New York State Court of Claims

New York State Court of Claims

JOHNSON v. THE STATE OF NEW YORK, #2000-017-042, Claim No. 92270


Claimant was awarded past and future damages for pain and suffering for a broken femur and other injuries sustained in an automobile accident after the Court found in the liability phase that defendant was 100% liable for the accident. The Court declined to award claimant damages for emotional distress under the zone-of-danger theory for injuries to his son and the death of his fiancee.

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:
Meiselman, Denlea, Packman & Eberz, P.C.By: Robert J. Levine
Defendant's attorney:
Hon. Eliot Spitzer
Attorney General of the State of New York
By: J. Gardner Ryan, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
February 2, 2001
New City

Official citation:

Appellate results:

See also (multicaptioned case)

In a decision filed on June 9, 2000, this Court found defendant 100% liable for injuries sustained by claimant on October 23, 1994 in a multiple-vehicle accident caused by pooled water on the roadway that resulted in multiple fatalities and injured parties. A trial on damages was held and claimant seeks damages in the Claim, as amplified by the Bill of Particulars, for past and future pain and suffering stemming from fractures of his right femur and jaw and for emotional distress arising from his observation of fatal injuries to his fiancee and injury to his son.

Claimant, who was born on November 4, 1961 (
see, Exh. 1, p. 1), testified that prior to this accident he was engaged to be married to Debra Royal, who was killed in the accident at issue. Claimant testified that he previously led an active life, participated in athletics, including basketball, bowling and swimming.
At trial, claimant identified photographs of the vehicle that he was driving that depict the severity of the October 23, 1994 crash (
see, Exhs. 13, 16 and 17). At the time of the accident, claimant was traveling with his fiancee, Debra Royal, her children, including Sophia Geanes who was killed in the accident, and his own son, Tishawn. Claimant testified that after the crash he noticed blood on his fiancee, who was seated in the front passenger seat and was unconscious. He also recalled that two of the five children who were rear passengers in the car were crying and that the other three were unconscious. Claimant testified that while he was waiting for medical attention he saw his son's "leg fall out of the car." Claimant remembered crying at the time because he was in excruciating pain in his leg area and recalled that after the collision he had to wait to be taken to the hospital because other accident victims were more seriously injured.
Claimant was transported by ambulance to the emergency room at St. Francis Hospital where his right leg and jaw were x-rayed. He testified that he was awake when hospital personnel placed a pin in his leg and placed it in traction to relieve some of the pressure. Photographs depicting the location of the holes that were drilled in claimant's right leg to facilitate placement of the pin were admitted into evidence as Exhibits 9 and 10. Claimant testified that he initially remembers experiencing pain in his leg, and that the pain in his jaw was noticeable later that evening after he was admitted to the hospital. Claimant also recalled that on the date of the accident clamps and wires were placed around his teeth (
see, Exhs. 5,6,7) to wire his jaw shut and secure his teeth, which were loosened in the crash. He explained that after this procedure, he could only intake liquids through a straw and it was painful to talk. Trial proof established that claimant remained on a liquid diet for approximately eight weeks after the accident and that he lost thirty pounds as a result.
Approximately four days after the accident, claimant underwent surgery during which a rod was inserted through the right hip area and into the right femur of his leg. Photographs admitted into evidence as Exhibits 11 and 12 and 20 through 23 depict the raised scar on claimant's hip, which claimant estimated is about six or seven inches in length. Claimant remained in the hospital for seven days after the surgery and upon his release he relocated to his parents' home, where he remained for approximately one year. During this time, he was cared for by his sister.

Claimant testified that in the year following his release from the hospital he continued to see Dr. Stamer, who performed the surgery on his leg, approximately one time per month. He testified that during those visits he complained of persistent pain in the leg. He also indicated that he began to feel pain in his hip during that time. He testified that Dr. Stamer prescribed physical therapy for his leg, which claimant described as being painful. Claimant testified that during that year he was unable to walk without experiencing pain and that he walked with a limp.

Claimant also testified that it was his understanding that there was a non-union of the bone and that subsequent surgery was necessary. He testified that during that second surgery the first rod was removed (
see, Exh. 18) and was replaced by a thicker rod. He also testified that he last saw Dr. Stamer in July of 2000 and that at that time his leg was still bothering him. It was claimant's belief that future surgery was necessary to remove the rod. Claimant testified that he currently has pain in his hip and right leg and walks with a limp.
At the time of the accident, claimant was employed as a dye mixer and was earning $400 per week. He did not return to work after the accident, but collected social security disability payments. He also returned to school for vocational training and earned a certificate in commercial cooking and catering on January 30, 1998 (
see, Exh. 19). According to claimant, he returned to work three years after the accident as a cook where he remained for approximately two years until he began experiencing leg pain. Thereafter he returned to social security disability, but again returned to work on October 20, 1999 as a youth job-training advisor.
Claimant testified that he is presently unable to engage in sports and has gained sixty pounds since the accident. With respect to the present state of his jaw, claimant testified that he still experiences sharp pain in his ear on occasions when he chews in a certain manner and feels pain in his teeth in cold weather.

David T. Stamer, M.D. is a Board-Certified Orthopedic Surgeon affiliated with the Orthopedic Associates of Dutchess County. Dr. Stamer testified that on October 23, 1994 claimant was referred to his practice by the hospital's trauma surgeon and that Dr. William Kwok was the first member of his practice to examine claimant. At some later point, Dr. Stamer became claimant's treating physician. Dr. Stamer testified that on October 23, 1994, claimant suffered multiple fractures of his mandible, a comminuted fracture of the right femur and multiple contusions. He explained that claimant's femur was fractured in more than one place due to the high-energy impact of the collision.

Referring to medical notes, Dr. Stamer testified that Dr. Kwok placed claimant in skeletal traction by placing a pin through the upper part of his tibia bone and attaching a pulley system. He explained that this type of traction was used to restore the length of the bone, decrease muscle spasms, decrease the motion of the bone and alleviate pain. According to Dr. Stamer, at that time the plan was to insert a metallic rod into the femur to stabilize the bone. Dr. Stamer explained that the patient is typically anesthetized for such a procedure, an incision is made in the upper thigh and the top of the femur, and bone marrow in the femur is cored out to create a canal where the rod can be inserted. Drs. Stamer and Kwok ultimately performed the surgery on claimant and Dr. Stamer identified Exhibit 18 as the actual rod that was placed in claimant's femur and later removed. Dr. Stamer also recalled that claimant's jaw surgery was performed by other surgeons at the same time that he worked on claimant's femur.

Dr. Stamer explained that because of the comminuted nature of the fracture and the number of bone fragments, claimant lost some length in the right leg. Dr. Stamer identified those fragments and the rod on an x-ray of claimant's right femur dated November 11, 1994 (Exh. 28) as well as the hip area where the rod was inserted (Exh. 29). He added that the hip joint depicted in that x-ray appeared totally normal with no arthritic changes.

According to Dr. Stamer, claimant was required to wait six or eight weeks after surgery before putting any weight on the leg. Dr. Stamer confirmed that he met with claimant on a monthly basis post-operatively to assess claimant's progress with respect to pain, function and healing of the wound. Dr. Stamer testified that claimant's femur never completely healed despite physical therapy and that he eventually developed a non-union in the femur, which he characterized as typical in a fracture such as this involving multiple fragments and a large degree of bone loss. Dr. Stamer testified that surgery was again recommended to correct the non-union. The surgery, which he referred to as an "exchange rodding" because the existing rod was replaced by a larger one, was ultimately performed on January 15, 1996.

Dr. Stamer testified that throughout the course of his treatment leading up to the second operation, claimant commonly complained about pain, weakness in the hip and knee, difficulty standing and difficulty in continuing in his previous occupation which required frequent standing, walking and stair climbing (
see, Exh. 1). He also relayed claimant's inability to engage in recreation and to return to his previous level of functioning in his daily activities.
Referring to his medical notes concerning the period prior to claimant's second surgery, Dr. Stamer recalled that he authorized claimant to return to work on light duty in April 1995. Because claimant had significant difficulty performing light duty, Dr. Stamer designated him as completely disabled on April 26, 1995. Dr. Stamer testified that claimant had a discrepancy in leg length of approximately one centimeter and that such a discrepancy could cause an abnormal gait pattern as well as pain in the hip, knee, lower back, foot, ankle and joints of the other limb. He candidly acknowledged, however, that accurate measurement of leg-length discrepancy is difficult to achieve.

Dr. Stamer testified that claimant had pain in the period immediately following the second surgery, but added that eventually the bone healed. He testified that he treated claimant until July 2000 and throughout that time claimant continued to complain of weakness, hip pain, thigh pain, pain near the fracture site and difficulty with daily activities. According to Dr. Stamer, he contemplated future "routine" surgery on claimant to remove the rod and screw and new bone that had formed around the hip area. Dr. Stamer recalled informing claimant in June 1997 of his opinion that claimant may never regain normal and complete restoration of function of the right lower leg, although, clinically, the leg had healed (
see, Exh. 1, note dated 6-13-97).
According to Dr. Stamer, claimant complained of soreness and pain in his right leg during his last visit before trial on July 11, 2000. At that time, Dr. Stamer took x-rays and determined that claimant was still having pain and would benefit from removal of the rod and new bone growth in the hip area.

Referring to x-rays taken on July 11, 2000, Dr. Stamer identified a cloudy substance in the area in the hip (Exh. 31) where calcified bone had developed. He noted that that substance was not present in the November 1994 x-rays (
see, Exh. 28) and explained that the calcified bone area would cause stiffness. He also identified sclerotic changes in the hip joint area which indicates that arthritis is setting in. He testified that the degree of progression of arthritic changes in the six-year period between the two sets of x-rays indicated that claimant would benefit from having a total hip replacement within the next ten years. The doctor testified that it was his opinion to a reasonable degree of medical certainty that the changes he found in the hip were caused by the leg injury, and thus the 1994 car accident. He explained that given claimant's youthful age at the time of the proposed hip replacement, a revisionary hip replacement would potentially be needed approximately 15 or 20 years thereafter. He estimated that the total cost of a hip replacement would be $25,000 and that the cost of the surgery to remove the rod and pin would be between $5,000 and $10,000. He also opined that these contemplated future surgeries would be a consequence of the initial accident.
On cross-examination, Dr. Stamer referred to a note of claimant's progress that he had authored that indicated that in February 1995 claimant was only sporadically attending physical therapy, which he conceded was designed to restore functioning of the leg (Exh. 1, Note dated 02-01-95). His attention was also drawn to a note from April 1995 indicating that claimant was exercising on his own in lieu of attending formal physical therapy. Dr. Stamer agreed that after a June 26, 1995 visit, he documented that he had found no significant limb length discrepancy in claimant's two lower extremities since he found that both measurements fell within one centimeter of each other. Dr. Stamer acknowledged that a note dated June 13, 1997 indicated that at that time claimant was ambulating without an antalgic or pain-induced gait (Exh. 1). The note also provides, however, that the antalgic gait is present when claimant runs.

Dr. Stamer's attention was called to a notation dated September 22, 1998 which documents that claimant slipped and fell while working as a cook, sprained his lower back and received a contusion on the right leg (Exh. 1, Note dated 9-22-98). The note also indicates that claimant "was last evaluated in June of 1997" by Dr. Stamer and that "since then, he has had no problems until his recent fall at work reinjuring his right thigh" (
id.). Dr. Stamer explained, however, that this note meant that claimant did not have any new problems during this period, and did not mean that claimant had returned to his pre-injury functioning. Dr. Stamer also conceded that between June 13, 1997 and July 11, 2000, when claimant came in to discuss removal of the rod, he did not treat claimant for any injuries connected to the accident at the core of this claim.
On redirect examination, Dr. Stamer emphasized that the injuries that claimant sustained in the second car accident and in his slip and fall did not impact his prognosis with respect to the injuries sustained in the crash leading to this claim. He also stated that it was his opinion to a reasonable degree of certainty in the field of orthopedics that claimant's failure to regularly attend physical therapy during the first year following the accident did not cause or contribute to the happening of the later non-union.

From the foregoing proof, the Court finds that claimant sustained a severe comminuted fracture of the right femur, requiring two past surgeries and resulting in a 1 centimeter discrepancy in leg length, an altered gait, continued pain, post-traumatic arthritic changes in the right hip, a lengthy scar and difficulty in ambulating and in performing daily activities. The Court also finds from the testimony of Dr. Stamer that claimant's leg will never return to normal and that claimant will be required to undergo future surgery to remove the hardware in his leg and future hip replacement surgery,[1]
all as a result of the accident at the core of this claim. The Court notes that the testimony regarding future revisionary hip surgeries was too speculative and remote to warrant an award of damages therefor.
The Court also finds that claimant sustained a fractured mandible, requiring his jaw to be wired shut for eight weeks and resulting in claimant's loss of 30 pounds. The Court notes, however, that according to claimant's own testimony by the time of trial claimant's pain emanating from the jaw was only occasional. Given that testimony, and the fact that no medical proof was elicited at trial with respect to the future duration of pain emanating from the jaw injury, the Court declines to award damages for future pain in connection with the jaw.

With respect to past pain and suffering, the Court finds that claimant's testimony concerning the curtailment of his daily activities and the pain he suffered in his right leg immediately after the collision, during the healing process after the two leg surgeries and thereafter until the date of this trial on September 29, 2000 is credible, given the testimony of claimant's treating physician, Dr. Stamer and the medical records (Exh. 1) that document claimant's persistent complaints of pain during the relevant time periods. Accordingly, the Court awards claimant $200,000 in past pain and suffering and loss of enjoyment of life for damages arising from the leg injury. The Court also awards claimant $25,000 for past pain and suffering in connection with the jaw injury.

With respect to future damages, the Court credits Dr. Stamer's testimony that claimant will require removal of the hardware in his leg and finds that claimant is entitled to an award of $10,000 to cover the expense of such surgery. The Court further awards claimant $25,000 for future hip replacement surgery. In fashioning an award of damages for future pain and suffering, the Court is mindful of the fact that Dr. Stamer did not elaborate at trial on the extent of pain that claimant can be expected to endure in the future. However, the Court has considered Dr. Stamer's opinion that claimant's leg will never be returned to normal, that claimant will be required to undergo two future surgeries with attendant recovery periods, that he has an altered gait and leg length discrepancy, and that claimant has a future life expectancy of 36.8 years from the date of trial (
see, Claimant's Post Trial Memorandum, Exh. B). Based on the foregoing, the Court awards claimant $300,000 for future pain and suffering. Although claimant listed lost wages as damages in his Bill of Particulars, the record is inadequate to allow the Court to measure past or future lost wages, and thus the Court declines to award such damages to claimant.
As a final matter, claimant seeks damages for emotional distress suffered when he, as a bystander in the "zone of danger," observed the fatal injuries to his fiancee who was seated next to him in the car and for the injury to his son, who was riding in the rear of the vehicle. The rule followed in this jurisdiction is that a bystander can recover damages when, in his or her presence, the bystander observes serious physical injuries or death inflicted upon a member of his or her
immediate family as a result of the defendant's negligence, the bystander experiences shock or fright as a direct result of this observation and the defendant's conduct created an unreasonable risk of bodily harm to the bystander (see, Bovsun v Sanperi, 61 NY2d 219). While the Court expresses its regret for the tragic loss of claimant's fiancee, with whom claimant undoubtedly had an emotional bond, under this State's jurisprudence a fiancee does not fall within the scope of immediate family members for which such recovery is permitted (see, Capolupo v Trustees of Columbia University in the City of New York, 193 AD2d 466, lv denied, 82 NY2d 663; cf; Trombetta v Conkling, 82 NY2d 549 [niece not member of immediate family under zone-of-danger theory]). Accordingly, claimant cannot recover for emotional damages stemming from his observation of Debra Royal's fatal injuries.
With respect to claimant's recovery as a bystander for injuries to his son, who would undoubtedly qualify as an immediate family member (
see, Leverock v Hall & Fuhs, Inc., 245 AD2d 550, 551), the Court declines to award any damages, given claimant's failure of proof. This record is devoid of any proof establishing that the physical injuries suffered by claimant's son were "severe" or that he contemporaneously observed those injuries being inflicted on his child – facts that must be established by a preponderance of the evidence in order to recover (see, Bovsun v Sanperi, 61 NY2d at 229, supra). More importantly, claimant has failed to present any proof to establish that the emotional disturbance he suffered was serious (id., at 231-232) and was a consequence of his observations (cf., Leverock v Hall & Fuhs, Inc., 245 AD2d 550, 551, supra). Noticeably absent from claimant's testimony was any reference to his emotional state upon observing his son's condition, and no medical proof on claimant's post-accident emotional state was proffered. Thus, under these circumstances, the Court finds that no award to claimant for emotional distress is warranted.
Accordingly, the Court awards claimant the sum of $560,000. All trial motions not heretofore decided are deemed denied.

Judgment will be held in abeyance pending a hearing pursuant to CPLR Article 50-B. The Court will schedule the hearing as soon as practicable.

February 2, 2001
New City, New York

Judge of the Court of Claims

[1] At trial, defendant objected to testimony concerning future hip replacement on the grounds that defendant had not been timely advised of this claim for damages. However, the Verified Bill of Particulars alerted defendant to the fact that a hip injury was being claimed, given references to right hip soreness, stiffness and pain (see, Verified Bill of Particulars, ¶¶ 2n, 2aa). Additionally, in Notices of Medical Exchange delivered to defendant on August 21, 2000, and again on August 29, 2000, claimant provided defendant with a notation made by Dr. Stamer that mentions the potential for future hip replacement (see, Claimant's Post-Trial Brief, Exhs. C, D). Both of those Notices pre-dated trial by thirty days. In any event, the Court reserved on defendant's objection and invited defendant to fully articulate the basis of its objection in its post-trial brief, which was never filed. Accordingly, the objection is now overruled.