SCHUTT v. THE STATE OF NEW YORK, #2005-019-001, Claim No. 105405
Claimant awarded total sum of $398,331.45 after 35% reduction per liability
determination for partial loss of thumb including $97,500 for past pain and
suffering; $65,000 for future pain and suffering; $20,424.05 for past lost
income; and $215,407.40 for future lost earnings.
W. JAMES SCHUTT
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
FERRIS D. LEBOUS
THE ROTHSCHILD LAW FIRM, P.C.BY: Martin J. Rothschild, Esq., of counsel
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Mlynarski & Cawley, P.C.Theodore J. Mlynarski, Jr., Esq., of counsel
March 8, 2005
See also (multicaptioned
In a prior Decision of this court filed April 23, 2003, the State of New York
(hereinafter "State") was found 65% liable for the personal injuries suffered by
claimant, W. James Schutt. (
Schutt v State of New York,
Ct Cl, April 23, 2003, Lebous, J., Claim No.
105405 [UID No. 2003-019-003]).
however, was found 35% liable for his own injuries. An interlocutory judgment
was entered on April 30, 2003, in accordance with said Decision. The trial on
the remaining issue of damages was held by this court in the Binghamton District
on May 11, 2004. Counsel requested and were granted additional time to submit
post-trial memoranda of law.
The court will briefly review the underlying facts, although additional details
surrounding this accident are contained in this court's prior Decision. On
January 10, 2001, claimant was working for Tioga Construction on a construction
project located at the Apalachin-Campville Bridge in the Town of Owego, New
York. Claimant was setting beams while working in an aerial basket, when his
left hand and thumb became trapped between the aerial basket and a bolt
protruding below one of the bridge's steel crossbeams. Claimant was unable to
pull his hand free or maneuver the basket away from the bolt for approximately
one to five minutes, during which time he experienced extreme pain and panic.
Ultimately, claimant was able to pull his hand free, but suffered serious
injuries to his left hand including a partially amputated left thumb and crushed
bone, muscle and tissue. It is noteworthy that claimant is left hand dominant.
Claimant was transported by ambulance to the emergency room at Wilson Memorial
Regional Hospital in Johnson City, New York. While in the emergency room, John
Brosnan, M.D., amputated the distal phalanx and debrided the wound. Claimant
was discharged that same day. Claimant testified that during that first week
after his accident his left hand was continually wrapped and dressed, he could
not use his left hand at all, was unable to sleep, and was in constant pain.
Additionally, claimant needed daily assistance from his family in all daily
activities including eating, dressing, and washing. One week later, on January
17, 2001, the wound was cleaned and several sutures were removed. Thereafter,
on February 8, 2001, claimant underwent additional wound debridement and removal
of the remaining sutures by a physical therapist.
Beginning on January 29, 2001, claimant consulted with John F. Fatti, M.D., an
orthopedic surgeon specializing in hand surgery in Syracuse, New
Dr. Fatti recommended continuation of physical therapy for the next five weeks
at which time the possibility of performing an arthrogram of the wrist to rule
out ligamentous injury would be evaluated. On March 5, 2001, it was agreed that
an arthrogram was indicated. On April 26, 2001, an arthrogram was performed
which revealed a capsular leak and a tear of the triangular fibrocartilage
complex (hereinafter "TFC"). Ultimately, after undergoing continual physical
therapy from February 2001 to May of 2001, approximately two to three times per
week, claimant was allowed to return to work starting May 21, 2001. Although
claimant was permitted to return to work, Dr. Fatti's office advised claimant
that if his wrist continued to bother him he should consider an arthroscopy and
ligament debridement of the TFC.
In May of 2001, claimant returned to work and began working for a construction
company named M.A. Bongiovonni, Inc. (hereinafter "Bongiovonni"). However,
claimant testified that although he returned to work, his left hand was painful
and his wrist would constantly snap and bind up. As a result, claimant
testified that his overall work activity was restricted and he continually
favored his right hand due to the pain and discomfort in the left hand.
Nevertheless, claimant completed his work cycle for the 2001 year in September.
At that time claimant moved to Florida and remained there until the spring of
Claimant returned to New York in the spring of 2002. Claimant further
testified that he resumed his work as a pile driver with Bongiovonni starting in
the spring of 2002 through the end of 2002. However, claimant continued to
experience pain in his left hand due to its continual binding and snapping
causing extreme difficulty in operating any type of heavy equipment. Due to the
continuing pain and difficulties working, claimant again consulted Dr. Fatti who
recommended the previously discussed arthroscopy and ligament debridement
surgery. On December 20, 2002, after completion of the 2002 work season,
claimant underwent left wrist arthroscopic ligament tear debridement surgery
performed by Dr. Fatti. Thereafter, claimant underwent additional physical
Claimant returned to work with Bongiovonni in the spring of 2003, but continued
to experience pain in the left hand and difficultly operating cranes due to the
repetitive use of the left hand, rigging, set-up, and maintenance associated
therewith, all of which were too stressful on the injured hand. Due to the
continuing pain and difficulty working, claimant consulted with Dr. Fatti again
who prescribed various pain medications, but claimant testified that these pain
medications made him nauseous.
In September 2003, Dr. Fatti discussed with claimant the possibility of
performing partial fusion surgery of the left wrist which would involve the
fusing or knitting together of three of the eight bones, spending approximately
eight weeks in a cast, and three months of physical therapy. Dr. Fatti
testified that the advantages of partial fusion surgery include a 95% chance of
fairly good pain relief, although the disadvantages include the patient
permanently sacrificing at least one half of the wrist's mobility. Further, Dr.
Fatti indicated that he generally advises patients, as he did with claimant
here, that the chance of success of partial-fusion surgery of the wrist is
50/50, namely 50% of patients undergoing partial wrist fusion are able to return
to heavy and repetitive activities, while 50% are not. Dr. Fatti opined that
claimant currently suffers from a 28% loss of use of his left wrist and hand.
Claimant testified that he decided to decline the partial fusion surgery
because he did not want to permanently sacrifice the mobility of his wrist with
no more than a 50/50 guarantee of success. On cross-examination, claimant
conceded that by refusing the partial-fusion surgery he was foregoing a 50%
chance of lessening the daily pain and the possibility of being able to return
to construction work. Based upon claimant's continuing pain and difficulties in
construction work and decision to forego partial-fusion surgery, Dr. Fatti
placed claimant on restricted activity so as to limit repetitive motion and
lifting with his left hand. Consequently, claimant has not worked since
September of 2003 due to these restrictions.
Nevertheless, claimant testified that he is anxious to return to work in some
capacity and to aid in these efforts he entered a retraining program in 2003
entitled Vocational and Educational Services for Individuals with Disabilities
(hereinafter "VESID"). Claimant insists he spoke to a VESID counselor
approximately three weeks prior to the trial and formulated a work plan to
transfer to Gainesville, Florida to work with his brother who is also a
contractor. Claimant believes that if he transfers to Florida his brother would
hire him for limited type construction work. Claimant also indicated that he
considered going to school in Florida to pursue a career in forestry and
environmental work which would require a four-year degree. However, while
claimant spoke sincerely about wanting to explore other career and employment
options, claimant's cross-examination revealed that his attempts to get
rehabilitation and vocational education or to pursue a college degree were
intermittent at best and that he has not fully investigated or followed up on
any of the same.
Claimant also testified how the injury has affected his non-work activity as
well. Claimant stated that all home daily activities such as cleaning, washing,
dressing, feeding himself, are more difficult. He also has decreased grip
strength and dexterity. Claimant testified that at the end of the day his left
wrist and hand ache similarly to that of a toothache. Claimant indicated that
if he over-flexes his wrist he gets increased pain and his thumb throbs with
pain, and that the hand area is sensitive to impact. Claimant also testified
that when his hand is warm it decreases the pain in the injured area, while
colder weather increases the pain in the left hand. Claimant also testified to
the emotional effect that the injuries have had on him. Furthermore, claimant
is troubled by the negative cosmetic effect that viewing the left hand has on
others and he is extremely sensitive to the same. Claimant currently takes no
pain medication other than Advil.
COSTS & EXPENSES
At trial, no proof was offered as to any outstanding medical costs or expenses.
Consequently, the court makes no award for the same.
The term "pain and suffering" has in the past been utilized to encompass all
items of general non-economic damages. (
McDougald v Garber
, 73 NY2d 246, 253-255; Lamot v Gondek
, 163 AD2d
678, 679). Consequently, an award for pain and suffering should include
compensation to the injured person for the physical and emotional consequences
stemming from the injury. In determining the amount to be awarded to claimant
for these physical, emotional, and other non-economic damages, the court may and
should consider the effects these injuries have had on the claimant's capacity
to lead a normal life. Based upon the foregoing, the court finds claimant is
entitled to a judgment against the State on his claim for pain and suffering,
both past and future.
PAST PAIN & SUFFERING
The court concludes from the testimony and proof elicited at the damages trial
that claimant endured a moderate amount of past pain and suffering. First and
foremost, claimant sustained an extremely painful and traumatic injury on
January 10, 2001 as described hereinabove. In addition to the pain of the
initial injury and partial amputation and the traumatic nature of the accident
itself, claimant underwent two surgeries, each with a period of convalescence
and physical therapy. Claimant's attempts to work after the accident to the date
of the trial resulted in slight to moderate pain and discomfort. Additionally,
claimant experienced an inability to use his left hand without some form of pain
in his daily life. The court is satisfied that the claimant suffers some pain
on a daily basis, although he is able to medicate the same with over-the-counter
In light of the foregoing, the court awards claimant the amount of $150,000
for past pain and suffering, reduced by 35% to the sum of $97,500 in accordance
with this court's earlier liability determination.
FUTURE PAIN & SUFFERING
The court is satisfied from the medical report and testimony of Dr. Fatti that
claimant's injuries to his dominant left hand and thumb are permanent in nature
and that the claimant will suffer some unresolved pain on a daily basis. This
unresolved pain will, at best, be mildly debilitating although it will be
permanent in its nature. The injury to the dominant left hand will also remain
mildly debilitating and a source of intermittent discomfort for the balance of
claimant's natural life which is 33.5
The injury will have some minimal degree of impact on claimant's daily
activities, routine and otherwise, and will result in increased pain directly
proportional to the amount of physical exertion and activity engaged in by
claimant with that hand. Additionally, claimant should and will be compensated
for the loss of enjoyment of life, particularly the impairment that this hand
may have on the hunting and fishing activities and other leisure pursuits he
previously enjoyed requiring any degree of manual dexterity. Furthermore, the
court feels that claimant should be compensated for the disfiguring nature of
the injuries, specifically the loss of a portion of the thumb which is visible
to the public at large and "[t]hat a reasonable person would regard as
unattractive, objectionable or as the subject of pity and scorn [citations
omitted]." (Carson v De Lorenzo
, 238 AD2d 790, 792, lv denied
That having been said, however, the court finds that claimant is not entitled
to any future damages relating to partial fusion surgery. Claimant was quite
adamant in his testimony that he has refused to undergo fusion surgery to date
because Dr. Fatti can only offer a 50/50 success rate. The court finds no basis
from which to conclude that claimant will opt for fusion surgery in the
Based upon the foregoing, the court awards claimant $100,000 for future pain
and suffering, loss of enjoyment of life, as well as permanent appearance of a
disfigured left hand reduced by 35% to the sum of $65,000 in accordance with
this court's earlier determination on liability.
Generally speaking, a claimant is entitled to be reimbursed for lost earnings
caused by defendant's negligence from the date of the accident to the date of
trial. Additionally, the court may take into consideration an award for future
earnings if the court is satisfied that claimant has suffered a reduction in his
capacity to earn money in the future as a result of the same negligent act. To
calculate these lost earnings, the court may and should consider the value of
fringe benefits associated with claimant's position, assuming there is evidence
presented as to the nature and value of said benefits. (
Walsh v State of New York
, 232 AD2d 939).
LOSS OF PAST EARNINGS
In order to recover for past lost earnings, claimant must establish with
reasonable certainty earning capacity both before and after the injury by
submitting appropriate proof and documentation. In the instant case, the court
is satisfied that the claimant earned $49,513 in the one-year time period before
his injury, established by his 2000 tax return, meaning that his average weekly
salary was $952.17. (Cl. Ex. 10). Moreover, claimant established that he had
three periods of unemployment resulting from this injury. First, claimant
established that he was unemployed from January 10, 2001 (the date of his
injury) until May 21, 2001, for 18 weeks. Consequently, the court finds that
the claimant is entitled to recover 18 weeks of lost pay at $952.17 per week (18
x $952.17) for a total amount of $17,139.06. Second, claimant established that
he was out of work for eight weeks following his ligament surgery on December
20, 2002. As such, claimant is also entitled to lost earnings for this
eight-week period (8 x $952.17) totaling an amount of $7,617.36. Third,
claimant also established a seven-week period that he was out of work after Dr.
Fatti placed him on restricted activity from September 9, 2003 to October 31,
As such, claimant is also entitled to lost wages for this seven-week period (7 x
$952.17) for an amount of $6,665.19.
In sum, the court finds that claimant is entitled to a total award of
$31,421.61 for loss of past earnings, reduced by 35% to the sum of $20,424.05,
in accordance with this court's prior liability determination.
LOSS OF FUTURE EARNINGS
Loss of future earnings must be established with reasonable certainty focusing,
in part, on claimant's earning capacity both before and after the accident.
Clanton v Agoglitta
, 206 AD2d 497, 499). However, an award for loss of
future earnings may not be based on speculation. (Warren v State of New
, 274 AD2d 472; Eichler v City of New York
, 196 AD2d 524).
At trial claimant called Peter D. Stickney, MS, CRC, a certified rehabilitation
counselor to discuss claimant's future employment capabilities. Mr. Stickney
testified in part based upon the independent medical exam performed by Mark L.
Goodman, M.D. on April 18, 2001. Dr. Goodman found claimant quite symptomatic
and suffering from temporary partial disability status of a moderate to marked
degree. Dr. Goodman believed that claimant should refrain from any activities
that involved a tight grip or grasp with his dominant left hand and should avoid
repetitive motions, thereby restricting him from operating power, vibratory or
pneumatic tools. Mr. Stickney, using the opinion of Dr. Goodman as a basis,
attempted to determine claimant's transferrable skills and engaged in various
vocational and aptitude testing to determine what career possibilities claimant
might be able to pursue should he be unable to return to operating heavy
construction equipment. Mr. Stickney made the following findings: (a)
claimant's pre-injury earning capacity was $49,313 (his wages for the year prior
to his injury)
; (b) alternate jobs for which claimant is qualified, without the fusion
surgery, include maintenance supervisor, landscape contractor, material handling
supervisor, overhead crane operator, hardware sale's person, general inspector,
gate guard, landscape supervisor, building inspector, sporting goods sales
person, cashier, appliance sales person, or security guard dispatcher; and (c)
these alternate jobs have an average starting pay of $15,870 per year excluding
Based on the foregoing, Mr. Stickney presented two scenarios for claimant's
employment future. First, if claimant attempted to return to work without
retraining he would be required to work in one of the above-referenced jobs with
average starting salaries of $15,870 per year excluding fringe benefits.
Second, if claimant developed a rehabilitation training plan to include college
he would increase his earning potential, but would incur initial costs for
The court finds that, beyond a passing comment or two, claimant has not
investigated or followed up on pursuing a college career in forestry and
environmental work. Since claimant's interest in pursuing a college career does
not even rise to the level of genuine exploration, the court finds that the
second scenario outlined by Mr. Stickney, involving the college path, is too
speculative and must be rejected. As such, the court will limit further
analysis of claimant's future lost earnings to those calculations addressed to
claimant's return to work without pursuing a college degree.
Claimant also called William C. Blanchfield, Ph.D., an economist from Utica,
New York, who engaged in two economic-loss scenarios based upon Mr. Stickney's
findings. Dr. Blanchfield also assumed that claimant's pre-injury wages were
$49,313 per year and that post-injury wages with no further education would
start at $15,870 per year. Dr. Blanchfield then applied fringe benefits to the
loss of wages including pre-injury fringe benefits at a rate of 20% of wages and
future fringe benefits at a rate of 10%. Furthermore, Dr. Blanchfield factored
in a 3% increase a year for all wages. Dr. Blanchfield found that claimant
would have annual offset wages starting at $15,870 per year and calculated net
wage loss from 2003 to 2023 (claimant's age 62 at retirement) as $942,483.
(Bench Ex. #3). Dr. Blanchfield then factored in net fringe benefit loss on
that total net wage loss as $235,659.
(Bench Ex. #3). In total, Dr. Blanchfield found that assuming offset wages of
$15,870 commencing in 2004, claimant's future lost wages and benefits would
To counter the above, the State called William David Book, MA, CRC, a certified
rehabilitation counselor and president of Chestnut Rehabilitation Services, LLC.
Not surprisingly as a result of the vocational diagnostic testing assessment and
interview with claimant, Mr. Book found that claimant's transferrable skills and
employment potential in the future were nowhere near as bleak as that outlined
by Mr. Stickney. While some of the potential career alternatives for claimant
identified by Mr. Book were the same or similar as those identified by Mr.
Stickney, Mr. Book believed that the wage rates and future income potential for
those alternate positions were significantly higher than those outlined by Mr.
Stickney. By example, Mr. Book described employment options with starting
salaries ranging from $26,600 to $34,400 per year for which claimant would be
qualified based upon his work history. Mr. Book concluded that based on
claimant's work history, his educational background, and current physical
capabilities, employment opportunities could be found suitable for claimant at
comparable wage rates right here in the central New York region that would
initially be moderately less than his pre-injury wage depending on the position
he chose. However, Mr. Book concluded that claimant had the potential to
overcome any diminution of earnings in a five-year period.
The court notes that claimant testified at trial regarding his background in
various types of construction-related jobs after his graduation from high school
in 1979 which supports Mr. Book's findings. As such, the court finds that
claimant will be able to obtain suitable gainful employment at wage levels, that
although initially less than his pre-injury wage depending on the position he
chooses, are ultimately comparable to his pre-injury wage. Nevertheless, the
court recognizes that claimant is not capable of returning to the work for which
he is most suited and which he engaged in before the injury which involves
repetitive motion with his dominant left hand. As previously stated, an award
for future lost earnings may not be based upon speculation. (
, 206 AD2d at 499). Based upon the foregoing, the court finds Mr.
Book's testimony to be most credible based upon claimant's actual work history
and experience. However, the court believes Mr. Book's projection of a
five-year recovery to be overly optimistic especially in view of the fact that
three years had already transpired from the date of the accident to the date of
the damages trial. Under these circumstances the court finds that the claimant
is entitled to recover future lost wages, including fringe benefits and annual
increases for cost of living, for a period of ten years.
Accordingly, the court accepts portions of both parties' experts' testimony.
The court accepts the testimony of Dr. Blanchfield with respect to the
but will alter those projections based on Mr. Book's testimony that claimant is
capable of obtaining a job with a starting salary of at least $26,600 (as
compared to Mr. Stickney's projection of $15,870). These calculations have been
modified by the court to a ten-year period into the future. To that end, the
court has taken the calculations of Dr. Blanchfield as set forth in Bench
Exhibit #3, table #2, and revised the same by using the lowest annual salary set
forth by Mr. Book, namely $26,600 per year.
(Court Exhibit #1). Consequently, the court finds that the claimant is entitled
to loss of earnings for a ten-year period of $249,879, plus fringe benefits for
the same period of $81,517, for a total loss of future earnings and fringe
benefits in the amount of $331,396, reduced by 35% to the sum of $215,407.40 in
accordance with this court's prior liability determination.
The court finds that the credible evidence establishes that
claimant is entitled to an award for damages reduced by 35% in accordance with
this court's prior liability determination as follows:
FULL VALUE AWARD AFTER 35%
Medical Costs & Expenses: None None
Past Pain & Suffering $150,000.00 $ 97,500.00
Future Pain & Suffering $100,000.00 $ 65,000.00
Past Lost Earnings $ 31,421.61 $ 20,424.05
Future Lost Earnings $331,396.00
Total: $612,817.61 $398,331.45
Accordingly, claimant is awarded the total sum of $398,331.45. Interest on
this award is to run from April 23, 2003, the date liability was determined by
Any and all motions on which the court may have previously reserved or which
were not previously determined, are hereby denied.
Finally, to the extent that claimant has paid a filing fee, it may be recovered
pursuant to Court of Claims Act §11-a (2).
ENTER JUDGMENT ACCORDINGLY.
March 8, 2005
HON. FERRIS D. LEBOUS
Judge of the Court of Claims
Age Year Pre-injury Expected Post-Injury Expected Due to Accident Econ.
Ending ----------------------------- ----------------------------- ----------------------------- -------
12/31 Earnings Fringes Earnings Fringes Earnings Fringes (8+9)
3.0% 20% 3.0% 10%
42 2003 49,313 9,863 45,204 4,520 $ 4,109 $5,343 $
43 2004 50,792 10,158 26,600 2,660 24,192 7,498 31,690
44 2005 52,316 10,463 27,398 2,740 24,918 7,723 32,641
45 2006 53,886 10,777 28,220 2,822 25,666 7,955 33,621
46 2007 55,502 11,100 29,067 2,907 26,435 8,193 34,628
47 2008 57,167 11,433 29,939 2,994 27,228 8,439 35,667
48 2009 58,882 11,776 30,837 3,084 28,045 8,692 36,737
49 2010 60,649 12,130 31,762 3,176 28,887 8,954 37,841
50 2011 62,468 12,494 32,715 3,272 29,753 9,222
51 2012 64,342 12,868 33,696 3,370 30,646 9,498
$249,879 $81,517 $331,396
Selected unreported decisions from the Court
of Claims are available via the internet at
Dr. Fatti's video-taped deposition testimony
was presented at trial.
Claimant, born in 1961, was 43 years old at
the time of trial with a remaining life expectancy of 33.5 years. (1B PJI 3rd,
Appendix A, p 1597).
The court notes that cases in which an award
for future pain and suffering include compensation for future fusion surgery
involve situations in which such future fusion surgery was of greater certainty
without any indication that the patient had refused the surgery to date.
(Hayes v Normandie LLC
, 306 AD2d 133, lv dismissed
100 NY2d 640;
Cabezas v City of New York
, 303 AD2d 307, 308; Bechard v Eisinger
105 AD2d 939).
Dr. Fatti's testimony established that at a
September 9, 2003 office visit claimant was placed out of work for only a
two-week period from September 9, 2003 through September 22, 2003. When
claimant returned to the office in November 2003, he reported that he had been
unable to return to work. The court finds that the State has not presented any
proof disputing the testimony of claimant that he was in fact out of work from
September 9, 2003 through October 31, 2003 and, as such, finds claimant is
entitled to lost wages for the entire seven week period from September 9, 2003
to October 31, 2003.
The amount is $200 less than the figure shown
on claimant's 2000 tax return. (Cl. Ex. 10).
Dr. Blanchfield's incorrectly states a total
of $235,661 in Bench Ex. #3, the figure should be $235,659.
Dr. Blanchfield's incorrectly states a total
of $1,178,144 in Bench Ex. #3, the figure should be $1,178,142.
The State did not call an economist.
See Court Exhibit #1 which contains the
court's modified calculations.
Column 8 = (Column 4 minus Column 6).
Column 9 = (Column 5 minus Column 7).
Column 10 = (Column 8 plus Column 9).