New York State Court of Claims

New York State Court of Claims

LOMBARDO v. THE STATE OF NEW YORK, #2004-032-503, Claim No. 101734


Synopsis


Case Information

UID:
2004-032-503
Claimant(s):
GIUSEPPE LOMBARDO and CARMELLA LOMBARDO, his wife,
Claimant short name:
LOMBARDO
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
101734
Motion number(s):

Cross-motion number(s):

Judge:
JUDITH A. HARD
Claimant's attorney:
Zwiebel, Brody, Gold & Fairbanks, L.L.P.By: Alan S. Zwiebel, Esq.
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney General
By: Michael C. Rizzo, Assistant Attorney General,Of Counsel
Third-party defendant's attorney:

Signature date:
March 31, 2004
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
On March 5, 1999, claimant Giuseppe Lombardo[1]
("claimant") was injured when he was involved in an automobile accident with a tractor trailer on State Route 52 in the Town of Wawarsing, New York. In a decision dated June 2, 2003, issued after a bifurcated trial on the issue of liability, the Court found that both parties were responsible for the occurrence of the accident and apportioned liability 70% for the claimant and 30% for the defendant. The decision herein pertains solely to damages and awards the claimant Giuseppe Lombardo, $141,132.00 for the pain, suffering and economic damages he sustained as a result of the accident, and $6,000.00 is awarded to claimant Carmella Lombardo for her derivative claim.
I. Claimant's Physical Injuries
Following the accident, claimant was transported to Ellenville Community Hospital where after some initial tests, he was airlifted to Westchester County Medical Center and admitted there the same day. Claimant was diagnosed with a splenic laceration, multiple left rib fractures and a comminuted right posterior wall acetabulum[2]
fracture[3] (Exhibit 5/ Westchester County Medical Center records; Court Exhibit 1, p 19). Claimant immediately underwent surgery for splenic bleeding (Exhibit 5/ Westchester County Medical Center). Dr. David Wellin[4], an orthopedist, performed a surgical operation on claimant's hip on March 11, 1999 at Westchester County Medical Center (Court Exhibit 1, pp 7, 9).
Dr. Wellin testified that claimant had "a fracture of the right acetabulum, which is the hip socket, such that the joint surface was completely disrupted. And the surgery was designed to reconstruct the joint surface and stabilize it with hardware...." (Court Exhibit 1, pp 8-9). On March 24, 1999, claimant was transferred to St. Francis Hospital for physical and occupational rehabilitation and was discharged from there on March 26, 1999. At the time of discharge he was ambulatory with a walker (Exhibit 7/St. Francis Hospital).

Claimant testified[5]
that after the accident he had pain in his chest for one month and pain in his stomach for five to six months. He continues to have constant pain in his right leg. He feels electric shocks in his right foot. He must move around every two minutes to alleviate his discomfort. Two to three times a week he gets up from his bed in the middle of the night to sit in a chair (Tr, 96-99). He cannot stand without support to alleviate the pressure on his leg. He is able to walk but he needs to stop and rest intermittently (Tr, 108). Claimant has a scar on his leg/hip from the surgery and a small scar above his left eye from the accident.
Upon hearing about her husband's accident, claimant's wife Carmella Lombardo, immediately went to Ellenville Community Hospital and flew with him to Westchester Hospital. She visited him every day while he was hospitalized there and at St. Francis Hospital in Poughkeepsie (Tr, 45). When her husband returned home, he was bedridden.[6]
For three months he required the use of a bedpan and she attended to his needs[7]. A visiting nurse came to their home until May of 1999 (Tr, 60). Carmella Lombardo moved their bedroom downstairs. She maintained that claimant walked with crutches for one to two months and then used a walker for six to seven months (Tr, 48). He progressed to a cane, which within the past year he no longer needs (Tr, 49-50). She testified that he can only sleep through the night one to two times per week due to the pain in his right leg (Tr, 50). Although he has been able to fly to Italy twice since the accident, he had to be pushed through the airport in a wheelchair (Tr, 58-59, 100). He is able to drive his motor vehicle to visit his daughters who live in Pennsylvania and Long Island, but now he must stop a few times along the way (Tr, 112-113).
Dr. David Wellin continued to treat claimant for three years after this surgery. Initially, claimant did not report any pain from his injury or the surgery. He attended physical therapy and progressed from a walker to a cane. However, approximately three months after surgery, he complained of pain around his right knee and ankle (Court Exhibit 1, p 25). This pain was preventing him from attending physical therapy and doing other activities. At the time of the accident, he had complained about ankle pain, but it was x-rayed and determined not to be fractured (Exhibit 5)
. Dr. Wellin, therefore, treated it as an ankle sprain by applying an air cast.
When Dr. Wellin saw him on September 1, 1999, claimant was able to bear full weight on the right leg, but he experienced significant pain and stated that his foot and toes felt like they were asleep. Dr. Wellin testified that this type of complaint is more typical of neurogenic pain.[8]
He examined claimant and found that the sciatic nerve was irritated.[9] In the fall of 1999, claimant was sent for an electric diagnostic study to test the nerve. It showed that he had a lumbosacral plexopathy[10] primarily affecting the sciatic nerve (Court Exhibit 1, pp 38-39; Exhibit 5/letter to Dr. Wellin from T.V. Seshan, M.D.). Claimant's hip fractures were healing well; the hip joint space was maintained; and the fractures remained aligned from the surgery (Court Exhibit 1, pp 22, 23, 40). Claimant continued to see Dr. Wellin for another seven visits but the pain down his right leg and foot continued. In early 2001, the results of a second electric diagnostic study of the sciatic nerve showed electrical improvement of his lumbosacral plexopathy (Court Exhibit 1, p 42). Despite this improvement, claimant continued to have pain. Dr. Wellin testified that "there's no clear correlation between the progression electrically and clinically. It is very possible to appear better on the tests, on the electrical tests but still have the same symptoms." In Dr. Wellin's opinion, claimant's neurogenic injury and pain must be considered permanent since it still continues five years after the accident (Court Exhibit 1, pp 51, 53, 54).
Claimant also developed trochanteric bursitis[11]
over the course of these years. Dr. Wellin stated that although bursitis could be chronic in nature, it could be controlled with anti-inflammatory drugs or an injection of cortizone. He could not say, therefore, that the bursitis was permanent (Court Exhibit 1, p 51). As of February 6, 2002, the date of claimant's last visit to Dr. Wellin, claimant had not developed arthritis (Court Exhibit 1, p 62 ). Dr. Wellin stated that the longer claimant does not develop arthritis, the better his chances are that it may not develop (Court Exhibit 1, p 71). However, there is still a chance that it will develop (Court Exhibit 1, p 56).
At the request of the defendant, claimant was also examined by Dr. Louis J. Benton[12]
on August 15, 2003 (Court Exhibit 2, p 3). At that time, claimant complained of constant pain in his right lumbar area which radiated into his right buttock and down his right leg posteriorly to the foot. Claimant rated this pain at six or seven on a scale of ten, with ten as the greatest. He had no other complaints (Court Exhibit 2, p 6-7). Dr. Benton observed that claimant was not using any walking aids such as a cane or a walker. He bore full weight on both lower extremities but appeared to have a very slight limp favoring the lower right extremity. He did not appear to be in pain, according to Dr. Benton, since he was not walking with a hesitant gait (Court Exhibit 2, p 10-11). Dr. Benton also found no muscular atrophy which could result if a muscle was not being used (Court Exhibit 2, p 12). He determined that claimant had a normal range of motion on the right and left hips but that he complained of mild discomfort at the limits of the internal and external rotation on the right side (Court Exhibit 2, p 14). He found no orthopedic problems with the right knee and no residual disability at the right ankle, but he did find that claimant had a decreased sensation to light touch over the entire right leg in comparison to the left leg (Court Exhibit 2, pp 16,18, 20). In conjunction with a review of the medical data, this examination indicated to Dr. Benton that claimant suffered a nerve injury to his right lower extremity which was noted in his records as either a lumbar plexopathy or a sciatic nerve neuropraxia (Court Exhibit 2, p 20).
With respect to the two different neurological studies that showed improvement, Dr. Benton stated that these types of problems improve with the passage of time (Court Exhibit 2, pp 21, 42, 43). He did not see any need for future surgery, physical therapy or orthopedic treatment (Court Exhibit 2, p 22). Dr. Benton noted that the records indicated that two years after the injury, claimant's hip "looked good - without arthritic change" (Court Exhibit 2, p 8). Regarding claimant's upper extremities, Dr. Benton found no evidence of abnormal motion at the shoulders, elbows and wrists joints. The cervical spine indicated a full range of motion. He indicated that claimant was well tanned and he observed callouses on claimant's hands (Court Exhibit 2, pp 18-19).
II. Other Damages
Claimant Carmella Lombardo, claimant Giuseppe Lombardo, and their daughter, Josephine Saccheri, testified regarding the other types of damages sustained by claimants arising from this motor vehicle accident.

Carmella Lombardo testified about their home and the work that her husband put into the house and surrounding acreage when they first purchased it. They kept rabbits, chickens, goats, pigeons and cows there at one time (Tr, 39). They grew large amounts of tomatoes to make Italian sauce (Tr, 38). Some of the animals they slaughtered for meat (Tr, 39, 101-102). Before his accident, her husband would chop the wood used to heat their house, but he is no longer able to do this.[13]
They are using the limited amount of wood left to heat their home (Tr, 54). Their large Italian family, which includes five grandchildren, would frequently visit them on the weekends. Since the accident the family comes because claimant cannot enjoy these gatherings due to his injury (Tr, 37-38).
Josephine Saccheri, claimants' daughter, testified that her parents' house is "no longer a fun place" (Tr, 86). No one goes there anymore because there is always work to do. Her father has become a "grumpy old man". He's short tempered and bored. He used to play with her children, but now he watches a lot of television (Tr, 87, 88).

In March 1999, claimant was employed by the Pine Grove Resort Hotel working a forty hour week and earning $11.00 an hour as a brick layer and a stone worker[14]
(Tr, 93, 111). He has not worked at this or any other outside employment since the accident. Before the accident, he worked on his house in the evenings and on weekends. He has not worked on the house since the accident. He stated that the roof needs to be replaced; the entire house needs finishing stucco; and the garage needs to be finished. Claimant maintains that he is unable to fix the roof since he can- not kneel or lift anything heavier than five gallons. The porch on the front of the house needs some stone and railing[15] (Tr. 103-107).
III. Conclusion
Based upon a fair preponderance of the credible evidence, the Court therefore makes the following findings and awards:

(1) As a result of his accident on March 5, 1999, claimant suffered a splenic laceration that required surgery, multiple left rib fractures, a comminuted right posterior wall acetabulum fracture that required surgery, trochanteric bursitis that is treatable by medication, either lumbosacral plexopathy or a sciatic nerve neuropraxia resulting in permanent neurogenic pain down his right leg and foot, and a laceration above his left eye that required sutures and left a mild scar. The Court bases these findings on Court Exhibit 1 and Exhibit 5 and concludes that these injuries were proximately caused by the accident on March 5, 1999. With respect to past pain and suffering, the Court finds $75,000 to be reasonable compensation (
see, Dooknah v Thompson, 276 AD2d 664 [2nd Dept 2000]; Kahl v MHZ Operating Corp., 270 AD2d 623 [3rd Dept 2000]; Spors v Stoll, 256 AD2d 1083 [4th Dept 1998], Dooknah v Thompson, 249 AD2d 260 [2nd Dept 1998]).
(2) Claimant was 62 years old at the time of trial and has a life expectancy of approximately 16 years.[16]
For his future pain and suffering, the Court determines $175,000 to be reasonable compensation. The Court credits the testimonies of Drs. Wellin and Benton to the extent that each agreed that claimant has not developed arthritis to date and notes that Dr. Wellin stated that the longer claimant goes without developing it, the more his chance for developing will decrease. Both physicians indicated that the acetabulum fracture healed well. The Court credits the testimony of Dr. Benton that he did not see the need for future surgery or physical therapy. The Court bases these findings on Court Exhibits 1 and 2 (see, Kahl v MHZ Operating Corp, supra; Spors v Stoll, supra; Dooknah v Thompson, supra).
(3) The Court finds that claimant lost $106,040 in past income, based on his testimony that his net weekly income was $440.00 per week[17]
(1999/43 weeks; 2000-2002/52 weeks; 2003/42 weeks).
(4) The Court awards claimant $114,400 for future lost income based upon his work life expectancy of approximately 5 years[18]
($22,880 [$440 x 52] x 5 years).
(5) The Court makes no award for past or future medical expenses.

(6) The Court makes no award for the value of household services that claimant would have performed but for his injuries, because there was insufficient information in the record to calculate the value of such services (see footnote 15).

(7) The Court does not award claimant Carmella Lombardo any damages for her lost earnings during the year she cared for her husband, since such are not recoverable
(Barnes v Keene, 132 NY13, supra; Syczhk v Szczerbaniewicz, 233 App Div 342, supra). However, on her derivative claim for loss of consortium, claimant Carmella Lombardo is entitled to compensation in the amount of $6,000.00 ($20,000 x .30 = $6,000).
The Court therefore finds claimants Guiseppe and Carmella Lombardo suffered the following damages:
Past Pain and Suffering $ 75,000
Future Pain and Suffering $175,000
Past Lost Income (Giusseppe) $106,040
Past Lost Income (Carmella) 0
Future Lost Income $114,400
Loss of household services 0
Past Medical Expenses 0
Future Medical Expenses 0
Loss of Consortium $ 20,000
  1. TOTAL $490,440
Defendant's 30% share of
  1. liability $147,132



Because defendant has been found to be 30 per cent at fault for this accident, the Court awards claimant damages totaling $141,132 and awards his wife damages in the amount of $6,000.00. The Court exercises its discretion to set interest on these awards at the presumptively reasonable statutory rate of 9 per cent to run from June 2, 2003, the date of the liability decision. Any motions on which the Court previously reserved judgment or which were not previously decided are denied.

The Chief Clerk is directed to enter judgment for Giuseppe Lombardo in the amount of $141,132 and judgment for Carmella Lombardo in the amount of $6,000.00.

To the extent that the claimant has paid a filing fee, it may be recovered pursuant to

§11-a(2) of the Court of Claims Act.
Let judgment be entered accordingly.


March 31, 2004
Albany, New York

HON. JUDITH A. HARD
Judge of the Court of Claims





[1]Claimant Carmella Lombardo's cause of action is derivative in nature, and unless otherwise indicated or required by context, the term "claimant" refers to Giuseppe Lombardo.
[2]Acetabulum: a cup-shaped depression on the external surface of the hip bone, with which the head of the femur articulates (Stedman's Medical Dictionary, 27th Edition).
[3]Although claimant maintains in his post-trial brief (p 3) that he suffered from a cerebral edema, the Court only found reference to a "possible" cerebral edema noted from a CAT scan of his brain at Ellenville Hospital (Exhibit 5/Ellenville Community Hospital). He was not treated for a cerebral edema at Westchester County Medical Center or at St. Francis Hospital.
[4]Dr. David E. Wellin graduated from the Albert Einstein College of Medicine, Bronx, New York, in 1974. He is licensed to practice medicine in the State of New York. He completed one year of a surgical residency at Montefiore Hospital also in the Bronx. In 1978, he completed three years of an orthopedic surgery residency at the Albert Einstein College of Medicine. He is board certified in orthopedic surgery. Since 1978 he has been on the faculty of the Department of Orthopedic Surgery, New York Medical College, Valhalla, New York. He has published two articles regarding orthopedics.
[5]Claimants testified through an interpreter.
[6]This testimony is contrary to the medical records from St. Francis Hospital that claimant was discharged ambulatory with a walker (Exhibit 7/St. Francis Hospital).
[7]At the time of the accident, Carmella Lombardo took one year off from work to care for her husband. No medical evidence was presented to the Court to establish that nursing care was required or the reasonable value of such care (see, Cesnavicius v State of New York, UID 2002-013-501, Claim No. 78324, Feb. 14, 2002, Patti, J.). In any event, it would be inappropriate for the Court to consider any evidence regarding the amount of her lost wages (id., Barnes v Keene, 132 NY 13 [1892]; Syczhk v Szczerbaniewicz, 233 App Div 342 [4th Dept 1931]).
[8]Dr. Wellin testified that neurogenic pain is the result of a nerve that has been bruised or stretched and typically does not manifest itself until some time after the injury. As the nerve heals itself, numbness or tingling occurs (Court Exhibit 1, pp 25-26).
[9]Dr. Wellin testified that in his practice he sees a fair number of injuries to the sciatic nerve following a fracture to the acetabulum since the sciatic nerve is located within one inch behind the hip (Court Exhibit 1, p 31).
[10] Injury to the lumbosacral plexus (Court Exhibit 1, p 39).
[11] Inflammation of the tissues overlying the trochanter (the hip) (Court Exhibit 1, p 48).
[12] Dr. Louis J. Benton graduated from the University of Virginia Medical School in 1966. He completed one year of his surgical residency at Cornell Medical Center Hospital, and two years in general surgical residency with the United States Public Health Service. He completed one year of fellowship at Oxford University in England and three years of a residency in orthopedic surgery at Cornell Medical Center Hospital. He privately practiced for fourteen years and is board certified in orthopedics. He completed another fellowship in upper extremity orthopedics in Denver, Colorado. He presently is employed as an orthopedic surgeon at Albany Veterans Hospital.
[13]In their brief, claimants request damages for the cost of oil heat for the next ten years, but there was no evidence in the record from which the Court could calculate such damages.
[14] In the Court's decision regarding liability it is stated that, "He [claimant] was employed by the Pine Grove Resort Hotel and that day was supposed to be his last day of employment there." The Court intended to state that March 5, 1999 turned out to be his last day of employment there due the accident that occurred that day.
[15] Claimant testified that it would cost $7.00 a square foot to do the stucco work and $80-$100 an hour to do the work on the porch over a period of two to three weeks. Claimant testified to these amounts based upon his lifelong experience as a mason and a stone worker. The Court is allowing this testimony regarding hourly charges into the record. Claimants further maintain in their brief that they will incur the following costs: roof replacement/$10,000; stone patio/$5,000, stucco work/$20,000; $32,500 for loss of produce and livestock. However, there is no evidence in the record from which the Court could calculate the damages for any of the foregoing (e.g., the hours necessary to complete the work, the cost of the products to complete the work, the value of the produce and livestock, the amount of the livestock, an estimate for the roof replacement, an estimate for the stucco work, etc.).
[16] See, PJI vol 1B, App B, Table 1, 2004.
[17]See also, claimants' bill of particulars. Since there was no proof offered regarding health insurance or any other benefits, the Court will not make any award regarding these items.
[18] See, PJI vol 1B, App B, Table 1, 2004. In their brief claimants maintain that Giuseppe Lombardo has a 10 year working life expectancy and cited "Table 4 of the Pattern Jury Instructions". It is unclear how claimants derived that number. Further, although claimants maintain in their brief that claimants' income rose slightly less than 10% a year and future lost earnings should be adjusted at such rate, no evidence was presented at trial regarding inflationary rates, nor was any evidence presented that claimant intended to work full time in these later years.