New York State Court of Claims

New York State Court of Claims

LARSON v. THE NEW YORK STATE THRUWAY AUTHORITY, #2002-010-042, Claim No. 96629


Synopsis


Damages awarded on knee replacement and related injuries.

Case Information

UID:
2002-010-042
Claimant(s):
STEVEN LARSON AND JOYCE LARSON
Claimant short name:
LARSON
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
96629
Motion number(s):

Cross-motion number(s):

Judge:
Terry Jane Ruderman
Claimant's attorney:
SACKS & SACKS, ESQS.By: Howard Borowick, Of Counsel
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General for the State of New YorkBy: Vincent Cascio, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
July 30, 2002
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
In a Decision dated March 22, 2001, and filed March 27, 2001, this Court determined that defendant was 100 percent liable for the personal injuries sustained by Steven Larson, a 46 year old iron worker (claimant),[1] when, on June 9, 1997, he was injured at a construction project on the Tappan Zee Bridge. Claimant has been in the Iron Workers Union for approximately 20 years and all of his employment positions have involved physical labor. Claimant is married and has six children. This Decision pertains to the issue of damages.
Claimant testified that the accident occurred when he was assisting in docking a barge. During the process, claimant fell and he landed on his right leg which was bent behind him. Claimant felt a sharp ripping pain and could not straighten his leg without the use of his hands. He screamed for five to ten minutes until co-workers came to his assistance. Louis Secunda, the foreman on the job, drove claimant for one and one half hours to Horton Hospital. At the hospital, claimant was given pain medication, crutches and an immobilizer for his leg. Four days later, Dr. Episalla operated on claimant's leg to repair a quadriceps rupture.
Following surgery,
claimant recuperated at home in a bledsoe brace. His activities were restricted to attending to personal needs. His right knee was swollen. He felt disheartened and in pain. After eight weeks, claimant began an uncomfortable regimen of physical therapy. This routine was interrupted by repeated infections that required antibiotics and three surgical procedures to arthroscopically drain and irrigate the knee. Finally, after Dr. Episalla removed the mersilene sutures that he had used in the quadriceps repair, the infections ceased.
Claimant continued to experience pain and instability in his knee.[2] In addition to physical therapy, claimant walked in his backyard to increase flexion and extension of his knee. In February 1998, as claimant walked in his backyard, his knee locked, causing him to stumble and fall. The pain he experienced persisted and Dr. Episalla recommended that claimant consult Dr. Starace regarding a knee replacement. In November 2000, the replacement was performed. The results were not successful. Claimant's pain continued and his leg extended outward at an 18 degree angle causing him to walk crookedly.
In April 2001, Dr. James Elting recommended a revision or second knee replacement. The surgery was performed on January 15, 2002. Since the operation, claimant has had physical therapy three times a week and continues to experience pain. His knee wobbles as he walks and he has an antalgic gait. Claimant's leg is on a continual passive motion machine for six hours a day.
Claimant has been the sole income provider to his wife and six children during the more than 20 year marriage. Claimant has been unemployed since the accident and it is disturbing to him. Although he is able to drive, he spends most of his time at home. His relationship with his wife is strained. Prior to the accident, claimant enjoyed hunting, fishing and playing ball with his children; they no longer engage in such activities together. Claimant had also performed extensive household repairs which, since the accident, he is no longer able to accomplish. Claimant's wife and older children have assumed many of claimant's household responsibilities. Prior to the accident, claimant had replaced the septic and oil tanks and built two chimneys and a shed.
Claimant's wife testified that
claimant's personality has changed since the accident. Previously, he was outgoing and socialized with friends; he was confident and happy at his job. Now, claimant is depressed and does not want to see anybody. Mrs. Larson has also noticed a difference in claimant's relationship with his children. Previously, claimant was active and involved with his children and coached their little league. Now, he is frustrated and the children do not understand the changes in their relationship with their father. Mrs. Larson's relationship with her husband has also deteriorated and they now argue frequently.
The videotaped examination before trial of Dr. Charles Episalla, a board certified orthopedic surgeon
, was received into evidence (Ex. 23). Episalla first examined claimant on June 12, 1997. At that time, claimant could not lift his leg. Episalla concluded that claimant had ruptured his quadriceps tendon, which was pulled away from the patella and retinaculum, and that bleeding into the joint had produced swelling. On June 13, 1997, Episalla performed a quadriceps reconstruction and a partial patellaectomy. He also repaired tears of the medial and lateral retinaculum on both sides of the quadriceps tendon. Initially, claimant's surgery was successful; however, he subsequently developed a series of infections and the continued pain made it difficult for claimant to walk. Claimant complained of pain and had fluid in his knee. Episalla performed three debridement procedures and came to believe that the repeated infections were caused by mersilence tape used in the suturing.
In February 1998, c
laimant was walking in his back yard when his knee hyperextended and he fell. Episalla explained that a weakened quadriceps muscle can give way and result in episodes of instability. An MRI taken March 25, 1998, revealed extensive internal derangement in the knee, including tears of the medial and lateral menisci. Episalla could not state with certainty when these tears occurred. Initially, Episalla explained that the focus in a quadriceps repair is on restoring the tendon. The concern is not with the joint, which is better addressed arthroscopically. When questioned whether these tears were the result of the fall, Episalla replied that he had no reason to think otherwise. Episalla opined, to a reasonable degree of medical certainty, that the injury to the cartilage inside the knee, the quadriceps tendon rupture, and the infections, were all related to the accident. Episalla also maintained that the quadriceps rupture, the retinaculum tear, and the meniscal tears, could all lead to a condition that required joint replacement. When all methods to control claimant's pain and to address the instability of his leg had failed, Episalla recommended that claimant be treated by a joint replacement specialist.
Episalla testified that he had examined an x-ray of claimant's knee taken at Horton Hospital on June 9, 1997 after the accident. There was no evidence of any bony abnormality and no evidence of any pre-existing arthritis. Based upon the x-ray and the fact that claimant was asymptomatic and employed as an ironworker, Episalla opined that claimant did not have a pre-existing arthritic condition. Episalla did not consider claimant to be an exaggerator of symptoms. Episalla opined that claimant will need multiple knee replacements.
Dr. James Elting, a board certified orthopedic surgeon, who has specialized in joint replacement for the last 20 years,
began treating claimant on April 9, 2001. Elting explained that the force necessary to create a ruptured quadriceps and retinaculum is considerable and can tear menisci and crutiates at the same time. Elting opined that the menisci and crutiate tears, evidenced on the MRI taken in 1998, occurred with the initial injury in June 1997 and the instability and ongoing infections all flowed from the accident.
Six months before seeing Elting, claimant had his first knee replacement. Claimant was unsteady and could not fully extend his knee. The ligaments were stressed out of line and claimant experienced pain when he tried to use his knee. Elting described the surgical result as an unacceptable knee alignment. Elting concluded that a second knee replacement was necessary, however he waited several months to insure clean tissue before operating.
The surgery took two and a half hours.
Claimant tolerated the procedure well and, according to Elting, claimant's rehabilitation has exceeded expectations. Elting characterized claimant as a compliant patient who worked hard at therapy. Elting noted that a replacement joint continues to wear with increased activity; it is never as good as normal tissue and will develop post traumatic arthritis. Elting found that claimant did not have any preexisting arthritis, because given claimant's activities, if he had any arthritis prior to the accident, he would have experienced some symptoms.
There is presently an audible clunking when
claimant flexes his knee, that sound will abate. Elting anticipated that claimant would have a full recovery and be able to walk a mile without resting, stand for extended periods of time, walk stairs and have a reasonably normal gait. Claimant should recover much of the strength in the muscle groups of his knee and thigh. Elting testified that the longevity of a knee replacement, assuming mild use, was 15 years. He anticipated that claimant, at age 50, with a life expectancy in the 75 year range, would have at least one, and possibly two more, revisions. Currently, the cost of the operation is approximately $25,000 and higher amounts can be anticipated in the future. Claimant has permanent scars from the surgery and can expect that changes in barometric pressure will increase sensitivity.
Elting testified that meniscal and crutiate ligament tears might not be apparent during surgery for a quadriceps tendon rupture because the surgeon is focused on the repair and not on the knee, which was swollen and
it is difficult to diagnose interior ligament damage because of the trauma to the tissue. If, after surgery, symptoms appear or if recovery is not optimal, then a further examination would be conducted. Whether a knee replacement follows a quadriceps repair depends upon the individual patient. In most cases, it is a subjective decision ultimately based upon the pain experienced by the patient.
Fritz Meier, a physical therapist, testified that he has been treating
claimant since July 28, 1997 and has found claimant's complaints consistent with his physical condition. Meier described the modalities, range of motion and aerobic exercises that claimant has endured as painful. Meier described claimant as a stoic and punctual patient who has infrequently canceled appointments. From the progress claimant has made, Meier concluded that claimant has been exercising at home. Claimant continues to participate in physical therapy three times a week.
Meier testified that since
claimant's last surgery, his gait was still abnormal, although he has a better alignment of his joints. His range of motion has increased and the pain has decreased. Atrophy of his quadriceps, however, was visible and his right leg is shorter than his left.
In terms of
claimant's economic damages, the parties agreed that their respective economists and vocational experts would have projected the figures represented by exhibit 25,[3] i.e., past economic loss in the amount of $370,742.00 and future economic loss in the amount of $1,474,155.00. The parties also stipulated to past medical costs in the amount of $48,350.07.
Upon consideration of all the evidence, the Court concludes that
claimant's fall in February 1998 was causally related to the accident on June 9, 1997 (see DeLany v State of New York, 256 AD2d 1135). The Court further finds that claimant will endure two more knee replacements as part of normal use and wear and tear on an artificial knee (see Moorer v City of New York, 251 AD2d 119; Burton v New York City Hous. Auth., 191 AD2d 669). Accordingly, the Court finds that the testimony will support an award of $50,000.00 for future medical costs. Claimant's award for past pain and suffering is $375,000.00 and future pain and suffering is $125,000.00 (see Van Ness v New York City Tr. Auth., 288 AD2d 374; Garcia v Seigel, 248 AD2d 586; Parros v 1500 Realty Co., 226 AD2d 607). Joyce Larson, claimant's wife, is awarded $75,000.00 for past and future loss of services (see Schultz v Turner Constr. Co., 278 AD2d 76).
In sum,
claimants' damages are as follows:
Claimant's Past Economic Loss
$ 370,742.00

Claimant's Future Economic Loss
1,474,155.00

Claimant's Past Medical Costs
48,350.07

Claimant's Future Medical Costs
50,000.00

Claimant's Past Pain and Suffering 375,000.00
Claimant's Future Pain and Suffering
125,000.00

Claimant's Wife's Loss of Services 75,000.00
Interest shall run from March 22, 2001, the date the liability decision was signed (see Love v State of New York, 78 NY2d 540).
Claimant's future economic loss exceeds $250,000.00; therefore a structured judgment is necessary (see CPLR 5041[e]). However, the only remaining issues are attorneys' fees and the discount rate to be applied (cf. Bermeo v Atakent, 241 AD2d 235, 240) and the parties may stipulate to these items in a proposed structured settlement to be submitted to the Court (see CPLR 5041[f]). Following the filing of this decision, the Court shall contact the parties for a conference with respect to the judgment to be entered herein.

July 30, 2002
White Plains, New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims




[1] The claim of Joyce Larson, claimant's wife, is derivative.
[2] Before the accident, claimant never had any problems with his knee.

[3]The parties assumed a work life expectancy of 62 years, an average work year of 1400 hours, and a projected 4.25 percent growth rate. The parties took into account a replacement job, which will obviate any post trial collateral source hearing. The parties also agreed that the medical lien for Workers Compensation is $48,350.07.