New York State Court of Claims

New York State Court of Claims

MONTCLAIR v. THE STATE OF NEW YORK, #2001-013-511, Claim No. 93723


Damages for economic loss and pain and suffering totaling $2,596,269.00 are awarded for injuries to a woman's back and neck which required extensive, painful treatment and fusion surgery, prevented her from returning to work, and significantly interfered with her daily life.

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
BY: CHRISTOPHER WILES, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
October 18, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


In an earlier decision, I granted summary judgment in favor of Claimants on the issue of liability (Motion No. M-59932). A trial on the issue of damages followed and is the subject of this decision.
Claimant Donna Montclair[1]
was injured on August 10, 1994, when the automobile that she was driving, which was stopped at a traffic light, was struck from behind by a State-owned vehicle. At the time of the accident, Claimant was 34 years old, worked full-time for the United States Postal Service, and cared for her home and for her husband and four children.

Physical Condition

Immediately following the accident, Claimant was treated at an emergency room, where X-rays were taken, and released. On the day following the accident, according to Claimant, the pain in her head became severe, causing extreme nausea. She was seen by a physician's assistant, who gave her some shots and prescribed physical therapy. Claimant testified that during the two months she participated in physical therapy, the pain in her head, neck and back only became worse. In October 1994, she was seen by Dr. John Finkenstadt, who administered a series of 80 to 100 injections in her neck and back. She improved somewhat with this treatment but the gain was only minimal. Later on, she received more physical therapy, as well as chiropractic treatment, but whatever benefit or relief was gained by the treatment usually disappeared by the time she returned to her home. Dr. Finkenstadt considered Claimant to be totally disabled during this period of time. Claimant did not return to work and testified that she was unable to care for her family or to drive. Her husband had to drive her to each therapy or medical session.

Dr. Finkenstadt referred her to Dr. Thomas Masten, who attempted to treat Claimant's sciatic nerve pain with a caudal epidural injection, a procedure she described as very painful, but which brought relief only for several weeks. She was told, however, that this might be an indication that spinal fusion would help her. Subsequently, Claimant was seen by Dr. Fredrickson, who prescribed a pain management regimen and also performed three cervical blocks, with little effect. Dr. Fredrickson ordered an MRI of the lower back in August 1997, which showed that the vertebrae had "pulled away" in the area of the L5 disc. Fusion surgery was performed in January 1998. Claimant describes the pain following that surgery as "excruciating" and reports being essentially confined to a hospital bed for approximately four months. The surgery was successful, however, in removing the sciatic pain.

Claimant stated that her headaches continued to be a significant and disabling problem, and after the 1998 surgery, Dr. Masten tried an occipital block, which requires putting a needle into the base of the skull, to help with that problem. She underwent ten such procedures and four similar injections at a lower location, after which the headaches became less severe. During this time she was also treated for depression which she believed was caused both by the continual pain and some family problems. For a period of time in late 1998, her overall physical condition improved but by the following year it had deteriorated again. In October or November of 1999, she saw Dr. Kowalski for pain management and received some temporary relief from several injections in the area of her neck Shortly after that, her no-fault benefits ran out and she was unable to keep Dr. Masten as her physician or to take advantage of other procedures that might have helped. Her current physician, Dr. Duffy, has had some success in reducing the pain that she experiences in her shoulders.

Claimant described her current condition in the following manner: She continually experiences aching and weakness in her lower back with increasingly sharp pains as the day wears on. Eventually the pain becomes so strong that she gets nauseous. The pain spreads below the spine and she experiences muscle spasms in that area. Her neck hurts continually and frequently gets stiff all the way down to her mid-back. This can be helped somewhat by use of a heating pad and an electrical impulse unit several times a day. She experiences severe headaches approximately five times a month, focusing on the left temporal area. If she catches them early enough, she can avoid the worst of them. She feels "pounding" in her head most of the time. She has been unable to return to work at any time since the accident, and on some days is not able to get out of bed. Noise and bright lights make her symptoms worse. Claimant described her daily life as significantly limited, stating that she is unable to keep up with housework, misses her work and being with people, does not have guests come to the home, and is unable to get about or to work outdoors as she did in the past. She is unable to sleep well, waking two to three times a night. Claimant also stated that her relationship with her husband has been significantly diminished and that her children have had difficulty adjusting to the change in her and in their lives since the accident.

On cross-examination, Claimant was asked about injuries she suffered prior to the August 1994 accident. In 1981, her car swerved to avoid a deer and hit a mail box and rock. Although the car was totaled, Claimant stated that she suffered no injuries. In 1983, she was in a vehicle that was struck by another at an intersection. In this accident, her face hit the dash, bruising her nose and damaging her teeth; she reported that there were no other injuries and denied that she suffered from headaches afterwards. Another accident occurred in 1989, when her car encountered black ice. The car flipped over, and Claimant injured her tailbone and right shoulder. She received medical treatment for both injuries, used a donut to sit for almost a year, and was out of work for three months following that accident. She acknowledged that she experienced some neck pain after this accident and had also had some neck and shoulder stiffness for a period in 1988 when she was being stalked by a former boyfriend. Claimant was also involved in another automobile accident after 1994, when, in 1996, the car she was driving was hit by an oncoming car. There was some significant damage to the car, but Claimant states that she suffered no injuries. When asked about medical records that showed reports of headaches and stiff neck well before the accident giving rise to this claim, Claimant explained that during that period she was under a great deal of stress because of an abusive boyfriend. She acknowledged, however, that she had experienced migraine headaches at various times prior to the August 1994 accident.

Claimant's husband, Uriah P. Montclair, who has brought a derivative claim, testified that he and Claimant were married in 1992, two years before the accident in question. He described the change in their lives after the accident as being profound, characterizing his wife as "pain-racked" and no longer able to do things with him as a couple. Their physical relationship is practically non-existent because of the pain she experiences, and their emotional closeness has been greatly limited. He also reported that his wife is frequently withdrawn and has had problems dealing with her children. The family has attended counseling, apparently focusing on problems with some of the children.

Dr. John Finkenstadt, one of Claimant's treating physicians, described his specialty as "musculoskeletal pain management." One condition from which Claimant suffered, spondylolisthesis, a "slippage" of the vertebrae, may have existed prior to the accident but been asymptomatic. Trauma can cause such a condition to become symptomatic. Treatment would be the same, however, whatever the cause. By May 1995, Dr. Finkenstadt considered Claimant to be totally disabled.

Initially he tried conservative treatment but when that had little effect, he began exploring other possible options. Not considering Claimant to be a good surgical candidate, he opted for treatment by injection and with medication. The first injections in her back were begun in October 1995, and she had more than 50 all together. These resulted in modest improvement, particularly with the leg pain. Injection treatments on Claimant's neck began in November 1996. At one point, in January 1997, Dr. Finkenstadt referred Claimant for psychological treatment because she was depressed. Shortly thereafter, Claimant was transferred from his care to that of Dr. Masten.

In Dr. Finkenstadt's opinion, Claimant was totally disabled during the entire time she was his patient, from 1994 to 1997, and her physical problems were a direct result of the August 1994 accident. In reaching this determination, he was aware of a period of neck and low back pain in 1987 which was a reaction to medication and also aware that she had a history of migraine headaches seven to eight years earlier. In response to questioning, he acknowledged that he had had no information about Claimant's earlier accidents when reaching his conclusions and that lifting heavy objects, such as bags or cartons of mail, could cause some of the same types of problems.

Dr. Thomas Masten, who testified at a videotaped deposition, stated that he first saw Claimant on April 4, 1997 and commenced treatment for neck and back strain. He concluded that her low back pain was most likely caused by spondylolisthesis and possibly a bulging disc, and from her history he concluded that she had some irritation of the L5 nerve root which caused pain down the right leg. Dr. Masten continued Claimant on a total disability status.

Since traditional, conservative treatment (medications, injections, and chiropractic care) had produced only moderate improvement, Dr. Masten directed that an epidural block -- placing local anesthetic and cortisone in the spinal canal -- be used to try to reduce inflamation in her lower back. This was performed in May 1997 and effectively eliminated the low back pain right after the procedure but did not provide lasting benefit. Facet injections were then tried, with similar results. Because of her response to these procedures, they were able to narrow down the source of the pain, and Claimant was then referred to Dr. Fredrickson, an orthopedic spine surgeon, for a consultation. With respect to the head and neck pain, Dr. Masten decided to repeat the occipital blocks that had been somewhat successful in the past and to try a series of ligament injections. Surgery was not an option for resolving her neck pain.

By October 1998, Claimant reported that the fusion surgery had improved her low back pain but that she had recently had a flare-up in that area. Additional facet injections were performed at a slightly higher level. The neck and head pain was improved, but Claimant had begun experiencing some shoulder pain and numbness down her arms. Additional ligament injections were performed for that problem. A year later, in October 1999, Claimant complained of headaches but reported that the neck pain and shoulder pain was somewhat better. She also reported general low back pain that was less of an acute problem than the neck and head pain. Facet blocks provided some relief, and Dr. Masten also referred her to a pain management specialist, Dr. Kawalczyk. Masten's last visit with Claimant was in September 2000, at which time she had ongoing headache and head pain which radiated out to her shoulder and upper spine. A permanent block, or denervation, was being considered but it was at that time that Claimant's no-fault benefits ran out and she had to be treated by different physicians.

It was Dr. Masten's opinion that Claimant sustained a moderate to severe disability as a result of her August 1994 automobile accident. When he first saw Claimant, he considered her to have a total temporary disability, but after several years of treatment, based on her response or lack of response to such treatment, he revised this opinion to indicate a moderate to severe permanent disability, meaning that she had ongoing pain that was always going to interfere with and limit her movements. He acknowledged on cross-examination, that the spondylolisthesis may have been present, if asymptomatic, for years before her accident. He also acknowledged that he reached his conclusion about causation without knowing about her prior and subsequent accident history.

Dr. Bruce Fredrickson also testified by way of a videotaped deposition. He first saw Claimant in August 1997, after she had been referred by Dr. Masten. An MRI performed in 1995 had shown several abnormalities in her lower back, and the pain pattern she described was consistent with spondylolisthesis in the lower lumbar area of her spine. In his opinion, the spondylolisthesis was a pre-existing condition, possibly present as long ago as early childhood, but one which, according to Claimant's history, remained asymptomatic prior to the August 1994 accident. He acknowledged that other factors could, in theory, have caused the symptoms to begin.

Because conservative treatment had not been successful, he recommended and performed a spinal fusion of the lower vertebrae. This surgery was performed in January 1998, and her movements were severely restricted for three months following, with gradual resumption of normal movement after that time. In April 1999 she reported a significant decrease in her lower back pain. He also stated that there were some degenerative changes, and that there was some arthritis present in her lower spine as well. Both of these conditions probably predated the August 1994 accident. When asked if it was possible to tell what was causing the pain, whether it was from the 1994 accident or some prior condition or cause, Dr. Fredrickson stated that while some of the conditions certainly pre-existed the accident, "[t]he key here are the symptoms."

Economic Loss

Lost Earnings

Proof of lost earnings must be established with reasonable certainty focusing on Claimant's earning capacity before and after the accident (Clanton v Agoglitta, 206 AD2d 497, 499; Walsh v State of New York, 232 AD2d 939, 940-941). The value of lost fringe benefits may be included in calculating economic loss when there is evidence as to the nature and value of such benefits (Toscarelli v Purdy, 217 AD2d 815, 818-819).

As noted, Claimant has not worked since the accident that gave rise to this action. Her automobile liability carrier paid no-fault benefits up to the policy limit of $50,000.00 and a supplemental PIP policy paid $100,000 for medical expenses and lost wages. Zurich Insurance Company has filed a lien for these benefits (Exhibit 1). For wages lost beyond the three year no-fault period, Claimant's economist William C. Blanchfield, Ph.D., calculated that past lost wages equaled $174,950.00, while future lost wages would be $1,386,425.00. This latter figure was based on the assumptions that Claimant would have worked until she was 62 years old and that her fringe benefits would have been 30 percent of salary. Evidence established that at the time of her injury, Claimant received, in addition to the mandatory 8.8 percent (Social Security and Unemployment), a 5 percent contribution to a 401K fund, and health benefits valued at 20 percent. An inflation factor of 3 percent was used and is not challenged by Defendant.

Defendant quarrels with the length of anticipated work-life expectancy used by Blanchfield, asserting that it should be 15 years (or, until the age of 55) rather than 22 years (or, until the age of 62). The lower figure for work-life expectancy was taken from the Pattern Jury Instruction tables (Defendant's Post-Trial Memorandum, Exhibit A), but I note that that table is dated 1979-1980. It is unrealistic, I believe, to anticipate that, based on more recent trends, a woman who was a steady worker until the age of 34 would stop working as early as estimated by Defendant.

Defendant also contends that the fringe benefit figure is unrealistically high and, further, that Claimant should not be compensated for lost medical insurance benefits because those benefits continue to be available through her husband, who is also a Postal Service worker. It is true that Claimant currently receives the same health care benefits, through her husband, that she did prior to becoming disabled. However, what she lost was her own right to such benefits as a worker, which is simply more valuable than the secondary right to receive benefits through another person. I believe that this dilemma can be resolved, and recognition given to the fact that she might at some point have worked for an employer with less generous benefits, by reducing the fringe benefit factor to 20 percent, rather than 30 percent. This would result in the following award for this element of damages:

Lost Past Wages $ 134,577

+ 20% Fringe Benefits 26,915

$ 161,492

Lost Future Wages $1,066,481

+ 20% Fringe Benefits 213,296


Total lost wages award: $1,441,269

Medical Expenses

Defendant raises no objection to Claimant's demand for the amount of $100,000 to satisfy the Zurich Insurance Co. lien, representing additional PIP benefits paid out by that company. There was no evidence of anticipated future medical expenses.

Pain and Suffering

An award for pain and suffering is intended to provide compensation for all general, non-economic damages, including the effect the injury has had on the Claimant's ability to lead a normal life (McDougald v Garber, 73 NY2d 246; Lamot v Gondek, 163 AD2d 678). There can be no doubt that Claimant has suffered significant pain and significant limitation of her ability to enjoy life as a result of the August 1994 accident. Defendant's argument that some of her medical conditions pre-existed that injury and that she may well have sustained other injuries that contributed to her overall condition may be accurate, but it cannot get around the fact that prior to the August 1994 accident, Claimant was a full-time worker who was active in other areas of her life. If there were conditions that were asymptomatic before the accident and became symptomatic because of that event, the accident is of necessity a proximate cause of the resultant pain and limitation. The credible evidence establishes that Claimant experiences some pain and discomfort on a daily basis, with some days being much worse than others; that she is unable to engage in many of her former activities, both homemaking and recreational; and that her enjoyment of life has been significantly reduced. To reasonably compensate for these non-economic losses, I award the sum of $285,000.00 for past pain and suffering and $770,000.00 for future pain and suffering.

To summarize, Claimant is awarded $100,000 to satisfy the lien based on amounts paid out for past medical expenses and past lost wages; $161,492 for additional past lost wages; $1,279,777 for future lost wages; $285,000.00 for past pain and suffering; and $770,000.00 for future pain and suffering, for a total award of $2,596,269.

Based upon the testimony of Uriah P. Montclair, he is awarded the sum of $475,000.00 for his derivative claim: $275,000.00 for past damages and $200,000.00 for future damages.[2]

Judgment will be held in abeyance pending a hearing pursuant to CPLR Article 50-B, which will be scheduled as soon as practicable at the Court of Claims in Syracuse, New York.

All motions not heretofore ruled upon are hereby denied.

October 18, 2001
Rochester, New York

Judge of the Court of Claims

  1. [1]The claim of Uriah P. Montclair is derivative in nature and, unless otherwise indicated or required by the context, the term "Claimant" shall refer to Donna L. Montclair.
  2. [2]In the ad damnum clause of the claim, which was drafted in March 1996, a lower figure was demanded on Uriah Montclair's derivative cause of action. Since that time, of course, Claimant has undergone surgery and her limitations have been determined to be both significant and permanent. In the post-trial brief, counsel for Claimants requested that the Court award a "fair and equitable sum" in compensation on this cause of action, and I have considered that request to be one to conform the pleadings to the proof by increasing the ad damnum clause.