New York State Court of Claims

New York State Court of Claims

HERDENDORF v. THE STATE OF NEW YORK, #2005-009-137, Claim No. 106096


In this damages decision, claimant was awarded the total sum of $625,000.00. A hearing pursuant to CPLR Article 50-B will be scheduled.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant's attorney:
BY: David A. Kalabanka, Esq.,Of Counsel.
Defendant's attorney:
Attorney General
BY: Roger B. Williams, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
March 24, 2005

Official citation:

Appellate results:

See also (multicaptioned case)

In a previous Decision and Order of this Court dated August 25, 2003, claimant was granted partial summary judgment on the issue of liability (Motion No. M-66738). A trial pertaining to damages has been held, and this decision is limited solely to that issue.

On April 2, 2001, claimant's vehicle was involved in a collision with a New York State Police vehicle at the intersection of New York State Route 38 and Turnpike Road in the Town of Throop, Cayuga County. At that time, claimant was proceeding north on Route 38 through this intersection for which she had the right-of-way. The New York State Police vehicle, operated by New York State Trooper Thurman, was proceeding east on Turnpike Road and failed to yield the right-of-way while entering the intersection, when he collided with claimant's vehicle. Based upon these facts, this Court determined in its earlier decision that the State was liable for claimant's injuries, without any fault on her part contributing to this accident.

Testimony at trial established that claimant was born on January 20, 1961, and at the time of this accident, was 40 years of age. Testimony from the damages trial established that claimant had a life expectancy of 38.1 years, with a work-life expectancy of 12.4 years. She had obtained an Associate's Degree in Human Services from Genesee Community College in 1993.

Claimant had been employed as a personal-care aide at Evergreen Heights, a home for mentally disabled adults in Weedsport, New York. However, at the time that this accident occurred, claimant had been out of work for approximately six months, on disability, related to her lower back.
In addition to her own testimony at trial, claimant presented transcripts of testimony taken from Gregory William Canute, M.D., a neurosurgeon at the State University of New York Health Science Center (Exhibit 5), as well as a transcript of testimony from P. Sebastian Thomas, M.D., Director of Pain Services for University Hospital (Exhibit 4). Additionally, David Martin and Janet Trapani, both physical therapists who treated claimant, testified at trial. Although the State did not conduct its own independent medical evaluation (IME) of claimant, the State did introduce at trial reports from two separate IME's performed by Bruce Baker, M.D., on behalf of the no-fault insurance carrier (Exhibits A and B).

According to claimant's medical records (Exhibit C), claimant went to the Emergency Room at Auburn Memorial Hospital on October 4, 2000 (prior to the accident which is the basis of this claim), complaining of lower back pain and associated pain radiating down her right leg. X-rays taken at the time revealed a moderately severe disk narrowing at her L4-L5 level. Claimant continued to suffer from this back pain and she was eventually referred to Dr. Canute, a neurosurgeon, by her primary care physician. An MRI was performed on claimant at University Hospital in November, 2000 and Dr. Canute first examined claimant on November 27, 2000. The MRI revealed a herniated disk at the L4-L5 level, which impinged on the thecal sac and also impinged on the left L4 nerve route. Dr. Canute prescribed conservative treatment, consisting primarily of physical therapy, and examined claimant two more times (January 8, 2001 and March 12, 2001) prior to the accident of April 2, 2001. At the March 12, 2001 appointment, Dr. Canute noted slow improvement, and determined that claimant's symptoms appeared related more to the sacroiliac joint rather than the L4-L5 disk. Claimant did not appear to be having any radicular problems attributable to the herniated disk at L4-L5.

Although claimant had not worked since October, 2000, at the March 12, 2001 appointment Dr. Canute did certify claimant as able to return to work, but with certain restrictions limiting her lifting capabilities to less than 50 pounds.

Prior to obtaining new employment, however, claimant was involved in the motor vehicle accident on April 2, 2001. Dr. Canute next examined claimant on April 9, 2001, one week following this accident. Claimant was now complaining of more severe back pain, again with associated pain down her right leg. After this examination, Dr. Canute determined that claimant had aggravated her L4-L5 disk in the accident, and again found that claimant was totally disabled. Claimant also complained of some pain in her left leg, which she had not experienced prior to the accident.

Dr. Canute again prescribed conservative treatment consisting of physical therapy, and re-examined claimant on July 9, 2001. This time, however, claimant did not show any significant improvement from the physical therapy, and as a result, a microdiscectomy to remove her herniated disk was performed on August 3, 2001 at Crouse Hospital.

Following the surgery, claimant had two more appointments with Dr. Canute during 2001 (August 20, 2001 and November 12, 2001). At the August 20, 2001 appointment, the pain and numbness in her right leg appeared to be resolved, but claimant was still suffering from intermittent lower back pain. At the November 12, 2001 appointment, claimant continued to experience lower back pain, and physical therapy was again prescribed by Dr. Canute.

In the early part of 2002, due to the continued pain that claimant was experiencing, Dr. Canute referred claimant to Dr. Thomas, Director of the Pain Treatment Center at University Hospital, for further evaluation.

Dr. Thomas first met with claimant on June 4, 2002. After evaluating claimant, he opined that claimant had a right sacroiliac dysfunction, and he recommended treatment by the injection of medication (cortisone and marcaine) at the SI joint level. This injection was performed that day and claimant received a second injection of this medication on July 19, 2002. She experienced minimal improvement in her condition from these injections.

On August 16, 2002 claimant had a further appointment with Dr. Thomas, in which she complained of numbness and a shooting pain down her right leg. Dr. Thomas at this time diagnosed her with lumbar radiculopathy and inflamation of the nerve roots. Because of the shooting pain down the back of her leg, her doctors injected medication at the L4-L5 disk level rather than the SI joint, to decrease the inflamation around the nerve. It was indicated that claimant would continue to need these injections on a periodic basis for pain relief.

At this point, the Court notes, and must address, objections raised by defendant to certain medical records of Dr. Canute and Dr. Thomas which were received into evidence at the damages trial. The trial testimony of Dr. Canute was taken on June 16, 2004, prior to the actual damages trial which commenced on July 6, 2004. A transcript of this testimony (Exhibit 5) was then received into evidence and has been considered by the Court in making this decision. During the pretrial discovery process, however, defendant was provided with Dr. Canute's medical records only through June 24, 2002, and defendant was therefore unaware that claimant had continued to treat with Dr. Canute past that date. Similarly, the testimony of Dr. Thomas was taken on April 29, 2004 (Exhibit 4), and defendant was unaware until that time that claimant had continued to treat with Dr. Thomas beyond his initial evaluation and treatment on June 4, 2002. Defendant was not provided with the full medical records pertaining to the medical treatment provided by Dr. Canute and Dr. Thomas until after their respective testimony was taken. Based upon claimant's failure to update claimant's medical records, defendant objects to the introduction of the medical records, and testimony pertaining thereto, which were not disclosed to defendant prior to the respective testimony of Dr. Canute and Dr. Thomas.

This objection, however, cannot be considered in a vacuum, but rather must be viewed in light of all the facts and circumstances of this damages trial.

First of all, the Court notes that the State, "for a variety of reasons" (see defendant's "Trial Memorandum", page 5), did not conduct its own IME of the claimant, and the State offered no explanation whatsoever for its decision not to do so. Even though the State certainly has no obligation to conduct an IME, it must, however, live with the consequences of its failure to do so. Its decision to forego an IME constrains the Court to a consideration of the medical evidence presented by claimant. Additionally, had the State conducted an IME, the Court presumes a competently performed IME would have revealed claimant's continued complaints of back and leg pain, and her continued treatment for these problems.

Furthermore, the Court has previously noted that the testimony of both Dr. Canute and Dr. Thomas was taken, with consent of counsel, prior to the actual damages trial date. Transcripts of such testimony (rather than their live testimony) were introduced at trial and accepted into evidence. According to defendant's attorney, the defendant was provided with updated medical records at the time these physicians were examined, or shortly thereafter. Defendant therefore was in the possession of the updated medical records prior to the actual trial date. As a result, defendant had such options as requesting an adjournment of the physicians' testimony in order to prepare for cross-examination, scheduling its own IME, or even requesting an adjournment of the trial, if it felt sufficiently prejudiced by the information included in these disclosures. Defendant did not pursue any of these options, but instead decided to proceed with the scheduled trial with knowledge of the information included within these newly disclosed medical records.

Most importantly, however, is the fact that the records and reports to which defendant objects are all related to the continuing treatment provided by Dr. Canute and Dr. Thomas for the same injuries and complaints as existed at the outset of their course of treatment of claimant. In other words, these reports and records do not reflect any significant change in the course of their treatment since June, 2002. For example, claimant did not undergo any new course of treatment, submit to extensive surgical procedures, or begin treatment with other physicians of whom the State would have had absolutely no prior knowledge. Additionally, there was no indication in the records which had previously been provided to defendant that claimant had been released from treatment, or that she had fully recovered from her injuries, and therefore there was no reason for the State to assume that such was the case.

As a result, the Court finds that the State has not established that it was surprised, or prejudiced in its defense of this claim, by the admission of these records and reports. Therefore, in view of the fact that the State was well able to ameliorate or even eliminate any concerns that it may have had regarding these disclosures, the Court finds that the objection previously raised by the defendant, and reinstituted in its trial memorandum, is without merit and is hereby denied.
There is no dispute that claimant, prior to this accident, had been suffering from back and leg pain, and that such symptoms were exacerbated as a result of the accident of April 2, 2001. The central issue before the Court on this damages trial is the extent, if any, to which claimant's injuries and resulting pain and suffering can be attributed to her preexisting condition.

Dr. Canute, claimant's treating physician, testified that prior to the accident, claimant had been making slow and steady progress from her prior back injury, and that she had been cleared to return to the work force (although with restrictions) immediately prior to the accident. As mentioned above, following her accident, her symptoms were exacerbated and became very difficult to control. He concluded that claimant was enduring more pain than prior to the accident, with additional complications which did not exist prior to the accident. He further testified that the microdiscectomy which was performed on claimant on August 3, 2001, was necessitated by the accident, and would not have been required had she not been involved in the accident. In his opinion, claimant was again disabled, her condition has become chronic, and her injuries are consistent with those that would be suffered in an automobile accident.

Similarly, Dr. Thomas also testified that claimant's condition was chronic and that she continues to be disabled. He diagnosed her condition as lumbar radiculopathy and SI joint disease, and stated that she endures moderate pain which is exacerbated by any physical activity. He testified that claimant would require future care for this condition, including medication, additional injections of pain medication, and physical therapy. With such treatment, he believes that her condition can be kept under reasonable control, but unfortunately with occasional flareups.

As mentioned previously, David Martin, a physical therapist, testified at trial. He had performed a "functional capacity evaluation" and concluded that claimant could only function at a level below "sedentary physical demand" work. He testified that claimant had suffered a significant loss of range of motion, and would be unable to return to her prior job as a personal aide due to her current medical condition.

The Court found all of these witnesses to be credible, and finds that claimant has suffered, and will continue to suffer, pain and loss of enjoyment of life as a result of the injuries she sustained in the accident on April 2, 2001. The Court does acknowledge that claimant had been receiving medical treatment for a similar medical condition relating to her back which preexisted this accident. However, immediately prior to this accident, Dr. Canute had approved claimant for a limited return to the work force. Dr. Canute also testified that claimant's condition was asymptomatic prior to the accident, and that this accident exacerbated her condition and made it much more difficult to control the resulting pain.

The Court therefore finds that the marked contrast between claimant's functioning immediately prior to her accident can only, on the basis of the evidence presented at trial, be attributed to the April 2, 2001 accident for which the State must bear responsibility.

From the evidence presented, there is no dispute that claimant experiences some pain and discomfort on a daily basis, and that such pain has placed a significant limitation on her ability to enjoy life. Claimant testified that prior to this accident she led an active life, and since that time has been unable to participate in many of her former recreational activities, and that she has difficulty performing household chores.

The Court also accepts the testimony of Dr. Thomas that claimant will continue to experience pain, and that she will require future treatment for her condition, including medication, injections, and physical therapy.

Accordingly, in order to adequately compensate claimant for her non-economic losses, and based upon the foregoing and the entire trial record, the Court finds that claimant is entitled to damages of $200,000.00 for past pain and suffering, and $425,000.00 for future pain and suffering. At trial, testimony established that although claimant had been medically cleared to return to the work force, she had not yet done so, and had been receiving social security disability payments retroactive to October, 2000. Based on this information, the Court hereby finds that any award for lost wages (either past or future) would be entirely too speculative, and therefore no such award is made. Additionally, no proof was presented to establish any claim for medical expenses (past or future).

Accordingly, based upon the foregoing, claimant is hereby awarded the total sum of $625,000.00 ($200,000.00 for past pain and suffering and $425,000.00 for future pain and suffering).

The amount awarded herein shall carry interest at the rate of 9% per year from the date of the determination of liability on August 25, 2003 (see
Dingle v Prudential Prop. & Cas. Ins. Co., 85 NY2d 657; Love v State of New York, 78 NY2d 540).
Judgment will be held in abeyance pending a hearing pursuant to CPLR Article 50-B, which will be scheduled as soon as practicable.

March 24, 2005
Syracuse, New York

Judge of the Court of Claims