New York State Court of Claims

New York State Court of Claims

IACAMPO v. THE STATE OF NEW YORK, #2001-009-105, Claim No. 86220


Synopsis


The Court awarded damages of $5,894,906.00 in this decision, including past loss wages, past medical expenses, past and future pain and suffering, past and future loss of consortium, and the costs of implementing a lifecare plan.

Case Information

UID:
2001-009-105
Claimant(s):
LUCA IACAMPO and FILOMENA IACAMPO, His Wife
Claimant short name:
IACAMPO
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
86220
Motion number(s):

Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY, JR.
Claimant's attorney:
EDWARD C. SCHEPP, P.C.
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General
BY: Costello, Cooney & Fearon, LLPRobert J. Smith, Esq., Of Counsel.
Third-party defendant's attorney:

Signature date:
December 28, 2001
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
In a decision rendered September 30, 1998, this Court determined that the defendant State of New York was 70% responsible for injuries suffered by claimant Luca Iacampo, in connection with an accident which occurred on September 24, 1992, at a work site on New York State Route 690 in Syracuse, New York. In that decision, this Court found claimant[1]
and the general contractor, Santaro Industries, Inc., each 15% responsible for the injuries suffered by claimant. A trial was held addressing the damages which were allegedly sustained by claimants, and testimony was heard on March 12 through March 15, 2001, and continuing on March 19 through March 21, 2001. This decision addresses the issue of those damages.
Claimant was struck by a vehicle while in the course of his employment as he attempted to access a work zone on New York State Route 690 westbound, in the vicinity of McBride Street in the City of Syracuse. After being struck by the motor vehicle, claimant was transported by ambulance to the Emergency Room at the State University of New York Health Science Center. Claimant was admitted and remained confined to the hospital for approximately six and one-half months following the accident, including 22 days in the intensive care unit.

Upon admission to the hospital, an exploratory laparotomy was performed, which showed that claimant had a fractured spleen, lung contusions, three broken ribs, and a pelvic fracture. Additionally, claimant had sustained open fractures to both legs, and most importantly, had fractured three vertebrae, including a T-11 burst fracture. A CT scan was taken, which revealed bleeding in claimant's brain, as well as a build-up of blood in his pelvic region.
The spinal injuries suffered by claimant have left him as a permanent, partial paraplegic, and he will essentially be confined to a wheelchair for the rest of his life. Hansen Yuan, M.D., an orthopedic surgeon and past Chairman of the Department of Orthopedic Surgery at University Hospital, operated on claimant and testified that claimant's spine had been "literally broken"[2]
, and was dislocated, which also caused an injury to, or partial tearing of, his spinal cord. Since part of the spinal cord remained intact, claimant has a partial range of motion, with limited motor and sensory function. Claimant testified that he can walk around his house with the use of a walker, while wearing braces on both legs, and can get from a seated position to an upright position under his own power. He does, however, need assistance in getting into the shower, and, at times, dressing himself. Because of the weather conditions in this area, claimant is essentially house-bound during winter months, though he can go outside of the house during the summer months. Claimant, by relying upon his upper body strength and utilizing handrails, can ascend the stairway in his home, but he requires assistance when he reaches the top of the stairs. The extensive damage caused by these spinal injuries has caused claimant to suffer from two distinct and identifiable forms of pain. These pains are referred to as "spastic pain" and "neurogenic pain". Dr. Rina C. Davis, a staff physician at the SUNY Spine Center, worked with claimant at the Center and testified that claimant suffers from both types of pain as a result of his injuries. She testified that neurogenic pain is caused by an injury to the spinal cord, and results in constant, chronic pain to claimant. Spastic pain, although also caused by damage to nerves in the spinal cord, disrupts the system of muscle control and causes an intense, gripping pain to claimant for several seconds to minutes every hour.
Testimony further established that in essence there is no realistic treatment available to eliminate these types of pain. In attempts to alleviate this pain, claimant was prescribed several types of medication, nerve blocks were performed, and he was given a "TENS" unit to wear. After these treatments proved unsuccessful, Mr. Iacampo had a dorsal column stimulator surgically implanted in his lumbar spine. While this did offer some initial relief, the pain experienced by Mr Iacampo continued, and it was determined that this device did not and would not significantly alleviate his pain.

A decision was therefore made by claimant's treating physicians that he should undergo the surgical implantation of a baclofen pump. This procedure was performed in October, 1997, in which the dorsal column stimulator was removed and the baclofen pump was inserted. The purpose of the pump is to provide for a constant delivery of the liquid medication known as baclofen. A catheter runs from the pump inside claimant's body into the intrathecal space in his spine, where the medication is delivered to help reduce the spastic pain suffered by claimant. Mr. Iacampo is required to have the baclofen pump refilled on a regular basis, and will be required to do so for the balance of his life. He receives the maximum possible dosage and notwithstanding that dosage, he continues to experience constant pain, each and every hour of each and every day. Further, from the medical testimony, claimant can expect to suffer from this pain for the remainder of his life.

The claimant also required an operation for the fusion of six sequential spinal vertebrae, in order to stabilize his spinal column. This fixation is permanent, and restricts his spinal motion. In addition, as a result of his confinement to a wheel chair, he will have to depend primarily on his upper body for bodily movement, which will of necessity subject his upper body to abnormal wear and tear.

Claimant has also experienced sexual impotency since the accident. Several attempts were made to correct this problem, all of which proved unsuccessful. Claimant was given the drug Viagra in the highest dose, which had no effect. He also tried MUSE, described as a substance which comes in a dispenser which is utilized to insert a small pellet through the opening of the penis in an attempt to cause an erection. This also proved unsuccessful. Finally, claimant tried a mechanical, battery-operated device, designed to artificially inflate the penis with blood. This too proved unsuccessful. The testimony confirmed that the spinal cord injuries suffered by claimant caused his sexual impotency.

Claimant also suffers from a disruption of bladder and bowel function. He must sit on the toilet to urinate. He also must periodically catheterize himself in order to empty urine from his bladder. His bowel dysfunction causes constipation, which necessitates medication which he will require for the balance of his life.

As previously noted, in addition to the injuries and conditions directly related to the spinal column and spinal cord injuries, claimant suffered orthopedic injuries. Complex, comminuted and compound fractures of both of Mr. Iacampo's legs were caused by the accident. Both legs required external cage fixations, with pins and bars. These fixations were kept on claimant's legs until January (left leg)and February (right leg) of 1993. At that time the external fixations were removed and internal medullar rods were surgically inserted in both legs. Unfortunately, Mr. Iacampo's problems in connection with his legs did not end at that time. He was readmitted to the hospital in November, 1993 because of the non-union and rotation of the surgically implanted rod in his right tibia. Surgery was performed and the original rod was removed and replaced with an intramedullary rod with proximal interlocking. In March, 1994, and September, 1994, claimant underwent additional surgical operations on his right leg, including bone grafts, removal of the intramedullary rod, and refixation.

As also noted at the outset of this decision, claimant fractured his pelvis, which also required surgery to insert a permanent internal plate and screw fixation. Claimant also sustained a fractured sacrum, massive internal bleeding, chest wall trauma causing contusions to his lungs, and a fractured spleen which was removed during surgery. As a direct result of all the injuries sustained by claimant, he was required to take regular and constant doses of various medications which were administered in an attempt to alleviate his constant pain.

Claimant has clearly established to the satisfaction of the Court the severity of the injuries suffered by him from this accident, and that he is permanently debilitated and will endure constant pain for the balance of his life.

Prior to the accident, Mr. Iacampo had been a hardworking, physical laborer for most of his life. He enjoyed socializing with his friends, working in his garden, and assisting his wife in and about their home. It is evident that he enjoyed a fine marital relationship with his wife Filomena, including conjugal relations. Simply put, Mr. Iacampo's life since the date of the accident has become one of constant pain and an inability to enjoy the most basic pleasures of life. Regrettably, the Court must conclude that this life-style will continue for the rest of Mr. Iacampo's life. Mr. Iacampo is unable to work in any gainful employment (notwithstanding the testimony of the defense witness who performed the independent medical examination on Mr. Iacampo), he is unable to drive, out of concern both for his own safety and the safety of others, and he must enter into each and every activity with extreme caution due to his constant pain, his paralysis, and need to labor over such basic human functions as eliminating his bodily wastes.

The Court observed Mr. Iacampo in the Courtroom, and including its review of the testimony and documents presented herein, concludes that he is a very proud, humble and determined individual who is not given to complaining about his condition. Nonetheless, he finds himself, at a relatively young age, facing the prospect of a lifetime of constant pain and restricted activities.

Similarly, claimant Filomena Iacampo faces the unenviable prospect of living the balance of her life with a spouse who can no longer provide her with many of the physical and emotional needs that are inherent in any marriage. Mrs. Iacampo has impressed the Court as a devoted and loving wife and companion for Mr. Iacampo. All indications are that she has given herself totally to assist her husband in his day-to-day struggles to exist under these most trying and painful conditions. She testified that Mr. Iacampo no longer desires to socialize, that he has great difficulty sleeping, that he is almost totally dependent on her for assistance and that she has had to assume all of the responsibilities which had been formerly undertaken by Mr. Iacampo prior to the accident. There can be no question that she has suffered a loss of consortium and further, in the Court's opinion, there can be no question that the balance of her life will be adversely affected by her husband's condition.

Following the trial on damages, counsel for the parties advised the Court that the parties had reached agreement on certain factual issues relevant to the determination of damages, as well as the actual dollar amount of certain elements of the damages suffered by claimants. The parties were also able to agree as to the need for, and costs of, several items necessary to implement a life care plan for Mr. Iacampo. These stipulated facts and dollar amounts are set forth in an "Agreement and Consent to Stipulate to Specific Facts Concerning Damages", received by the Court on June 20, 2001. The Court has accepted these stipulations of fact and, where appropriate, has incorporated them into this decision.

The parties stipulated that the amount of lost wages by claimant Luca Iacampo totaled $322,536.00, which loss occurred between September 24, 1992 and mid-September, 2000, and the Court accepts this figure. Claimant did not make any claim for lost future wages.

The parties also stipulated that the total amount of medical and indemnity payments made in connection with Mr. Iacampo's accident-related care, treatment and disability, as of March 9, 2001, was $678,593.48. Of this amount, $499,384.00 constitutes medical expenses.[3]

The parties also stipulated with regard to future damages that the value (including inflation) of claimant Luca Iacampo's lost capacity to perform future household services is $35,000.00.

Due to the permanent nature and severity of the injuries sustained by claimant, claimants' experts testified as to the need for a continuing life care plan for Mr. Iacampo, including periodic medical and diagnostic evaluations, therapeutic modalities, adaptive and mobility equipment, home health aide services, personal care commodities, and architectural modifications. As mentioned above, the parties, through the efforts of counsel, were able to stipulate both as to the need for, and cost of, several of these items.

With regard to the life care plan, (as well as to future pecuniary and non-pecuniary losses), the parties stipulated, and the Court so finds, that the future life expectancy of claimant Luca Iacampo is 16.4 years. The parties acknowledge that claimant Filomena Iacampo's date of birth is October 23, 1954, and that her life expectancy is properly measurable by reference to the life expectancy tables (females) set forth in the New York State Pattern Jury Instructions.

The parties also stipulated to a 4% annual inflation rate, to be applied to the cost of future health related goods and services.

While the Court has agreed with the parties as to the need for and cost of the stipulated items, several items of the proposed life care plan remain in dispute, and the Court will now address each of these items individually.

GLOVES: In his life care plan, claimants' expert indicated a need for four pairs of gloves per year, to protect the hands of Mr. Iacampo while using his wheelchair. In their respective post-trial briefs, however, the parties agreed to the need for two such pairs of wheelchair gloves per year, at an annual cost of $32.00. Over Mr. Iacampo's life expectancy of 16.4 years, the total cost, without inflation, is $525.00. With annual inflation stipulated at 4%, this total amounts to $722.00, which sum is hereby awarded to claimants.
PSYCHIATRIC CONSULTATIONS: Claimants' medical testimony indicated that Mr. Iacampo is at high risk to suffer depression in the years to come. In order to combat this potential problem, it is claimants' position that Mr. Iacampo should be afforded the opportunity to seek psychiatric consultations in the future, when the need arises, and claimants' expert recommended an allowance of four psychiatric consultations per year.
Testimony established, however, that Mr. Iacampo has not undergone any psychiatric consultations since shortly after the accident. Furthermore, even though Mr. Iacampo has taken prescribed medications which are considered anti-depressants, the medication had been taken to alleviate claimant's neurogenic pain, and not to combat depression. Claimant has maintained a positive outlook since his accident, despite his numerous medical problems and debilitating injuries. As claimant has not shown any desire to seek such psychiatric consultations in the approximately nine years since his accident, the Court is not convinced that claimant will pursue any such assistance in the future and, accordingly, makes no such award.

COMMODE: Under the life care plan proposed by claimants' expert, Dr. Reagles, a commode is included under the category of Adaptive Equipment and Assistive Devices. He also provides for a mobile shower\commode chair within his category of Mobility Equipment, and proposes a handicap accessible bathroom under his category of Architectural Modifications. When the architectural modifications are completed, Mr. Iacampo will not have a need for a portable commode, and during the interim period, the mobile shower\commode chair should be adequate for Mr. Iacampo's needs. Therefore, no award is made for the commode as proposed by claimants' expert under his category of Adaptive Equipment and Assistive Devices.
PERSONAL CARE COMMODITIES: Defendant contested the items proposed by claimants' expert, Dr. Reagles, under this category of his proposed life care plan, either as to need, frequency of need, and/or cost. The Court will separately consider each of the items proposed by claimants' expert.
Surgical Cream: Although there is no question the Mr. Iacampo will require lubricating cream in order to catheterize himself, he will not need a cream containing spermicide, at the cost proposed by claimants' expert. The Court therefore finds that an award of $50.00 per year for such surgical cream is appropriate. Over Mr. Iacampo's life expectancy of 16.4 years, the total cost, without inflation, is $820.00. With annual inflation of 4% factored, the total amounts to $1,129.00, which sum is hereby awarded.
Latex Gloves: The life care plan set forth by claimants' expert proposes four pairs of gloves per day. While the Court agrees as to the need for such gloves, it agrees with defendant's witness that these gloves can be purchased at a price far less than suggested by claimants' expert. The Court therefore makes an annual allowance for gloves of $108.00. Over Mr. Iacampo's life expectancy, the total cost, without inflation, is $1,771.00. With 4% annual inflation, the total cost is $2,438.00, which amount is hereby awarded.
Catheters: While there is no dispute that Mr. Iacampo will require the use of catheters over his remaining life, defendant has questioned the frequency of need, and the cost, of these catheters. The Court, however, agrees with the life care plan as proposed by Dr. Reagles, both as to frequency of need and cost, and that an award of $336.00 annually for catheters is appropriate. The total cost, over Mr. Iacampo's life expectancy, is $5,510.00, and with annual inflation of 4%, the total is $7,582.00, which amount is hereby awarded.
Suppositories: At trial, claimants' expert, Dr. Reagles, testified that the figure utilized in his life care plan was overstated, and that the correct figure projected to an annual cost of $163.00. The Court accepts this figure, which totals $2,673.00, without inflation, over Mr. Iacampo's life expectancy. With inflation at 4%, the total amount is $3,678.00, which sum is hereby awarded.
Insertion Tray: Although Dr. Reagles included insertion trays in his life care plan (consisting of lubricating jelly, a catheter, sterile gloves, and a cleansing pad), the contents, except for cleansing pads, have already been addressed and provided herein. Accordingly, the Court makes an award of $58.00 annually for cleansing pads. The total cost over Mr. Iacampo's life expectancy, without inflation, is $951.00. With 4% annual inflation factored, the total is $1,309.00, which amount is hereby awarded.
ARCHITECTURAL MODIFICATIONS: Based upon the nature of Mr. Iacampo's injuries, and the fact that he is now and will be permanently confined to a wheelchair, claimants' expert, Dr. Reagles, proposed in his life care plan that claimants' existing two-story home be replaced with a single floor residence, with modifications made to make the residence handicap accessible. Even though claimants have continued to reside in their existing home since the accident, the Court agrees that given Mr. Iacampo's physical disabilities, he should be provided with the means to acquire a new home, with handicap accessible features to meet his needs.
Although in his plan Dr. Reagles proposed a 2,500 square foot residence, he testified at trial that claimant's needs could be accommodated in a home of 2,100 square feet, the size of claimants' current home. Based on the testimony presented at trial, the Court finds the cost for such a home (2,100 square feet) to be $168,000.00. The Court adds $40,000.00 to this cost for handicap modifications, and $20,000.00 for the cost of a lot, for a total of $228,000.00. In their "Agreement and Consent", the parties stipulated that the current fair market value of claimants' residence is $103,300.00, and the Court accepts this figure. Accordingly, the Court makes a net award for Architectural Modifications of $124,700.00.

Based upon the above findings, together with the items stipulated to by the parties in their "Agreement and Consent to Stipulate to Specific Facts Concerning Damages", the following schedule represents the monetary awards made by this Court as to each designated item of the life care plan:

Category Total Years, Annual Costs, Without Inflation, With 4% Inflation
  1. PERIODIC EVALUATIONS/MEDICAL:
Family physician*[4]
1.0 $260.00 $260.00 $260.00

1.0 130.00 130 135

14.4 65.00 936 1,334
SUB- TOTALS: $1,326 $1,729
Orthopedic* 16.4 $ 190.00 $3,116 $4,287
Urologist* 16.4 170.00 2,788 3,836
Psych. Eval.* 1.0 650.00 650 650
SUBTOTALS: $6,554 $8,773

PERIODIC EVALUATIONS/DIAGNOSTIC:
Urologist* 16.4 $ 535.00 $8,774 $12,072
Blood Anal.* 16.4 230.00 3,772 5,190
Other Lab* 16.4 140.00 2,296 3,159
Radio.Studies* 16.4 220.00 3,608 4,964
Wheel Eval.* 16.4 18.00 295 406
SUB- TOTALS: $18,745 $25,791
  1. THERAPEUTIC MODALITIES:
Medications* 16.4 $ 4,020.00 $ 65,928 $ 90,711
Baclofen Pump* (Surgery) 16.4 2,725.00 44,690 61,489
Baclofen Pump* 16.4 1,780.00 29,192 40,166
Pump Refill* 16.4 15,600.00 255,840 352,013
SUB- TOTALS: $395,650 $544,379
  1. ADAPTIVE EQUIPMENT & ASSISTIVE DEVICES:
Hospital Bed* 16.4 $ 188.00 $3,083 $4,242
Reacher* 16.4 18.00 295 406
Gloves 16.4 32.00 525 722
SUB- TOTALS: $3,903 $5,370
  1. MOBILITY EQUIPMENT:
Manual Wheel* 6.7 $ 1,041.00 $ 6,992 $ 7,844
9.7 446.00 4,319 6,703

Elec. Scooter* 6.7 824.00 5,535 6,209
Elec. Wheel* 9.7 1,581.00 15,309 23,763
Wheel Cushion* 16.4 168.00 2,755 3,791
Wheel Access.* 16.4 29.00 476 654
Whee1 Maint.* 16.4 225.00 3,690 5,077
AFO* 16.4 305.00 5,002 6,882
Fore Crutches * 16.4 29.40 482 663
Wa1ker* 16.4 57.80 948 1,304
Mobile Shower* 16.4 107.60 1,765 2,428
Trans. Boards* 16.4 25.20 413 569
Fu1l-sizeVan* 16.4 4,847.00 79,491 109,372
Van Maintenance*16.4 565.00 9,266 12,749
SUB-TOTALS: $ 136,443 $188,008
  1. HOME HEALTH AIDE SERVICES:
Aide Services* 6.7 $29,565.00 $198,577 $222,763
9.7 49,275.00 477,148 740,615
SUB- TOTALS: $675,725 $963,378
F. PERSONAL CARE COMMODITIES:
Surgical Cream 16.4 $ 50.00 $ 820 $1,129.00
Latex Gloves 16.4 108.00 1,771 2,438.00
Catheters 16.4 336.00 5,510 7,582.00
Suppositories 16.4 163.00 2,673 3,678.00
Cleansing Pads 16.4 58.00 951 $1,309.00
SUB-TOTALS: $11,725.00 $16,136.00
G. abARCHITECTURAL MODIFICATIONS:
Modifications 1 $124,700.00 $124,700.00 $124,700.00

OVERALL TOTALS:
$1,878,264.00


Upon hearing the proofs and reviewing all of the documentary evidence which was produced at the damages trial, it is apparent that claimant Luca Iacampo suffered severe debilitating injuries which were painful in nature and which will continue on a chronic, debilitating and painful manner for the remainder of his life. Quite simply, this individual is fortunate not to have died as a result of the numerous severe injuries which he suffered as a result of this tragic accident.

In addition to the above awards, and after careful consideration of all the factors which have impacted upon the life of claimant Luca Iacampo, the Court therefore makes the following awards:

Claimant Luca Iacampo is entitled to the amount of $1,200,000.00 for past damages for pain and suffering.

Claimant Filomena Iacampo is entitled to the sum of $200,000.00 for past damages for loss of consortium.

Claimant Luca Iacampo is entitled to the sum of $2,500,000.00 as damages for future pain and suffering.

Claimant Filomena Iacampo is entitled to the sum of $300,000.00 as damages for future loss of consortium.
Based upon the foregoing, the awards made herein can be summarized as follows:

Past Lost Wages $322,536.00
Past Medical Expenses 499,384.00
Lost Capacity to Perform Future Household Services 35,000.00
Life Care Plan 1,878,264.00
Past Pain and Suffering (Luca Iacampo) 1,200,000.00
Past Loss of Consortium (Filomena Iacampo) 200,000.00
Future Pain and Suffering (Luca Iacampo) 2,500,000.00
Future Loss of Consortium (Filomena Iacampo) 300,000.00
Sub-Total: 6,935,184.00
Less: Comparative Negligence (15%) 1,040,278.00
TOTAL AWARD
$5,894,906.00

As set forth above, this Court has reduced the award made herein, including the loss of consortium awards, by the amount of comparative negligence previously found by this Court.

Furthermore, the Court notes that the parties have agreed that all issues related to collateral source payments, periodic payments, and lien satisfaction requirements have been reserved, pending this decision.

The amount awarded herein shall carry interest from the date of the determination of liability on September 30, 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.


December 28, 2001
Syracuse, New York

HON. NICHOLAS V. MIDEY, JR.
Judge of the Court of Claims




[1] All references to claimant, unless otherwise indicated, are to Luca Iacampo.
[2] Unless otherwise indicated, all references and quotations are taken from the Court's trial notes.
[3] The portion of said payments representing medical payment was set forth in defendant's post-trial brief (see page 36 of said brief, footnote #1).
[4] Those items marked with an asterisk (*) were stipulated to by the parties.