SILVERMAN v. THE STATE OF NEW YORK, #2001-019-014, Claim No. 97368
Claimant awarded total sum of $375,000.00 after 50% reduction per liability
determination for partial loss of thumb and 3 fingers including $125,000.00 for
past pain and suffering; $200,000.00 for future pain and suffering; and
$50,000.00 for future lost income.
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
FERRIS D. LEBOUS
SANDERS, SANDERS, BLOCK & WOYCIK, P.C.BY: Howard Eison, Esq., of counsel
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: James E. Shoemaker, Assistant Attorney General of counsel
July 9, 2001
See also (multicaptioned
In a Decision by the Hon. Jerome F. Hanifin, filed December 29, 2000, the State
of New York (hereinafter "State") was found 50% liable for the personal injuries
suffered by Claimant, Eugene Silverman, on or about January 10, 1997. A trial
on the issue of damages was heard by this Court on April 25, 2001.
The underlying incident, which resulted in injury to the Claimant herein,
occurred on January 10, 1997, at approximately 9:45 a.m., at the Elmira
Correctional Facility. Claimant at that time was in a carpentry class as an
inmate at said facility and was operating a Powermatic model number 72 table saw
which had no safety guard. As a result of operating this equipment in less than
perfect condition, Claimant sustained serious and permanent injuries to his
dominant left-hand consisting of the amputation of approximately half of his
thumb, ring, middle, and index fingers. At the time of the accident the
Claimant testified that he saw his severed fingers on and around the table saw
and bone protruding from the finger stubs on his left hand. He placed his hand
in a rag and picked up the remaining portion of his severed fingers. However,
Claimant could not find the portion of his thumb that had been amputated. He
immediately went to the infirmary
, not from the pain but from the loss of his "hand". Claimant was then taken
from the infirmary to Arnot Hospital and then flown to Strong Memorial Hospital
in Rochester. By the time of his arrival at Strong Memorial Claimant was in
extreme pain and begging for pain relief. Surgery to reattach the amputated
digits was attempted at Strong Memorial, but was either unsuccessful or not
possible. Claimant testified that his hand was simply "closed up", stitching
closed the wound to the thumb and the three fingers. Claimant was heavily
medicated immediately after surgery for a number of days and subsequently
returned to Elmira Correctional Facility. Claimant testified that he was on
morphine and Demerol while hospitalized. After discharge from the hospital and
his return to the Elmira Correctional Facility, only codeine was administered.
Claimant further testified that for the three weeks to a month immediately
following the surgery he suffered constant pain in and around his left
To date, Claimant states he suffers pain every day and that his hand is
extremely sensitive to cold. In fact, in colder weather Claimant's pain
increases. The nerve damage to the remaining stubs on his left-hand result in
burning, swelling and bloating of the stubs. Claimant also has pain in the
remaining portions of the thumb and fingers which he described as "pins and
needles", similar to when a limb or finger falls asleep. This numbness is also
a constant source of pain. Claimant further testified that while the stubs of
the left hand are very sensitive to pain, they are less sensitive to touch.
Claimant's little finger is intact and he is able to touch the thumb tip to the
tip along the sides of the index, middle finger, as well as the ring finger.
However, he is unable to touch the thumb tip to the little finger. By way of
written report (Cl. Ex. 4), Claimant's physician Dr. Kenneth M. Kamler, confirms
the patient's diagnosis as multiple amputation of the digits of the left hand
including the thumb, index, middle, and ring finger, with residual pain,
stiffness and loss of function. Obviously to his physician, and to the Court,
his condition is permanent and any future prognosis is poor since "the injury is
extremely severe and there is no way to reconstruct his hand." (Cl. Ex. 4, p 2).
In his physician's opinion this results in a permanent partial disability of the
Claimant as a result of the severe injury to his dominant left hand.
By way of background information, the Claimant is a 48-year-old divorced male
who currently resides in Brooklyn, New York with his 62-year-old cousin. He has
a mother dying of cancer and has one son age 19. Claimant testified that he
graduated from Devereaux High School in Devon, Pennsylvania in 1971. Claimant
candidly testified that he has been incarcerated for much of his adult life on
drug related charges and that prior to incarceration he was a heroine addict.
He still suffers from some drug related "problems" and has been on methadone
treatment since the summer of 2000. He sees a therapist two to three times a
week for support. Claimant also testified he is one credit short of a
Bachelor's Degree in Psychology which he plans to complete within the next year.
Claimant further testified to attending Skidmore College, Maras College and
Rutgers University in the past, but no transcripts or other proof of attendance
at any of these institutions was ever presented to the Court.
Mr. Silverman currently has very limited use of his dominant left hand. For
instance, he is unable to type and writes very poorly with his left hand. He
has been unable to retrain himself to write with his right hand. Further,
Claimant has difficulty carrying objects since he has no grip with his left
hand. Also, the injury has made routine personal activities, such as buttoning
clothing, tying shoelaces, and personal hygiene very difficult. Claimant cannot
use a hammer, screwdriver or other tools with his left hand, and the injury
impairs his ability to cook, clean and perform other simple household chores.
In addition to the physical aspects of the disability, Claimant testified that
he is emotionally distraught as well. He feels his social life has been
impacted with regard to the injury, particularly in the area of dating women.
Moreover, Claimant's love for and ability to play the guitar proficiently have
been impaired and, in all practicality, lost forever. Claimant stated he is
receiving treatment from a psychiatrist for agoraphobia and he currently takes
the anti-anxiety medication Xanax for panic attacks and Vicodin as a pain
medication. He also testified to taking blood pressure medication. The Court
also noted at trial that the Claimant suffers from tremors in both hands which,
upon inquiry, Claimant could not explain. In sum, Claimant established that
this injury impacts all aspects of his daily living and impacts his emotional
well being as well.
Claimant called Ms. Robin David-Harris, a Vocational Economic Analyst, to
testify on Claimant's behalf regarding loss of future wages. After reviewing
Claimant's history of substance abuse and sciatica, Ms. David-Harris made a fair
determination that these prior disabilities would most likely have categorized
Claimant as an average disabled person. However, based upon the injuries
sustained as a result of this accident, Ms. David-Harris opined that Claimant
now has an additional severe disability resulting in "his level of occupational
disability [having] been further reduced to that of a severely disabled person."
(Court Ex. 1, p 3). Generally, the witness testified that a person with a
permanent disability will suffer a lifetime loss of expected earnings, because
they earn less money than their non-disabled counterparts, as well as a
reduction in their work life expectancy. Ms. David-Harris' report concludes
that these two factors combine to produce measurable economic damage in the form
of reduced lifetime earnings. Based upon the foregoing, Ms. David-Harris
concluded in her report that Claimant's pre-injury earning capacity is best
represented by the earnings that accrue to average disabled males or $21,521 per
annum expressed in 2001 dollars. Moreover, Claimant's
work life expectancy is most like that of an average disabled
male with 1 to 3 years of college or 6.10 years with lifetime earnings plus
fringes of $166,723.19.
further testified that Claimant's post-injury
earning capacity is best
represented by earnings that accrue to severely disabled males, or $17,416 per
annum expressed in 2001 dollars. Additionally, his post-injury work life
expectancy as a severely disabled male with 1 to 3 years of college is only 1.1
years or lifetime earnings plus fringes of $24,330.15. As such, Ms.
David-Harris calculated, in present value, Claimant's loss of future earnings as
$166,723.19 (pre-injury earnings capacity plus fringes) minus $24,330.15
(post-injury earning capacity plus fringes) for a total future loss of lifetime
earnings of $142,393.04. (Court Ex. 1).
DAMAGESA. Medical costs and
No proof was offered at trial as to medical expenses incurred by Claimant as a
result of this injury. Accordingly, the Court makes no award to Claimant for
any medical costs or expenses associated with his accident of January 10, 1997,
and assumes that all medical expenses were in fact borne by the State as a
result of Claimant's incarceration at the time of injury.
B. Pain and suffering
The term "pain and suffering" has previously been utilized to encompass all
items of general, non-economic damages. (
McDougald v Garber
, 73 NY2d 246; Lamot v Gondek
, 163 AD2d 678).
An award for pain and suffering should include compensation to an injured person
for the physical and emotional consequences of the injury. In determining the
amount to be awarded the Claimant for these physical, emotional, and other
"non-economic" damages, the Court may properly consider the effect these
injuries have had on the Claimant's capacity to lead a normal life. Based upon
the foregoing, the Court finds that the Claimant is entitled to judgment against
the State on his claim for pain and suffering, both past and future.
1. Past pain and suffering
The Court concludes from the testimony and proof elicited at
trial that Claimant endured moderate to severe amounts of past pain and
suffering. First and foremost, Claimant sustained a painful and traumatic
injury on January 10, 1997, when while using a table saw he accidently amputated
half of his thumb, as well as half of his index, middle and ring fingers. In
addition to the pain of the amputation and the traumatic nature of the accident
itself, Claimant underwent surgery that same day to repair and stabilize these
amputated fingers that could not be reattached. Associated with that surgery
was a period of approximately 3 to 4 weeks of painful convalescence,
necessitating medication on a regular basis. Also, after returning to the
general population at Elmira Correctional Facility, Claimant was periodically
treated with codeine for pain relief. Additionally, the Court is satisfied that
Claimant experienced slight to moderate pain from the date of injury to the date
of trial herewith in a manner consistent with his testimony.
In light of the foregoing, the Court awards Claimant the amount of
for past pain and suffering, reduced by 50% to the sum of $125,000.00 in
accordance with Judge Hanifin's liability determination.
2. Future pain and suffering
The Court was impressed with the testimony of Claimant and is satisfied from
the medical report of Kenneth M. Kamler, M.D., that Claimant's injuries are
permanent in nature and believes that the Claimant will suffer some unresolved
pain into the future. The Court finds that this unresolved pain will, at best,
be mildly debilitating although permanent in nature. The Court further finds
that the numbness and tenderness in the amputated fingers will remain mildly
debilitating and the source of intermittent discomfort for the balance of
Claimant's natural life which is 30
Moreover, the Court is satisfied that
Claimant will, on a daily basis, struggle through most all of the routine
activities which we with normal dexterity take for granted. Additionally,
Claimant should be compensated for the loss of enjoyment of life, particularly
impairment of his love for playing the guitar, which has been forever denied as
a result of this injury. In addition, the Court feels that Claimant should be
compensated for the disfiguring nature of the injury, specifically the loss of a
portion of a thumb and three fingers which is visible to the public at large and
can be the "subject of pity and scorn." (Carson v DeLorenzo
, 238 AD2d
790, 792, lv denied
90 NY2d 810). Based upon the foregoing the Court
awards Claimant $400,000.00 for future pain and suffering, loss of enjoyment of
life, as well as the permanent appearance of a disfigured left hand, reduced by
50% to the sum of $200,000.00 in accordance with Judge Hanifin's liability
determination.C. Loss of Income
As a general
principle a claimant is entitled to be reimbursed for any earnings loss caused
by the defendant's negligence from the date of the accident to the date of
trial. Additionally, the Court may make an award for loss of future earnings
if Claimant has suffered a reduction in his capacity to earn money in the future
as a result of the same negligent act. (36 NY Jur 2d, §§ 69 &
198). In calculating lost earnings, the Court may consider the value of fringe
benefits associated with Claimant's position, assuming there is evidence
presented as to the nature and value of such benefits. (Toscarelli v
, 217 AD2d 815, 818).
1. Past lost earnings
Proof of past 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). Moreover, it is Claimant's burden to establish his own
lost "actual" past earnings by submitting appropriate proof and documentation.
In the instant case, there was no evidence presented to the Court on the issue
of past lost earnings, nor was there testimony offered regarding earning
capacity before the accident. Since Claimant offered no proof regarding past
lost earnings, the Court makes no award to Claimant relative to the same.
2. Loss of future earnings
Loss of future earnings must be established with reasonable
certainty focusing, in part, on Claimant's earning capacity both before and
after the accident. (Clanton v. Agoglitta, supra,
206 AD2d 497, 499).
However, an award for loss of future earnings may not be based upon sheer
speculation. (Eichler v City of New York
, 196 AD2d
In the instant case, neither Claimant nor the State argues that Claimant has
any prior work history. As a result of substance abuse and sciatica, it appears
that Claimant never worked in any gainful employment for any period of time
sufficient to establish a work history from which one might gauge future earning
capacity. Nevertheless, the Claimant through his Vocational Economic Analyst,
Ms. David-Harris, has skillfully attempted to demonstrate that he is entitled to
an award for future loss of lifetime earnings. First, Claimant testified that
he performed numerous work activities while institutionalized, including but not
limited to cooking, writing computer programs, light construction work, as well
as working in the library, commissary and running the newspaper. Next, Ms.
David-Harris testified that she was able to use these unpaid work assignments as
a basis for predicting future work earnings. In other words, although Claimant
concedes that he does not possess an actual work history outside of prison, he
argues that loss of future earnings can be predicted based upon the jobs he
performed while incarcerated. Moreover, Claimant argues that this Court should
accept the testimony of Ms. David-Harris since her opinions went basically
unrebutted by the State nor did the State object to her qualification as an
vocational economic analyst expert in the first instance. Finally, Claimant
contends that an award of future lost earnings would not be based upon
speculation relying on
Sierra-Dawn La Fountaine v Franzese
, __ AD2d ___ , 724 NYS2d 514 [an
award of future lost earnings to a child upheld based on child's medical,
psychological and educational history without actual work history].
To the contrary, the State urges this Court to reject Ms. David-Harris'
testimony and report relative to future loss earnings citing
Novko v State of New York,
Ct Cl., March 14, 2000, Hanifin, J., Claim No.
98710, and Georgiadis v State of New York
, 106 AD2d 706. However, the
Court finds the State's reliance on these cases misplaced inasmuch as the
expert's testimony in Novko
was suspect, while the dispositive issue in
was the credibility of the witnesses; or rather the lack
As previously stated, an award for future lost earnings may not be based upon
speculation, however, a "[r]ecovery for lost earning capacity is not limited to
a [claimant's] actual earnings before the accident...and the assessment of
damages may instead be based upon future probabilities (
, Grayson v Irvmar Realty Corp
., 7 AD2d 436, 439)."
(Kirschhoffer v Van Dyke
, 173 AD2d 7, 10). Here, Claimant presented
unrebutted testimony of his pre-accident ability to perform unskilled labor,
albeit while incarcerated. Ms. David-Harris also presented unrebutted testimony
of her calculations of extrapolating Claimant's future earnings potential from
his unpaid work history as an average disabled person (pre-accident) compared to
a severed disabled person (post-accident). To this extent, the Court accepts
the unrebutted testimony of Ms. David-Harris to support the conclusion that
Claimant is entitled to an award for future lost earnings.
However, in this Court's view, there are certain considerations missing from
Ms. David-Harris' calculations preventing the Court from accepting her final
valuation. More specifically, Ms. David-Harris did not testify that she made
any adjustments in her calculations to factor in Claimant's criminal history,
poor work history to the extent he never continually held a job when not
incarcerated, and the likelihood of recidivism. (
Lowe v State of New York
, 194 AD2d 898; White v State of New York
167 AD2d 646). Additionally, the Court notes that Claimant did not testify
about any attempts, successful or not, to find any of these types of jobs since
being released from prison. Accordingly, while the Court accepts the testimony
of Ms. David-Harris, in part, as it is entitled to do (Desnoes v State of New
, 100 AD2d 712; People v Klumbach
, 202 AD2d 1009), the Court
finds that an adjustment of Ms. David-Harris' calculations is in order to
recognize the above-referenced factors. Consequently, the Court finds that the
sum of $100,000.00 is an appropriate figure to represent Claimant's loss of
future earnings and benefits, which must be reduced by 50% to $50,000.00 in
accordance with Judge Hanifin's liability determination.
Since liability was apportioned 50 percent attributable to
Defendant and 50 percent attributable to Claimant, the Court finds that the
credible evidence establishes that Claimant is entitled to an award for damages
Full Value 50% to Claimant
Medical costs and expenses: $0 $0
Past Pain and Suffering: $250,000.00 $125,000.00
Future Pain and Suffering: $400,000.00 $200,000.00
Past Lost Income: $0 $0
Future Lost Income: $100,000.00
Total: $750,000.00 $375,000.00
Accordingly, Claimant is awarded the total sum of $375,000.00.
Interest on the award is to run from December 20, 2000, the date that liability
was determined by the Hon. Jerome F. Hanifin.
All motions on which the Court previously reserved or which not previously
determined at trial, are hereby denied.
LET JUDGMENT BE ENTERED ACCORDINGLY.
July 9, 2001
HON. FERRIS D. LEBOUS
Judge of the Court of Claims
Unless otherwise indicated, all quotations are
from the Court's trial notes.
Ms. David-Harris calculated fringe benefits at
27% of salary which she claimed is the statistical average contributed by
employers to American Worker's Benefits.
Claimant was 48 years old at the time of trial
with a remaining life expectancy of 30 years. (1B PJI3d, Appendix A, p