Claimant filed the instant claim seeking damages for injuries sustained in a
motor vehicle accident with a New York State Trooper on January 29, 1998. A
trial on liability was held and this Court found that defendant was 100% liable
for claimant's injuries (
, Hanlon v State of New York
, Claim No. 98001, Bench Decision
of O'Rourke, J. [filed 8-19-99]). A damages trial was held thereafter, and this
decision pertains solely to the issue of damages.
The undisputed facts elicited at trial establish that claimant Carol
was 52 years old on January 29, 1998 when she sustained injuries as a result of
a collision between a police car driven by a New York State Trooper and the car
she was driving. The accident involved two impacts between the police car and
claimant's vehicle, the first of which consisted of contact on the driver's side
door of claimant's car. After the accident, claimant had to be extracted from
her vehicle by emergency personnel. As a result of the impacts, claimant struck
the right side of her head on the interior of the car and received facial
lacerations that required 56 sutures in the area of her right
Claimant testified that she did not recall the accident on January 29, 1998,
but recalled driving, waking and hearing an ambulance. She later learned that a
Trooper's car impacted the driver's side of her car by the front wheel well and
that the back of the car was hit, causing the rear windshield to pop out.
Although claimant was uncertain as to which part of the vehicle's interior she
hit, she knew that her right forehead area, eye and nose had made contact with
something that caused her to lose her eyeglasses.
Claimant recalled waking up after the accident, hearing sirens and seeing
flashing lights. She testified that at that time she was still in the car with
her seat belt on and that she felt tremendous pain on the right side of her
head from the nose up. She remembers seeing blood on her white slacks, although
she did not then know its source.
She recalled being cut out of the car, being placed on a plastic stretcher and
being transported by ambulance to the hospital accompanied by her husband.
Claimant recalled telling the emergency personnel that her head hurt and that
she was dizzy and nauseous. She also testified that during the ambulance ride
she repeatedly told the driver to slow down because motion bothered her.
Claimant testified that when she arrived at the emergency room at St. Francis
Hospital, she became dizzy when the staff attempted to remove her from the
stretcher. She testified that she complained of dizziness, nausea and headaches
to the first doctor who treated her and recalled that a plastic surgeon was
summoned and stitched her head lacerations. She testified that she received 56
stitches that ran from the right bridge of her nose and around the inner part of
her right eyebrow. She testified that she received another set of stitches in a
"u-shape" over her right eyebrow on the forehead. Claimant was released from
the emergency room after approximately 2 ½ hours.
Exhibits 4A through 4G are photographs depicting claimant's injuries on the
weekend after the accident that were admitted into evidence upon claimant's
representation that they were a fair and accurate depiction of her appearance
after the accident. The Court notes that the photos are blurry and thus do not
clearly depict the lacerations and stitching on claimant's face. Nonetheless,
the Court has accepted them as providing evidence that claimant received
injuries in the general facial area as she described.
Claimant testified that prior to this accident she never had any stitches or
plastic surgery on that part of her face. She testified that the stitches left
a thin line of scarring on the right side of the nose that cuts into her
eyebrow. She testified that the worst scar is above the brow in the circular
area, which she testified has not diminished. She also testified that a lump
exists underneath the scar in the area where the stitching was done. Claimant
testified that she is aware that the lump is there and feels a pulling sensation
in this area if she frowns or raises her eyebrow. She also stated that the lump
moves, is affected by the weather and has not diminished since the accident.
Claimant testified that if the weather is damp, humid or very cold, she gets
pain on the top of her head which turns into a migraine headache. Claimant
testified that she takes Advil for the migraines rather than prescribed
medicines because she finds that the latter do not work and make her feel
Claimant was released from the emergency room with a prescription for Percoset
for pain, which she was required to take every 4 to 6 hours. She was instructed
to see the plastic surgeon the following week and was given a list of
instructions to follow if she felt worse. She did not engage in any physical
activity and finished the prescription painkillers during the weekend following
the Thursday-night accident.
Claimant's next medical visit occurred four days after the accident on a Monday
when she visited a family health center and was examined by Dr. Tesoriero.
Claimant testified that she complained during that visit of dizziness, head pain
and nausea, and difficulty with her vision. Claimant recalled that she had had
headaches before, but not with this severity.
Claimant testified that Dr. Tesoriero took blood, examined her eyes and sent
her for a CAT scan. Claimant recalled that, at that time, her eyes hurt and
were sensitive to light. She testified that at the time of the accident she
wore eyeglasses for nearsightedness and an astigmatism, but had never
experienced pain in the eyes or light sensitivity prior to the accident.
Claimant testified that after the accident she would see "floaters" in her eyes
if she moved her head quickly or if lighting conditions suddenly changed.
According to claimant, she still experiences flashes of light and
floaters. Claimant acknowledged that at the time of the accident she suffered
from two chronic conditions: (1) thyroiditis, a thyroid problem that was
diagnosed in the late 1980's; and (2) fibromyalgia, a chronic pain condition
that affects the joints and muscles in the body that was diagnosed in 1995.
Claimant testified that she takes thyroid medicine for the first condition and
takes Zoloft to reduce the pain associated with fibromyalgia. According to
claimant, she did not experience any headaches or head pain from the
fibromyalgia prior to this accident.
Claimant admitted that as a result of the fibromyalgia, she was caused to
change her daily activities. She testified that from 1981 through 1995 she was
employed by IBM as a buyer, which she characterized as a "high pressure"
position. According to claimant, she left that employment in 1995 and was
placed on total disability because of the fibromyalgia. Claimant has not
returned to work since that time.
Claimant testified that in 1997, she became involved as a volunteer with the
Tristate Center for the Arts, a local theater company because she was able to
work a flexible schedule and work at home. Claimant testified that she became
Chair of the Board of the Center in October 1997, which was approximately 3
months prior to the accident in issue. In her capacity as Chairperson, claimant
assumed all basic fiduciary responsibilities. Claimant testified that the
theater ran in the summer and she would meet frequently with summer staff.
Claimant testified that she resigned from her post at the theater in January
1999 because she was no longer able to drive alone at night or work on the
computer. According to claimant, she cannot stare at a computer screen for long
periods because she experiences blurriness in her eyes and headaches. She also
testified that her night vision has been affected because she sees flashes of
light from oncoming cars and she is momentarily blinded. Thus, according to
claimant, since this accident she must be accompanied on trips at night and has
curtailed her nighttime activities that require driving.
Claimant wore dark glasses in the courtroom and testified that they were
prescribed for her after the accident to filter direct light. She testified
that she uses tinted glasses at home.
Returning to a discussion of the treatment she has received since this
accident, claimant testified that Dr. Tesoriero sent her for a CAT scan for her
head, including her nose, which was done at St. Francis Hospital. She testified
that after the CAT scan, she learned that she had a massive sinus infection, a
nose fracture and deviation of the right septum. According to claimant, she did
not have any serious sinus infections or a deviated septum prior to the
accident. Claimant testified that after learning the results of the CAT scan,
Dr. Tesoriero prescribed antibiotics and instructed her to use a humidifier.
Claimant testified that she visited Dr. Tesoriero's health center several times
to enable him to monitor the electrolytes in her blood. According to claimant,
during those visits she was also treated by a Physician's Assistant, Eileen
Lockwood. Claimant continued her treatment with Ms. Lockwood, who moved to
another facility. Claimant testified that she last saw Ms. Lockwood in January
of 2000 in connection with another sinus infection.
According to claimant, sinus infections have recurred 2-3 times per year since
the accident. Claimant testified that she was referred to Dr. Kayal, an Ear,
Nose and Throat specialist, in the late spring of 1998 by Ms. Lockwood for her
sinus problems. Claimant testified that she saw Dr. Kayal three times with
complaints of vision problems, headaches, and sinus infections. According to
claimant, Dr. Kayal prescribed antibiotics for sinus infections and Nasonex
nasal spray to be used prophylactically on a daily basis to decrease the
swelling in her sinuses. Claimant testified that she discussed possible nose
surgery with several doctors, but decided against it because she was given no
guarantee that it would work.
Claimant testified that she visited an eye specialist, Dr. Fox, in late
February or early March of 1998 because her visions problems were not improving.
She testified that she complained to Dr. Fox of flashing lights, floaters,
blurred vision, difficulty reading and headaches. According to claimant, she
saw Dr. Fox approximately four times. Dr. Fox referred claimant to a
neurologist, Dr. Pickard, and sent her for dark glasses.
Claimant testified that she saw Dr. Pickard in March of 1998 and complained of
vision problems, pain in her head, and the lump on her forehead, which had not
improved. According to claimant, Dr. Pickard examined her, reviewed the CAT
scan, and ordered another CAT scan and a brain wave test. Claimant testified
that she saw Dr. Pickard regularly and is still under his care.
Claimant testified that she still experiences headaches, which have remained
the same in intensity since the accident and worsen when she has a sinus
infection. According to claimant, the headaches that she currently experiences
include pounding, nausea, dizziness, and intolerance to light or sound, and can
last between ½ hour to one hour.
Claimant testified that Dr. Pickard employed pin prick tests on the right side
of her head to determine areas of loss of sensation. According to claimant,
when she first saw Dr. Pickard, she could not feel anything at all on the right
side of her forehead. She admitted, however, that within 3 to 6 months she
regained partial feeling. Claimant testified that she can now feel part of her
forehead and the top of her head, but has not regained feeling near the lump and
eyebrow areas. According to claimant, she does not feel anything if she
scratches her head, but she acknowledged that she normally does not touch the
top of her head. She testified that she presently experiences pain underneath
her eyebrow on a daily basis that can last minutes or hours.
Claimant testified that she has not considered surgery to remedy the scar area
and lump because no improvement in the lump was expected. According to
claimant, at the present time, the scar seems "very noticeable" to her and the
lump looks "awful." She testified that when she frowns, her eyebrows do not
match and she feels like the lump sticks out from her head.
Claimant testified that her date of birth is September 18, 1945 and that she
and claimant Charles Hanlon were married on June 8, 1985. She testified that
the injuries she sustained in this accident presently impact her life because
she is unable to do art work in her studio, which is sunny, has difficulty
reading and using the computer and is prevented from keeping social appointments
because she gets unexpected headaches. She testified that she is unable to
attend movies with her husband because she gets nauseous and dizzy from the
With respect to the household chores, claimant testified that before the
accident she performed the "inside" chores and her husband performed the
"outdoor" chores, but since the accident her husband has had to assume most of
the inside work. Claimant testified that she is unable to clean and cook as she
once did because she gets dizzy if she bends and is tired from headache-related
sleep loss. Claimant conceded that before this accident her ability to perform
housework was affected by fibromyalgia, but testified that her husband only had
to assume some of the inside chores as a result of that condition.
According to claimant, after the accident she felt guilty and her husband was
angry that he had to assume all of the chores and these emotions led them to
become estranged and lose intimacy. The couple visited a marriage counselor
together from November 1998 until January 2000, but they do not have an
appointment to return. Claimant testified that her husband moved out of the
house in September 1998 for two months. However, she testified that their
intimacy level has improved from the 1998 and 1999 levels, although it has not
returned to pre-accident levels.
On cross-examination, clamant conceded that she presently smokes about one pack
of cigarettes per day and had done so prior to the accident. Claimant denied
having headaches prior to the accident in connection with fibromyalgia and
stated that no doctor had ever told her that headaches were a usual symptom of
fibromyalgia. She testified that when she suffered from fibromyalgia, she
experienced pain in her joints, arms, elbows, knees and feet, but never
experienced pain in her facial area or head.
Claimant conceded that she still suffers from fibromyalgia today and that she
experienced depression when she lost her job at IBM. Claimant acknowledged that
the loss of her job was an emotional change that affected the marriage.
However, she testified that her depression improved when she began volunteering
at the theater group. Claimant also testified that she did not immediately stop
her work at the theater after the accident, but decided to do so by 1999 because
she could no longer assume all of the duties that she had previously undertaken
there. Claimant conceded that she could have done less for the organization,
but chose not to.
Claimant also explained that she can only face a computer screen for
approximately 15 minutes before she sees "floaters" which can last up to several
hours. Claimant testified that she has similar problems when viewing television
or movie screens. Claimant conceded, however, that she has never discussed the
computer or television problems with doctors beyond having dark glasses
prescribed. Claimant testified that she saw Dr. Fox, the eye doctor,
approximately ten times commencing in February 1998 and that after he prescribed
dark eyeglasses, she never saw another eye doctor. Claimant also conceded that
she had had sinus infections "once in a while" before the accident.
Claimant Charles Hanlon testified that on the date of claimant's accident he
was riding as a back-seat passenger in claimant's car and felt two impacts with
the Trooper's car. After the impacts, he saw claimant slumped over the steering
wheel with her head resting on the far left side of the wheel. He recalled
that claimant was not conscious at the time and believed that she was
unconscious for approximately five minutes. Mr. Hanlon testified that he exited
the car, looked into the driver's side door and saw massive amounts of blood on
claimant's face and coat. He testified that he later learned that the blood was
coming from what he described as a "starburst" or cut that looked like a
"puckered baked potato" over her right eye.
Mr. Hanlon testified that emergency personnel cut claimant out of her seat belt
and that he rode with claimant in the ambulance. He recalled that during the
ambulance ride claimant complained about the vehicle making turns and braking.
Mr. Hanlon testified that he was present in the emergency room with claimant and
while the doctors treated her, and left only briefly to give the police a
statement. He recalled observing the surgeon stitching claimant's cuts and that
claimant was conscious at the time. He did not recall any other treatment in
the emergency room, but remembered claimant complaining that her head hurt. Mr.
Hanlon recalled that he took claimant to the doctor on the following Monday and
that during the intervening weekend, she was in constant pain, complained of
dizziness and had difficulty sleeping and eating.
With respect to the impact that claimant's injuries have had on Mr. Hanlon, he
testified that he has had to accompany claimant on many doctor visits and used
paid sick leave from his employment on each occasion. He also testified that he
felt overwhelmed by the fact that he had to assume all of the household chores
and that he began seeing a therapist himself in May of 1998, which he had never
done before the accident. Mr. Hanlon testified that after the accident they
were not intimate for a year and he eventually moved out of the house for two
Mr. Hanlon conceded that claimant's fibromyalgia slowed her down in the house
and caused him to assume some additional inside chores, but testified that he
was still able to work outdoors on the weekends. With respect to the physical
scars on claimant's face, Mr. Hanlon testified that claimant "notices it more
than he does" and that "he can live with it."
Mr. Hanlon also testified that before the accident, but after claimant was
diagnosed with fibromyalgia, he and claimant frequently attended movies, dined
at restaurants and took walks. He explained that they no longer go for walks
because claimant is uncomfortable when exposed to sunlight, that claimant now
has difficulty attending movies because of the lights and that they rarely go
out to dinner or socialize because claimant gets headaches and cancels
Claimant called Dr. Jay Rosenblum, a neurologist who has been licensed to
practice in New York since 1965. Dr. Rosenblum explained that neurology is the
study of the brain, spinal chord and peripheral nerves. He testified that he is
certified by Board of Neurology and Orthopedic Medicine but is not certified by
the American Association of Psychiatry and Neurology. Dr. Rosenblum was
qualified as an expert in neurology and his report prepared in connection with
this litigation was admitted into evidence as Exhibit 8.
Dr. Rosenblum testified that he examined claimant on September 7, 1999 and on
that date reviewed claimant's medical records which revealed that she was
involved in a car accident on January 29, 1998, was rendered unconscious,
received 56 sutures at St. Francis Hospital to close a laceration over her right
eye and crushed her nose. Dr. Rosenblum testified that he learned that
thereafter claimant was treated by various physicians, including an otologist,
an ophthalmologist, a neurologist, and a plastic surgeon and that she underwent
several diagnostic tests, including CAT scans and EEGs. He testified that,
specifically, he reviewed Dr. Kayal's report of May 4, 1998, a report of
Kingston Neurological Associates dated March 5, 1998 and a follow up report
dated June 29, 1999, the records from St. Francis Hospital emergency room dated
January 29, 1998 and a plastic surgery consultation report of the same date.
After reviewing the emergency room records of St. Francis Hospital that were
admitted into evidence as Exhibit 1, Dr. Rosenblum testified that claimant
sustained a laceration over her right eye, that she had a past history of
certain medical problems, that a CAT scan showed no intracranial lesions and
that the records contained no evidence that claimant sustained a stroke or blood
clot in the brain. Dr. Rosenblum found evidence in those records that claimant
suffered a change in affect, which he interpreted as meaning that she was
suffering from what he termed "post-concussion syndrome." Dr. Rosenblum
explained that post-concussion syndrome is a constellation of symptoms that
develop after an unconscious patient returns to consciousness. He testified
that those symptoms may include headaches, dizziness, a change in personality,
giddiness, visual disturbances, and changes in tolerance to medication. He based
his conclusion that claimant was suffering from post-concussion syndrome on the
fact that the records indicate that she was unconscious for a brief period,
giddy and complained of pain around the eye and dizziness.
Dr. Rosenblum testified that he was aware of claimant's prior diagnoses of
fibromyalgia and thyroid dysfunction when he examined her. Dr. Rosenblum
explained that fibromyalgia is a broad classification of disease which affects
the muscles, tendons and joints and results in various areas of discomfort and
pain. He testified that sensitivity to light, vision problems, loss of sensation
in the forehead and headaches are not symptoms of fibromyalgia. Similarly, Dr.
Rosenblum testified that claimant's thyroid dysfunction did not have a
neurological component and would not cause any of the aforementioned symptoms.
Dr. Rosenblum testified that when he examined claimant he performed a standard
neurological examination. He testified that he made a subjective assessment
when claimant entered the examining room that she looked as if she were in pain.
He testified that he also determined that she was able to give a reliable
history. Dr. Rosenblum testified that during the physical portion of his
examination of claimant he felt an "irregularity" around her right eye and scar
tissue which caused an unpleasant sensation for claimant when he touched it. He
explained that such a sensation is typical for a patient with nerve damage. Dr.
Rosenblum also explained that sometimes a damaged nerve can regenerate. Dr.
Rosenblum testified that after the physical examination and review of her
records, he formed the opinion that as a result of the car accident claimant had
suffered from a cerebral concussion, post-concussion syndrome, peripheral nerve
derangement and multiple somatic injuries, including lacerations of the facial
area and exacerbation of the symptoms of fibromyalgia.
According to Dr. Rosenblum, a cerebral concussion is the cessation of all brain
function for a temporary time and is the state of being unconscious. He
testified that a concussion can lead to post-concussion syndrome, which is a
temporary condition that is characterized by giddiness and headaches. Dr.
Rosenblum testified that it was his opinion to a reasonable degree of medical
certainty that claimant suffered from a concussion and post-concussion syndrome
based on her complaints of severe migraine-type headaches, nausea, flashers, and
difficulty in focusing her eyes. Based on the fact that claimant struck her
head on the steering wheel, as well as on notations in claimant's medical
records, Dr. Rosenblum testified that it was his opinion to a reasonable degree
of medical certainty that those conditions were a result of the accident.
Dr. Rosenblum also testified that he learned from claimant's medical records
that she sustained a deviated septum and a fractured nose and testified that it
was his opinion to a reasonable degree of medical certainty that she sustained
those injuries in this accident. Dr. Rosenblum candidly testified that
questions regarding claimant's complaints of flashers and floaters were beyond
his area of expertise.
With respect to the diagnosis of peripheral nerve damage, Dr. Rosenblum
explained that if peripheral nerves are cut and reattached incorrectly, they
give a false perception of what the person is feeling. He testified that
improper reattachment may cause an unpleasant sensation or a stabbing sharp pain
and that such pain is common in cases of laceration of a sensory nerve in the
facial area. Dr. Rosenblum testified that he relied upon claimant's subjective
complaints of pain in diagnosing the peripheral nerve damage because there is no
objective means to assess such damage and he found no indication in any of her
medical records that would lead him to believe that her complaints were
unreliable. He stated that this conclusion was bolstered by the fact that
claimant's medical records indicated that claimant consistently made similar
complaints to numerous health care providers after this accident, but none of
the records from numerous physicians who treated her prior to this accident
contained documentation of similar complaints. Specifically, Dr. Rosenblum
testified that Dr. Pickard's records, which were admitted into evidence as
Exhibit 3 and concerned claimant's visits for neurological care prior to this
accident, contained no notations concerning floaters, flashers, migraines,
chronic nasal infections or lack of facial sensation.
Dr. Rosenblum concluded that claimant's peripheral nerve damage was permanent,
despite claimant's concession that she felt some improvement in sensation in her
face since the accident. He discounted claimant's testimony in this regard
based on his opinion that claimant had probably simply "learned to deal with
On cross-examination, Dr. Rosenblum conceded that post-concussion syndrome is a
temporary condition that in his opinion lasts no longer than one year. He
testified that it is his belief that if symptoms last longer than one year, they
may be due to another cause, such as scar tissue resting on muscle.
With respect to his diagnosis that the accident exacerbated claimant's
pre-existing fibromyalgia, Dr. Rosenblum conceded that it is difficult to
determine the cause of that condition and that pain associated with that
condition is generally not found above the neck. He also denied that headaches
are associated with fibromyalgia.
Dr. Rosenblum also acknowledged that the fifth cranial nerve or trigeminal
nerve which was severed in claimant's accident was part of the peripheral nerve
system which, by nature, should regenerate. He explained, however, that since
three years have passed since the accident, the nerve should have already
completely regenerated if it were going to do so.
On redirect, Dr. Rosenblum testified that he saw no evidence of headaches in
claimant's records prior to this accident. He also testified that even if
post-concussion syndrome lasts only one year, a person can continue to have
headaches associated with head trauma, which he would refer to as "traumatic
migraine." On questioning by the Court, Dr. Rosenblum testified that in his
opinion the migraines that claimant complained of resulted from this accident.
Claimant rested after Dr. Rosenblum was excused.
Dr. Alan Brown, a licensed physician who is certified as a neurologist by the
American Board of Psychiatry and Neurology, testified as an expert on behalf of
the defense and the report he prepared in connection with this litigation was
admitted into evidence as Exhibit A. Dr. Brown testified that it is his typical
protocol upon meeting a new patient to take the patient's medical and work
history, examine their medical records and review them with the patient,
perform a neurological examination and prepare his report. Dr. Brown testified
that he followed this protocol during his examination of claimant on November
18, 1999 which lasted approximately 45 minutes. He testified that he reviewed
records from St. Francis Hospital's emergency room, Dr. Pickard's records, Dr.
Rosenblum's report, CAT scan results, Ms. Lockwood's records, the records of
Dr. Fox, Dr. Kayal and the plastic surgeon.
Dr. Brown testified that it was questionable that claimant had suffered a
concussion because a nurse's entry in the St. Francis emergency room records
indicated a "possible" loss of consciousness and a physician's note indicated
that no loss of consciousness had occurred, although claimant was dazed for a
brief period. He testified that the records described a large laceration above
claimant's right eyebrow which required a large number of sutures and that a
doctor recorded claimant's statement that she had a history of fibromyalgia and
had her "usual" pains and nothing new. Dr. Brown testified that claimant was
described as being alert and oriented with "mentation intact," which he
explained was a general assessment by the treating physician that claimant was
providing a clear and coherent history.
Dr. Brown testified that when he examined claimant, he placed a pin over
claimant's forehead on both sides to test the 5
th cranial nerve or trigeminal nerve and checked claimant's pupils and reflexes
among other things. It was Dr. Brown's opinion that claimant had sustained
nerve damage to the trigeminal nerve, a sensory nerve, since she had a loss of
sensation in the area of the laceration and extending back and that that injury
directly resulted from the accident. Dr. Brown testified that, using a reflex
hammer, he touched the area over claimant's scar and that claimant indicated
that she did not have any pain or discomfort when he did so. According to Dr.
Brown, if claimant had pain in this area, it would have been evident with this
Dr. Brown prepared a report after examining claimant which was admitted into
evidence as Exhibit A. This report indicated that the first CAT scan report
made no mention of any deviated septum or nose fracture. It also noted,
however, that the claimant's ENT doctor, Dr. Kayal, indicated that he looked at
the CAT scan and saw a deviated septum and a nondisplaced nasal fracture as well
as swelling of the nasal passages.
Dr. Brown also testified that the medical records that he reviewed indicated
that claimant's loss of sensation had improved since the accident.
Specifically, he noted that Ms. Lockwood's records stated that claimant
experienced an improvement in sensation within one month. Dr. Brown testified
that he discussed the improvement with claimant and that she estimated that the
loss of sensation had improved about 40% from the time of injury.
Dr. Brown physically examined claimant in court. As he did so, he testified
that he was observing an irregular scar beginning at the midline of her right
eye, extending below and above it, as well as towards the mid-portion of the
eyebrow toward the bridge of claimant's nose. He testified that he does not see
any areas that are raised to any appreciable degree, that the laceration appears
to have healed and that he sees no sign of inflammation or infection. He also
testified that he could not feel a lump under the area of scarring above
claimant's eyebrow. He acknowledged that the area he examined when he met
claimant in his office was the same area that he was examining in Court.
With respect to the extent of claimant's nerve damage, Dr. Brown testified that
it was his opinion to a reasonable degree of medical certainty that some loss of
sensation could be permanent and that he is unable to determine with certainty
whether claimant will experience further recovery. He explained that the nerve
in question can
reconstitute itself and noted that the fact that claimant has had some recovery
of functioning in that nerve indicates an ongoing process of nerve fibers
realigning themselves and that further improvement can be expected over time.
While he conceded that recovery could be less than 100%, he testified that
claimant could probably expect to see further improvement within three or four
years. He noted, however, that even if the damage is permanent, it will not
affect claimant's daily life other than when she is combing her hair.
Dr. Brown acknowledged that headaches could be caused by trauma, and that
contact or injury from an automobile accident could be such a trauma. He
explained, however, that migraine headaches, which can be caused by genetic,
hormonal or chemical changes in the body, do not result from external
conditions, such as trauma. He also testified that although he has heard of the
term "post-traumatic migraine headache" being used in personal injury cases,
headache specialists would not employ such a term as a category of migraines and
it is not an accepted medical classification. He also explained that migraines
typically begin in adolescence for women and young adults and that the
likelihood that a person would begin to get migraines after age 50 is unusual.
Dr. Brown also testified that fibromyalgia is a disease entity that is
accepted by most of medical community, but not all, since it is a condition in
which patients have only subjective complaints of pain throughout their bodies
and no objective abnormalities. According to Dr. Brown, fibromyalgia is often
accompanied by headaches and all of the patients he has treated with
fibromyalgia have been referred to him because of the headaches.
With respect to sinusitis, Dr. Brown explained that that condition arises when
the cavities in the anterior part of the skull which are lined with the type of
epithelial tissue found in the respiratory tract become inflamed. Dr. Brown
testified that chronic sinusitis is typically accompanied by headaches. Dr.
Brown noted that a CAT scan completed on February 2, 1998 revealed that claimant
had "acute pan sinusitis," which he explained means that all sinuses are
affected on both sides of the head. Dr. Brown could not agree that a deviated
septum could cause sinusitis because when the septum is deviated it leans toward
one side and would typically create a sinus condition on the side it leans
toward, leaving greater room on the other side.
Dr. Brown also explained that smoking is a major risk factor for sinusitis. He
testified that claimant informed him that she smoked one pack of cigarettes per
day, but noted that one of Dr. Pickard's reports written in 1998 indicated that
she smoked two packs per day. Dr. Brown testified that it was his opinion that
claimant's smoking was more likely to cause pan-sinusitis than a deviated septum
since all of claimant's sinuses were affected. He then testified that it was
his opinion to a reasonable degree of medical certainty that the sinusitis was
not caused by this accident. He added that it was his opinion that claimant did
not suffer from migraines as a result of this accident.
On cross-examination, Dr. Brown conceded that claimant may have suffered a
concussion in the accident, given her husband's observations that she was
unconscious. However, he explained that he could not agree that claimant
suffered any lasting effects from a single concussion. He testified that a
cumulative injury to brain tissue would only be seen with multiple
Dr. Brown also acknowledged that although he did not observe a raised area or
lump beneath her scar, he did notice a puckering of the skin in that area when
she furrowed her face. With respect to claimant's nerve damage, Dr. Brown
conceded that although she should have more improvement within the next three to
four years given her testimony that she had already improved, it was more likely
than not that she would not regain full sensory function in that area and that
she would have some permanent loss of sensation due to the nerve damage.
While Dr. Brown conceded that "it is entirely likely that claimant has had
headaches," he testified that it was his opinion that the headaches were not
migraines and that they did not arise from this accident. Rather, he opined
that they were a result of claimant's pan-sinusitis and the pre-existing
fibromyalgia. He conceded, however, that the records of claimant's treating
neurologist, Dr. Pickard, which were admitted into evidence as Exhibit 3, did
not mention any complaints of headaches in connection with the fibromyalgia.
Defendant rested at the conclusion of this testimony.
Based on the foregoing proof, claimant seeks damages for the pain and suffering
and loss of enjoyment of life associated with cerebral concussion,
post-concussion syndrome, facial lacerations resulting in two permanent scars,
neurological deficits, an inoperable lump of scar tissue in the right forehead
area, migraines, vision problems, a fractured nose and a deviated septum with
resulting sinusitis. Claimant's husband seeks damages derivatively based on
claimant's diminished ability to perform household chores, a loss of intimacy in
the marriage and diminished enjoyment of life. It is well-settled that expert
medical testimony is ordinarily necessary to establish a claimant's medical
condition, a medical diagnosis, a causal connection between an accident and an
injury and the permanency of an injury (
, Armstrong v State of New York
, 214 AD2d 812, 813; Sabatino
v Albany Medical Center Hosp.
, 187 AD2d 777; Caputo v Cradle
Misc 2d 242).
The trial proof establishes that claimant sustained a laceration for which she
received stitches that ran from the right side of her nose and up through her
eyebrow and that she still has scarring in the eyebrow area which is only
minimally visible. The proof also establishes that claimant suffered another
laceration above her right brow which resulted in a U-shaped scar that remains
somewhat visible. While claimant testified that she has a lump under her skin
in the area of the U-shaped scar just above her right eyebrow, claimant's own
expert did not verify that the lump existed or that it resulted from the
accident at the core of this claim, and defendant's expert could not feel the
lump when asked to do so by the Court during his testimony. The Court finds,
however, that claimant's skin puckers in the area of the scar when she makes
certain facial expressions.
Both neurological experts testified that the trigeminal nerve in claimant's
forehead was damaged as a result of the accident and agreed that the nerve did
not impact any facial muscles. They both agreed that the trigeminal nerve was
sensory in nature and controlled claimant's feeling from the front of her head
to the top of the head. The experts also agreed that this sensory nerve can
regenerate and that the healing process may take several years.
On the question of permanency of the nerve damage, the experts could not say
with certainty whether claimant would fully recover sensation in the area
affected by the trigeminal nerve. The Court credits the testimony of
defendant's expert, Dr. Brown that claimant may regain further sensation in the
area affected by the trigeminal nerve, given claimant's testimony that she had
already experienced a 40% improvement in the injury to her forehead within six
months after the accident. However, the Court also credits the defense expert's
it is unlikely that claimant will regain full sensation in the area affected by
the nerve since several years have passed since the date that the nerve was
lacerated and she had only experienced some improvement at the time of trial.
Based on the foregoing, the Court finds that claimant has sufficiently
demonstrated that the nerve injury, and resulting loss of sensation in the
specified area of her head, was caused by the accident and that there is a
reasonable probability that she may never fully regain sensation in the area of
the trigeminal nerve. However, the Court finds from all of the medical proof
that claimant should continue to experience improvement in regaining sensation
within another four years. Accordingly, claimant is entitled to damages for
past pain and suffering for this injury as well as future pain and suffering.
In determining an award for pain and suffering for this injury, the Court is
mindful of claimant's testimony that she has not fully regained feeling at the
top of her head and above her right eye, but that she only notices this absence
of sensation when she combs her hair. Thus, the Court finds from claimant's
testimony that this injury, which has some degree of permanency, does not and
will not have a major impact on claimant's daily activities.
Claimant has failed to present any medical testimony to substantiate her
allegations of the diminished condition of her eyesight, including the presence
of floaters and blurry vision. In fact, claimant's medical expert, Dr.
Rosenblum, a neurologist, acknowledged that any discussion of claimant's
eyesight problems was beyond his area of expertise. Thus, the Court finds that
claimant has failed to substantiate the claim that her vision problems were
causally connected to the head injury she sustained in this accident.
Accordingly, no portion of the award of damages is attributed to claimant's
Given this finding, it is unnecessary for the Court to address defendant's
request for a missing witness inference with respect to claimant's failure to
call Dr. Fox, the eye doctor who treated her.
With respect to the alleged nose, septum and sinus conditions, the Court
finds that claimant has presented uncontroverted evidence to establish that she
suffered a fractured nose and deviated septum in the accident (
, Exh. 2). However, the Court finds insufficient evidence on this
record that the accident caused her sinusitis. Claimant failed to present any
expert medical testimony to support her claim that her sinusitis was
precipitated by the accident and the Court finds after considering the testimony
of Dr. Brown, defendant's expert, that it is equally likely on this record that
the sinus condition, which claimant conceded she had to a lesser degree prior to
the accident, could have been caused by her smoking. Given the Court's finding
that claimant is not entitled to recover for sinusitis, the Court also finds
that it is unnecessary to consider defendant's request for an adverse inference
based on claimant's failure to call Dr. Kayal, an ear, nose and throat (ENT)
specialist who treated claimant for sinusitis. In turn, since claimant failed
to present expert proof concerning the causal relationship between the accident
and her sinusitis, that question of causation was removed as a material issue in
this case, and thus defendant's failure to call the ENT expert that it had
retained was a strategic decision that did not warrant an adverse inference.
Manifestly, a party is not required to call a witness to "address matters not in
dispute" (Arroyo v City of New York
, 171 AD2d 541, 544).
The Court also credits the opinion of claimant's expert, Dr. Rosenblum, that
claimant suffered from a cerebral concussion, which he described as the
condition of unconsciousness, given the testimony of claimant's husband that
claimant was unconscious for approximately five minutes after the collision.
The Court similarly credits Dr. Rosenblum's opinion that claimant suffered from
a post-concussion syndrome, which resulted in headaches, nausea and dizziness
after the head trauma. In awarding damages for this component of claimant's
injuries, the Court is mindful of the concession of claimant's expert that
post-concussion syndrome is a temporary condition that ordinarily lasts no more
than one year.
Claimant has failed to satisfy the Court that her complaints of migraines are
connected to this accident. The Court credits the expert testimony of Dr. Brown
that migraines do not result from trauma. Additionally, the Court is persuaded
by Dr. Brown's testimony that claimant's headaches were probably a result of
her pan-sinusitis, a condition that may have been caused by her smoking.
The Court also rejects the conclusion of Dr. Rosenblum that claimant suffered
from an exacerbation of fibromyalgia after the accident. The record is devoid
of proof that claimant suffered any increased pain in the extremities or joints
or areas below the neck as a result of this accident.
With respect to the derivative claims of claimant Charles Hanlon, the Court
finds from the testimony of both claimants that as a result of the accident the
couple temporarily suffered diminished intimacy and a diminished social life and
that Mr. Hanlon suffered the temporary loss of his wife's household services and
intimacy. However, the Court is satisfied from the testimony that the couple
has resumed normal relations and that claimant's accident-related injuries will
not interfere with her ability to socialize or function in the household in the
future, leading the Court to conclude that those losses will not extend into
the future. Thus, the Court awards claimant Charles Hanlon only past damages
for such losses.
In summary, the Court finds that claimant Carol Hanlon has sufficiently
demonstrated that she suffered facial lacerations, a concussion with
post-concussion syndrome, damage to the trigeminal nerve in her forehead and
permanent scarring on her forehead and that those conditions were caused by the
accident in question. The Court conforms the award to the proof and awards
claimant $30,000 for past pain and suffering in connection with those injuries
and $40,000 for future pain and suffering, which includes the permanency of the
scars and some permanent loss of sensation in the area affected by the
trigeminal nerve. In fashioning the award of future damages, the Court has taken
judicial notice that claimant's future life expectancy at the time of trial was
27.7 years (
, Life Expectancy Tables, National Center for Health Statistics, Vital
Statistics of the United States, 1989, Vol. II, §6). The Court awards
claimant Charles Hanlon the sum of $5,000 for past loss of services and finds
that he is not entitled to an award of future damages.
All trial motions not heretofore decided are deemed denied.
LET JUDGMENT BE ENTERED ACCORDINGLY.