JORDAN v. THE STATE OF NEW YORK, #2001-013-505, Claim No. 89835
BELDEN C. JORDAN
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
PHILIP J. PATTI
SCHUMAN & SALLBY: ELIOT M. SCHUMAN, ESQ.
HON. ELIOT SPITZER
Attorney General of the State of New York
BY: DEWEY LEE, ESQ.
Assistant Attorney General
March 22 , 2001
See also (multicaptioned
In a decision and order filed on February 4, 2000, I found that New York State
Troopers Gary Titus and Robert Gregory used excessive force in the early hours
of September 25, 1993, when they were attempting to arrest Claimant after a
routine traffic stop. This decision follows a trial on the issue of damages
that I held on September 18, 2000 at the Court of Claims in White Plains.
Claimant testified that Officer Titus struck him with the nightstick ten or
more times during the September 25, 1993
incident, causing him to experience great pain. Most of the blows, he said,
landed on his left leg. But at least one blow struck the top his head and
rendered him unconscious. When he regained consciousness at Peekskill Hospital
later that day, his head, eyes, cheeks, hands, wrists, legs and ribs all hurt
Peekskill Hospital medical records (Exhibit 36) describe the injuries Claimant
sustained at the hands of the State Police. They reveal that he had a head
laceration, a contusion in the area of his left eyebrow, a right cheek
laceration, a large contusion on his left knee and leg, lesions on his right
knee, and bruises and lacerations on his wrists. He was also complaining of
lower left rib pain. X-rays taken four weeks later show that two of his ribs
had been broken
Exhibit 42 at p. 3).
Claimant's injuries are also
clearly visible in photographs taken (1) by the New York State Police on the
morning after the incident (see,
Exhibits 14C, D, E, H, K, I and
N); (2) by Claimant's fiancée several days later (see,
Exhibit 15, 16A-16E and 46B); and (3) by a professional photographer retained by
Claimant's counsel in October 1993 (see,
Exhibits 47-A through
Although Peekskill Hospital discharged Claimant on September 25,
Claimant's rehabilitation and recovery was just beginning. On October 6, 1993,
Dr. Ralph Purcell, a hand surgeon, evaluated him for symptoms of decreased
feeling, pain, stiffness and swelling in his left hand. Dr. Purcell testified at
trial that the symptoms were caused by multiple comminuted fractures which
affected three of Claimant's metacarpal bones
and by significant soft tissue trauma. He characterized the injuries as
"severe." In laymen's terms, the blows inflicted to Claimant's left hand during
the altercation had "shattered" the metacarpal bones, rendering the hand
The following day, October 7
, Dr. Purcell surgically realigned the metacarpal bones in Claimant's hand to
promote proper healing (see,
Exhibits 37, 43). The surgery
involved making several long incisions down the length of Claimant's hand
Exhibit 47-L), manually repositioning the fractured bones,
and then "skewering" them with Kirschner wires to hold them in position. To
prevent the wires from moving, Dr. Purcell left them protruding from the skin at
the point where Claimant's fingers connected to his hand (see,
Exhibits 47-L, 47-N and 47-O). They remained in his hand until November 30
While the wires still were in place and
the metacarpal bones were still healing, Claimant began an aggressive course of
physical therapy at the Hand Rehabilitation Center of Westchester
Exhibit 41). Dr. Purcell testified that he started Claimant
on hand therapy just one week after his surgery to minimize the risk of
uncontrollable stiffness or loss of function. The therapy sessions took place
three times per week. Each session required intensive manipulation of
Claimant's fingers and hand which, according to Claimant, produced a "hurting
pain." Dr. Purcell said that the therapy was very painful for Claimant because
of Claimant's broken bones and damaged nerves, and because the K-wires irritated
Claimant's hand whenever he had to move it.
Claimant's hand healed without
malalignment. However, Dr. Purcell's testimony and Claimant's chart suggest
that some problems lingered for months and years after the bones had mended
In May 1994, Dr. Purcell noted that Claimant's hand was still swollen and
stiff, that he was not able to extend his third, fourth and fifth fingers fully,
that he was experiencing slightly decreased sensation in his left index finger,
and he was not able to achieve full flexion of his wrist.
In October 1994, Dr. Purcell observed these symptoms again, and found
that Claimant was suffering from compensatory tendinitis and inflammation in his
left distal forearm and wrist.
In July 1995, Dr. Purcell found that
the incision sites and the sites where the wires had emerged from his hand were
tender and that Claimant had sustained a slight loss of motion in his left
In September 2000, Claimant reported continuing tenderness in
the areas of his surgical scars and wrist, stiffness in his wrist, loss of
strength in his hand and persistent deformities at two joints of his left ring
finger. Dr. Purcell determined that Claimant's wrist extension was limited to 40
degrees at maximum; a normal person has a 70 degree wrist extension capability.
At trial, Dr. Purcell testified that the deformity in Claimant
's ring finger resulted from scar tissue and adhesions which were caused by the
metacarpal fractures and by the treatment Claimant received to repair his hand.
In Dr. Purcell's opinion, the ring finger deformity was permanent. Dr. Purcell
also believed that the limitation on Claimant's ability to extend his wrist
would be permanent. He opined that Claimant had experienced, and would continue
to experience, difficulties with heavy or repetitive use of his hands in the
course of his performance of his job.
Dr. Purcell's testimony is supported
by Claimant's description of his occupational activity following the incident
and by his medical records from the Hand Rehabilitation Center of Westchester
Exhibit 41). Claimant testified that he missed two and
one-half to three months of work
incident. When he returned to his job at the Department of Transportation, he
found that his left hand was stiff and that its strength was "limited."
Claimant is right hand dominant, but he says that the injuries to his left
hand interfered with his ability to do his job. He testified that he found it
hard to shovel, cut grass or grasp the steering wheel of his truck. His left
hand was also very sensitive and tingly and was easily irritated or hurt if he
accidentally banged it against something while on the job. Although the
condition of his hand has improved since he initially returned to work, he says
he still experiences tingling and sensitivity in his left hand and still suffers
from diminished strength, and discomfort when grasping and grabbing. He no
longer works for the Department of Transportation, but in his new position with
the Thruway Authority, he performs largely the same work.
In addition to
the hand injuries, Claimant says that he also experiences numbness in his left
leg as a result of the incident. But he provided no medical evidence regarding
Claimant also submitted a neurological report from
December 1993 which concluded that he had a right "sensory branch neuropathy of
the right hand possibly
due to trauma" (emphasis added)
Exhibit 40). However, he voiced no specific complaints
about his right hand at trial.
Despite his prolonged absence from work
following the incident, Claimant did not suffer an interruption in his pay. He
explained that he continued to draw a salary by using accrued sick time and
vacation time. He asserts that the value of the sick time and vacation time he
had to use was $4,664.00.
Claimant also estimated that he paid $5,000.00
out of his own pocket for medical expenses that were not covered by his
insurance. However, he offered no written documentation of payments that he
Dr. Soley, a plastic surgeon, evaluated Claimant in 1993
and 1994 to determine whether he needed surgery for the wounds he received on
his scalp and his right cheek (see,
Exhibit 39-A). He apparently
concluded that the wounds would heal normally without surgical intervention.
However, Claimant still has visible scars in both areas. And his hair never
grew back over the scalp lesion.
Defendant's expert, Dr. Michael Elia, is a board certified orthopedic surgeon
affiliated with Lawrence and St. Luke's/Roosevelt Hospitals (
Exhibit J). He agreed with Dr. Purcell that Claimant
fractured the third, fourth and fifth metacarpal bones of his left hand, that
the fractures were comminuted, that his hand injury was "significant," and would
have been "fairly painful."
Dr. Elia also agreed with Dr. Purcell that Claimant had a slight loss of
dorsiflexion in three fingers and in the wrist of his left hand that he would
never regain. But he found that Claimant had good grip strength and that his
functional range of motion was excellent. He observed a difference in grip
strength between Claimant's left and right arms, and a difference in the size of
Claimant's left and right forearms. He felt that these were most likely
attributable to the fact that Claimant was right-handed, and not to the injuries
he sustained during the altercation. He also observed a fullness to Claimant's
hand, which he attributed to callous formation that was part of the normal
healing process. He saw no signs of swelling in the fingers. Nor did he see any
specific point of tenderness at Claimant's wrist or at the site of his
Initially, I find that the beating Claimant endured at the hands of the State
police and the broken ribs, bruises, and lacerations he sustained were both very
painful. These items comprise a significant portion of the award for past pain
Another sizable component of the past pain and suffering award is for the pain,
discomfort and limitations Claimant endured because of his broken hand and the
treatment he had to undergo to rehabilitate that hand. I found Doctors Purcell
and Elia both to be credible witnesses. I could discern few meaningful
differences in their testimony. Based upon their testimony and my review of the
medical records, I conclude that Claimant's hand injuries were significant when
they first occurred and that they caused him to suffer substantial pain and to
suffer marked limitations, through the time that he returned to work in December
1993 or January 1994. He continued to experience milder pain and discomfort
through approximately October 1994. But I find no evidence of significant pain
or limitation after that date.
The absence of such evidence affects my award for future pain and suffering.
There is no question that Claimant suffered a permanent loss in wrist and finger
flexion and will have to live with a deformed left ring finger for the rest of
his life. However, I was not persuaded that he will be substantially impaired
by those injuries or that he will experience significant pain or discomfort as a
result of them. In short, I agree, with Dr. Elia that Claimant has a mild
permanent disability in his left hand.
He also has a noticeable scar under his right eye and a less noticeable scar on
his scalp. Both of these, I conclude, are attributable to Defendant's excessive
Based upon the evidence presented, I hereby award Claimant the following
Past Pain and Suffering $ 80,000.00
Future Pain and Suffering $ 30,000.00
Past Lost Wages $ 4,664.00
Scarring and Disfigurement $
with appropriate interest from the date of the liability decision,
January 20, 2000.
There was no proof that Claimant will have any future medical expenses relating
to this incident. The evidence regarding his out-of-pocket medical expenses was
too imprecise and vague to be credited. Therefore, I am awarding him nothing
for past medical expenses.
All motions not heretofore ruled upon are now denied.
LET JUDGMENT BE ENTERED ACCORDINGLY.
March 22 ,
Rochester, New York
HON. PHILIP J. PATTI
Judge of the Court of
According to Dr. Purcell, metacarpals are the
bones that connect the fingers to the wrist bones and form the support for the
Medical records from the Hand Rehabilitation
Center of Westchester reveal that he returned to work in January 1994
Exhibit 41). A letter from Claimant's supervisor (Exhibit
45) states that he missed 11 weeks and 3 days of work and returned to the job on
December 15, 1993.