New York State Court of Claims

New York State Court of Claims

HANLON v. THE STATE OF NEW YORK, #2000-017-017, Claim No. 98001


This decision pertains to the award of damages for injury to claimant's trigeminal nerve, which is a facial sensory nerve, two facial lacerations with resultant scarring and various other injuries that resulted from claimant's collision with a police car driven by a New York State Trooper.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Claimant's attorney:
Nassy, Hill, Langsam & Moin, LLPBy: Elise Hagouel Langsam, Esq.
Defendant's attorney:
Hon. Eliot Spitzer
Attorney General of the State of New York
By: Michael A. Zeytoonian, Esq.Deputy Assistant Attorney General
Third-party defendant's attorney:

Signature date:
July 31, 2000
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

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 (
see, 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 Hanlon[1]
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 eye.
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 overmedicated.

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 changing lights.

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 months.

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 plans.

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 it."

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 testing.
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 concussions.

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 (
see, Armstrong v State of New York, 214 AD2d 812, 813; Sabatino v Albany Medical Center Hosp., 187 AD2d 777; Caputo v Cradle, 111 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 concession that
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 vision problems.
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 (
see, 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 (
see, 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.


July 31, 2000
White Plains, New York

Judge of the Court of Claims

For ease of reading, the term "claimant" as used in this text shall refer to claimant Carol Hanlon unless otherwise specified.