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
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
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
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
Claimant continued to experience pain and instability in his
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
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
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
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
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
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
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.
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
, 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
claimants' damages are as follows:
Claimant's Past Economic
Claimant's Future Economic Loss
Claimant's Past Medical Costs
Claimant's Future Medical Costs
Claimant's Past Pain and Suffering 375,000.00
Claimant's Future Pain and
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
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