New York State Court of Claims

New York State Court of Claims

JORDAN v. THE STATE OF NEW YORK, #2001-013-505, Claim No. 89835


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 of the State of New York
Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 22 , 2001

Official citation:

Appellate results:

See also (multicaptioned case)


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's Proof

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 him.
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
(see, 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 47-O).
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[1] 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 unusable.
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 (see, 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 (see, Exhibit 38).
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 (see, 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 themselves:
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 wrist.

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.

see, Exhibit 43.)
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 (see, Exhibit 41). Claimant testified that he missed two and one-half to three months of work[2] following the 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 that complaint.
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) (see, 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 actually made.
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 Proof

Defendant's expert, Dr. Michael Elia, is a board certified orthopedic surgeon affiliated with Lawrence and St. Luke's/Roosevelt Hospitals (
see, 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 scars.


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 and suffering.

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 force.

Based upon the evidence presented, I hereby award Claimant the following damages:

Past Pain and Suffering $ 80,000.00

Future Pain and Suffering $ 30,000.00

Past Lost Wages $ 4,664.00

Scarring and Disfigurement $
TOTAL $124,664.00

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.


March 22 , 2001
Rochester, New York

Judge of the Court of Claims

  1. [1]According to Dr. Purcell, metacarpals are the bones that connect the fingers to the wrist bones and form the support for the palm.
  1. [2]Medical records from the Hand Rehabilitation Center of Westchester reveal that he returned to work in January 1994 (see, 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.