New York State Court of Claims

New York State Court of Claims

GONZALEZ v. THE STATE OF NEW YORK, #2007-009-168, Claim No. 90644


In this damages decision, the Court awarded the sum of $300,000.00 to the Estate of Hector Gonzalez on Claim No. 90644 and the sum of $934,630.00 to Sharlene Gonzalez Nunez on Claim No. 90645 in this negligence claim.

Case Information

SHARLENE R. GONZALEZ, a/k/a SHARLENE NUNEZ, As Executrix of the Estate of Hector M. Gonzalez, Sr.
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: H.J. Hubert, Esq.Of Counsel.
Defendant’s attorney:
Attorney General
BY: Michael R. O’Neill, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant’s attorney:

Signature date:
March 20, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


These two claims arose on August 30, 1994, when claimant Sharlene Gonzalez (now known as Sharlene Nunez) and her late husband Hector Gonzalez[1] were both injured in an accident when their vehicle was struck by a motor vehicle operated by a New York State trooper. Following a joint trial of these claims as to liability, in a decision dated March 15, 2001, this Court determined that the State of New York was 100% liable for the injuries sustained by claimants (Gonzalez v State of New York, Ct Cl, March 15, 2001, Midey, J., Claim Nos. 90644 and 90645 [UID #2000-009-009])[2]. A trial addressing the damages sustained by each claimant has since been held, and this decision is limited solely to that issue.

On August 30, 1994 Hector and Sharlene Gonzalez were proceeding southbound in their vehicle on Route 57 in the Town of Clay, Onondaga County, New York, and were preparing to make a left turn onto Wetzel Road when they were struck by a vehicle operated by New York State Trooper Edwin Streety. As will be detailed herein, both Hector and Sharlene Gonzalez sustained serious injuries as a result of this accident.

In addition to the testimony of Sharlene Gonzalez Nunez[3] at the damages trial, Lawrence Spizman, Ph.D., performed an economic analysis (see Exhibit 6) and testified to this analysis at trial, and Peter D. Stickney, an expert in the area of vocational rehabilitation, also testified. Furthermore, the testimony of three of claimant’s medical providers was taken prior to trial, and transcripts of their testimony were provided to the Court. Specifically, a transcript of the testimony of Daniel G. DiChristina, M.D., an orthopedic physician (Exhibit 1-D, and videotape at Exhibits 1-A and 1-B), William M. Harmand, M.D., an ear, nose and throat specialist (Exhibit 9), and Paul J. Longo, D.D.S. (Exhibit 10) have been reviewed by the Court. An independent medical evaluation (IME) of Sharlene Gonzalez Nunez was performed by Daniel L. Carr, M.D., and his report (Exhibit B) has also been considered by the Court.
CLAIM NO. 90645
Claimant testified that she was born on December 18, 1946, and married Hector Gonzalez on November 23, 1991. At the time of this accident, claimant was a licensed practical nurse (LPN) working with special needs children as a private nurse, earning approximately $400.00 to $450.00 per week. Prior to the accident, claimant testified that she was in excellent health and had never had any major medical diseases, illnesses or surgeries. In fact, claimant testified that she had never been hospitalized, except at the time when she gave birth to her daughter.

Although claimant does not have any specific memory about the actual accident, she testified that she was wearing her seatbelt at the time, but the seatbelt apparently malfunctioned and she was ejected from her car by the force of the accident.

Immediately following the accident, claimant was transported to Upstate Medical Center by ambulance, where she remained a patient for the next two weeks.

Claimant suffered several facial injuries in the accident. She had a laceration on the right side of her head, which required between 20 and 30 stitches to close. She also had a laceration which ran down from her forehead, across her nose and onto her chin. She received a black eye, bruises and other abrasions on her face, and also suffered a broken nose, a crushed right ear, and the loss of her two front teeth.

Claimant also suffered significant internal injuries: her clavicle was fractured in two places, her right scapula was shattered, and she suffered five broken ribs on her right side. She also suffered a punctured lung, resulting in pneumothorax, a lacerated liver, causing abdominal bleeding; a fractured pelvis, and a bruised and swollen right hip. In addition to all of these significant internal injuries, claimant also suffered cuts and bruises to her right hand, arm, and chest.

As indicated, claimant was confined to University Hospital for approximately two weeks following the accident. During this time at the hospital, claimant testified that she was constantly dizzy and had difficulty breathing (as a result of her fractured nose), as well as having difficulty swallowing due to the swelling in her neck. Despite medication, claimant testified that she was in constant pain, especially in her right side and arm.

Following her discharge, claimant returned home where she was bedridden for the next six months, during which time she received assistance from her daughter and a nurse’s aide.

Dr. Daniel G. DiChristina, an orthopedic surgeon who was on call at University Hospital on the day of the accident, treated claimant for her fractures and internal injuries during her two weeks at University Hospital, and also provided claimant with follow-up medical care after her discharge. Dr. DiChristina testified that claimant suffered a displaced fracture of her clavicle on the right side, and that it was cracked right through to the middle of her collar bone. He testified that the comminuted fracture of her scapula on the right side, also displaced, was so severe that her right shoulder blade was completely shattered. With regard to her rib fractures, at least one or two of those fractures were comminuted, and that both her punctured lung and lacerated liver were caused by these comminuted rib fractures.

After claimant’s admission to the hospital, Dr. DiChristina testified that he took immediate steps to stabilize claimant, including the insertion of a chest tube. He embarked upon a conservative course of treatment, deciding against surgery, and treated claimant throughout her two-week stay at University Hospital. He then continued to treat claimant after her discharge.

Dr. DiChristina also testified that claimant developed calcific tendinitis in her shoulder area, resulting in a limitation in her range of motion. Her injuries also resulted in a decrease in muscle size, and Dr. DiChristina testified that the muscle strength in her right arm is now approximately 75% of what he considers to be normal. Based upon all of the injuries suffered by claimant, he determined that claimant has suffered a 32 ½ % loss of use with her right arm, and that this loss of use is permanent.

Dr. DiChristina also testified that when claimant’s fractures healed, the bones ended up shorter than their original lengths. In other words, the right-sided fractures to claimant’s clavicle and scapula caused a significant disfigurement of claimant’s right shoulder when these bones healed. According to Dr. DiChristina, claimant has essentially lost her right shoulder, and as a result, is unable to wear any bras or other clothing that require straps that fit over the shoulders. Dr. DiChristina concluded that this deformity is both significant and permanent.

In her accident, claimant also suffered multiple tooth fractures, which were treated by Paul Longo, D.D.S. Dr. Longo testified that he had first started treating claimant for dental work in February, 1992, two years prior to this accident. Following the accident, Dr. Longo began a lengthy course of treatment to repair those teeth which were affected by the collision. He first concentrated on teeth #’s 8 and 9 (claimant’s two front teeth), since claimant had lost crowns to each of these teeth in the accident. Root canals were first performed on these two teeth by an endodontist, and following the root canals, Dr. Longo then proceeded to repair the teeth by means of a post and core, to provide additional structural support for those two front teeth. Dr. Longo also placed a crown on tooth #7, and connected this tooth to teeth #’s 8 and 9 for additional support. As noted, this entire course of treatment involved several separate procedures, starting in November, 1994 and continuing through January, 1995.

In addition to this extensive dental work on claimant’s front two teeth, Dr. Longo also treated claimant for a cusp fracture of tooth #2, an upper molar, and he also replaced a filling in tooth #12. He testified that the injuries to these two teeth, as well as teeth #’s 8 and 9, were causally related to the accident.[4]

Medical records also established that claimant suffered a fractured nose in this accident. William M. Harmand, M.D., a specialist in otolaryngology, testified on behalf of claimant. Although he did not begin to treat claimant until July, 1997, Dr. Harmand testified that, in his opinion, the injuries sustained by claimant to her nose were post-traumatic and attributable to the accident of August 30, 1994. He testified that there was no indication that claimant had suffered any injuries or trauma in the intervening three years which would have resulted in a fracture, and based his conclusion on this information.

Based on his initial examination of claimant, Dr. Harmand diagnosed a post-traumatic internal and external nasal deformity with nasal obstruction. This diagnosis was confirmed in a subsequent CT scan, performed on July 8, 1997, indicating that claimant’s septum was buckled, which Dr. Harmand attributed to the trauma sustained by claimant in the accident.

In August, 1997 claimant underwent surgery at St. Joseph’s Hospital in Syracuse, in which Dr. Harmand reset the bone and cartilage. During the surgery, claimant’s nasal bone first had to be refractured before it could be straightened. Following surgery, claimant was prescribed Darvocet, as well as Tylenol with codeine, to relieve her pain.

Based upon his continued examinations of claimant during follow-up appointments, Dr. Harmand testified that claimant recovered reasonably well from this surgery, although in March, 1998, claimant developed a bacterial infection, which was treated with an antibiotic and topical corticosteroid. Dr. Harmand testified, however, that even with the corrective surgery, further surgical intervention might still be necessary to treat some residual scarring and other issues resulting from the trauma, as these conditions still affect claimant’s breathing. Dr. Harmand testified that claimant, at the time of trial, had not yet decided whether to undergo this second reconstructive surgery. In his opinion, claimant will continue to have problems with her nose, such as difficulty breathing, crusting, and the possibility of future infection, for the rest of her life.

Claimant testified that she still suffers from the lasting effects of her injuries. She continues to undergo physical therapy twice a week, a primary focus of which is to try and reduce the pain that she constantly experiences in her right arm. She testified that the circulation in her right arm is impaired, as her fingers often become numb and prickly, and that she simply does not have the strength in her arm that she had prior to the accident.

Claimant further testified that it is extremely difficult for her to perform even the simplest of tasks around her home, such as cleaning, vacuuming, laundry, and washing dishes. Due to the permanent injuries to her right shoulder, claimant testified that she is unable to wear a bra, or any other garment which requires the use of shoulder straps.

Based upon the foregoing testimony, claimant has established, to the satisfaction of the Court, that she suffered multiple fractures and internal injuries directly as a result of the motor vehicle accident of August 30, 1994. These injuries (fractured clavicle, fractured scapula, fractured pelvis, five fractured ribs, multiple facial lacerations, multiple tooth fractures, fractured nose, punctured lung, and lacerated liver) were all competent producing sources of the pain and suffering endured by claimant following this accident. Claimant has clearly established the severity of these injuries. Additionally, except where noted, the Court has accepted the testimony establishing and describing the medical and dental procedures which claimant was required to undergo for treatment of these injuries.

Although claimant has made a substantial recovery from these injuries, testimony also established that she continues to experience pain on a daily basis. In particular, claimant has suffered, on a permanent basis, significant loss of use of her right arm. Claimant has also suffered a permanent deformity and disfigurement to her right shoulder as a result of this accident, and continues to experience breathing difficulties. These lasting effects, all attributable to the accident, must be considered permanent in nature, and have resulted in, and continue to cause, some restrictions on claimant’s daily activities. In sum, claimant will continue to experience pain and suffering from the after-effects of this accident for the remainder of her life.

Accordingly, in order to adequately compensate claimant for her non-economic losses, and after a consideration of the foregoing and the entire trial record, the Court finds and determines that claimant is entitled to damages in the amount of $450,000.00 for past pain and suffering, and $175,000.00 for future pain and suffering.

In addition to damages for pain and suffering, claimant also produced testimony with regard to economic losses.

Approximately one year after the accident, Dr. DiChristina, claimant’s treating orthopedic physician, determined that claimant was capable of returning to light work. Claimant, however, testified that it was more than two years before she felt capable of returning to work. She testified that she then attempted several different jobs, but was unable to continue with any of them. She testified that she could not physically handle the requirements of those jobs, due to the pain that she continued to experience from her injuries, and in particular with her right arm and shoulder.

Ultimately, in 2004, claimant began working again as an LPN, providing home health care for a special-needs child. To her credit, claimant continues to work in this job as an LPN, even though she testifies that she endures significant pain in doing so.

Peter D. Stickney, an expert in the field of vocational rehabilitation, conducted a transferable skills analysis of claimant, and testified as to his analysis at trial. Dr. Stickney testified that this analysis begins with a review of the job skills possessed by claimant, and then attempts to match claimant with a job that she can adequately perform, taking into consideration her physical limitations. His analysis was based upon a functional capacity evaluation, which had been ordered by Dr. DiChristina when he was treating claimant.

Based on the functional capacity evaluation, Dr. Stickney concluded that claimant was only capable of working in a sedentary position, a type of job which requires the least strength, due to her physical limitations. Although claimant is presently working as an LPN, Dr. Stickney noted that an LPN position is not classified as a sedentary job. In his opinion, an LPN position, which may require lifting of at least 50 pounds, is not one of the jobs that is suited for claimant.

Dr. Stickney then prepared a report setting forth claimant’s earning capacity as an LPN both prior to the accident and after her accident, taking into consideration her physical capabilities and limitations attributable to the accident (see Exhibit 5).

Lawrence M. Spizman, an expert in economics, also testified on claimant’s behalf. Relying upon the report prepared by Dr. Stickney, Dr. Spizman testified with regard to claimant’s loss of earnings and benefits. Dr. Spizman determined the total amount that claimant would have earned (post-accident and up to the date of trial) if she had not been injured, and compared those figures with the actual amount reported as earnings by claimant during those same years. Additionally, Dr. Spizman calculated her projected earning potential as an LPN during the remainder of her work life (if she had not been injured), and compared these potential earnings to the projected earnings from a sedentary job, in accordance with the physical limitations caused by the accident (see Exhibit 6).

This analysis as to loss of future earnings, however, was obviously based on an assumption that, due to her physical limitations, claimant would only be capable of performing light-duty, sedentary work. This analysis, however, fails to take into consideration the fact that claimant, in 2004, returned to medium-duty work as an LPN, and has demonstrated the capability of earning approximately the same income as she did prior to the accident. Accordingly, the Court makes no award for any loss of future income, notwithstanding the testimony from Dr. Stickney and Dr. Spizman.

Furthermore, defendant contends that claimant has not established that she was incapable of returning to medium-duty work, such as that of an LPN, since 1995, evidenced by the fact that she has demonstrated the ability to perform this type of work at the present time. Based upon claimant’s testimony, and the other evidence submitted at trial, the Court remains convinced that claimant made several good-faith, albeit unsuccessful, attempts to maintain light duty employment in the years following her accident, but was unable to do so solely as a result of the pain and complications resulting from the injuries suffered by her in the accident. The Court therefore accepts the calculations provided by Dr. Stickney and Dr. Spizman as to the loss of earnings sustained by claimant from 1994 through 2004, when she returned to steady employment as an LPN. Based on those calculations (see Exhibit 6), and after taking into consideration the actual earnings of claimant during those years, the Court hereby awards claimant the sum of $309,630.00 for past lost earnings. Claimant also testified that during the time that she was out of work, it became necessary for her to withdraw contributions from the 401K plan maintained by her husband, Hector Gonzalez. She testified that not only did she suffer an early withdrawal penalty, but that she also lost the benefit of compounded interest that would have accrued on these contributions. The Court finds that such claims are speculative, and therefore makes no award for these alleged economic losses.

Accordingly, the Court finds that the direct economic losses suffered by claimant consist entirely of past lost wages in the amount of $309,630.00.
CLAIM NO. 90644
Hector Gonzalez, the husband of Sharlene Gonzalez, also sustained personal injuries in this accident. As previously noted, Mr. Gonzalez passed away on February 18, 2000, from causes unrelated to the injuries suffered by him in this accident. Sharlene Gonzalez Nunez, therefore, as his surviving spouse and primary caregiver, provided testimony at the damages trial regarding the injuries and suffering endured by Hector Gonzalez as a result of this accident.

At the time of this accident, Hector was 56 years old, and was employed as a packer-operator at the Anheuser-Busch plant in Baldwinsville, New York. He was described by Sharlene as a very loving, selfless, and jovial man who enjoyed going out dancing with her several times a week.

Hector was operating the Gonzalez vehicle when it was struck by the State Police vehicle. He was wearing a seatbelt, but suffered a laceration to his scalp and was knocked unconscious when his head struck the windshield. He was transported by ambulance to St. Joseph’s Hospital in Syracuse, where he was treated for a mild concussion, multiple contusions, and a laceration to his right knee. Tests and observations did not reveal any fractures or neurological damage, and Hector was discharged from the hospital on the day after the accident.

Hector spent the next month out of work, recovering from his injuries sustained in the accident. During that time, however, the abrasion on his right knee, which did not initially appear to be serious, became infected and developed into a case of necrotizing fasciitis, commonly known as flesh-eating bacteria. Necrotizing fasciitis is a rare, life-threatening infection which spreads underneath the skin, eating away at the body’s soft tissues.

Hector went to the emergency room at Crouse-Irving Memorial Hospital in Syracuse on September 17, 1994, for treatment of his infection, and was prescribed a strong antibiotic medicine.

The infection worsened, however, and on September 20, 1994, Hector was admitted to Crouse-Irving Hospital and emergency surgery was performed that day. This surgery involved debridement of the skin to remove dead and infected tissue. Following the surgery, Hector was placed on intravenous antibiotics and remained in the hospital to insure that the infection had been contained. Once it was determined that all of the infection had been cut away and would not spread, a skin graft was performed, in which layers of skin were taken from Hector’s right thigh and grafted onto the open area around his right knee.

Hector remained in the hospital for over one month while receiving treatment (including the debridement and skin graft) for this infection. Hector was finally discharged from the hospital on October 21,1994, and given a prescription for pain medication. Hector continued with antibiotic treatment, and also underwent physical therapy for approximately three months.

Dr. DiChristina testified as claimant’s medical expert. He confirmed that the abrasion on Hector’s right knee, which he sustained in the accident, directly led to the necrotizing fasciitis. Dr. DiChristina testified that the procedures for treatment of this condition (the debridement and skin graft) resulted in significant scarring over Hector’s right knee.

Significantly, Dr. DiChristina also testified that claimant endured substantial pain and suffering during treatment of this condition, and furthermore, even after completing treatment, Hector still experienced pain on a permanent basis. Additionally, it was Dr. DiChristina’s opinion that Hector suffered permanent limitations in his range of motion, even after physical therapy, as a result of this condition.

Dr. DiChristina also treated claimant, post-accident, for pain and swelling in his left knee. After Hector recovered from the treatment for the necrotizing fasciitis, he was released for restricted light-duty work in February, 1995. Approximately one month later, Hector fell and sustained an injury to his left knee. Dr. DiChristina first treated Hector in March, 1995, and observed that Hector had significant swelling in his left knee, resulting in a limited range of motion. An MRI was performed, revealing a tear of the medial meniscus. Dr. DiChristina recommended physical therapy as a course of treatment. In April, 1995, however, Dr. DiChristina drained approximately 25 cc’s of fluid from Hector’s left knee, and injected a corticosteroid to hopefully decrease the inflammation. Although it is possible that Hector suffered this tear of his medial meniscus in the motor vehicle accident on August 30, 1994, there were no medical records or other evidence documenting this injury at that time. Dr. DiChristina could not affirmatively state whether this injury was suffered in the accident, or in the intervening fall after Hector had returned to light-duty work. Accordingly, the Court has not considered this injury, or any pain and suffering attributable to this injury, in making its award.

There is no question, however, that Hector suffered a concussion in this accident, as well as the abrasion on his right knee which led to the painful and potentially life-threatening necrotizing fasciitis, for which an award must be made. From the testimony of both Sharlene Gonzalez Nunez and Dr. DiChristina, the Court is convinced that Hector suffered agonizing pain from this necrotizing fasciitis during his month-long stay in the hospital, and that he continued to suffer pain, as well as restrictions in motion, which had a direct and limiting impact on his daily activities, on a permanent basis, until his death in February, 2000.

Based on the foregoing, therefore, claimant Sharlene R. Gonzalez Nunez, as Executrix of the Estate of Hector M. Gonzalez Sr., is entitled to the amount of $300,000.00 representing past damages for the pain and suffering endured by Hector as a direct result of the injuries sustained in this accident. This amount represents the total award made by the Court in Claim No. 90644.

Based on the findings herein and the entire trial record, therefore, the Court makes the following awards for damages:

March 20, 2007
Syracuse, New York

Judge of the Court of Claims

[1].As previously noted on the Court’s trial decision on liability, Hector Gonzalez died on February 18, 2000, from causes unrelated to the motor vehicle accident involved herein. Sharlene Gonzalez subsequently remarried on March 17, 2004.
[2].Unpublished decisions and selected orders of the Court of Claims are available via the Internet at
[3]. Unless otherwise indicated, all references to “claimant” shall refer to Sharlene Gonzalez Nunez, as she is both an individual claimant and the Executrix in the Estate of Hector M. Gonzalez, Sr.
[4]. Dr. Longo also testified that in September, 1995, he referred claimant for an endodontic evaluation of tooth #10. In June, 1996, an x-ray revealed that this tooth was fractured at the gumline and had to be extracted, ultimately replaced with a permanent bridge. Although he testified that it was possible that the injury to this tooth was also caused by the accident, he was unable to definitively conclude that this fracture was in fact causally related to the accident. The Court therefore has not considered the injury to this tooth or the dental treatment that was provided, in making its award to claimant.