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
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
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
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
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
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,
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
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
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