This claim arose on June 2, 1996, when claimant suffered injuries when the
motorcycle he was operating struck a curb and crashed on New York State Route 31
in the Hamlet of Savannah, in Wayne County, New York. The trial of this claim
was bifurcated, and in a Decision dated June 26, 2002, this Court
determined that the State of New York was 75% liable for the injuries sustained
by claimant (
Cianciola v State of New York
, Ct Cl, June 26, 2002, Midey, J., Claim
No. 94634 [IUD No. 2002-009-101]).
A trial on the issue of damages has since been held, at which claimant
testified as to the extent of his injuries. Additionally, claimant presented
the testimony of Dr. Richard Benevigna, his treating physician at the VA Medical
Center in Canandaigua (herein after referred to as "VA"). Daniel G.
DiChristina, M.D., an orthopedic surgeon, performed an Independent Medical
Examination (IME) on claimant on behalf of the State. Dr. DiChristina's
report was admitted into evidence (see Exhibit B), and he also testified at
trial on behalf of the State.
As stated above, claimant suffered his injuries on June 2, 1996, when he was
involved in a motorcycle accident in Savannah, New York. He was proceeding west
on New York State Route 31 when he failed to negotiate a curve and struck a
curb, which caused him to lose control of his motorcycle and crash. Claimant
testified that he was thrown approximately 50 feet from his motorcycle in this
accident. Claimant was taken by ambulance to the emergency room at
Newark-Wayne Community Hospital, where he was diagnosed with a fracture of the
left clavicle, a fracture of the left scapula, fractures of the 4
th, 5th, and 8th ribs on his left side, and a small avulsion fracture in his
left foot. He did not exhibit any evidence of a pneumothorax, but on the day
after his admission, he was observed with a small pleural effusion. He was
placed in a sling for his fractures, and remained in the hospital for five days.
When he was released, he was fully ambulatory without any assistive devices.
Upon his release, he had no complaints of any significant pain or discomfort,
although he was prescribed Darvocet for pain.
Mr. Cianciola's attending physician during his hospital confinement was Reuben
J. Washington, M.D., an orthopedic specialist. Following his discharge,
claimant continued to receive treatment from Dr. Washington for his
Dr. Washington was not called as a witness at this damages trial. His notes
and records of his treatment of claimant, however, produced pursuant to judicial
subpoena, were received into evidence (see Exhibit E).
The records of Dr. Washington confirm that claimant received medical treatment
on a fairly regular basis from June, 1996 through March, 1997. Claimant was
then not seen by Dr. Washington again until March, 1998, approximately one year
later. Following that appointment, claimant next sought medical attention from
Dr. Washington in February, 2000, when he then resumed regular treatment from
Dr. Washington for approximately one year.
Since claimant did not call Dr. Washington as a witness, defendant has
requested a "missing witness" inference to be drawn by the Court for his failure
to do so. In order to invoke this inference, defendant must establish "that the
uncalled witness is knowledgeable about a material issue upon which evidence is
already in the case; that the witness would naturally be expected to provide
noncumulative testimony favorable to the party who has not called him, and that
the witness is available to such party." (
People v Gonzalez
, 68 NY2d 424, 427). The "missing witness" inference is
available in civil cases, and may even be applied in trials without a jury
(Turner Press v Gould
, 76 AD2d 906), and has been applied when a party
has failed to call his own physician as a witness (Seligson, Morris &
Neuburger v Fairbanks Whitney Corp.
, 22 AD2d 625; Bradshaw v State of New
, 24 AD2d 930).
To support his claim for damages, claimant instead relied upon the testimony of
his current treating physician, Dr. Richard Benevigna, from the VA. While it
might have been preferable to hear testimony from a physician who treated
claimant immediately following his accident, claimant did produce competent
medical testimony from Dr. Benevigna regarding claimant's injuries, and on
this basis the Court finds defendant's request for a "missing witness" inference
to be without merit.
In any event, and as noted above, Dr. Washington's records of his treatment of
claimant were admitted into evidence, and these records establish that claimant
underwent a fairly conservative course of treatment for the multiple fractures
sustained by him in his accident. The records reveal that during his first few
visits with Dr. Washington, claimant had complaints of mild pain in his shoulder
and clavicle, but that the pain was not so severe that claimant was taking any
pain medication. After approximately six months, however, claimant began to
register complaints of residual pain in his left foot, although he was found to
have full range of motion in his foot and ankle. At his December 30, 1996
appointment with Dr. Washington, claimant again complained of pain in his left
foot, for which he received an injection of medication in his left foot.
Subsequently, in March, 1998, claimant met with Dr. Washington and again
complained of pain in his left foot and achilles tendon. There were no
notations in the records of any complaints relating to his collar-bone, shoulder
As mentioned previously, after this appointment there was no indication in the
medical records that claimant sought further treatment from Dr. Washington for a
period of approximately two years, when claimant visited Dr. Washington with
complaints of pain in his left shoulder. X-rays revealed that this fracture had
healed properly, and Dr. Washington recommended physical therapy. Claimant's
last appointment with Dr. Washington occurred on January 17, 2001, when he
continued to register complaints of pain in his collar-bone area, although he
did have normal range of motion.
In his trial testimony, claimant testified that following his accident, he
remained out of work for approximately five weeks, returning to work on July 12,
1996. Upon his return, claimant indicated that he was restricted in his
activities, and that he was unable to perform all of the duties which were
required of him prior to his accident. He also testified that during his period
of treatment with Dr. Washington, he continued to have pain in his collar-bone
and rib areas (even though not reflected in Dr. Washington's records), which not
only affected his ability to perform at work, but also significantly limited his
normal recreational activities.
Claimant also testified that he began to experience significant pain in his
lower-back area shortly after this accident, and that he had continually
registered his concerns of lower-back pain during his many appointments with Dr.
Washington. However, there is no mention in Dr. Washington's medical
records of any complaints related to claimant's lower back.
Claimant testified that he left Dr. Washington and began seeking medical
treatment from Dr. Benevigna at the VA in July, 2002.
Dr. Benevigna testified that he first examined claimant in July, 2002, and also
saw him in July, 2003 and numerous times during 2004. He testified that
claimant continued to experience pain in his clavicle, shoulder, scapula, and
left foot, and that such pain was all attributable to the injuries claimant
suffered in his accident. He testified that such injuries, even though healed,
may require future medical attention, and can be considered permanent. He
stated that he prescribed Naprosyn and Tramadol to alleviate claimant's pain.
Dr. Benevigna also testified regarding claimant's complaints of lower-back
pain. These complaints, however, were first made during Dr. Benevigna's
examination in July, 2003. Claimant had not mentioned any problems with his
lower back when he first met with Dr. Benevigna in July, 2002.
In essence, Dr. Benevigna testified that the injuries suffered by claimant to
his scapula, clavicle, shoulder, ribs, and left foot should be considered
permanent injuries, and that claimant may expect to endure continued pain from
these injuries on an intermittent basis. Dr. Benevigna, however, was unable to
definitively attribute claimant's lower-back pain to the motorcycle accident.
Based upon a disability finding by the VA, Dr. Benevigna concluded that claimant
was considered 40% disabled as a result of these injuries.
As mentioned previously herein, claimant underwent an IME administered by Dr.
Daniel DiChristina, an orthopedic surgeon. Dr. DiChristina testified that
claimant has suffered some loss of his range of motion in his left shoulder as a
result of the injury. He questioned whether the continued complaints of pain
made by claimant in his rib area were valid, and therefore discounted these
complaints in his report. Dr. DiChristina also questioned the reliability
of his examination of claimant's left foot and ankle, and concluded that
claimant had suffered a minimal impairment of range of motion in this
Significantly, Dr. DiChristina did not find any causal relationship between
claimant's complaints of lower-back pain to any injuries suffered by him in the
accident. Dr. DiChristina noted that there were no complaints of back pain made
by claimant in his hospital records, and that claimant, during his IME, stated
that his lower-back pain commenced approximately three months after his
In sum, Dr. DiChristina acknowledged the multiple fractures suffered by
claimant in his motorcycle accident, but disagreed with Dr. Benevigna as to the
extent of the permanency of these injuries. Dr. DiChristina concluded that
these injuries resulted in an overall 5% impairment to the whole person. As
mentioned above, Dr. DiChristina did not attribute claimant's complaints of
lower-back pain to the accident, and that any such pain was not causally
Based upon the foregoing, the Court is unable to find that claimant's
complaints of lower-back pain are causally related to the accident. There is no
dispute, however, that claimant suffered multiple injuries in this accident,
including fractures to his clavicle, scapula, several ribs, and his left foot.
In order to adequately compensate claimant for his non-economic loss, the Court
hereby awards damages in the amount of $110,000.00 for past pain and suffering.
With respect to future pain and suffering, the medical experts testifying for
the respective parties differed substantially in their conclusions. Dr.
Benevigna concluded that claimant could be considered 40% permanently disabled
as a result of his injuries. However, he considered claimant's lower-back pain
as a significant factor in reaching this determination. As previously found
herein, the Court has not attributed such lower-back pain to the accident.
Dr. DiChristina, the State's expert, did not consider claimant's complaints of
lower-back pain in his analysis, and found that claimant's injuries were well
healed, with only a slight degree of permanence.
The Court accepts claimant's testimony that he is somewhat restricted in his
recreational activities as a result of this accident, that his pain "comes and
, and that he continues to take medication to relieve this pain on an as-needed
As a result, the Court hereby awards the sum of $90,000.00 for future pain and
There was no testimony at trial to support any claim for reimbursement of
medical expenses, either past or future. Testimony did establish that claimant
has sought treatment, and continues to seek treatment, from the VA, and that he
is entitled to receive medical treatment at this facility at no cost to
Claimant did seek compensation for loss of future earnings. Testimony at trial
established that prior to his accident in 1966, claimant was receiving
compensation in the amount of $225.00 per month for his service with the Naval
Reserves. Claimant testified that following his accident, he was deemed
disabled and unfit for further military service. As a result, he received
severance pay of approximately $24,000.00. In October, 1998 he was determined
to be 20% disabled, but this has since been increased to a 40% disability, for
which he now receives a monthly disability payment of $454.00. With his monthly
disability payment, however, claimant must reimburse the Navy for approximately
$8,000.00 of his severance pay, and payments of approximately $200.00 per month
have been withheld from his monthly disability payment until this amount has
Claimant is entitled to receive these disability benefits for as long as his
disability remains, and at the time of the damages trial, claimant was still
considered disabled by the Naval Medical Board.
Based on the above, therefore, the Court finds that the monthly payment that
claimant was receiving for Naval Reserve duty of $225.00 has been completely
offset by the monthly disability payment that he currently receives, even taking
into account the temporary reduction attributable to the severance pay
Furthermore, although claimant testified that he has been unable to continue
with his present employment due to his disability, the Court does not find
sufficient evidence to establish that his inability to continue with his current
employment is causally related to the 1996 accident. As a result, the Court
finds that any award for lost wages (either past or future) is entirely too
speculative, and therefore no such award is made.
Accordingly, based upon the foregoing, the Court finds that the claimant has
suffered total damages of $200,000.00 ($110,000.00 for past pain and suffering
and $90,000.00 for future pain and suffering). This award must be reduced by
the percentage of claimant's comparative fault as found in the Court's prior
decision on liability. As a result, after applying claimant's 25% comparative
fault to the total award, the Court hereby awards claimant the sum of
The amount awarded herein shall carry interest at the rate of 9% per year from
the date of the determination of liability on June 26, 2002 (see
Dingle v Prudential Prop. & Cas. Ins. Co.
, 85 NY2d 657; Love v
State of New York
, 78 NY2d 540).
LET JUDGMENT BE ENTERED ACCORDINGLY.