By decision filed on January 23, 2001, the defendant was found 75% liable for
injuries the claimant Mary Shockley-Gottlieb sustained on March 22, 1995 when
she fell on a walkway at the grounds of Queens College. This decision pertains
to the issue of damages.
Mary Shockley-Gottlieb (hereinafter referred to as "claimant") testified that
as she fell she extended her hands out in front of herself in order to break the
fall. As her right hand made contact with the ground she heard a "pop." Once
composed she made her way to the campus guardhouse at the front gate of the
school where an ambulance was called. During this time she experienced
throbbing in her shoulder and her asthmatic condition, which was triggered by
the event, caused difficulties in breathing. She
was taken by ambulance to a hospital where X-rays were taken of the injured
right wrist area, and she was informed that she had a fractured right wrist.
Her arm was placed in a cast and she was prescribed a pain killer. Upon her
release from the hospital, after about five hours, she was in "a lot of pain."
The claimant testified that she was right hand dominant and that prior to this
accident she had never injured her right hand or wrist.
She testified that during the next day the medication did nothing to alleviate
her pain and that she needed assistance from her friends and family in order to
perform some basic functions. Later that day she first went to see Dr. Lenzo,
who took X-rays and fitted her wrist with a new cast. She described the pain
she suffered for two months following the accident as "terrible." Her hand was
continually swollen, and her skin turned green and began to peel. When the cast
was removed after two or three months, the pain subsided but was still present.
She then began a course of physical therapy where she would visit a therapist
several times a week, each session lasting for one-half hour to 45 minutes, over
a period of four to five months. In addition she performed therapy exercises at
home several times a week.
The claimant testified that from the time the cast was removed two months later
through December 1995, she was still in "a great deal of pain," and needed the
assistance of family members and neighbors to dress, and clean the house. It
was difficult for her to brush her teeth or brush her
She underwent surgery in January 1996, in hopes of strengthening her hand and
to alleviate some of the pain she was experiencing. She entered the hospital
in the morning and left that evening. She received IV anesthesia prior to the
operation. She stated that she was in pain following the surgery but that it
was an improvement over what it had been prior to the surgery. She was unable
to sleep for approximately one week after the surgery was performed. She
continued to see Dr. Lenzo every several weeks. When the cast was removed from
her arm she resumed the therapy regimen. She stated that as a result of the
surgery she developed a scar which runs from her wrist to the index finger.
Throughout 1996 she experienced continued pain and numbness in the affected
area. In December 1996, Dr. Lenzo performed another surgical operation, as
claimant explained, to determine if something was wrong with the "nerves that
run up and down your arm that control the fingers and thumb . . . ." She
entered the hospital as an ambulatory patient and was discharged later that same
day. For one week following the procedure her arm was bandaged from just below
her shoulder to below her wrist, after which time it was changed to a shorter
bandage which remained on her arm for approximately six weeks. She resumed a
course of therapy on a twice weekly basis. She testified that Dr. Lenzo
informed her in April 1997 the damage was permanent and there was nothing else
that could be done. Thereafter she had no follow-up orthopedic therapy or
treatment of any kind. She did not see Dr. Lenzo again until over four years
Nearly seven years after the injury occurred,
Mary Shockley-Gottlieb testified that she was still experiencing pain, tingling
and numbness in her right hand and arm and was unable to use them as she had
prior to the fall. She has three scars on her right arm. The numbness in her
right arm is intermittent but she has no feeling in the right thumb and index
finger. As a result, she testified, she is unable to hold a pencil, open a jar
or a can, type proficiently or utilize other skills she had developed when she
was employed as secretary. She is unable to do things she used to do such as
knit, play tennis, bowl, dance, or swim. Others, including her husband and her
daughter, have taken over most of the household tasks that she had performed
prior to the incident. At some time during 1996 she began to drive on her own
but said she would not drive if the weather was inclement.
The claimant testified that relations with others, including her family, have
suffered as a result of the injury. She has been unable to spend time with her
active 15 year old grandson and is tentative about holding her infant grandson.
She stated that as a result of her injuries and the subsequent surgeries, the
once active sex life she and her husband shared has been reduced to "practically
nothing." She sought counseling which continued for a few months. She is not
currently using any medications for depression or any other psychotropic
Mary Shockley-Gottlieb summed up the effects the March 22, 1995 accident has had
on her life as follows: "It has changed me . . . from one person that I was,
active, outgoing, enjoying life, to a person that is very into herself, very
nervous about everything . . . I don't have the same feelings
Steven Gottlieb, who is also a claimant in this matter, has been married to
Mary Shockley-Gottlieb for 16 years. He testified that when he returned home
from work on March 22, 1995, his wife was lying in bed in a great deal of pain,
crying. He stated that his wife slept little that night and periodically
moaned. The following day he accompanied his wife to Dr. Lenzo's office. She
remained in bed for three or four days after the accident because of the pain,
eating food only at his prodding. He testified that he had to learn how to
carry out household tasks that his wife at first was no longer able to perform,
and that he still does the majority of the cooking and helps with cleaning and
testified that prior to March 22, 1995, he and his wife would engage in leisure
and recreation activities such as bowling, swimming, miniature golf, walking,
and dining with friends. Subsequent to the accident many of these activities
have either ceased or have decreased in frequency. He described their current
social life as "very bad," and their once "very good" sex life as "terrible."
He stated that despite changes in their relationship since the accident they
have not considered separation or divorce and they have not sought marriage
Robyn Shockley-Sutera, the claimant's daughter, testified that she lived with
the claimant until early 1999.
She stated that after her mother's first surgery in January 1996 "everything
changed." Her mother was not able to carry out her normal household routines,
including: cleaning, cooking, sewing, and helping her type papers for school.
She stated that she, her father and her brother helped her mother with these
activities. After the second surgery in December 1996, her mother still was
unable to fully dress herself and needed help with zippers and tying her shoes.
Dr. Salvatore Lenzo with use of his notes, which were entered into evidence as
claimants' Exhibit 18,
testified on behalf of the claimants. He stated that on his initial examination
of the claimant, she presented to him distal radius fracture in the right hand
which caused swelling and decreased sensation in her fingers, difficulty making
a fist, and subjective complaints of pain, which according to Dr. Lenzo, were
consistent with the injury she suffered. Dr. Lenzo took X-rays which indicated
to him that the fracture was in good alignment and that surgery would not be
necessary. He did not observe any evidence of prior trauma of injury to the
right arm, wrist, or hand. He testified that in his initial narrative of
treatment he mistakenly recorded the claimant as left-hand dominant, but
corrected the records when she brought the error to his attention over a year
testified that he examined the claimant on several follow-up visits. X-rays
indicated that the radius fracture was in good alignment, however, she presented
with residual stiffness in her right hand and numbness in the thumb. On May 5
,1995, he removed her cast and applied a splint. The examination revealed that
she had decreased sensation in areas on her hand, was unable to flex the thumb,
and exhibited tenderness over the nerve in her upper forearm. An X-ray revealed
callus formation and healing of the fracture. At this time he initiated a six
week long course of occupational therapy, which included office visits and home
exercises, in order to restore motion and build up strength in her wrist and
hand. As of September 1995, his patient continued exhibiting nerve weakness and
numbness which prompted him to recommend surgery as being the only way to
alleviate the ongoing symptoms.
Dr. Lenzo performed the surgery on January 3, 1996. Two incisions, one in the
palm of the hand and the other in the forearm near the elbow, were made so that
a procedure could be performed to remove "pressure off the nerves." In a
follow-up examination on January 16, 1996, he removed the surgical dressing.
According to Dr. Lenzo, the claimant's flexation and numbness symptoms had
improved, however there were some complaints of pain in the area where she had
fractured her wrist which he treated by injecting cortisone in the tendon area.
A therapy program was initiated. An examination on March 1, 1996, indicated
that the claimant had improved, gaining a full range of motion and good
sensation, but some tenderness still remained in her wrist joint which he
treated with a cortisone injection. An X-ray taken at her next visit on May 31,
1996, indicated that the radius had healed with good alignment, but there were
some advancing degenerative changes at the base of the thumb, which Dr. Lenzo
testified were proximately related to the injury sustained on March 22, 1995.
Several office visits later led him to perform a second surgical procedure on
December 23, 1996, which involved an arthroscopy of the wrist, and excision of a
bone and reconstruction of ligaments in the thumb.
Following the second operation
he examined the claimant on several occasions, and he gave her cortisone
injections to alleviate continued pain in her thumb. On April 4, 1997, he
examined her, at which time he observed that she was doing extremely well with
regard to pinch strength, but still was experiencing residual tenderness within
the wrist joint. On that day an appointment was scheduled for an examination in
eight weeks but she did not return to see him until November 6, 2001, prior to
the time of this trial. There is also no indication of her returning to
occupational therapy after a March 24, 1997 visit (claimants' Exhibit 19,
Occupational Therapy Progress Notes).
At the November 6, 2001 examination
he observed the following which he opined was caused by the injuries sustained
March 22, 1995: 1) multiple surgical incisions were healed, but left visible
scars; 2) she had "considerable weakness" in her right hand with a pinch
strength of one pound as compared to what would be expected at eight pounds; 3)
her grip strength was ten pounds as compared to what would be expected at fifty
pounds; 4) she had decreased sensation in the median nerve distribution and
weakness; 5) an X-ray revealed that the radius healed, and the removal of the
arthritic bone and ligament reconstruction showed good results.
Dr. Lenzo was of the opinion that Mary Shockley-Gottlieb will never again have
full functional use of her right hand and arm, and that the condition is
The defendant offered no evidence. It is the defendant's position that the
evidence offered by the claimant does not support the extent and severity of the
injuries she claims to have sustained.
Based upon the evidence presented at trial, the Court finds that the claimant
Mary Shockley-Gottlieb suffered injuries to her arm, wrist, and hand causing
pain and limitations which she has endured and will continue to endure for the
remainder of her life. Before she was injured, the claimant cared for her home
and family and engaged in an active social life. Since then, her ability to
perform household tasks, socialize, and to maintain a complete relationship with
her husband, all of which provided enjoyment, have been curtailed. At the same
time, by her own testimony the claimant resumed driving her car in 1996, an
activity which indicates that her condition does not render her without any use
of her right hand, wrist, or arm. The unrebutted expert medical testimony that
the claimant will never again have full functional use of her right hand and
arm, and that the condition is permanent provides support for the claimant's
otherwise self serving descriptions of the effect her injury has had, which, in
any event, the Court found credible.
See, Prescott v LeBlanc
, 247 AD2d 802 [a "determination not to accept
expert testimony and opinion must be supported by other testimony or by the
cross-examination of the expert (see
, 3 Bender's New York Evidence
§7.01, at 7-48)."]
The argument by the defendant that the claimant failed to mitigate her damages
when she did not return to see Dr. Lenzo and did not continue therapy after
April 1997, is unsupported by competent evidence. While the claimant clearly
concedes that she stopped seeing Dr. Lenzo and that she did not continue
therapy, her testimony that Dr. Lenzo told her at that time that the damage was
permanent and that nothing more could be done stands unrebutted. The subject
was not raised during Dr. Lenzo's cross examination. There is nothing in the
record which supports an inference that had she continued to see him her
condition would be any different than it is.
Based on the foregoing, the Court determines damages as follows: $100,000 for
the past pain and suffering of Mary Shockley-Gottlieb; $125,000 for the future
pain and suffering of Mary
; $25,000 for Steven Gottlieb's loss of
. At trial, both sides stipulated
that the amount of medical expenses to be included in the award is
The total award is $276,831.25. In accordance with the Court's determination
that the defendant was 75% liable, the claimants are awarded the sum of
$207,623.43, with interest thereon at the statutory rate of 9%, from January 4,
2001, the date on which the liability of the defendant was determined.
All motions on which the Court may have reserved decision or which were not
previously determined are denied
LET JUDGMENT BE ENTERED ACCORDINGLY.