New York State Court of Claims

New York State Court of Claims

LOPEZ v. THE STATE OF NEW YORK, #2007-010-030, Claim No. 110647


Claimant awarded 1,043,541 in damages for ankle and knee injuries caused by defendant’s driver who attempted to make a left turn directly into the path of claimant’s oncoming vehicle as claimant legally proceeded into the intersection with the right-of-way.

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):

Terry Jane Ruderman
Claimant’s attorney:
SPIEGEL, BROWN, FICHERA & COTÉ, LLPBy: Cynthia K. Fichera, Esq.
Defendant’s attorney:
Attorney General for the State of New YorkBy: Jeane L. Strickland Smith, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
August 8, 2007
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


In a Decision filed August 11, 2006, this Court determined that defendant was 100 percent liable for an accident that occurred on February 14, 2005 in the Town of Fishkill. Claimant’s vehicle was legally proceeding into the intersection with the right-of-way when it was struck by a New York State Department of Correctional Services (DOCS) van attempting to make a left turn directly into the path of claimant’s oncoming vehicle.

Claimant was born on September 11, 1948. After attending public schools in New York City, he joined the United States Marines where he was a combat engineer. He was honorably discharged in 1967 and began a career as an automobile mechanic. Following employment as a mechanic in various dealerships, claimant opened his own automobile repair business in 1983. Claimant owns a home in Dutchess County where he resides with his wife. Claimant testified that prior to the accident he did all the repairs, yard work, snow removal, and general maintenance associated with the home. He also engaged in fishing and hiking. However, since the accident, claimant’s activities have necessarily been curtailed as a result of the injuries he sustained.

Claimant described the events of February 14, 2005 and photographs were received into evidence showing extensive damage to his automobile and bruising to his body (Exs. 22-23, 25-35). As the DOCS van approached claimant’s car, claimant hit the brakes, braced his legs, and turned the steering wheel to the right. Claimant was wearing his seatbelt and the air bags deployed as the vehicles collided. The force of the impact caused claimant’s engine block and transmission to bulge into the floorboard near claimant’s left foot. Claimant testified that when he regained consciousness, he thought that he had broken his leg. Pain radiated from the bottom of his left foot up his leg. He noted immediate bruising of his leg (Ex.33) and also had pain in his back, chest, and neck. Claimant remained in his car until emergency services personnel arrived and removed him from the car. He was secured on a board and pulled through the right rear side of the car. Claimant was transported by ambulance to the emergency room at St. Francis Hospital in Poughkeepsie. X-rays and CT scans were taken and pain medication was administered. He remained in the hospital overnight and was discharged pending surgery for his broken left heel. He was ambulatory with crutches and non-weight bearing on his left foot.

On March 3, 2005, Dr. Wen Shen performed surgery to reconstruct claimant’s heel. Claimant was discharged with his foot in a cast and instructed not to put weight on his foot and to use a walker and crutches. He underwent physical therapy for four or five months. At the end of April, claimant returned to work using a wheelchair. While he could not physically work on cars, he was able to supervise an employee that had been hired in July 2004 as a trainee.

At a follow-up appointment with Dr. Shen, claimant reported that the back pain had dissipated, but that he had pain in his foot and knee, and could not feel the bottom of his foot. He described his knee pain as horrendous, throbbing, and pulsating. He also complained of difficulty breathing. In May, claimant was permitted to put weight on his foot. Claimant explained that this is when the pain in his knee increased. Several injections were administered to his knee to address the pain; however they provided only temporary relief for two to three days. During the course of his medical treatment, claimant learned that he was suffering from preexisting osteoarthritis in his left knee, which he described as asymptomatic prior to the accident. He had never sought medical treatment for either knee prior to the accident. According to claimant, the knee pain has never really subsided since the heel surgery. He still has throbbing pain in his foot and the bottom of his foot is numb.

In the fall of 2005, claimant was referred to Dr. Gary Fink, who recommended arthroscopic knee surgery. This surgery was performed on November 22, 2005 and was followed by additional physical therapy. Claimant’s condition failed to improve. He was then referred to Dr. William Colman, who recommended a total knee replacement. This surgery was performed on November 28, 2006. Claimant continued to work during the time period between the two surgeries and he returned to work post-surgery on March 6, 2007.

Since the accident, claimant has lost many customers and can no longer afford to employ an assistant. He now performs minor brake jobs, oil changes and inspections; however these activities take at least twice as long as they should because he cannot bend. He also cannot lift anything heavy with regard to car parts used in his trade and the disposal of garbage associated with his business. He walks with a limp, has difficulty negotiating stairs, and cannot climb a ladder. Presently, claimant uses a cane most of the time, except for walking short distances on familiar flat surfaces. He has used a heel cushion and ankle brace. He cannot run and no longer participates in hiking. He has gained 40 pounds since the accident and still requires pain medication. He also has an eight-inch scar on the front of his knee from the knee replacement surgery.

Claimant has relied upon no-fault benefits (which have now ceased), his Veterans Administration pension and loans. He presently owes $18,262.19 in outstanding medical bills. Michelle Lopez-Pratt, claimant’s daughter and an Assistant District Attorney in Westchester County, testified that from 1981 to 2005, she worked part-time at her father’s business and kept the business financial records. She was aware that her father had repeat customers such as the United States Postal Service and the New York State Police. Prior to the accident, claimant had physically assisted his daughter when she moved her residence. She also observed him maintain the house and the lawn and, in 2004, he replaced a portion of his home’s roof. After the accident, claimant was no longer able to do the food shopping and the daughter assumed that responsibility. Since the accident, she has noted a change in her father’s personality from a positive outlook to a sad demeanor.

Dr. Wen Shen, an orthopedic surgeon with Orthopedic Associates in Poughkeepsie, testified that he received his undergraduate degree from Harvard College and graduated from Columbia University Medical School. He did his internship and residency at Mt. Sinai Hospital in New York City before completing a fellowship at the University of California at Los Angeles. He is a board-certified orthopedist who performs 200 to 250 surgeries a year, 90 percent of which relate to the ankle and foot.

Shen first saw claimant on February 18, 2005. X-rays taken that day revealed a comminuted intraarticular calcaneus (heel bone) fracture confirming the results of the CT scan taken at St. Francis Hospital on February 14, 2005. The CT scan also revealed fracture fragments that had migrated toward the distal fibula on the outside of the ankle. Shen discussed treatment options and recommended surgery in two and one half weeks (Ex. 2, p 3). On a follow-up visit, Shen noted diffuse swelling around the left foot and ankle and large ecchymosis (black and blue). The knee was non-tender and there was no knee effusion (Ex. 2, p 4).

Shen performed ankle surgery on March 3, 2005 at St. Francis Hospital. He explained that the purpose of the surgery was to align the fracture fragments in the proper position. An incision was made in the back of the heel and the pieces were put back together with a plate and screws (Ex. 2, p 36). After two days, claimant was released from the hospital with a fiberglass cast. Claimant returned to Shen on March 15, 2005 with complaints of shooting pain and tingling at the bottom of his foot. The cast was removed and claimant was directed to remain non-weight bearing for 12 weeks.

On March 29, 2005, three weeks post-surgery, claimant reported that, while the pain in his heel had dissipated, he experienced pain on the medial side of his left knee. Upon examination, claimant’s knee was swollen and tender at the medial joint line. An x-ray taken revealed degenerative joint disease (DJD), commonly referred to as arthritis. Shen suspected that claimant’s knee complaints were an “aggravation of previous DJD [degenerative joint disease] from the impact of the accident” (Ex. 2, p 6). Shen testified that it was common for a patient to suffer aggravation of DJD after a traumatic event. On April 25, 2005, claimant continued to complain of knee pain. Shen anticipated that claimant’s knee pain might increase when he started weight bearing (Ex. 2, p 7).

On May 31, 2005, Shen observed that the x-rays showed claimant’s left heel fracture was healing well. Claimant had decreased sensation on the bottom of his foot and hypersensitivity around the foot. On subsequent visits, claimant continued to complain that his knee pain was often worse than the pain in his foot (Ex. 2, pp 9, 11). Shen concluded that the accident had exacerbated claimant’s preexisting DJD. To ease the knee pain, Shen injected a mixture of lidocaine and Kenalog into claimant’s knee. Claimant continued to have decreased sensation on the bottom of his foot.

On November 22, 2005, Shen’s partner, Dr. Gary R. Fink, performed arthroscopic surgery on claimant’s knee. Shen continued to treat claimant for his foot injury. At a follow-up visit with Shen on February 28, 2006, claimant reported increasing pain in his left foot. He walked with an antalgic gait, favoring his left side. Shen prescribed naproxen and recommended the use of a walker for three weeks and the use of a cane. Claimant also used an orthosis which was minimally helpful. On April 28, 2006, Shen injected claimant’s foot with a mixture of lidocaine and Kenalog, hoping to decrease inflammation and pain. Claimant experienced no relief from the pain and another injection was administered a month later. Shen recommended an ankle brace and discussed with claimant the possibility of surgery to fuse the joints together. Shen explained that, while this procedure could alleviate the pain, claimant would lose motion in his ankle.

A CT scan taken May 31, 2006 revealed that the heel fracture was completely healed and there was no nonunion fragment. There was, however, evidence of osteoarthrosis at the subtalar joint and possibly the calcaneocuboid joint as well. Claimant’s last visit with Shen was August 25, 2006. Shen opined that the comminuted fracture of the calcaneus, which he described as a life altering event, was the direct result of the February 14, 2005 accident. Shen assessed claimant’s disability as a 33 percent loss of use of his left foot. He described claimant’s limitations as permanent and likely to worsen because claimant will develop arthritis in his foot. Shen concluded that claimant will probably need continued medical treatment to address the pain.

On cross-examination, Shen conceded that the first time claimant complained of knee pain was March 29, 2005. When questioned as to his interpretation of the term “severe” in the medical records, Shen responded that in reference to DJD, it meant a significant loss of cartilage and that the DJD was at an advanced stage. He maintained that a person can have severe DJD and still be asymptomatic. In his experience, trauma could aggravate existing DJD of the knee. Shen’s linkage of the knee pain to the accident was based on the timing of claimant’s knee pain, which appeared six weeks post-accident.[1] Significantly, because the knee pain followed the period when claimant was non-weight bearing, it was probable that the knee pain was related to the heel fracture.

Dr. Gary Fink, a board-certified orthopedic surgeon who specializes in arthroscopic surgery, is the managing partner of Orthopedic Associates. Fink first examined claimant on October 19, 2005 regarding his swollen knee. Fink recommended an MRI. The MRI revealed a complex tear of the anterior cruciate ligament (ACL), tear of the medial meniscus, arthritic changes on the joint, bone marrow edema and osteochondrial injury (injury to the surface of the bone). Fink explained that bone marrow edema signified bone swelling, which can exist with or without any external bruising.

Upon examination of the photographs of claimant’s leg after the accident (Exs. 32-34), Fink opined that the pictures connote a large-scale injury to the lower extremity consistent with enough force to shatter the calcaneus bone. In his experience, when there was force sufficient to fracture the calcaneus, often there were other injuries involving the entire lower extremity up to the spine. Fink acknowledged that claimant had osteoarthritis prior to the accident, but, as is typical of most people in their fifties, it is frequently asymptomatic. He explained that it was common for trauma to cause the arthritis to become symptomatic as in claimant’s case. He also stated that a knee with preexisting degenerative disease would be more prone to injury than a healthy joint.

Based upon the MRI, Fink recommended arthroscopic surgery, which he performed on November 22, 2005 at the Dutchess Ambulatory Surgical Center. Fink explained that this was an outpatient, 20-minute procedure done under general anesthesia. He removed the torn area of the meniscus and smoothed out the irregular surfaces of the knee. Claimant was referred to physical therapy. Initially, claimant experienced a lessening of symptoms, but by May 2006, claimant was again complaining of knee pain. Fink proceeded with a series of five injections to claimant’s knee. They failed to provide relief. X-rays taken in the fall showed medial compartment collapse (the inside compartment of the knee), a continued wearing down of the Teflon-like coating of the bone and the bones moving closer together.

Fink did not think that it was unusual for claimant’s first complaint about knee pain to occur six weeks post-accident. Fink described a break of the calcaneus as devastating and life altering. He further explained that in trauma situations, generally patients and doctors focus on the main condition. A non-life threatening injury, such as a meniscus tear, might not be diagnosed at that time. Additionally, Fink explained that it was more likely for symptoms to increase after weight bearing is resumed. Fink further testified that, even if there were no other injury at the time of the accident, a patient with a fractured calcaneus could be expected to walk with a chronic limp, which affects the joints above and below the level of the fracture. Knee problems would arise simply from the change in gait. A knee with some arthritis could change from a previously painless joint to one with pain because of an altered gait.

Fink opined that the knee surgery was causally related to the accident and a result of the initial injury and the subsequent change in gait. He conceded it is difficult to determine causation of the wear and tear on the coating of the bone, but clearly the tear was causally related. Fink emphasized that claimant had no complaints of knee pain prior to the accident and that after the accident he became symptomatic.

The operative report of the arthroscopic surgery noted that claimant had a multi-planar degenerative tear of the medial meniscus. Fink noted that degenerative in this context is a description of the type of tear. He explained that, as one ages, cartilage thins and tears go in different directions. In a younger person, the cartilage is stronger and the tear has a different pattern. Fink maintained that a degenerative tear can be caused by trauma. Fink recommended a total knee replacement and referred claimant to Dr. William Colman.

Dr. William Colman, a board-certified orthopedic surgeon who graduated from Haverford College and Columbia University Medical School, testified that he is affiliated with Orthopedic Associates and specializes in joint replacement and knee surgery. Upon referral from Fink, Colman examined claimant on October 31, 2006. The physical exam revealed that claimant had a varus limp (slight bow), a good range of motion and no instability. Colman diagnosed claimant as suffering from osteoarthritis. Considering the degree of claimant’s pain, Colman recommended a knee replacement. Although an abnormal gait complicates total knee replacement, Colman thought claimant would be better off than he was after the failed arthroscopy. Colman performed the surgery on November 28, 2006.

Colman explained that claimant’s basic problem was lost articular cartilage on the surfaces of the bone. In a knee replacement, metal pieces are placed on the end of the bones with a plastic piece sandwiched between the two edges so that the bones no longer touch. The surgery is extensive and requires a three-day hospital stay. It is accompanied by blood loss and intravenous narcotics are administered to control the pain. A regimen of physical therapy follows surgery.

Colman opined that, as a result of the accident and the events following, claimant’s arthritic knee worsened and became symptomatic. In Colman’s experience, it was common to have an asymptomatic condition aggravated by trauma. It was also common in a multi-trauma situation for the aggravation of arthritis not to be immediately apparent. Because of the overwhelming pain associated with the calcaneus fracture, there was a likelihood that the focus remained on that condition.

As a result of the calcaneus fracture and the knee, Colman considered claimant disabled from employment. He noted that claimant’s activities would be limited with regard to running, lifting and extensive walking. Colman testified that total knee replacements generally last 15 years. Considering claimant’s age, he will probably need another surgery and possibly a third. Presently, a revision knee replacement surgery costs approximately $50,000.

Dr. Robert Hendler, an orthopedic surgeon, offered expert medical testimony on behalf of defendant. Hendler, a graduate of the University of Pennsylvania and Nebraska Medical

School, devised the technique for ACL reconstruction. He examined claimant on December 13, 2006.

Hendler testified that claimant will always have pain and symptoms in his left heel as a result of the calcaneus fracture. Although Hendler considered the surgery to have been performed well, he nonetheless acknowledged that this does not mean that claimant’s heel is good. He noted that such fractures often lead to arthritis in the subtalar joint and require fusion and that claimant will necessarily have some restrictions in his movement. Claimant will not be able to stand continuously for long periods; he will not be able to squat; he will have difficulty negotiating stairs; and he will have a limp.

Hendler conceded that a patient with a severe calcaneus fracture can sustain knee injury as the force moves straight up the body. However, he opined that this probably did not occur in this case because claimant was seated at the time of impact. While Hendler conceded that a motor vehicle accident trauma might aggravate a preexisting condition, he concluded it was unlikely in this case. In Hendler’s view, if there had been a knee injury at the time of the accident, then there should have been an external indication. Hendler noted that there had been no bruising, swelling or complaints of knee pain noted in the emergency room records and there were no documented knee complaints until six weeks after the accident.

In reading Fink’s operative report, Hendler interpreted the term degenerative tear as a tear that had existed a long time. He explained that the full thickness cartilage defect meant that the covering of the bone was gone. In his opinion, this chronic degenerative phenomenon could not be caused by a motor vehicle accident. Hendler also insisted that there was “no chance” that the completely torn ACL could have been caused by the accident. In his opinion, the bone marrow edema could be caused by trauma or degeneration and there was no way to discern the cause. He explained that usually there is some physical finding if the injury resulted from trauma; however in this case there was no tenderness to the knee noted days after the accident. Hendler opined that the accident did not cause any injury to claimant’s knee or create the need for a total knee replacement. To the contrary, Hendler maintained that claimant would have required a total knee replacement in any event. As indicated in the operative report of the arthroscopy, claimant’s arthritic condition was longstanding. In reaching his conclusion, Hendler also evaluated the x-rays of claimant’s ankle which, despite the trauma, did not show arthritis.

The parties also offered expert testimony regarding the amount of damages claimant should be awarded for lost wages.

Economist Andrew Weintraub testified on behalf of claimant. To determine claimant’s lost wages, he found the average of claimant’s income for the three years prior to the accident ($21,170) and adjusted the figure to 2007 dollars using Bureau of Labor Statistics ($24,170). Weintraub then multiplied that figure by two to reach a total of $48,340 of past lost wages. For future lost wages, Weintraub calculated that claimant had 6.4 working years remaining and projected a 3.5 percent increase for each year calculating a total of $170,201. Weintraub theorized that the average increase in earnings in the United States is 3.5 percent and that mechanics were in demand. He concluded that the total economic loss was $218,541 ($48,340 plus $170,201).

Defendant’s expert, Dr. Thomas Fitzgerald, considered lost earnings from two perspectives; one he termed the worst case scenario and the other he termed the best case scenario. In the worst case scenario, Fitzgerald compared claimant’s business in 2001 to 2004 and concluded it had declined 4.7 percent each year. He assumed a corresponding lower income and added the actual loss in 2005 and 2006 for a total of $43,330 of past lost wages. For future losses, he projected a continual decline of 4.7 percent annually for a loss of $79,301 each year, totaling $122,631 in future lost wages. Fitzgerald conceded that Weintraub’s approach was generally acceptable, particularly for an employee, but argued that claimant was a business owner.

In his best case scenario, Fitzgerald assessed lost earnings in a manner similar to Weintraub, except without any adjustment for inflation. Fitzgerald took the average of claimant’s earnings in the three years prior to the accident, 2001 through 2004, i.e., $21,173, and multiplied it by the number of years of claimant’s working life from the time of the accident, for a total economic loss of $187,321.

Fitzgerald conceded that Weintraub’s methodology was generally acceptable practice and it was common to make adjustments. He disagreed that 3.5 percent was a conservative figure for long term calculations, but agreed that it may be reasonable in a short period. While he thought that 3.5 percent was not specific enough for the particular industry, Fitzgerald did not offer a rationale for any other growth rate.

Upon consideration of all the evidence, including listening to the witnesses testify and observing their demeanor as they did so, the Court finds that claimant’s knee injury and resulting knee surgeries were causally related to the accident. Indeed, the Court found the testimony of claimant’s doctors more persuasive than that of defendant’s expert (see Vona v Wank, 302 AD2d 516; Newman v Shipper, 198 AD2d 129 [trier of fact may accept one expert’s opinion and reject another expert’s opinion]). Notably, while claimant had a preexisting condition of DJD, he was asymptomatic prior to the accident and did not complain of pain until approximately six weeks post-accident when he began weight bearing on his left foot. Claimant’s doctors testified that it was common for a patient to suffer aggravation of DJD after a traumatic event and that, in circumstances like the one presented, knee pain often increases when the patient begins weight bearing. Considering claimant’s age, it was assessed that claimant will likely require a second knee replacement surgery. With regard to claimant’s heel, even defendant’s expert conceded that while the surgery was successful, it did not mean that claimant’s heel is good. Defendant’s expert testified that claimant will always have pain and symptoms in his heel and will necessarily have restricted movement. He will be unable to squat, stand for long periods of time, negotiate stairs without difficulty, and he will walk with a limp. Accordingly, the Court finds that claimant is entitled to an award of $400,000 for past pain and suffering and an award of $525,000 for future pain and suffering, limited mobility, and resulting scar.

With regard to lost wages, the testimony of claimant’s expert was more convincing than that presented by defendant’s expert in a worst case/best case scenario. Additionally, it was noted by defendant’s expert that the methodology as presented by claimant’s expert was generally accepted and that, while defendant’s expert disagreed with 3.5 percent calculated for growth, he did not offer another figure. Accordingly, the Court finds that claimant is entitled to an award of $48,340 for past lost wages and an award of $170,201 for future lost wages.

In sum, claimant is entitled to a total award of $1,043,541 with appropriate interest from August 2, 2006, the date of the determination of liability. It is further ordered that, to the extent that claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act §11-a(2).

Since the amount of future damages exceeds $250,000, a structured judgment is required (CPLR 5041[e]). The Court therefore directs that judgment be held in abeyance pending a hearing pursuant to CPLR article 50-B. The Court encourages the parties to agree upon an attorneys’ fee calculation and the discount rate to be applied and to formulate a structured settlement of their own (see CPLR 5041[f]). In the event that this does not prove possible, each party shall submit a proposed judgment in writing conforming to the requirements of CPLR article 50-B within 120 days of service of this Decision upon them by the Clerk of the Court. A hearing will thereafter be scheduled at the mutual convenience of the parties and the Court.

All motions not previously ruled upon are hereby DENIED.

August 8, 2007
White Plains, New York

Judge of the Court of Claims

[1]. Claimant’s initial Verified Bill of Particulars specified “AGGRAVATION OF PREVIOUSLY ASYMPTOMATIC DEGENERATIVE JOINT DISEASE OF LEFT KNEE” and “SMALL EFFUSION OF LEFT KNEE.” Claimant’s Supplemental and Second Supplemental Verified Bill of Particulars detailed more extensive knee injuries, including a complete tear of the anterior cruciate ligament tear and attenuation of the medial meniscus and the need for subsequent surgeries resulting from the accident.