New York State Court of Claims

New York State Court of Claims

BROWN v. THE STATE OF NEW YORK, #2001-009-016, Claim No. 91420


The Court assessed damages in this claim of $2,198,828.00, and directed judgment to be held in abeyance pending an Article 50-B hearing.

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:
Defendant's attorney:
Attorney General
BY: Sugarman, Wallace, Manheim & Schoenwald, L.L.P.
Thomas J. Murphy, Esq., Of Counsel.
Third-party defendant's attorney:

Signature date:
September 17, 2001

Official citation:

Appellate results:

See also (multicaptioned case)

This is a claim for personal injuries arising from an accident which occurred on a walkway located on the ground of the New York State Fair in the Town of Geddes, Onondaga County, New York. The accident occurred on August 28, 1994, when claimant Emma Lee Brown fell as she was walking on an area designated as Belle Isle Avenue while attending the New York State Fair. By a decision dated December 23, 1998, this Court found the State 100% liable for the injuries suffered as a result of the accident. A trial limited solely to the issue of damages has been held and this decision will address the damages due to claimant.

The trial on damages consisted of six witnesses, all called by the claimant. Numerous exhibits were also received into evidence. The Court notes that the defendant did not call any witnesses and offered no evidence of any significance in rebuttal to the evidence submitted by claimant.

The witnesses for claimant consisted of the following: the claimant, Emma Lee Brown; Dr. Kenneth Reagles, a vocational rehabilitation expert; Dr. Jerry Miner, an economist; Charlene Sovocool, a fact witness; and also included the videotape testimony of two physicians, Dr. Lowell Garner and Dr. Bruce L. Greene, both of whom treated claimant for the medical condition of Reflex Sympathetic Dystrophy (RSD). As claimant's counsel appropriately points out in his post-trial brief, the State has failed to controvert claimant's position on her medical condition and her losses.

Following her fall, claimant was first treated at the State Fair Infirmary, and then at Cayuga Medical Emergency Room. She was referred to Dr. Greene, an orthopedist, for further treatment and evaluation. After several weeks of treatment, Dr. Greene began to suspect that claimant might be suffering from RSD, and he then referred claimant to the Pain Treatment Center at the University of Rochester. A lumbar block was performed at the center, which proved unsuccessful in relieving claimant's pain.

In 1996, claimant began treatment with Dr. Garner, a board-certified pain treatment specialist in Ithaca. Dr. Garner also believed that claimant suffered from RSD, and that she continues to suffer from that condition to this day.

Reflex Sympathetic Dystrophy was described at trial as a condition which can result from damage after a traumatic injury. It is generally characterized as a persistent burning pain in the affected extremity, out of proportion to any sign of ongoing tissue injury. Joints can become immobile due to swelling. The condition is now often referred to as complex regional pain syndrome.

In this case, the medical testimony describing claimant's condition, together with claimant's own testimony, conclusively established that as a result of the accident, claimant has suffered and continues to suffer from Reflex Sympathetic Dystrophy. As a result of this condition, claimant lives in constant pain and is continually required to take medication and undergo physical therapy. In addition, the credible evidence also established that claimant's depression is a direct consequence of this injury, and the RSD.

Prior to the injury the claimant was an energetic, hard-working individual who enjoyed life to the fullest. Her employment required a considerable amount of physical activity, and she also engaged in an active social life, including, among other things, physically demanding activities.

As a direct result of her fall and resulting injuries, claimant lost her job as a machine assembler at Emerson Power in Ithaca, New York, and she did not work again until 1997. Since that time, claimant has basically worked on a part-time basis, doing light housework at a sorority house. She finds this work to be difficult, but she has been able to accommodate her situation by establishing an efficient work manner that minimizes both her work time and her pain.

Dr. Garner, however, testified that due to the permanent nature of the RSD, he expects claimant's condition to slowly deteriorate over a period of time.

Dr. Garner further testified that at some point in the future, claimant may need surgical procedures to insert either a dorsal column stimulator or a dorsal column pump, to help control pain. With a dorsal column stimulator, the stimulator is implanted along the dorsal vertebral column, with an electric wire running through the torso to the leg. An electric current is then dispensed to stimulate the nerves in the leg. The other available procedure, the insertion of a dorsal column pump, would attempt to control pain by automatically dispensing pain-killing drugs to claimant's nervous system.

Although claimant admittedly has not made a final decision as to whether she will undergo either of these procedures, both are reasonably likely to be needed, in light of her present physical condition and the prognosis of further deterioration. It is the opinion of this Court that claimant has to this point in time not availed herself of either pain reducing apparatus due to the cost of each procedure.

Additionally, the cost of medications has increased to the point that the Court is of the opinion that claimant is not properly addressing her needs and should be compensated in a manner that will allow her to do so.

Testimony at trial also established that claimant will require future on-going and continued medical treatment, such as orthopedic and neurological testing and evaluation, radiological diagnostic studies, psychological counseling, and physical therapy, in addition to prescription medications.

The claimant, through her testimony and evidence, has indicated that her past out-of-pocket medical expenses amounted to $5,523.00. Testimony established that the anticipated cost for insertion of the dorsal column pump is $32,865.00. Evidence also established that other future medical and health related expenses, including the dorsal column stimulator, will amount to $259,602.00. These figures were uncontroverted at trial. The Court is in agreement with these figures and therefore finds that an award should be made to claimant in the amount of $297,990.00 for total medical expenses.

Further, although claimant is currently employed on a part-time basis, the condition renders her incapable of any full-time employment, either now or in the future. Dr. Reagles testified, based on her condition, that he did not expect claimant to be able to continue even her part-time employment for any extended period of time. Claimant presented evidence at trial to establish that her past lost wages and benefits amount to $110,184.00, her future lost wages and benefits will amount to $405,395.00, and lost pension payments from future employment total to $109,571.00. Additionally, testimony was offered at trial that future household services, necessary for claimant to enjoy an appropriate standard of living, will amount to $150,688.00. The amount of economic damage established at trial, not including the medical damages previously determined herein,, therefore totals $775,838.00. These damages were also uncontroverted by the defendant and as such, should and will be awarded to claimant herein.

The Court must also address the issue of damages for pain and suffering resulting from this accident. Claimant testified that she experiences constant pain in her left leg, varying in degree from a low level to an intense, intolerable pain. She testified that the pain increases as she attempts to walk for more than ten minutes, and that she walks with a limp. Dr. Garner, in his videotaped deposition, testified that her condition is permanent, and will only deteriorate over time. The Court was impressed with the candid nature of the testimony of claimant. The Court found her to be most credible and is of the opinion that this woman has suffered a great deal of pain in the past, and is also convinced that as a result of her condition, she will regrettably face in the future a deterioration of her health, and continued pain and suffering at some level regardless of the type, manner and extent of treatment she receives. The Court is convinced that claimant can never return to the lifestyle she enjoyed prior to the date of the accident, regardless of the type of treatment that she receives.

Accordingly, based upon the foregoing and the entire record, the Court finds claimant Emma Lee Brown entitled to an award as follows:
Medical Expenses $5,523.00 $292,467.00
Lost Wages and Benefits $110,184.00 $405,395.00
Lost Pension Benefits - - - $109,571.00
Household Services - - - $150,688.00
Pain and Suffering $250,000.00 $875,000.00
Total Award $2,198,828.00

The amount awarded herein shall carry interest from the date of the determination of liability on December 23, 1998
(see, Dingle v Prudential Prop. & Cas. Ins., Co., 85 NY2d 657; Love v State of New York, 78 NY2d 540).
Judgment will be held in abeyance pending a hearing pursuant to Article 50-B of the CPLR, which hearing will be scheduled promptly.

September 17, 2001
Syracuse, New York

Judge of the Court of Claims