STATE OF NEW YORK COURT OF CLAIMS DELIA DAVILA a/k/a DELGIA DAVILA, Administrator for the Estate of GLORIA BONILLA, Claimant, DECISION we STATE OF NEW YORK, ClaimNo. 119620 Defendant. BEFORE: HON. DIANE L. FITZPATRICK Judge of the Court of Claims APPEARANCES: For Claimant: . FOULKE LAW OFFICES By: Evan M. Foulke, Esquire For Defendant: ERIC T. SCHNEIDERMAN Attorney Gen of the State of New York nthony Rotondi, Esquire Assistant Attorney General (a Claimant, the mother of Decedent Gloria Bonilla and the Administrator of her estate, brought this claim against the State for its negligence arising from a fire on March 21, 2009, in the Riverview IRA! (RIRA), a facility operated by the State Office of Mental Retardation and Developmental Disabilities (OMRDD),? Claimant seeks damages for Decedent's pain and "A facility for mentally challenged adults owned by Defendant. 2-The name of this agency was changed to Office for People with Developmental Disabilities (OPWDD) in 2010.Claim No. 119620 Page 2 suffering (EPTL 11-3.1), Partial summary judgment on liability was granted by this Court to Claimant on May 30, 2014. A trial on the issue of damages was held on January 10 through 12, 2017, and on April 4, 2017. Decedent was born April 17, 1965, and was placed in the Willowbrook State School at the age of four due to her developmental delays and seizure disorder. The clinical summary submitted described her as follows: “Gloria functioned in the profound range of mental retardation. She ‘was non-verbal, but could make some sounds and words somewhat related to wants or needs. She had some very basic receptive Janguage and could follow some simple directives. She made brief eye contact when prompted. Gloria had the ability to recognize common objects by their use and would often seek out what she wanted in her environment. She was interested in some favorite objects and might engage with staff and peers if it involved these objects, such as ball play. As in all areas her neurological condition marked by her persistent seizures impacted her responsiveness greatly.” A permanent injunction granted in March 1993 in a class action brought on behalf of the residents of Willowbrook which included Decedent, provided Decedent certain rights, such as Placement in a residence with 10 beds or less, a case manager with no more than 20 consumers,> 4 fall day habilitation program and sufficient staff to protect her from harm, among other things ¢ Decedent was thereafter transferred to the RIRA in Wells, Hamilton County, New York. Davilav State of New York, UID No, 204-018-516 [CtCl Fitzpatrick, J, May 30,2014] affd140 AD34 1415 [3d Dept 2016}. “Exhibit 13, p. 1. ° The residents were referred to a consumers in many exhibits, “Exhibit 11, New York State Association for Retarded Children, et alv Cuomo, et al, 72 Civ. 356,357, [E.D. 1993].Claim No, 119620 Pa Faye Snyder, the director of RIRA testified about Decedent. Because of her ongoing seizure disorder, Decedent wore a helmet and with it was free to ambulate around the house alone. She and other residents would go to “day-hab program” five days a week where they had speech and physical therapists assist the attendees based on their particular needs. The residents of RIRA were taken on other outings as well, which included movies, dining out, going to the 200 or shopping. Ms, Snyder said Decedent was never mean but could be stubborn, She could effectively ‘communicate her preferences. For example, if she was given a toy she did not like, she would throw it on the floor. Physical activity was part of Decedent's residence plan’ so she often went ‘on walks. A wheelchair accompanied Decedent during her outings in case she had a seizure. The Plan also required Decedent to have choices, so a number of items would be placed in front of her, allowing her to touch them and eventually select what she wanted, Developing Decedent's ability to perform functional tasks such as taking her dishes to the sink after a meal was another Boal of her residence plan. Decedent could respond to the verbal cues used to assist her with such tasks, According to Ms. Snyder, Decedent was not self-preserving, meaning she could not get herself out of harm’s way. She did respond to her name and only made eye contact when her name was spoken. Ms. Snyder identified numerous photographs of Decedent.' The pictures show Decedent holding a stuffed animal with her birthday cake, sitting on Santa’s lap, and involved in other "Exhibit 14. "Exhibits 1 - 10,Claim No. 119620 Page 4 dhily activities. Many of the program plans and evaluations for Decedent were entered into evidence’ describing, in greater detail, her accomplishments and limitations, One of the staff members at RIRA, Shitley Wolf, described Decedent as follows: “Gloria ‘was.afun litle girl who always had a smile for me. She had her ways of letting you know how she felt about you. She would take your hand and hold your hand.”"* Ms, Snyder testified that this was a fair assessment of Decedent, Ms. Snyder described the layout of RIRA and identified a diagram and photos of the building taken both before and after the fire. The diagram'" shows seven bedrooms and a shower to the right side of the building with an exit door atthe end of the hallway. This area is separated from the rest of the facility by a smoke door. The bathroom, laundry, kitchen, and other rooms Were to the left of the smoke door. The main entrance is through the mudroom, also to the left of the smoke door and right of the living room,” ‘The underlying facts are notin dispute and were set forth in part, in the summary Judgment Decision and Order and the evidence at trial. Some time after 5:00 a.m. on March 21, 2009, Scott Scribner, a Developmental Aide at RIRA, noticed smoke coming from the back Porch area of the facility. He notified his coworker, Shirley Wolf, who went down the corridor to the bedrooms where the residents were sleeping. Exhibits 13 - 19, ‘Trial Transcript, p. $7. " Exhibit 20, "? This is from the viewpoint facing the font of the building,Claim No. 119620 ‘Ms. Wolf assisted the Decedent and her roommate down the hall then moved them to the ‘mudroom. The two workers successfully moved a total of six residents out to the mudroom. Kenneth Hoffman, the Assistant Fire Chief of Wells Fire Department, received a dispatch call alerting him to smoke at the facility at about 5:30 a.m, He lived across the street and said he ‘was at the residence within a minute of receiving the call, He said it was extremely cold that morning. As he approached the mudroom door, he saw flames shooting up about 15 to 20 feet hhigh at the back part of the residence. He entered the mudroom looking for people, but the smoke Was too thick fo see anyone although he heard voices. He called out and got a response. Ms. Wolf and Mr. Scribner each had a resident with them, and Mr. Hoflian assisted in moving them outside. Mr. Hoffman then went back into the mudroom where he bumped into a person in a wheelchair which he pushed outside, Sensing others were still inside, he returned and tripped Over @ person on the floor who he moved outside, As he was about to reenter the mudroom there ‘was a blast of heat and smoke, which he described as a flashover. Mr. Hoffinan heard mumbling in the mudroom but could not get inside to help whomever was stil in there; he was not wearing any protective equipment. In his statement to Fite Investigator Dobbs," he described the Mashover saying“... there were balls of flames dripping and dropping down . ..It acted just like a downdraft chimney, and the heat and the force pushed me backwards.” This happened in a matter of seconds, A forensic toxicologist and pharmacologist, Dr. James C. Norris, Jr, testified that flashovers result from an “appropriate mixture of fuel and heat and air such that there’s a Behibit 32,Claim No. 119620 Page 6 conflag{ration] of flames” that erupt suddenly. The heat and power associated with a flashover are tremendous. It was his understanding that this flashover occurred shortly after Mr. Hoffman arrived and caused the roof to bum and collapse. The fire moved across the roof of the building from shingle-to-shingle rapidly from the mudroom area toward the bedrooms. Other firefighters arrived and they began applying water to the fire, but Mr. Hoffman said it was ineffective due to the fire’s intensity. Foam was applied but that did not work either. No one could enter the building safely, the heat was too intense, According to Mr. Hoffman, within ten minutes after his arrival, the fire had fully engulfed the building buming from the top down. He estimated it took 2-to-2/4 hours to get it under control. A redacted deposition transcript of Donald Machattie, Assistant Chief of the Wells Fire Department, was received in evidence.'’ He responded to the scene at about 5:40 a.m, with a Pumper truck, the first truck to arrive, The roof of the building was burning at that time but the fire had not yet traveled to the bedroom wing. The mudroom area was fully engulfed. Mr. ‘Machattie could see the flames moving from rafter-to-rafter. He said in his 33 years of firefighting, he had never seen a fire progress so quickly. After about 30 minutes of fighting the fire, Mr. Machattie arranged for the town to send a truck and knock down the portico in front of the mudroom before it could fall down. That ‘occurred about 7:30 a.m, The fire was then under control but Mr. Machattie said there were still some hot spots. The firefighters knew five people had been left inside and believed all had perished. Mr. Machattie, as coroner, pronounced two victims dead at the scene. "Trial Transcript, p. 236, *S Exhibit 57,Claim No. 119620 Page7 Another firefighter, Timothy O'Neill, testified that he arrived on the scene within 10 minutes of receiving the call, and the house was fully engulfed. He described the mudroom as the hottest area with the vinyl siding hot and dripping, The roof shingles were burning. The fire was 0 hot it melted the mudroom door. No one could get within 20 feet of the building, After the fire was under control, he and some others were on the downed portico, near the mudroom, and saw movement inside, He called the Emergency Medical Technicians (EMTs) and ‘went in to find the survivor. Mr. O'Neill, Mr. Hoffinan and others helped place the person on a backboard and into an ambulance. The firefighters then went into search mode and found another survivor in one of the bedrooms, still in bed. She, too, was placed on a backboard and taken to an ambulance. Mr. O'Neill went back to the portico and noticed the roof debris moving up and down thythmically. He, Mr. Hoffman and others went back in and began to remove the debris. So much of the roof and ceiling was on the floor, along with puddles from a spewing broken sprinkler, that they could not see a body at first. As the debris was removed, they saw a body, face down. Another backboard was brought in and they rolled the person over onto it. It was Decedent, Gloria Bonilla. During the minute or so he was with Decedent, Mr. ONeill recalled that she looked gray but could not remember if she made any sounds. Mr. Hoffman could not describe her at all, saying he blocked it out of his memory. Senior Investigator, Karl Meybaum from the New York State Police, arrived at the scene after the fire. He learned there were survivors removed from the residence and was there when ‘Decedent was removed. He heard her moaning, as if in pain, and turning her head from side-to-Claim No, 119620 Pages side, There was no screaming or combativeness that he saw, but he recalls her eyes were open at the time, Gary Wickes, a Certified Critical Care Paramedic with Speculator Volunteer Ambulance Corp., was called by Claimant to testify. He and his wife, and Janice Rajca, were the ambulance crew called to help evacuate the RIRA. When they arrived at the scene, Mr. Hoffman asked Mr. Wickes to check on the people who were first evacuated from the building. One man needed ‘treatment so Mr. Wickes’ crew took him along with the two RIRA staff members to Nathan Littauer Hospital about 40 miles away. On the way back, Mr, Wickes received a call to return to the fire scene as unexpected survivors were being removed. He arrived at the scene the second time at 7:59 a.m. and saw firefighters carrying someone out of the residence on a backboard. The backboard was placed on a stretcher and into the ambulance, Mr. Wickes described Decedent as wet with smoke and steam coming from her. His first step, in such a situation, is to stop any burning process that may be continuing. He proceeded to cut her clothes off. He estimated that she had first, second, and third degree burns over 80 - 90 percent of her body. Her hands were burned so badly that the finger bones were exposed, the flesh was totally gone. She had red spots and blistering as well. As part of his paramedic training, Mr. Wickes leamed about bums and their relative severity. There are now four stages which he described as: redness would be first degree; blistering second degree; charring third degree; and charred, crispy flesh is fourth degree. In his opinion, Decedent had all four types of bums. Mr. Wickes recalled that as they were cutting the clothes off of Decedent, she was screaming and fighting. They wrapped her in a burn blanket and tried to get an IV started toClaim No. 119620 Pages administer pain medication but were unsuccessful because of her agitation. They left the scene at 8:13 am., to take Decedent to a landing zone for medical helicopters which were sent to carry the survivors to the hospital. On the way, Mr. Wickes took Decedent's vital signs. Her blood pressure was 138/76, pulse was 76, and her respiratory rate 12. She was breathing on her own but an oxygen mask was held near her face as her breathing was shallow. They arrived at the landing zone in two minutes. A minute later, two helicopter paramedics from LifeNet were at Mr. Wickes’ ambulance with their medical equipment, Janice Rajca, one of Mr. Wickes’ ambulance crew members, testified and recalled the morning of the fire similarly. She described Decedent as being gray/white and said her pajamas had melted to her skin. Ms. Raja knew Decedent before this, but did not recognize her until she heard someone say it was Gloria. Her immediate concern was to get oxygen into Decedent, and ‘Ms, Rajoa was holding the oxygen mask over her face but not touching her. She said Decedent ‘was thrashing around and moaning. When they got to the helicopter landing area, Ms. Rajca exited the ambulance to give the paramedics room to work on Decedent. Portions of Jonathan Gryniuk’s deposition were admitted in evidence.'* He is a registered respiratory therapist, a certified flight paramedic, a certified critical care paramedic, and was one of the LifeNet crew members who treated Decedent. His helicopter landed at the site chosen for them to meet the ambulance at 8:23 a.m., and Mr. Gryniuk was at the ambulance at 8:26 a.m. Mr. Wickes shared vitals and other information which Mr. Gryniuk later entered into Decedent's chart.”” Decedent was moved to the helicopter at 9:02 a.m. ‘6 Exhibit 58. "Exhibits 40 and 41, attached to Exhibit 42,Claim No. 119620 Page 10 Oxygen is the standard treatment for someone who has been in a fire because of the probability of lung damage and carbon monoxide poisoning. Securing an airway is the primary concern, Decedent had second and third degree bums over 80 percent of her body, which, Mr. Gryniuk said is indicative of a poor outcome for the patient, When Mr. Gryniuk first saw Decedent, she was wet and cold to the touch. She appeared hypothermic. There was charred debris near her on the stretcher. She was in the fetal position with her joints flexed and moaning. Based on his experience and her moaning, Mr. Gryniuk noted in her chart that Decedent was in severe pain and was restless. She was unresponsive, ‘meaning she did not follow any verbal commands. At that time the paramedics were unaware of Decedent’s lack of verbal skills, although, they did know she had significant mental limitations. Despite being environmentally unresponsive, Mr. Gryniuk noted in the chart that she was not totally unconscious. As part of the initial assessment of a patient, a painful stimulus is administered, usually a pinch, Decedent withdrew from the stimulus, thereby responding to pain. A Glasgow Coma Score, another assessment tool, was used by both Mr. Wickes and Mr. Gryniuk. There are three parts to the Glasgow Coma Score: eyes, verbal, and motor with maximum scores for each area of 4, 5, and 6, respectively. The complete score ranges from fully responsive at 15, to a3, which is used for a deceased person. Mr. Wickes gave Decedent a 3, while Mr. Gryniuk gave her a 7. Decedent kept her eyes closed so they had to be manually opened to check her pupils. Mr. Gryniuk gave Decedent a score of 1 for eyes, 2 for verbal because of her moaning, and a 4 for motor because her joints were flexed and she responded to the painful stimulus, He pinched each extremity and noted responsiveness, Decedent's left leg had a diminished response, but the other three extremities were normal.Claim No. 119620 Pago 11 Decedent’s breathing was labored but her airway was unobstructed. There was soot around her mouth. The other paramedic with Mr. Gryniuk, Walter Gould, checked her airway with a laryngoscope and found soot in the back of her mouth. He also performed the intubation. Mr. Gryniuk explained that the airway of a person who inhales hot gases in a fire can swell, closing the airway entirely, and this process can occur quickly. Decedent had soot in her nostrils, singed nasal hair, and carbon in her mouth which indicated she had inhaled super-heated gas, and her airway would likely swell. To prevent this, intubation was needed. ‘Mr. Gryniuk explained what actions he and Mr. Gould took to treat Decedent. Because they could not find a suitable vein to administer medications, an intraosseus needle was drilled into her left tibial plateau which caused her to flinch and moan. A second needle was later drilled into her right leg to administer fluids. Lidocaine, a local anesthetic, was used to help with the pain, and in the IV fluids, Vecuronium, a paralytic, was used to stop fasciculation and permit intubation. A sedative, Etomidate, was also given. Decedent’s vital statistics, heart rate, blood pressure, and pulse oximetry were monitored automatically while the paramedics treated her. An attempt to obtain her intemal body temperature by an esophageal temperature probe was unsuccessful, but her temperature taken from her posterior oropharynx was 77, indicating she was very cold. After the intubation, itis ‘common practice to remove any fluids from the patient's stomach. Mr. Gryniuk removed 300 milliliters of liquid that he described as gray with black specks. At 8:39 a.m., a larger dose of Vecuronium was administered to keep Decedent sill after the sedative had worn off. ‘At 8:44 a.m,, her blood pressure was good but her heart rate was low which is consistent with hypothermia. Her heart rate dropped to 32 at 8:46 a.m., so Decedent was given Atropine andGiaim No, 119620 Page 12 they were readying the defibrillation pads. Her heart rate increased to 40 and her blood pressure improved, Decedent’s heart rate dropped to, 20 beats per minute at 9:08 a.m., and there was no pulse. The paramedics began CPR and Epinephrine was given to her to stimulate her heart. The defibrillator was used and her heart rate increased to 80 beats per minute, At 9:10 a.m., the helicopter was in the air, at 9:13 a.m., her heart stopped again, so instead of taking her to the bum unit at State University of New York, Upstate Medical Center (Upstate), the helicopter was diverted to the nearest hospital. The paramedics administered more Atropine and Epinephrine along with Calcium Chloride because of concer about too much potassium in the bloodstream. They landed at Nathan Littauer Hospital and got her to the emergency room where another victim was being treated for cardiac arrest. Both patients died. The paramedics stayed until after both patients had passed. Dr. Todd Duthaler was the emergency room doctor working that day. Portions of his deposition testimony were admitted in evidence."* The hospital records were also admitted." He recalled Decedent arrived in cardiac arrest with the paramedics performing CPR and breathing for her. Based upon her vitals at 9:08 a.m., Dr. Duthaler said Decedent had died but, after resuscitation efforts, he considered her alive at 9:10 a.m, At 9:13 a.m,, she, again, had no heart rate or blood pressure and could not be revived, meaning her heart rate improved only with continued artificial ventilation. The resuscitation efforts: medications, chest compressions, and Exhibits 56 and B. "Exhibit 42.Claim No. 119620 Page 13 artificial ventilation continued, as well as electrical defibrillation for a total period of about 45 minutes. Dr. Duthaler declared Decedent dead at 9:59 a.m. His records reflect Decedent had second and third degree bums on 70 percent of her body. First degree burns, the most superficial, were not considered. A diagram was included into the records which showed the location of the burns. Dr. Duthaler described them as follows: “She has extensive burns involving the face, anterior and posterior torso, both arms anteriorly and posteriorly and buttocks and legs bilaterally anteriorly and posteriorly most of which are second degree but there, [sic] in all likelihood, is some element of third degree present as well. .. Jungeun J. Lee, M.D., performed an autopsy on Decedent and issued the death certificate.” Dr. Lee headed the laboratory at Nathan Littauer Hospital. He was trained as a pathologist but not a forensic pathologist; however, because there was no forensic pathologist in the area, he often performed autopsies. Dr. Lee had no information from the paramedics when he performed the autopsy. Dr. Lee ordered a carboxyhemoglobin test, which is standard procedure for burn victims and involves blood being extracted from the heart. The laboratory results showed Decedent's carboxyhemoglobin level was 12.8 percent, a higher than normal level. A suburban nonsmoker would have less than 1.5 percent. Generally, smokers’ levels would range from 1.5 -5 percent, and heavy smokers would have up to 9 percent carboxyhemoglobin levels. Dr. Lee also noted the soot in Decedent's nose and upper respiratory tract from smoke inhalation so a higher than normal carboxyhemoglobin level was expected. The doctor said there was a Exhibit 42. 21 Exhibit 45.Claim No. 119620 Page 14 small amount of grayish fluid in her stomach which could be normal or could be from swallowing water with ashes in it. ‘The autopsy report indicates that most of the bums Decedent suffered were mainly first and second degree over 75 percent of her body. Dr. Lee did not see or did not include any third or fourth degree bums. If Decedent's fingertips had burned to the bone, Dr. Lee said he would have noted that fact. Dr. Norris, the forensic toxicologist, opined that the fire flashover was most likely the source of Decedent's burns, He noted that the roof collapsed as a result of the flashover, and that Decedent was covered and somewhat protected by the roof debris so other flames in the mudroom would not have reached her. This is supported by the lack of damage to the walls and other items in the mudroom which is also apparent from the photographs in evidence. ‘When asked about Decedent's level of consciousness from the time of the fire until she expired, Dr. Norris said it would be difficult to tell. The sooty water taken from her stomach by the LifeNet crew indicates she was drinking the water on the floor during the 2% hours it took to control the fire and find her. She would have to be conscious to do this. Mr. Gryniuk stated she was clenching her eyes shut and that she reacted to pain indicating some level of consciousness. Given her mental limitations, Dr. Norris could not be sure how aware she was of her circumstances. Once the paralytics and sedatives were given by 8:37 a.m., there is no objective way of knowing or testing for consciousness. Despite Decedent's improvement at 9:10 a.m., at 9:13 a.m, she had no heartbeat or blood pressure so Dr. Norris opined, at that point, she could not ‘be conscious.Claim No. 119620 Page 15 Dr. Norris also discussed carbon monoxide poisoning, which Dr. Lee listed as a cause of death, with cyanide toxicity, Both can occur in fire victims depending, in part, on the materials which bumed. These are both considered narcotics that inhibit respiration and can cause sleep. Dr. Norris estimates Decedent's carboxyhemoglobin value at 9:08 a.m. to be approximately 22.1 percent which could cause unconsciousness. Dr. Norris’ estimate was based upon Decedent receiving 100 percent oxygen for 27 minutes before she was intubated. However, Ms. Rajca, from the ambulance crew, only held the oxygen mask above Decedent’s face, so how much oxygen she actually received is unknown. Dr. Joan Dolinak who, at the time of trial, was the interim medical director and primary bum surgeon at Upstate Medical Center testified for Claimant. She had reviewed medical records, deposition testimony, and autopsy photographs” of Decedent in preparation for trial to obtain a general understanding of what occurred on March 21, 2009 relating to Decedent's condition. Her testimony focused on the autopsy photos and the extent of her bums. Dr. Dolinak described the bum degrees and the associated pain. First degree burns she likened to # sunburn. Second degree bums result in the epidermal or top layer of the skin burning off. Raw nerve endings are exposed to the air transmitting pain continuously, so these bums are the most painful and hard to manage. Third degree burns are insensate because the nerve endings get bumed off with the second layer of skin. The skin cannot regenerate after third degree bums. Third degree bums tend to occur where the skin is thinner. Beyond third degree, the buming goes into fat or 2 Exhibits 26-1 through 26-18.Claim No. 119620 Page 16 muscle or bone, and is termed third degree with part loss, or fourth degree burns. Of course, one experiences third degree burns only after suffering through first and second degree bums. Dr. Dolinak described the pain associated with second degree bums as “a constant ache,” “a rawness,” like “a million paper cuts to you over that raw area.” Dr, Dolinak described all of the burns to Decedent detailing the degree, depth, charring, and loss of skin. Many of these were second and third degree levels. Decedent’s injuries were extensive. Photographs of Decedent's intemal organs were also reviewed by Dr. Dolinak. When shown one of the aorta,” she opined that Decedent did not die of carbon monoxide poisoning. ‘Two exhibits show soot in Decedent's airway and lung. Dr. Dolinak rated this a 2 out of 4 for inhalation injuries. When an inhalation injury is associated with carbon monoxide poisoning, the victim’s trachea has litle blisters or cobblestoning on the inside. There is no evidence of this in Decedent. Some of the other photographs were not meaningful relative to her burn injuries.” The photograph of the interior of Decedent’s stomach’ shows there was ingestion of soot. Dr. Dolinak opined this would be the result of drinking sooty water - a conscious act. It was Dr. Dolinak’s opinion that Decedent had second and third degree burns over 50 percent of her body surface which she opined were very significant, life-threatening injuries. In addition, there was an inhalation injury from soot and toxic chemicals which, combined with the burns, would expectedly be fatal. Decedent also suffered from hypothermia due to being wet with 278. > Trial transcript, * Exhibit 26-10, 2S Bxhibits 26-9; 26-1; 26-12; 26-16; and 26-17. © Exhibit 26-15.Claim No. 119620 Page 17 such cold temperatures. Since her skin was so damaged, it could not regulate her body temperature. This, too, contributed to her death. DAMAGES It is Claimant’s position that Decedent was alive and conscious when she was placed in ‘the mudroom by the State employees by 5:30 a.m. on March 21, 2009, and remained conscious until 9:08 a.m. Claimant argues that the horrific and painful burn injuries Decedent suffered, along with the inhalation injuries from fire and gases, as well as ingesting water and soot require a substantial award of damages. Claimant also emphasizes how afraid and anxious Decedent ‘must have been as she lay in the mudroom exposed to the intense heat from the fire and debris from the falling roof. Claimant argues that these facts warrant an “aggravation of ‘damages’”” award reflecting the aggravating circumstances of Decedent being left during the hours that the fire raged, the intense heat and flames melting her clothes to her skin, burning her skin and airway, buming her under roof debris and soot, while she lay in water feeling the extreme pain from her bun injuries. Defendant points out that several witnesses either do not support, or directly contradict, Mr. Wickes’ testimony that Decedent was screaming and thrashing. Mr. O’Neill had no trouble getting Decedent on the backboard and doesn’t recall her moaning. Mr. Gryniuk described her as in the fetal position with her joints flexed and restless. Claimant argues that based on Decedent's verbal limitations and her apparent eye irritation, the Glasgow awareness test results are not indicative of Decedent’s level of % Claimant's posttrial submission, p32.Claim No, 119620 Page 18 consciousness. Further, Dr. Dolinak’s testimony that the amount of soot in Decedent's lungs and trachea combined with the lack of cobblestoning supports the likelihood that Decedent did not, die of carbon monoxide poisoning, and that the gases she inhaled did not cause immediate unconsciousness (3 hours and 38 minutes). Defendant argues that the time frame for conscious pain and suffering must be limited to 5:30 a.m, until 8:39 a.m. when the paramedics administered sedatives and paralytics. Defendant argues that following that time, there can be no objective assessment of Decedent's level of consciousness or pain. Applicable Law Claimant bears the burden to prove damages (Berley Indus., v City of New York, 45 NY2d 683, 686 [1978]). To warrant an award for pain and suffering, Claimant must establish that Decedent was “[conscious] for at least some period of time following [the incident] in order to justify an award of damages.” (Cummins v County of Onondaga, 84 NY2d 322, 324 [1994], quoting Fiederlein v New York City Health & Hosps. Corp., 56 NY24 573, 574 [1982]). The evidence presented supports a finding that Decedent was conscious when she was placed in the mudroom and left, while the extreme fire raged across the roof causing its collapse upon her. She clearly ingested water with soot during her time in the mudroom, a sign of consciousness based upon the testimony of the paramedics and experts. She was still breathing, moving, and reacting to painful stimuli when she was found and treatment began from the paramedics, When Mr. Gryniuk was treating Decedent from 8:26 until 9:02 a.m., he gave her a 7 on the Glasgow Coma Scale, noting that she reacted to painful stimuli. By 9:08 a.m., Decedent was in cardiac arrest; there is no evidence in the record of her awareness of pain from that point forward. It is notClaim No. 119620 Page 19 necessary for the Court to “sort out varying degrees of cognition and determine at what level a particular deprivation can be fully appreciated.” (McDougald v Garber, 73 NY2d 246, 255 [1989]). Therefore, Claimant has established Decedent was conscious at a level experiencing pain for at least 3 hours and 38 minutes, from 5:30 a.m. until 9:08 a.m. Given this extended period of unimaginable conscious pain and suffering which Decedent suffered, the Court must somehow determine reasonable compensation for her pain. Recovery for Joss rests on “the legal fiction that money damages can compensate for a victim's injury” (Howard v Lecher, 42 NY2d 109, 111 [1977)). As the Court in McDougald stated, “[w]e accept this fiction, knowirig that although money will neither [erase] the pain nor restore the victim's [life], this device is as close as the Jaw can come in its effort to right the wrong. We have no hope of evaluating what has been lost” and can only provide what is really merely symbolic compensation (McDougald, 73 NY2d at 254). Such determinations are inherently subjective, but will be upheld as long as the award does not deviate “materially from what would be reasonable compensation.” (CPLR 5501 {c]). In order to determine what is “reasonable compensation” the Court typically engages in a review of awards given for similar injuries and suffering which, at Teast one court, deemed not optional but a “legislative mandate.” (Donlon v City of New York, 284 AD2d 13, 16 [Ist Dept 2001]). Even in light of such a review, setting a damages award is imprecise given the variety of facts and circumstances of each case (Senko v Fonda, $3 AD2d 638, 639 [2d Dept 1976]. Here, there are simply no other cases truly comparable to the facts of this case uncovered by the Court or counsel. Some of the cases that the Court has considered include, Hackert v First ‘Alert, Inc., 2006 US Dist. LEXIS 56138 at **6-7 [ND NY 2006], aff 271 Fed Appx 31[2nd CirClaim No. 119620 Page 20 2008] [Decedents who suffered between three and six minutes of pain from smoke and fire from malfunctioning smoke detector, award of $3 million for each of two decedents reversed, new trial ordered unless agree to reduction to $1 million for one decedent and $2 million for the other]; ‘Man-Kit Lei v City Univ. of N.Y., 4 Mise 3d 1003 [A] [Ct C1 2004}, aff as modified 33 AD3A 467 [1st Dept 2006] [student suffered serious bums in a lab, awarded $2.5 million for past and $2.5 million for future pain and suffering]; Lubeck! v City of New York, 304 AD2d 224 [Ist Dept 2003] [wrongful death action for severe injuries and death suffered by a hostage shot by police, who suffered for a short period of time, including her leg being “split in half,” court found award ‘of $3 million was not unreasonable}; Givens v Rochester City School Dist,, 294 AD2d 898 [4th Dept 2002] [five minutes of suffering after stabbing, until decedent lost consciousness and died less than an hour later reduced $1 million verdict to $300,000]; Duzon v State of New York, 244 AD2d 189 [1st Dept 1997] [severely handicapped resident of state facility suffered 2" and 3" degree bums over 15 percent of his body from a fire set by his roommate, award of $275,000 for past and $100,000 for future pain and suffering increased to $550,000 for past and $200,000 future]. In this case, Decedent was alive and could feel pain for more than 344 hours, while her clothes melted to her skin, 50 percent of her body suffered second and third degree bums, she breathed in hot gases and smoke, and ingested water and soot. Based upon all of the evidence and a review of other damage awards, the Court awards Claimant $4 million dollars for Decedent’s pain and suffering with interest from date of the liability determination on May 30, 2014," for which Defendant was found to be 100 percent liable by this Court’s summary judgment Decision 2* Davila v State of NewYork, ULD No. 2014-018-516 {Ct Cl, Fitzpatrick, J., May 30, 2014) afd 140 AD3d 1415 [3d Dept 2016].Claim No. 119620 Page 21 and Order on May 30, 2014. Interest on the award shall run from May 30, 2014 to date of judgment. To the extent Claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act section 11-a (2). LET JUDGMENT BE ENTERED ACCORDINGLY. ‘Syracuse, New York October 30, 2017 Judge of thé Court of Claims