Anna O. v State of New York

Annotate this Case
[*1] Anna O. v State of New York 2012 NY Slip Op 51947(U) Decided on August 15, 2012 Ct Cl Patti, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 15, 2012
Ct Cl

Anna O., Claimant(s)

against

The State of New York, Defendant(s)



114085



Claimant's attorney: KINDLON SHANKS & ASSOCIATES

BY: Terence L. Kindlon, Esq.

Laurie Shanks, Esq.

Defendant's attorney: HON. ERIC T. SCHNEIDERMAN

Attorney General of the State of New York

BY: THOMAS G. RAMSAY, ESQ.

Assistant Attorney General

Philip J. Patti, J.



Claimant Anna O. (hereinafter referred to as "Claimant"), an individual who was incarcerated at Albion Correctional Facility ("Albion") between October 2006 and June 2007, was the victim of both an attempted rape and a completed rape at the hands of Donald Lasker, Jr., then a Correction Officer ("C.O.") at Albion. Both acts occurred while she was still in the custody and control of the New York State Department of Correctional Services [FN1] ("DOCS"). Defendant was found 100% liable for both acts in a Decision and Order that granted Claimant's motion for summary judgment on the issue of liability (see Anna O. v State of New York, 34 Misc 3d 1206 (A) [Ct Cl, Patti, J., Oct. 19, 2011]). This Decision, which follows a trial held in Rochester, New York on May 14 and 15, 2012, deals solely with Claimant's alleged damages.

FACTS:

The facts underlying the instant claim are undisputed, and set forth in greater detail in the preceding Decision and Order granting Claimant's motion for summary judgment on liability. Briefly, on or about February 9, 2007, Lasker reported to Sergeant Patrick Schiffer at Albion that his fiancée had received a telephone call from an unidentified female who told her that Lasker was having a sexual affair with inmate J.R.[FN2] On or about February 14, 2007, the DOCS Office of the Inspector General ("OIG") began a formal investigation into the alleged relationship. The [*2]investigation was still ongoing on the afternoon of June 9, 2007 when Claimant was discovered "hiding" inside a locked hallway in E-Block by Sergeant Craig Frost. She initially told Sgt. Frost that she was going through some issues with her children. Later that day, however, Claimant was questioned for a second time by Sgt. Frost and she admitted that Lasker had raped her that day and attempted to rape her on one earlier occasion. Upon questioning by an investigator from OIG, Lasker admitted to having sexual contact with Claimant, and later was charged with third degree rape and official misconduct. He pleaded guilty to both charges and was sentenced to two months of intermittent incarceration, to be served on weekends, as well as 10 years probation. In finding Defendant liable, the Court wrote that "Defendant had notice of Lasker's propensity to pursue unauthorized relationships with inmates and yet left him in the position to continue to pursue the same, which was the proximate cause of the later rape of Claimant by Lasker" (Anna O., supra).

Claimant, who was 38 years old at the time of trial, testified that she has had issues with depression since her father passed away when she was 8 or 9 years old, and began taking medication to control her depression at that time. She was raped by her mother's boyfriend when she was 12 years old, which led to her running away from home with her two sisters and also led to a worsening of her depression — she was unable to eat or sleep after being raped, and she had to go back to taking medication. Claimant was returned home approximately one week after running away.

Claimant continued to treat for anxiety and depression as she got older, and was diagnosed with bipolar disorder at one point as well. She received her General Equivalency Diploma ("GED") after taking classes at Job Corps in Albany, where she trained for a career in building maintenance. Job Corps was also where claimant met her first husband, who was the father of her oldest child. Claimant was stable enough to gain employment at a home for girls around this time, although her depression, anxiety, and bipolar disorder got so bad at that job that she was forced to stop working. She was later able to find a different job that did not cause such exacerbation of her mental health issues. Claimant's second child was born in 1997.

Some years after the birth of her second child, Claimant got in trouble for writing bad checks and was incarcerated for six months. She was released on probation after that, which is when she met her now husband, Jorge. In 2006, however, Claimant violated the terms of her probation and turned herself in, at Jorge's urging, which resulted first in her being incarcerated at the Albany County Jail and then at Albion. While at Albion, Claimant was able to continue receiving treatment for her mental health issues, including daily medication and weekly counseling. She was housed in a unit with approximately 60 women who were kept in cubicles with bunk beds — essentially, one large room. She was able to speak with Jorge on the telephone every day, and she also wrote him letters every day. Claimant testified that this was very important to her, because she wanted to be able to speak to him and also to hear updates on how her children were doing. She was able to occasionally have contact with her children through the assistance of one of her mental health counselors, and she regularly sent her children items in the mail. It was upsetting to not see her children, but she was able to at least know that they were doing well. Jorge also visited on every visiting day and would deliver the maximum amount of food and other items to Claimant; this was particularly important to her because she would not eat the food from the mess hall. Among her other programs, Claimant was assigned a cleaning [*3]job in the administration building.

Lasker was one of the C.O.s on Claimant's unit, although she never really had any contact with him. Claimant did become aware of Lasker spending time with inmate J.R., and she observed him speaking with J.R. in and around her cubicle within the unit. Eventually, however, other inmates reported on these interactions between Lasker and J.R. At some point shortly thereafter, the unit was raided, all of the inmates except for J.R. were removed from the unit, and Lasker was taken outside. When Claimant was finally allowed back on the unit, J.R.'s cubicle was "a mess"; things were moved around, property had been removed from her drawers, the bed was taken apart, and Claimant observed a bag of letters. She never saw J.R. again and did not know what happened to her. As for Lasker, Claimant did not see him for two days following the raid, and afterwards he was no longer assigned to her unit. Claimant would still see him on occasion in the recreation yard or the mess hall, but had no reason to ever ask to see him or speak to him. Still, she felt uncomfortable when she saw Lasker, as she had a "bad feeling about him" (T.57 [FN3]).

Claimant recalled that the first incident with Lasker occurred on a weekend in June [FN4]. C.O. Dunn informed Claimant that Lasker requested her to come to the school building to help with cleaning. Although the school building was not part of her assigned job, Claimant was not worried and had no reason to think anything unusual would happen. When she arrived at the school building, Lasker was there as well as another inmate who had already started cleaning. Claimant walked into the supply room to get cleaning supplies and noticed that a table in the room, which was normally dirty, was covered completely by opened manilla folders. Claimant then noticed that Lasker was standing behind her. Lasker said to Claimant, "this is where I'm going to f*** you" (T.66). Claimant ignored Lasker, walked out of the supply room and went to clean classrooms. When she got to the second classroom, Lasker entered the room and approached her from behind. By this time, the other inmate had been sent back to her unit, so Claimant knew she was alone in the school building with Lasker. Lasker locked the door and grabbed her; they struggled, but Lasker was able to rip her shirt and touch her breasts. Lasker was also able to get Claimant's pants halfway off, telling Claimant, "I'm going to f*** you. Stop fighting, stop struggling. You're not going to get out of here so you might as well give up" (T.70). Claimant kept fighting Lasker, but he was much bigger than she was. During the struggle, a call came on Lasker's radio informing him that Sgt. Frost was coming to the school building. Lasker stopped, got himself together, and opened the door without saying anything to Claimant. Claimant ran out of the room and back to her unit; Claimant testified that she was scared and nervous and did not know what to do, whether she should report it. In the end, she did not say anything and went on as if it was a normal day. Claimant testified that she did not think that anyone would believe her, and that she could possibly be punished, like J.R., by being moved to another prison if she said anything.

After the attempted rape, Claimant was scared, and she went into a deep depression. She [*4]did not want to eat, sleep, talk to anyone, or go to her assigned job or other programs, but she felt that she had to. Claimant felt disgusted; she testified that she felt "like shit" (T.74). She did not tell her counselors about the attempted rape because they would have reported it and she did not feel comfortable telling them. She did not tell Jorge, either, because she was afraid he would say something and she would lose visitation with him or he would do something and be arrested. She was also afraid that she would be punished by being sent to the Special Housing Unit ("SHU") and would not be allowed contact with Jorge or her children.

Some time after the attempted rape, C.O. Dunn once again informed Claimant that she was requested to go clean the school building, but he did not tell her who made the request. Claimant testified that she felt like she could have said "no" and C.O. Dunn would have found someone else to do it, but she went because she believed that C.O. Dunn either did not want to or could not find anyone else to go. She did not know that Lasker was there; had she known that he was at the school building, she would not have agreed to go. Claimant saw Lasker when she arrived at the school building but continued on with her cleaning. Again, as with the first incident, Claimant entered one of the classrooms when she heard the door slam and lock. There was another struggle; this time, Lasker put his hands around Claimant's neck and choked her. He was able to rip off her shirt, touch her breasts, pull her pants down, and raped her on top of a table in the classroom. Claimant testified that Lasker was able to penetrate her vagina, without wearing a condom, and he ejaculated. As an additional result of the attack, Claimant sustained bruises on her neck, face, and arms. Much like the previous time, Lasker's radio received a call from Sgt. Frost that indicated that he was coming to the school building. Lasker got himself together and left the classroom; he locked the door with Claimant in an adjacent hallway while she got dressed. When Sgt. Frost arrived at the school building, he saw Lasker disheveled and he asked Lasker to let him enter the classroom so that he could exit the building through the back hallway. Sgt. Frost saw Claimant sitting in the corner crying. He asked her what she was doing there, but she did not answer; instead, she immediately ran out of the room back to her unit. Claimant knew Sgt. Frost and she considered him someone that inmates could talk to because he was understanding, respectful, and protective of them. She also testified that Sgt. Frost knew that she was not supposed to be in the hallway of the school building where he found her.

Once Claimant returned to her unit, she took off her clothes, put them in the hamper, and then proceeded to go into the shower for about a half hour. Claimant testified that she felt disgusted, dirty, nasty, scared, and shaken. After the shower, Claimant got dressed and ran into C.O. Dunn, who asked if she was ok and she replied simply "yeah." Claimant testified that she was again scared to tell him or anyone else what happened, because Lasker had threatened her when she left the classroom, saying, "if you tell anybody I'm coming after you and your family" (T.86). Claimant believed that Lasker's threat was serious.

Later that day, Claimant was told to see Sgt. Frost and Sgt. Schiffer in the administration building. When she arrived, Sgt. Frost asked her why she was in the school building and told her that if she did not tell him he would send her to SHU. Claimant first told him that she was having problems with her children, but after he indicated that he did not believe her, she told him about both the rape and attempted rape. From there, Claimant was taken to the hospital where she was examined, tested for sexually transmitted diseases, and a rape kit was administered. Claimant testified that she cooperated completely from this time forward. After Claimant was [*5]returned to Albion from the hospital, however, she was not able to see her counselor or receive her medication. Instead, she was taken to a visiting room where she spoke with an OIG investigator for approximately five hours. Claimant testified that she was not given a chance to eat anything over the course of the day. She was also told that she could call Jorge after the interview, but she was never able to do so. Instead, immediately after the interview, Claimant was taken to SHU. Claimant testified that she felt like she was being punished. Jorge was informed of the rape by prison guards the following morning when he came for a visit, although she felt that she should have been the one to tell him. Although she was able to spend the entire visitation time with Jorge after he was allowed inside the facility, they were not able to get any private time because they were in a smaller visiting room with an officer watching them. Claimant testified that she mostly cried and did not say too much to Jorge because of the officer present in the room.

Claimant testified that she feared for herself while she was kept in SHU because she was overseen only by C.O.s who may have been friends with Lasker, although she did not know for sure if any of them were his friends. Claimant remained in SHU at Albion for one week and was told that it was for her own safety. While she was in SHU for that week, Claimant was not taken to a medical facility, was not offered counseling, did not receive her daily medication and, as a result, she believed that her symptoms of bipolar disorder, anxiety, and depression got worse. Claimant testified that, while she was in SHU, she could not sleep, was very anxious and agitated, and felt isolated, as she was not able to write letters or call Jorge. Additionally, State Troopers and OIG investigators came to see her in SHU to investigate the rape, putting her in handcuffs and taking her back to the classroom so that she could walk them through what happened. Claimant testified that it was "uncomfortable" to re-live that experience (T.105-106).

After one week, Claimant was transferred to Bedford Hills Correctional Facility ("Bedford Hills"). She testified that she had no advance notice of the move and was taken straight from SHU to the van for transport. Claimant testified that she was treated "pretty good" at Bedford Hills (T.110) and was assigned a single room upon her arrival. Her personal property arrived later, she resumed her medication, and she was finally able to phone Jorge. Claimant also resumed mental health counseling, and received extra visits as a result of her deteriorated condition. Still, she continued with a reduced appetite and she continued to have trouble sleeping. However, she was able to go back to talking to Jorge every day, and they were able to be married on November 30 at Bedford Hills. She was released from prison on January 8, 2008.

Since the rape and attempted rape, Claimant no longer does all of the things that she used to do. She does not like leaving the house and does not engage in activities that she would normally do with her kids, like go out with them, spend time with them, or talk to them. Claimant attributes this to the fact that she is still angry and disgusted all the time. She is also afraid of Lasker finding her and showing up at her home, because as a prison guard he would have had that information available to him. Claimant's relationship with Jorge has been impacted negatively; they sleep in separate bedrooms, they are not intimate, they fight a lot, and she does not want Jorge touching her. They did have sexual relations on at least one occasion, which resulted in the birth of their child. She places the blame for these problems in their relationship on herself, because she takes out her anger on Jorge. She also believes that the impact of the rape makes it difficult for her to deal with her 14-year-old son's attention deficit hyperactivity [*6]disorder, bipolar disorder, and depression. She continues to see counselors and psychiatrists, and continues to take medication, but is unable to work because she does not want to be outside of her home. She has been diagnosed with posttraumatic stress disorder ("PTSD") as a result of the rape. Claimant has added three locks to the door of her home, for a total of five locks, but she testified that it still does not make her feel safe.

Claimant was informed by letter that Lasker received weekend jail and ten years probation after pleading guilty to third degree rape and official misconduct, but she was never notified of her right to make a victim impact statement. She feels that it is "messed up" (T.124) that Lasker got a lighter sentence for rape than she got for writing a bad check, and she feels that she was punished more for being raped than Lasker was for raping her.

On cross-examination, Claimant acknowledged that she had an extensive history of substance abuse from age 16 until around 2004. She also acknowledged that she was originally diagnosed with PTSD in 2000, and has not been employed since 2000. Claimant has been on Social Security Disability ("SSD") since 2001 on the basis of her mental health issues, and she continues to receive SSD payments. Claimant also acknowledged her 2005 conviction for prostitution when she ran an escort service. On redirect, Claimant testified that she successfully completed drug rehabilitation, that she was diagnosed with PTSD as a result of her rape by her mother's boyfriend, and that she never actually engaged in prostitution, merely accepted money.

Claimant's husband, Jorge, testified that he first met Claimant at a Narcotics Anonymous meeting in 2006, and that their friendship developed into a relationship. While he was willing to support Claimant, he also encouraged her to surrender herself to the authorities when he learned that she was on probation and that she had violated the terms of her probation by being thrown out of Narcotics Anonymous after she was caught smoking a cigarette. Once Jorge helped Claimant ensure that her children would be taken care of, he went with her to the county courthouse in Albany where she surrendered herself to authorities. For most of the time that Claimant was incarcerated, Jorge visited her every weekend and spoke to her on the phone every day. On each visit, he would bring Claimant food and/or clothes, and would leave money in her commissary account.

Jorge was informed of the rape by a guard outside of the prison who wanted to ensure he would behave once he was inside the prison. They told Jorge that an officer raped Claimant, but that the officer had already been escorted out of Albion. Jorge assured them that he would be ok and he was allowed inside, although he was very upset upon hearing about the rape. Upon speaking to Claimant in the visiting room, Jorge noted that she "wasn't herself" (T.149) and she "didn't have no spirit in her" (T.149). He also saw the bruises on her arms and legs and marks on her neck. After he left Albion that day, Jorge did not hear from Claimant until five or six days later when she called him from Bedford Hills. In that time, he was unable to get any information from officials at Albion about her status. He testified that, when he spoke to Claimant upon her arrival at Bedford Hills, she "wasn't doing too good" (T.155). Jorge testified that it was difficult at first to make visits at Bedford Hills, but eventually he was able to recommence his weekly visits and they were able to speak every day on the phone. He testified that Claimant was different, though. She was distraught, she did not trust anyone, she could not sleep at night and did not believe that her medication was working.

Jorge also testified that Claimant has not done well since returning home, in that she does [*7]not like leaving the house, does not like to be seen, is often embarrassed, and thinks that "everybody knew what was taking place in her mind" (T.161). He also echoed Claimant's testimony that they sleep in separate bedrooms and are not intimate. Jorge testified that, before she went to prison, they slept in the same bedroom and had a rather normal sex life.

Claimant's retained expert witness was Dr. Erika Frances, a clinical psychologist who specializes in forensic psychology and has extensive experience in working with inmates. Dr. Frances performed a forensic evaluation of Claimant that involved four meetings with Claimant that totaled approximately six hours, and during which time she conducted clinical interviews of Claimant and administered multiple psychological and forensic tests. She also conducted a collateral interview with Jorge in March 2011, reviewed psychiatric records from Dr. Kevin George, the Division of Parole, Clearview Center, the New York State Office of Mental Health, and also reviewed hospital records from after the rape, records from St. Peter's Hospital, and Claimant's deposition testimony from 2010.

In the clinical interviews, Claimant told Dr. Frances about her parents, her father's death, her mother's boyfriends and her rape at age 15 [FN5]. She also told Dr. Frances that she received mental health counseling from a very early age. Dr. Frances noted the importance of the fact that Claimant's mother did not believe that she was raped by the boyfriend, because it showed that Claimant did not get support in the wake of that event, which meant that her mother validated the experience. Without a father to turn to, and with her mother's dismissal, Claimant ran away from home. Dr. Frances noted that Claimant's account of the rape by her mother's boyfriend is consistent in the details, if not the exact dates, although specificity with regard to dates is not particularly relevant. Additionally, Claimant's act of fleeing to an abandoned building was an avoidance of an invalidating home environment, and consistent with her response to other traumatic events throughout her life.

Dr. Frances also spoke with Claimant about her job history, which Dr. Frances found significant because it showed that Claimant strove to hold employment and be independent despite her mental health symptoms.

Claimant began treating with Dr. George in 2000, and he initially diagnosed Claimant with impulse control disorder, which is a disorder where a person acts upon extreme emotions. Dr. Frances noted that Dr. George's diagnoses changed multiple times; in the time that Claimant treated with Dr. George, she had "probably ten diagnoses" (T.204). Bipolar disorder, schizoaffective disorder, and psychotic disorder were all written as "rule out", meaning perhaps that was what Dr. George was seeing. The only diagnosis that he did not have a rule out for was PTSD. Claimant received different medication regimens depending on the diagnosis, which Dr. Frances found important because Claimant has presented as quite unstable and "a bit of a moving target" (T.205) and, thus, hard to treat. Dr. Frances opined that it appeared as if Dr. George tried to treat Claimant's symptoms at each visit, so there was no consistent treatment. It was not unusual for there to be changing diagnoses given how Claimant presents, but changing medications with frequency can affect an individual's daily functioning. Dr. Frances explained [*8]that this was because it takes time for medications to kick into the system and they can cause metabolic changes, mood and behavior changes, and physical discomfort, all of which make daily activities difficult.

Dr. Frances also reviewed Claimant's treatment records from Bedford Hills, which show that Claimant was diagnosed with "mood disorder not specified" and cocaine dependence. She was prescribed a medication regimen and appeared to be functioning appropriately at that point. In reviewing Claimant's prison treatment records and listening to her talk about it in the clinical interview, Dr. Frances found that Claimant's interview was consistent with the records, which showed that Claimant was forthcoming and accurate with what happened to her, even if she is not always able to demonstrate it in other ways. Dr. Frances also found that Jorge's account of Claimant's time in prison and his interactions with both her and prison officials was consistent.

With regard to the psychometric testing performed on Claimant, Dr. Frances had her take the Minnesota Multi-Phasic Personality Inventory 2 ("MMPI 2"), the Miller Forensic Assessment of Symptoms Test ("MFAST"), Trauma Symptom Inventory ("TSI"), the Back Depression Inventory 2 ("BDI 2" ), the Beck Anxiety Inventory ("BAI"), and the Post-Traumatic Checklist ("PTC"). Dr. Frances explained that, taking the results from the six tests as a whole, Claimant reported a plethora of symptoms and offered them in such an extreme and intense way that they essentially resulted in invalid protocols, meaning that the data was essentially uninterpretable. This could mean one of two things: malingering, or faking symptoms, which Dr. Frances did not believe was the case, or that it was more of Claimant's approach to expressing her symptoms, which she called "turning up the volume" (T.215). Dr. Frances explained that what she meant by this is that Claimant approaches the world and her own experiences in a very intense way. It was not the case that Claimant did not have symptoms, it was that she was in distress and used the testing to express her distress in a way that she might not be able to otherwise verbalize. Dr. Frances ruled out malingering because she did not find any history of using symptoms for secondary gain, either in prison or outside of prison. Dr. Frances found that Claimant's current symptoms are similar to her prior symptoms, though significantly exacerbated, so it did not appear to her that Claimant was malingering.

In reviewing Claimant's prison records and speaking with both Claimant and Jorge, it appeared to Dr. Frances that Claimant was acclimated to Albion, successfully doing her assigned programs and working, and had stability in her relationship with Jorge, who visited frequently. The structure of prison provided a sense of safety that was absent in Claimant's life, which Dr. Frances believed was why she did surprisingly well there. Dr. Frances believed that it was probably the most stable environment Claimant had been in throughout her life. The attempted rape then removed the "illusion of safety" (T.218) for her and exacerbated symptoms that had previously diminished. Dr. Frances found it understandable that Claimant did not report the attempted rape; her own mother did not believe her when she was raped at age 15, and within the prison culture she would be a snitch with a target on her back for both inmates and Lasker's fellow C.O.s. Additionally, Lasker's prior relationship with J.R., after which Lasker remained but J.R. disappeared, showed Claimant that she, not Lasker, would reap the repercussions from reporting the attempted rape. The impact on Claimant of knowing that Lasker continued to work within the inmate population after the attempted rape was that she was in a state of heightened arousal, always waiting for something to happen. Moreover, Claimant had no escape; she had to [*9]continue with her assignments and could not simply hide in her bunk all day, so Lasker continued to have access to her. This created a heightened state of fear for Claimant, which in turn triggered an onset of symptoms that were previously diminished.

With regard to the completed rape, the psychological impact on Claimant included fear, anger, self-blame, helplessness, hopelessness, and guilt that she did not fight back harder. Lasker's threat against Claimant's family, which Dr. Frances believed to be credible in her knowledge and experience because prison guards have access to records that might include the telephone numbers or addresses of family members on the outside, served to exacerbate Claimant's fear and hopelessness. The half hour that Claimant spent in the shower after being raped showed how traumatic the event was for her and the level of revulsion that she had for it. Her refusal to tell Sgt. Frost the truth about what happened when he first asked was based on the same reasons Dr. Frances discussed earlier — the fear of the repercussions of snitching, the history of disbelief following the rape by Claimant's mother's boyfriend, and Lasker's threats against Claimant's family. Then, in spite of all of that, Claimant was told that she either needed to be honest about what happened or she would be sent to SHU, which forced her to choose between being subjected to her perpetrator again or being punished as a victim of rape. Dr. Frances stated that this was really no choice at all but, rather, Claimant selecting the lesser of two evils.

With regard to placing Claimant in SHU, Dr. Frances testified that it is a loud, disrupting, and isolating environment without offering the basic comforts afforded in a regular cell, which meant that Claimant had no comfort while she was there. Dr. Frances noted that individuals who previously exhibited no mental health issues can begin exhibiting issues after being placed in SHU and that people with existing mental health issues often experience exacerbation of their symptoms after being placed in SHU. It is the worst penalty given for internal prison offenses and it results, in essence, in the loss of all privileges in addition to 23-hour-per-day isolation. The effect here was that Claimant was threatened with placement in SHU for not telling the truth about her rape, and then after she told the truth about the rape she ended up in SHU anyway. She was punished with no contact, no interaction, none of her property, no medical treatment, no mental health counselors and being overseen only by C.O.s when she had just been raped by a C.O. In her unit, everything is in plain view of the other inmates, so there is some degree of safety from an attack by a guard; in SHU, however, there is no one but her and the C.O.s. Dr. Frances explained that Claimant would experience heightened fear that something could happen to her again and again. Claimant would remain in a state of hyper-arousal and vigilance waiting for something to happen when she does not feel safe. Dr. Frances testified that the placement into SHU exacerbated Claimant's problems, treating her punitively instead of like a victim. Moreover, the "disappearance" of J.R. after her involvement with Lasker would have left Claimant with a heightened sense of fear independent of the rape.

Dr. Frances testified that it was not appropriate to handcuff Claimant and take her back to the scene of the rape, because by handcuffing Claimant she was again punished, which validated her shame, guilt, and anger. Essentially, Claimant was treated like a SHU inmate who had committed a disciplinary infraction, not a rape victim. The impact of bringing Claimant back to the scene and having her tell how the rape took place re-traumatized her, which is a situation where an individual experiences a traumatic stressor and then, regardless of time or context, experiences another. If the subsequent traumatic stressor is similar to something that has [*10]happened in the past, there can be significant signs of PTSD. Bringing Claimant back to the scene reinforced all of her symptoms, and the distress that she experienced at the time of the rape was re-experienced. Dr. Frances testified that, in Claimant's case, she re-experienced the cumulative effect of her rape at age 15, as well as the attempted rape and completed rape perpetrated by Lasker. Having Claimant in handcuffs at the scene exacerbated the damage, because it was like blaming her for what took place. Dr. Frances believed that Claimant likely relived the rape just as she described it.

Dr. Frances testified that the fact that prison guards, not Claimant, told Jorge about the rape took Claimant's control of the dissemination of that information away from her when she already had the shame and embarrassment of being raped. She had no way of knowing what the guards told Jorge. Dr. Frances further testified that it was a problem to have him visit in a smaller visiting room area with a guard present, because it did not allow Claimant and Jorge to have a confidential or private conversation at a time of distress. The officer's presence was an intimidating one, kept Claimant in a heightened state of arousal, and treated her punitively. This state of heightened arousal would exacerbate her existing anxiety and depression issues.

Dr. Frances believed that the better course of action would have been to first send Claimant to the medical unit to keep her safe, possibly by providing her with a female officer, treat her physical wounds, and give her a psychological evaluation. Should Claimant have required a heightened level of psychiatric care after review by the mental health staff, she could have been sent to the Central New York Psychiatric Center at Marcy. Although Claimant was given a mental health screening in SHU the day after she was raped, it was a brief check-up and not a proper evaluation that could be performed by OMH staff. Dr. Frances also testified that Claimant could have been sent immediately to Bedford Hills, which has a residential crisis treatment program, an in-patient mental health unit, and two other mental health units. If she was going to remain at Albion in the wake of the rape, Dr. Frances suggested that they could have not treated her like a SHU inmate and deprived her of supporting contact with Jorge or her family. Claimant could have been permitted to make telephone calls, or get to have some of her property while in SHU, or let her see her mental health counselor. When Claimant arrived at Bedford Hills, she reported flashbacks, heightened startle response, intrusive thoughts, and difficulty sleeping, all of which are consistent with the rape. Dr. Frances found that Claimant was, however, treated appropriately once she arrived at Bedford Hills, including PTSD-specific and frequent treatment with a psychologist whom Claimant found to be very helpful.

Dr. Frances diagnosed Claimant with PTSD as a result of the rape, based on the clinical interview, collateral interview with Jorge, and all the records that she reviewed. Claimant stays locked inside of her house most of the day, and is still afraid that Lasker will come after her or her family. She also sleeps with a knife close by, keeps multiple locks on the doors, will not leave the home alone and, when she does, she sticks mostly to familiar places. Dr. Frances testified that all of these behaviors are very consistent with a PTSD diagnosis. She also believes that Claimant's fears with regard to Lasker coming after her or her family are realistic, because information about her court cases is available online, and he had access to the database of inmate information. Claimant is terrified even at home, socializes mostly online, and stays in her bedroom most of the time. Again, these are behaviors consistent with someone with PTSD.

Dr. Frances also found that Claimant's relationship with Jorge has changed since the rape. [*11]Where previously she was very warm and loving, Jorge has seen her physically decompensate and become less engaging and less warm. Claimant looks different now as well, as she now covers her body more, is more shameful, has lost self-confidence, and does not feel good about herself. Claimant relies on Jorge for everything, including parenting duties, so they no longer have a reciprocal relationship. There is no longer an intimacy in their marriage, as the idea of having sex with someone is now "revolting" to Claimant (T.255). The fact that there was a sexual encounter that resulted in the birth of their child does not change anything, as PTSD with sexual revulsion can still mean that one will engage in sexual contact with their partner, but they may not enjoy it.

With regard to her children, it is more difficult for Claimant to deal with her 15-year-old son, who has his own mental health issues, and her 3-year-old son, with whom she never really bonded. She has deferred almost all of the parenting to Jorge. Dr. Frances again stated that these behaviors are consistent with her diagnosis of PTSD.

Claimant did tell Dr. Frances of some of her goals for the future, including getting her drivers license and going back to school to become a paralegal. Dr. Frances does not believe that these goals are realistic, because Claimant cannot leave the house on her own and is generally terrified of the world around her.

Dr. Frances testified that Claimant's damages are her predominantly PTSD symptoms that come from a sense of the fear that she was going to be victimized again, that she was not credible, and that she had a lot of guilt and shame and anger. Claimant lives in a state of hyper-arousal and does not feel safe in her own skin. Dr. Frances testified that these are very severe and long lasting symptoms with PTSD; Claimant has been in treatment for a long time and does not appear to have made much headway. While Dr. Frances is hopeful that Claimant's symptoms can be diminished, her damages appear to be permanent.

On cross-examination, Dr. Frances stated that she was not aware of any other testing on Claimant prior to 2007, so she has no baseline in that regard. She also acknowledged that, prior to her incarceration at Albion, Claimant kept multiple locks on her doors and knives under her bed. She further acknowledged that Claimant had other stressors both before and after incarceration: self-described postpartum depression, a miscarriage after her release from prison, and strife with her sister that resulted in her sister filing a complaint with the police.

Dr. Frances also admitted that Claimant's lawsuit against the State could be a secondary gain motive. On redirect examination, however, Dr. Frances maintained her opinion that Claimant was not malingering, as the experience of giving testimony related to the events underlying this claim is so disconcerting that she would not put herself in this position. Moreover, it did not appear that she ever sought out any gain from other traumas, so it would appear incongruent for her to do so now.

With regard to other traumas, Dr. Frances testified that they can be separated in that, before prison, Claimant appeared to have a more stable life and was turning her life around before turning herself in. She was not as fearful and had some semblance of mental stability. Even after entering prison, she thrived in the structured environment. All of that was taken away from her, and Dr. Frances noted the exacerbation of Claimant's mental health problems over that time and since then. To a reasonable degree of psychological certainty, Dr. Frances believes that Claimant's current condition can be related to allowing Lasker to remain in population after she [*12]knew he was a predator after the attempted rape, also because he was allowed to stay after the attempted rape, because of the rape, and because of the treatment by other DOCS employees subsequent to the rape.

Claimant rested at this time. Defendant did not offer any witnesses.

ANALYSIS:

Before reaching the issue of the measure of Claimant's damages, there are two preliminary issues that must be addressed. First, at the end of trial, Claimant made a motion pursuant to CPLR 3025 (c) to conform the pleadings to the evidence. I, in my discretion, hereby grant that motion.

Second, on March 23, 2012, Defendant filed a motion with the court (Motion No. M-81256) seeking to amend its Answer by adding the affirmative defense of res judicata and/or collateral estoppel. This motion was originally made returnable on April 18, 2012, approximately three-and-one-half weeks before the start of the damages trial. Because, however, any decision on the motion would necessarily affect the damages awarded, the motion was adjourned by me so that both issues could be addressed in the same Decision. Defendant's contention, in essence, is that Claimant is limited to compensatory damages of $250,000 because that is what she was awarded [FN6] by the Honorable David G. Larimer in a related, earlier Federal Court action against Lasker (see Anna O. v Lasker, US Dist Ct, WD NY, 08-CV-6001L, Aug. 30, 2010, Larimer, J.). Claimant, in response, offers myriad reasons why Defendant's motion to amend the Answer should not be granted, including that: the failure to raise the defense in the Answer means it is now waived; the delay in bringing the motion to amend results in unfair surprise and/or prejudice to Claimant; Defendant has offered no reasonable excuse for the delay; res judicata and/or collateral estoppel cannot apply to a default judgment, such as the judgment from the Federal Court; and, in any event, the proposed amendment is without merit. The Court now exercises its discretion to deny Defendant's motion on the grounds that it failed to offer any reasonable excuse for the delay and, moreover, the delay was prejudicial to Claimant.

Pursuant to CPLR 3025 (b), "[a] party may amend [its] pleading . . . at any time by leave of court . . . Leave shall be freely given upon such terms as may be just" (see also 22 NYCRR § 206.7). It is well established, however, that this "policy does not obtain on the eve of trial. In such case, there is a heavy burden on [the moving party] to show extraordinary circumstances to justify amendment by submitting affidavits which set forth the recent change of circumstances justifying the amendment and otherwise giving an adequate explanation for the delay" (Hemmerick v City of Rochester, 63 AD2d 816, 816-817; see also Sweeney v Purcell Constr. Corp., 20 AD3d 872; Jablonski v County of Erie, 286 AD2d 927). Moreover, "[w]here there has been an extended delay in moving to amend, the party seeking leave to amend must establish a reasonable excuse for the delay" (Jablonski, 286 AD2d at 928, citing Reape v City of New York, 272 AD2d 533; Schwab v Russell, 231 AD2d 820; Volpe v Good Samaritan Hosp., 213 AD2d 398). [*13]

Here, Defendant was provided with a copy of Judge Larimer's Decision and Order in Claimant's Federal Court action on or about September 2, 2010 (see Exhibit F to the Affirmation of Assistant Attorney General Thomas G. Ramsay). It was not until more than 18 months later, however, that Defendant moved to amend its Answer with the affirmative defense of res judicata and/or collateral estoppel on the issue of Claimant's compensatory damages. I find that waiting 18 months, until almost the eve of trial, is an extended delay in moving to amend the Answer, and so Defendant is required to establish a reasonable excuse for the delay. Defendant's proffered reasonable excuse is that Claimant appeared to be aware of the alleged constraints upon any possible damages award that resulted following Judge Larimer's Decision and Order. Defendant's basis for this assertion is that, on or about November 1, 2010, Claimant offered to settle the instant claim for the $250,000 [FN7] portion representing the compensatory damages awarded by Judge Larimer (see Exhibit A to the Reply Affirmation of Assistant Attorney General Thomas G. Ramsay), and that it was apparent only after the liability determination by me and the scheduling of the damages trial that Claimant was unaware of the implications of the judgment rendered by Judge Larimer. I do not find that this is a reasonable excuse because, frankly, the three sentence correspondence from Claimant to Defendant proposing an offer of settlement is hardly proof with respect to Claimant's understanding of any implications of the Federal Court judgment. Nothing in that exceedingly brief letter comes close to suggesting the conclusion that Defendant urges me to reach here. While Defendant may have believed that it knew what Claimant was thinking in the wake of the final judgment in the Federal Court action, the better course of action would have been to move to amend its Answer and then remove all doubt. Waiting until the last minute based on Defendant's own subjective and unsupported belief as to Claimant's knowledge does not constitute a reasonable excuse for its extended delay in moving to amend the Answer.

Additionally, Claimant was prejudiced by Defendant's extended and unreasonable delay in moving to amend the Answer. In February 2011, subsequent to the judgment rendered by Judge Larimer, Claimant retained the services of Dr. Erika Frances, who performed a thorough psychological evaluation of Claimant that included testing, interviews, record review, and live testimony at trial. While Dr. Frances was unable to state the total cost of her services as of the May 2012 trial, she charged Claimant a rate of $275.00 per hour (T.260), which will likely result in a bill of several thousand dollars given the six hours of meeting with Claimant, her time testifying at trial as well as her time traveling from the Capital District to Rochester and back for the trial, record review, and production of her report. Had Claimant truly believed that she was limited in compensatory damages to the amount awarded by Judge Larimer, there would have been no need for this costly expenditure in preparing for the instant damages trial; she could have relied solely on the evidence that she presented at the inquest conducted by Judge Larimer. Instead, due to Defendant's extended delay, Claimant prepared to go forward with the liability and damages trials in the Court of Claims, apparently under the impression that Defendant would not seek to assert the affirmative defense of res judicata and/or collateral estoppel. Because [*14]Defendant is unable to produce a reasonable excuse for its extended delay, as well as the prejudice it caused Claimant by waiting until almost the start of the damages trial to move to amend its Answer, Defendant's motion to amend its Answer is hereby denied.

Accordingly, I must now address the issue of Claimant's damages. There is no question that Claimant was damaged physically in both the attempted rape and completed rape by Donald Lasker; she was assaulted, choked, and penetrated by Lasker during the course of these two incidents. The difficult question before me, despite the uncontested evidence offered by Claimant, is that of her emotional damages. There was testimony, from both Claimant and Dr. Frances, which showed that Claimant has long-standing mental health issues going back as far as the death of her father when she was a child. Claimant has long suffered with and treated for depression, anxiety, and bipolar disorder. Claimant also acknowledged that she was diagnosed with PTSD in 2000. Additionally, she has not worked since 2000, and has been on SSD since 2001 as a result of her various mental health issues. The testimony also revealed that, even before Claimant was incarcerated at Albion and raped by Donald Lasker in 2007, she kept multiple locks on her doors and knives underneath her bed. The evidence before me showed that, even before the horrific incidents perpetrated against Claimant while she was incarcerated at Albion, she was a woman who suffered from significant and long-standing issues with her mental health.

Nevertheless, it is abundantly clear to me that, even considering Claimant's pre-existing mental health issues, her mental health has suffered greatly in the wake of the events that occurred at Albion in May and June 2007. The portrait of Claimant that was painted through her testimony, as well as the testimonies of Jorge and Dr. Frances, is that of a woman who lives each day in fear — who is unable to leave the house on her own, who feels unsafe even within her own home despite having five locks on the door and a knife underneath her bed, and who still believes that the man who raped her may show up one day to harm her or her family. This, as Dr. Frances noted in her testimony, is far different than how Claimant lived before she went to prison and even how Claimant got along in prison, prior to her first encounter with Lasker. Dr. Frances testified that, before prison, Claimant appeared to have a more stable day-to-day life and appeared to be turning her life around. Even while in prison, Claimant appeared to thrive in what was likely the most structured and secure environment in which she ever lived. This all changed after the two incidents with Lasker: it has affected the way she lives her life, as discussed above; it has affected the way she interacts with her husband as both a partner in a relationship and as a lover; and it has affected the way she interacts with her children as their parent.

I also find no reason to disbelieve Dr. Frances' assertion that Claimant is not malingering. It was clear upon observing Claimant's demeanor in the courtroom, both during her testimony and the testimonies of Jorge and Dr. Frances, that she was uncomfortable, embarrassed, and emotional in both speaking about and listening to others speak about the rape and attempted rape. In fact, Claimant readily accepted my offer for her to leave the courtroom during Dr. Frances' testimony when it was clear that she was crying while listening to Dr. Frances talk about her on the stand. I cannot imagine that Claimant desired to re-discuss and possibly re-live her encounters with Lasker in exchange for monetary gain.

In sum, Claimant was damaged physically and emotionally by Lasker's attempted rape, which shattered the structure and relative safety of her life within the prison, and she was further [*15]damaged physically and emotionally when Lasker brutally raped her, leaving her with physical damages that healed in time, as well as emotional scars that she continues to treat to this day. It is always difficult to ascribe a proper amount of damages when a claimant's damages are primarily psychological in nature, and even more difficult in this case where Claimant has a long-standing history of mental health issues that prevented her from fully engaging in society. Regardless, based upon a fair preponderance of the credible evidence, I now find Claimant is entitled to the amount of $158,500 for her past pain and suffering and the amount of $447,250 for her future pain and suffering, for a total damages award of $605,750. Claimant is entitled to interest from October 19, 2011, the date of the Decision and Order granting Claimant's motion for summary judgment on the issue of liability, at the rate of 9% per annum. To the extent that Claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act § 11-a (2).

Since the amount of future damages exceeds $250,000.00, a structured judgment is required and judgment will be held in abeyance pending a hearing pursuant to CPLR article 50-B. The parties are urged to consult and agree upon the discount rate to be applied and to formulate a structured settlement of their own (CPLR 5041[f]). In the event that the parties cannot reach such an agreement, each party will submit a proposed judgment in writing, conforming to the requirements of CPLR article 50-B within 45 days of the service of a file-stamped copy of this decision upon them by the Clerk of the Court. A hearing will thereafter be scheduled at the mutual convenience of the parties and the Court.

Any and all motions on which I may have previously reserved, or which were not previously determined, are hereby denied. Footnotes

Footnote 1:Now known as the Department of Corrections and Community Supervision (DOCCS).

Footnote 2:For purposes of publication, the inmate's name has been edited to protect her privacy.

Footnote 3:References to the two volume, 275-page, consecutively paginated trial transcript will hereinafter be "T.__".

Footnote 4:At trial, Claimant testified both that the first incident occurred in May and June.

Footnote 5:The Court takes note of the fact that Claimant testified at trial that she was raped when she was 12 years old, but also appears to have reported to Dr. Frances that the rape occurred when she was 15 years old.

Footnote 6:Judge Larimer awarded Claimant a total of $500,000 in damages, representing $250,000 in compensatory damages and $250,000 in punitive damages. Punitive damages, of course, are not available to litigants in the Court of Claims.

Footnote 7:While evidence of settlement offers are generally inadmissible, Defendant offered the settlement offer here for the admissible purpose of seeking to negate a contention of undue delay (see CPLR 4547).



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