New York State Court of Claims

New York State Court of Claims

SCHINDLER v. STATE OF NEW YORK, #2001-005-014, Claim No. 96692


Damages to inmate for permanent injury to the trigeminal nerve, cheek bone fracture and orbital blow out fracture. Damages sought and awarded only for pain and suffering.

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:
Cellino & Barnes
By: Stephen J. Lacher, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney General
By: Reynolds E. Hahn, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
February 1, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


In a decision signed on March 30, 2001, after a bifurcated trial, I determined that the Defendant was solely liable and must answer in damages for the injuries sustained by Claimant in the incident occurring on October 23, 1996, at the Groveland Correctional Facility (Groveland). This decision addresses only the issues of damages.

Claimant was thrown to the floor by a fellow inmate, John Schiemann, then kicked in and around the left side of his face, sustaining the injuries discussed below. Prior to the assault at Groveland, Claimant had suffered a fractured nose which was repaired in 1991. There is no evidence or implication that the injuries described below are in any way related to or diminished by this or any pre-existing injury.

After being thrown to the ground, Claimant's next recollection was being walked to the Groveland infirmary whereupon Polaroid pictures were taken of him.[1]
Claimant remained at the infirmary for approximately 30 minutes, and then was taken to Noyes Memorial Hospital (Noyes) in nearby Dansville, New York. Claimant testified that he believed he was in shock at that time. The Emergency Department Note from Noyes Memorial Hospital (Exhibit 32, p 2) notes a "marked amount of swelling of the inner aspects of both orbits. . . . some tenderness of the right inferior orbit with some hypesthesias and decreased sensation of the left side of his face. . . . large amount of clotted blood in both nostrils. . . . tenderness of the bridge of the nasal bone. . . . a CAT scan . . . revealed multiple facial fractures involving the inner aspects of each orbit, the inferior aspect of the left orbit, the nasal bones."

Claimant was discharged from Noyes on the same day and taken directly by ambulance to the Erie County Medical Center (ECMC). He testified that his eyes were "swollen shut." The admission diagnosis at ECMC was a "left zygomatic maxillary complex fracture, left orbital floor fracture, hemi LeFort I fracture and nasal fracture" (Exhibit 33, p1). Further evaluation revealed a "bilateral periorbital edema, altered occlusion, pain in the mid face and the nose . . . mobility of his left maxilla, maxillary anterior gingival paresthesia, as well as crepitus over the nasal bridge and an orbital step in his left orbit."

After remaining stable, and waiting two days until October 25, 1996, to allow the swelling to abate, Claimant was brought to the operating room and "underwent open reduction and internal fixation of the left LeFort II fracture, open reduction and internal fixation of his left XMC fracture, open reduction and internal fixation of nasal fracture."

Dr. Frederick Rodems, an oral surgeon, reviewed the notes of the surgeries at ECMC, and described the surgery and repair of various fractures. Dr. Robert S. Knapp, who provided the Defendant with an independent medical examination and opinion (Exhibit 38), reviewed the Claimant's medical and surgical records, and, while he did not testify at trial, in his report described Claimant as having sustained a right orbital blow out fracture, as well as a nasal fracture, and a left zygomatic complex fracture. It was further described at trial by Dr. Rodems as a LeFort II fracture, with the addition of the left cheekbone fracture.

During the surgery, Claimant was under a general anesthetic, and four incisions were made, at the left upper eyebrow, in the left and right lower eyelids, and in the vestibule along the anterior maxillary bone. Three metal bone-plates, about two to three centimeters in length, were placed in the frontal zygomatic suture line, along the inferior rims, right and left (more superior medial). The plates are frequently made of titanium, with six holes and using matching titanium screws, although the actual number of screws used in each plate, and the actual metal used, was not clear from the records. Doyle splints were inserted, described as being used to stabilize the internal structure of the nose. A Denver splint, an aluminum splint used over the exterior bridge of the nose, was also utilized for stability. Arch bars were utilized to reduce the alveolar fracture, and stabilized the fracture. Dr. Rodems described typical surgeries of this sort as taking some four to six hours, although the duration of Claimant's surgery, generally documented in the anesthesiology record, was not contained in the ECMC records before the Court. In any event, despite the characterization by Claimant of multiple surgeries sustained by Claimant, the surgery on October 25, 1996, at ECMC was the only one in the records in evidence before me.

Claimant was fed through an intravenous tube because his "jaw was wired shut" for a period of time. He was given Demerol for the pain. On October 29, 1996, at the Oral Maxillofacial Clinic at ECMC, the Doyle splints and sutures were removed. He remained at ECMC until October 30, 1996, when he was returned to the Groveland Infirmary where he was placed in a single room, and was given pain medications every four hours, including Percocet, as well as antibiotics. He was treated by Department of Correctional Services (DOCS) staff at Groveland, and returned to ECMC on several follow-up occasions, including November 4, 1996, where he saw Dr. Kingsbury, the oral surgeon (Exhibit 34, p 3); November 27, 1996, (Ex 34, p 4), and apparently refused a trip on January 27, 1997, (Ex 34, pp 22 & 59). Claimant testified that he was given painkillers on a regular basis during the period after his return from ECMC and his parole in March 1997. The metal plates have not been removed and remained in Claimant's face at the trial herein.

Claimant was paroled from Groveland in March 1997, and it was thereafter, starting in July 1997, that he sought treatment from a private neurologist, Dr. Kenneth R. Murray, who became his primary treating neurologist, and testified on his behalf. Testimony established that Claimant had suffered injury to the maxillary branch of the trigeminal nerve.

On Claimant's first visit on July 17, 1997, Dr. Murray reports that Claimant had pain and increased sensitivity to his face particularly on the left side consistent with the injury reported at Groveland. Claimant was found to be suffering a neuropathic (an abnormal) pain generated by damage to the trigeminal nerve. Claimant complained of constant pain, of drooling on the left side of his mouth, frequent sinus infections, receding gums on the left upper teeth, and pain in the left upper teeth when chewing. Dr. Murray noted surgical scars, but no drooling was observed, decreased sensation on the left side, and observed that the intensity of pain cannot be objectively measured, but is based subjectively on the patient's description. Dr. Murray prescribed amitriptyline, a medication for neuropathic pain, as well as continuing other pain medications, including hydrocodone (a narcotic) combined with Tylenol. At that time, Dr. Murray noted that neuropathic pain is not necessarily diagnosed until at least one year after the injury, to allow time for healing.

The second visit was November 6, 1997, more than one year from the injury and Claimant complained that his facial pain was unchanged, that he had pain on a constant daily basis, mainly on the left side of his face, described a pinching type of pain, with a reduction of sensitivity to touch, and ongoing pain in his upper left teeth with sensitivity to hot and cold as well as to touch. At that time, Claimant was taking hydrocodone three to four times a day for pain, as well as Tylenol. Dr. Murray was concerned that taking a narcotic medication on such a regular basis could lead to some dependence as well as diminishing its effectiveness. Another medication, Neurontin, was prescribed, in an attempt to reduce the use of narcotic medications. Dr. Murray opined that since more than one year had passed that the prognosis for recovery was extremely poor.

Claimant had a neurologic reevaluation on February 8, 2000, with Dr. Murray. Claimant had stopped taking the Neurontin and amitriptyline due to adverse side effects. Claimant continued to complain of persistent left facial pain and noted that weather changes made the pain worse. After examination, Dr. Murray concluded that the left infraorbital nerve of the maxillary division of the left trigeminal nerve was permanently affected, noting sensitivity to cold and touch in that area. Given the lack of improvement, he concluded that there was no likelihood of improvement, again reiterating his opinion of permanency, and the need for ongoing medication for pain. He continued to be concerned about dependency resulting from the daily use of narcotic painkillers, and recommended yet another medication (Trileptal), while continuing the hydrocodone with acetaminophen (Tylenol) at three or four tablets a day. He recommended follow-up with a physician specializing in pain management.

Dr. Murray last saw Claimant on September 19, 2001, and Claimant reported no significant change in his condition or with the pain he felt. The doctor felt that the complaints were described in a manner localized to the area of injury, and were consistent with neuropathic pain. Similarly, the complaints, of constant daily pain, tearing in the left eye, etc., were consistent with injury to this branch of the trigeminal nerve. In sum, Dr. Murray opined that the subjective complaints of pain were valid and credible, and described a constant baseline pain, exacerbated by touching, and heat or cold. The prognosis was that there was no chance for further spontaneous improvement.

Dr. Murray testified about reviewing certain medical reports from Dr. Eugene J. Gosy, the pain management specialist to whom Claimant was referred. He testified about Claimant's visits to Dr. Gosy on April 21, 2000, May 15, 2000, October 23, 2000, November 10, 2000, and last on June 22, 2001. He also testified about reviewing some reports of Doctor Elizabeth Ditonto, also a pain management specialist, from Claimant's visits on March 4 and May 24, 2001. Dr. Murray described different medications that were prescribed by these doctors, including Neurontin, amitriptyline, Percocet (a narcotic), Valium, Vistaril and Vicoprofen, indicating a very difficult period of time dealing with pain. A nerve block, a sphenopalatine ganglion block, a long Q-tip soaked in Novocain, and pushed up deep into the nose, was utilized but provided only temporary relief. There were other optional medications proposed, including narcotics such as methadone. Indeed, during his testimony at this trial, Claimant described the medications that he had taken that very day, including Valium and, also for pain, two tablets of Norco, which he testified affected his ability to understand the questions at trial.

Dr. Murray, in his expert opinion, concluded that Claimant sustained a permanent traumatic injury to the left maxillary nerve that will not resolve itself on its own, and that Claimant will need lifelong pain management.

The Defendant offered no medical testimony, and thus, other than cross-examination, the medical testimony proffered by Claimant is effectively undisputed. The report of Dr. Knapp,[2]
was offered by Claimant and admitted into evidence, but I decline to give much weight to his conclusions, specifically whether Claimant has reached maximum medical improvement, particularly because the doctor did not testify in person, and was not subject to cross-examination.

I find that the injuries sustained by Claimant are permanent, that he has suffered and will continue to suffer constant daily pain without change, and without any hope for improvement. I accept his testimony, as buttressed by his expert physician, that the pain can be exacerbated by cold weather, that it sometimes is worse and sometimes is better, but that it never disappears. I accept Claimant's description of discomfort and the sensation he feels, particularly in cold weather, where the metal plates are implanted on his face. At trial, Claimant testified that he psychologically felt and sensed the plates and screws in his face. He also testified that he felt that the plates are visible to himself and others.

I took judicial notice of Claimant's life expectancy of 36 years (PJI). He was 39 years of age at the time of the trial on damages. No damages are sought for future lost income or future loss of earning capacity. Similarly no claim is made for medical or pharmaceutical expenses, past, present or future. Thus the only claims for which recovery is sought are past and future pain and suffering. As aptly conveyed during the trial, the neuropathic pain that Claimant endures is subjectively described, and cannot be objectively measured. His complaints, as assessed by his medical expert, are credible and worthy of belief. I make no award for any purported psychological injuries or difficulties in sleeping, consistent with my rulings at trial.

The difficult task for me is to ascribe dollar values to pain, as subjectively described. These matters are more difficult in assessment because they do not have the objective reality of a missing digit or limb, or the disfigurement of a scar. The description of the injuries and surgical procedures, as well as the post-operative recovery, provide perhaps a more objective basis for valuation, but subjective descriptions of pain are more elusive for valuation purposes. Nonetheless, my task is to fairly and reasonably compensate Claimant for the conscious pain and suffering he has endured from the day of the assault on October 23, 1996 through and including the date of trial on damages on October 2, 2001, roughly a five year period, as well as 36 years of future damages for pain and suffering.

Claimant has offered
Arnold v County of Nassau, 89 F Supp 2d 285, vacated and remanded by the 2nd Circuit, 252 F3d 599, albeit not on the amount of damages, and Rangolan v County of Nassau, 51 F Supp 2d 236, affd 216 F3d 1073) for comparison on the issue of valuation of damages. The Defendant distinguishes the facts and injuries in each instance, noting more severe or greater injuries in the cited cases. Nonetheless those decisions, and the cases cited therein, provide some guidance in valuation.

In making the award below, I have considered Claimant's greater pain and discomfort during the first two years following the assault, with the surgery and the implantation of foreign devices in his nose and face, with the trauma of the assault, with the necessary adjustment to the constant pain, and with the ongoing experimentation of narcotic and non-narcotic pain medications, and adjusted my award accordingly. For the following three years until the damages trial, and the ensuing 36 years of Claimant's life expectancy, which seem to me to reflect an unchanging constant level of pain, I calculated my award at $9,000 per annum.

I award Claimant the sum of $87,000, for his past pain and suffering from the date of the assault to the date of the trial of damages, and the sum of $324,000, for his future pain and suffering from the trial on damages, based upon his life expectancy of 36 years. Claimant is entitled to interest from March 30, 2001, the date of signature of the liability decision herein (
Love v State of New York, 78 NY2d 540) at the rate of 9% per annum (see Auer v State of New York, 185 Misc 2d 254, mod, 283 AD2d 122). All motions not heretofore ruled upon are now denied.

The payment of future damages in excess of $250,000 is governed by the structured judgment provisions of CPLR article 50-B. A hearing pursuant to CPLR article 50-B will be conducted on March 27, 2002, at 10:00 a.m., and judgment shall be held in abeyance pending such hearing, unless Claimant makes an application for separate judgments for past damages and the first $250,000.00.

February 1, 2002
Rochester, New York

Judge of the Court of Claims

[1] At trial I reserved decision on the admissibility of Exhibits 30 and 31, which were enlargements of the original Polaroid pictures, as Defendant argued the "best evidence rule." No application for a continuance to allow for subpoena of the originals made, and, in the absence of the actual photographs and with nothing before me reflecting the unavailability of the originals, I now sustain the Defendant's objection.
[2] Defendant's independent medical examination and report (Exhibit 38).