2d 657, 658 [3d Dept 1998]; see also Damages—Traumatic Aggravation of Preexisting Mental Disorder, 12 Am Jur Proof of Facts 3d 323 [Nov. 2024 update]).

Claimant failed to present sufficient medical evidence to establish that his present symptoms were proximately caused by an aggravation of his preexisting PTSD and other mental health conditions and, if so, to what degree. Initially, the Court notes that Dr. Lubit's testimony was often unclear, and the Court was unable to discern which specific portions of his testimony were being offered to establish that claimant suffered an aggravation and which portions related to new injury suffered by claimant. Thus, the Court will consider his testimony both with respect to determining the question of aggravation of claimant's preexisting conditions or any new injury. Although Dr. Lubit testified generally about how prior traumatic experiences can cause long-term changes in the brain which could affect brain function in a manner that may heighten the impact of any subsequent trauma claimant endures, the expert's testimony about how this "synergistic impact" (T.2, at 42) applied with respect to the privacy violation at issue here and claimant's current state was entirely speculative. Significantly, Dr. Lubit conceded that it would be important to know claimant's "baseline" mental health status immediately before the colonoscopy to determine the relative impact of the colonoscopy on claimant's mental health and associated symptoms, as compared to his other traumas (id. at 28). Yet Dr. Lubit acknowledged that he did not review any pre-colonoscopy medical records pertaining to claimant's treatment for his multiple past traumas—which undisputedly resulted in prior clinical diagnoses for him of PTSD, anxiety, and depression. Nor did he review records of claimant's mental health treatment in the months immediately following the colonoscopy. And no medical records predating the colonoscopy were offered by claimant into evidence. Indeed, Dr. Lubit testified it was "impossible" to know what the status of claimant's mental health would be with respect to his other traumas and conditions had the colonoscopy incident not occurred (id. at 57). He also did not know whether claimant's prior traumas caused claimant to experience symptoms similar to those he suffered after the colonoscopy. In addition, the medical records received into evidence from Dr. Abrahamson and Dr. Henze did not specifically link claimant's symptoms to the colonoscopy and indicated that claimant identified—and sought treatment for—numerous sources of trauma and stress. For his part, Dr. Henze seemingly did not even know that claimant had a preexisting diagnosis of PTSD. Thus, claimant presented "no expert testimony or other [competent medical] evidence . . . at trial which could support a finding that defendant aggravated a preexisting condition as a result of" the colonoscopy-related privacy violation (Smolen, 111 AD2d at 801).

Nevertheless, the Court finds that a fair preponderance of the credible evidence establishes that claimant suffered some mental and emotional distress as a result of the violation—independently of any aggravation of claimant's preexisting conditions—during two distinct periods of time. Claimant emotionally testified that he experienced deep humiliation and other feelings of mental anguish specifically as a result of the invasion of privacy during the colonoscopy, immediately after it occurred in May 2019 until his release from prison in December 2019. The Court credits claimant's genuine testimony about how the events of that day made him feel, how disturbing and impactful this incident was for him, and that he experienced physical manifestations of his distress—including problems with sleep. Claimant also credibly testified that he engaged in ten counseling sessions related to the incident during that initial six-month period and took psychiatric medications which he had been prescribed. Claimant did not appear to be exaggerating his emotional response to the colonoscopy violation, but he acknowledged that some of the counseling sessions within those six months were not exclusively about that incident and also included discussions about some of his other traumatic experiences.

As to the period of time between claimant's release from state custody in December 2019 and the beginning of his first semester of law school in August 2022, however, neither claimant's own testimony nor any other evidence demonstrated that he suffered any notable mental or emotional distress, or any significant physical sequelae, related to the colonoscopy incident. Claimant acknowledged that he did not seek out or receive any mental health treatment during that period, nor did he testify about any psychological or physical symptoms he may have experienced during that time. Indeed, the evidence shows only that claimant thrived after his release from incarceration: he maintained a steady professional job as a paralegal; worked for a presidential campaign; applied for and was accepted to multiple law schools; and maintained his sobriety. Thus, claimant failed to establish an entitlement to damages for this nearly three-year period.

With respect to the period of time after claimant entered law school in August 2022 through the time of this damages trial, claimant testified that he experienced additional mental and emotional distress related to the colonoscopy. The symptoms of claimant's distress at this time appear largely related to visual triggers which claimant did not encounter before he moved to Albany, namely, seeing the hospital where the colonoscopy occurred every day while attending his law school classes across the street, as well as seeing DOCCS transport vans several times a week on his way to school and sometimes parked outside his apartment.⁷ Claimant credibly testified that these triggers serve as constant, daily reminders to him of what he felt was a horrific experience, "haunt[ing]" him and causing him to experience increased anxiety and recurring nightmares about the incident (T.1, at 63). Claimant's testimony about the severity of these effects on him—although certainly subjective in nature—was nevertheless specific and detailed, lending further credibility. For example, claimant's testimony about his nightmares was descriptive, vivid, and did not appear fabricated. Claimant acknowledged, however, that the medications he is on help control these symptoms, noting in particular that prazosin has helped "tremendously" with his nightmares (id. at 52). Indeed, claimant's recent treatment records show that his symptoms are well controlled through a combination of psychotherapy and medications. No testimony was offered to suggest that claimant's medications have any significant deleterious side effects. And although claimant testified that he also has difficulty with concentration and intrusive thoughts during his law school classes, the evidence does not indicate that such problems have had a significant impact on his performance by any objective standard. Rather, claimant maintained an above-average GPA during his first year of law school, successfully completed a summer internship which required him to visit correctional facilities and interact with correctional facility staff, and continues to maintain a 15-credit course load.

Claimant's testimony about his symptoms, and the significant effect the privacy violation had on him—both while incarcerated and, then again, a few years later during his time at law school—was corroborated by Dr. Lubit's testimony that claimant suffers from a stressor-related disorder specifically as a result of the colonoscopy incident. Dr. Lubit also credibly testified that the incident had a significant negative impact on claimant's mental health and caused him to experience many of the symptoms he described. But the Court does not credit Dr. Lubit's speculative conclusion that claimant would have been doing better in school if not for the impact of the colonoscopy on him. Although the testimony of Dr. Henze, claimant's current treating physician, also supported claimant's testimony about his mental distress and associated symptoms after the colonoscopy, the Court rejects Dr. Henze's conclusion that claimant developed PTSD as a result of the incident. Dr. Henze was not a credible witness with respect to any element of claimant's damages. Notably, Dr. Henze had little experience in the field of psychiatry at the time of trial, and he struck a defensive tone throughout his testimony. In addition, his testimony materially conflicted with that of Dr. Lubit—a much more experienced physician in the field—to the extent Dr. Henze testified that the colonoscopy constituted a form of sexual violence which satisfied the causal criteria for PTSD, an opinion with which Dr. Lubit persuasively disagreed. In the Court's view, Dr. Henze's unsupported testimony on this point undermined the reliability of his testimony more broadly. Moreover, as noted above, Dr. Henze's notes contained inconsistencies with respect to at least one of claimant's reported symptoms, which further call into question his reliability.

With respect to the extent to which claimant will experience future mental distress as a result of the colonoscopy, Dr. Lubit's opinion was equivocal and, in some respects, speculative. For example, when Dr. Lubit discussed the fact that claimant is still able to function at a high level despite his symptoms, he noted that stressors could arise in the future that "may" be greater, and then claimant "may" not be able to do his work (T.2, at 41). But Dr. Lubit also acknowledged that claimant's symptoms will ease once claimant finishes law school. On that point, claimant himself acknowledged that his symptoms were less severe during his first year of law school when he did not have classes in rooms that have a view of Albany Medical Center. Further, with respect to the sexual assault claimant experienced at Brooklyn Detention Center, Dr. Lubit testified that claimant did "much, much better" after he moved to a different facility and was no longer exposed to his triggers (id. at 20). Similarly, claimant is set to graduate Albany Law School soon and, thus, would no longer be exposed to his primary triggers regarding the colonoscopy. Dr. Lubit also generally testified that symptoms such as intrusive recollections and avoidance "often get better;" and even though he opined that negative changes in mood, cognition, arousal, and reactivity "don't tend to go away entirely," he nevertheless acknowledged they can "ameliorate" and "improve somewhat over time" (id. at 44-45). With respect to claimant specifically, Dr. Lubit testified that it was unknown whether such symptoms would get worse over time or whether "they may well decrease with time" (id. at 58). Dr. Lubit also stated that it was "hard to say how long [claimant would] need[ ] treatment" (id. at 19). Moreover, there is an inconsistency between Dr. Lubit's gloomy forecast for claimant's mental health with respect to the impact of the colonoscopy, and his assessment that claimant was able to recover substantially with respect to his prior traumas which—unlike the colonoscopy—caused him to develop PTSD, depression, anxiety, adjustment order, and a drug addiction which nearly took his life. Thus, although the evidence presented supports a finding that claimant will experience some degree of future damages, only a modest award is warranted in that regard (see Taieb v Hilton Hotels Corp., 131 AD2d 257, 263 [1st Dept 1987] [holding that "tenuous and speculative" expert medical testimony was insufficient to support a "substantial award"], appeal dismissed 72 NY2d 1040 [1988]).

In light of the above, the Court finds that claimant is entitled to more than nominal damages for past and future pain and suffering. The parties did not cite—and research did not reveal—any comparable New York cases to guide the Court in determining appropriate compensation. The cases proffered by claimant in support of a six-figure award are not comparable to this case at all.⁸ Indeed, they are all federal cases involving a wholly different kind of claim—emotional distress caused by intentional workplace discrimination—and the plaintiffs in those case suffered more severe symptoms and received much more extensive treatment than claimant in this case (see Olsen v County of Nassau, 615 F Supp 2d 35 [ED NY 2009] [$400,000 award for emotional distress in gender discrimination claim where the plaintiff suffered chest and arm pains that felt like a heart attack, muscle pains, migraine headaches, and shingles, as well as received weekly psychotherapy for nearly three years]; Simmons v New York City Transit Authority, 2008 WL 2788755 [ED NY, July 17, 2008] [$150,000 award in case of disability discrimination where, as a result of being out of work for over a year, the plaintiff "lost income, could no longer contribute to her grandson's schooling or afford to pay for her apartment, and had to move"], affd 340 F Appx 24 [2d Cir 2009]; Petrovits v New York City Transit Authority, 2003 WL 22349676 [SD NY, Oct. 15, 2003] [$150,000 jury verdict where sex discrimination caused the plaintiff to be denied promotion and evidence showed she "always had a very happy demeanor" before the incident, but received monthly psychotherapy sessions for five years after the incident where she exclusively discussed her discrimination case]; Lewis v American Sugar Refining, Inc., 325 F Supp 3d 321, 365-366 [SD NY 2018] [$115,000 award for violation of New York State Human Rights Law where the plaintiff demonstrated he was regularly subjected to racial harassment at work and suffered adverse employment actions, causing nausea, vomiting, a drastic change in demeanor, and fear that he would lose his job]).⁹ The Appellate Division cases cited by claimant during summation are similarly inapposite (see Blakesley v State of New York, 289 AD2d 979 [4th Dept 2001], lv denied 98 NY2d 605 [2002]; McKay v Ciani, 288 AD2d 587 [3d Dept 2001]).

Topor v State of New York (176 Misc 2d 177 [Ct Cl 1997]), cited by defendant, serves as a better comparison on the facts. In Topor, the claimant had been using a shower facility at a State-owned park when, after disrobing, she realized that some tiles were missing and there were holes in the wall (see id. at 178-179). The claimant suffered significant distress when she looked through one of the holes and saw an eyeball peering back at her (see id. at 179). The testimony at trial demonstrated that claimant was diagnosed with adjustment disorder with mixed emotional features as a result of this incident, and that she had symptoms of depression, anxiety, nightmares, concerns for her personal safety, and sexual dysfunction in her marriage (see id.). The Court found the State liable for negligently causing claimant to suffer emotional trauma and awarded claimant $20,000 for past emotional distress and $5,000 for future emotional distress (see id. at 183).

Although Topor is a useful starting point, the comparison is not on all fours. Topor involved a more serious invasion of privacy because, there, the unsuspecting claimant discovered, in a disturbing manner, that she was being viewed naked by a stranger. In contrast, the violation against claimant here happened in the context of a planned medical procedure, a situation where an individual has agreed to compromise their bodily privacy to some extent. Moreover, incarcerated individuals have a reduced expectation of privacy compared to individuals at liberty because their rights must yield to the government's interest in maintaining institutional security (see Hudson v Palmer, 468 US 517, 524-526 [1984]; People v Diaz, 33 NY3d 92, 98 [2019] [citing Hudson]). Claimant himself acknowledged at the liability trial that DOCCS' policy required corrections officials to maintain sight of an incarcerated individual during a medical visit "at all times." Thus, although the liability decision concluded that claimant had a narrow right not to have a female corrections officer present in the operating room during his colonoscopy while he was under anesthesia, the infringement of claimant's privacy in this case was less severe because, unlike the claimant in Topor, claimant here did not have an expectation of total freedom from observation (see 7 NYCRR 7651.26 [a] [7] [noting that incarcerated individuals enjoy medical privacy "to the extent consistent with . . . the safety and good order of the facility"]; Lassiter v State of New York, UID No. 2019-054-025 [Ct Cl, May 16, 2019] [W. Rivera, J.] [noting that corrections officer's presence during a medical examination "is legitimately related to penological interests regarding security"]). In addition, further unlike the claimant in Topor, claimant did not testify that the invasion of privacy during the colonoscopy had a negative impact on any significant personal relationships, or relationships with his fellow students or any co-workers. Thus, the impact of the violation on the claimant's daily life and functioning in Topor appears to have been greater than for claimant here. Indeed, the proof at trial showed that claimant had a three-year period of time shortly after the colonoscopy where he had no reported mental or emotional distress at all, and was tremendously engaged and successful in both professional and personal pursuits.

The testimony of Officer Duncan further supports the conclusion that the scope of the violation of claimant's privacy was much more limited than the violation in Topor. Officer Duncan testified that, during the procedure, she could not see any part of claimant's body besides his head, feet, and ankles; all other parts of his body were covered by a blanket. In addition, the officer testified that she was constantly scanning the room during the procedure and not focusing her attention on any of claimant's body parts. Although the liability decision found that intimate portions of claimant's body were projected on a monitor, no specific findings were made with respect to the size or placement of the monitor. Officer Duncan acknowledged it was possible that there was a monitor in the room but she did not recall seeing one. Officer Duncan's testimony was unrebutted; indeed, claimant declined to testify in rebuttal, although the Court afforded him the opportunity to do so. Moreover, her testimony could not possibly have been rebutted by claimant because he was unconscious during the procedure. Notably, claimant acknowledged that Officer Duncan's actual observations would be significant in assessing the degree to which his privacy was violated, and Dr. Lubit similarly testified that claimant's future emotional distress could decrease if his belief changed about what the officer saw.

In sum, after considering the testimony and documentary evidence received at trial, as well as the applicable law and the cases cited above, claimant is awarded $9,500 for past pain and suffering and $500 for future pain and suffering, for a total award of $10,000, with interest running from the date of the determination of liability on March 3, 2022 (see CPLR 5002; Love v State of New York, 78 NY2d 540 [1991]). To the extent claimant seeks a separate award for loss of enjoyment of life, no such damages are available under New York law (see Nussbaum v Gibstein, 73 NY2d 912, 914 [1989], citing McDougald v Garber, 73 NY2d 246 [1989]). If claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act § 11-a (2), but recovery of other litigation fees and costs is not available in the Court of Claims (see Court of Claims Act § 27).

Let judgment be entered accordingly.

January 17, 2025

Albany, New York

ZAINAB A. CHAUDHRY

Judge of the Court of Claims

FOOTNOTES

1.   The remaining causes of action were dismissed.

2.   Exhibits 3, 4, 10, 12, 14, and 18 were admitted into evidence.

3.   No records of Sapien's treatment of claimant were offered by claimant at trial.

4.   The Court permitted Dr. Henze to provide expert testimony limited to the "near future treatment potential and prognosis" for claimant (T.1, at 109), even though claimant failed timely to comply with the expert disclosure requirements of CPLR 3101 (d) as to Dr. Henze (see Freeman v State of New York, 206 AD3d 1102, 1105 [3d Dept 2022]).

5.   Although the trial transcript indicates that Dr. Lubit testified that claimant's diagnosis is "no other stressor-related disorder" (T.2, at 10 [emphasis added]), a review of the audio recording of the trial makes clear that inclusion of the word "no" in the transcript is an error.

6.   Officer Duncan was permitted to testify over claimant's objection. The Court found that claimant waived such objection having waited until the eve of trial to make it, despite having had ample notice of defendant's intention to call the witness and, further, that Officer Duncan's testimony may be relevant to the determination on damages. To the extent claimant alternatively asked the Court to review the testimony Officer Duncan had previously given at the liability trial, no showing was made that the witness was unavailable under CPLR 4517 such that judicial notice of her prior testimony could be taken. Finally, given the objection, the Court indicated it would allow claimant to testify again in rebuttal if he deemed that necessary, but claimant declined to do so.

7.   Although defendant briefly questioned claimant at trial about why he chose Albany Law School despite receiving multiple law school admission offers, and his failure to visit the campus or search its location on a map which might have revealed its proximity to Albany Medical Center, defendant did not argue that claimant " 'failed to make diligent efforts to mitigate [his] damages' " (Rivera, 164 AD3d at 628, quoting Eskenazi v Mackoul, 72 AD3d 1012, 1014 [2d Dept 2010]; see Cornell v T.V. Dev. Corp., 17 NY2d 69, 74 [1966]; New York Tel. Co. v Harrison & Burrowes Bridge Contrs., 3 AD3d 606, 609-610 [3d Dept 2004]).

8.   This Court previously rejected claimant's reliance on cases involving invasive body cavity searches and forced colonoscopies for contraband which claimant had cited in support of that portion of his prior motion to amend as sought to increase the ad damnum clause of his claim (see e.g. Clement v County of Albany, No. 1:07-cv-00260, 2009 WL 3863119 [ND NY 2009]; Eckert v City of Deming, No. CIV 13-0727, 2015 WL 10383783 [D NM 2015]), noting that such cases were "wholly inapposite" (J.C. v State of New York, UID No. 2023-062-015 [Ct Cl, May 31, 2023]).

9.   Claimant asserts there is a difference between cases involving "garden variety" emotional distress and "significant" emotional distress and contends that this case falls into the latter category. However, this distinction does not appear to exist under New York Law; rather, it is used by federal district courts in the Second Circuit (see Olsen, 615 F Supp 2d at 46 [noting that claims of "garden variety" emotional distress typically merit an award of $30,000 - $125,000, whereas "significant" or "egregious" claims merit a higher award]). This Court is not bound by the framework used by the federal district courts.

Zainab A. Chaudhry, J.