New York State Court of Claims

New York State Court of Claims

CLARK v. THE STATE OF NEW YORK, #2008-009-186, Claim No. 105883


Synopsis


In this damages decision, claimant was awarded a total sum of $3,535,183.00 for past and future pain and suffering and future medical expenses for injuries received in an industrial accident at Auburn Correctional Facility.


Case Information

UID:
2008-009-186
Claimant(s):
GEORGE CLARK
Claimant short name:
CLARK
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
105883
Motion number(s):

Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant’s attorney:
MAJER H. GOLD, ESQ.
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General
BY: Michael R. O’Neill, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant’s attorney:

Signature date:
September 30, 2008
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

Decision

In a Decision dated December 28, 2006, and filed February 2, 2007, this Court found the defendant State of New York 100% liable for injuries suffered by claimant in an industrial accident which occurred on March 15, 2002 at Auburn Correctional Facility, where he was then incarcerated. A trial limited to the issue of claimant’s damages has now been held, and this decision addresses that issue.


As set forth in this Court’s prior decision on liability, on the date of the accident claimant was working in the “blanking shop”[1] at Auburn Correctional Facility, and was operating a press which was utilized in the manufacturing of license plates. As claimant was cleaning scrap from the back of this machine, another inmate started the press while claimant’s hand was still in the “cove” area of the press. The blade from the machine struck claimant’s left hand with such great force that it severely crushed and nearly severed his hand.

At the damages trial, claimant attempted to describe the excruciating pain that he felt immediately after this accident. He realized immediately that he was suffering a great loss of blood, and could see that his hand was literally hanging from his arm. Claimant testified that he was then airlifted by helicopter to University Hospital in Syracuse, where he underwent an eight hour operation to reattach his hand to his arm. Claimant testified that he was then placed on a constant morphine drip, but that he experienced no relief whatsoever from his pain for at least three days while in the hospital. He described his pain level at 10, on a scale from 1 - 10, and that even with the morphine drip, his pain was reduced minimally, to a 9 out of 10 during his five-day stay in the hospital. Upon his release from the hospital, he was sent to the prison infirmary at Auburn Correctional Facility, where he remained for approximately two months. During this time, claimant was prescribed Percocet, which he took approximately three to four times per day. He testified that even with the Percocet, his pain did not decrease very much, and only started to lessen somewhat after approximately one and one-half months in the infirmary.

Near the end of April, 2002, however, it was discovered during one of his dressing changes that part of his hand had become infected, and was oozing puss. After examination by Dr. John Mosher, Jr., his surgeon, claimant was advised that the first surgery had been unsuccessful, and his hand would have to be amputated. Claimant eventually returned to the hospital in May, 2002, at which time he underwent surgery for the amputation of his left hand. Claimant testified that when he was first informed that his hand would have to be amputated, he became deeply depressed and that he remained in this state of depression during the entire time that he served at Auburn Correctional Facility. Claimant testified that during this time he remained on pain medication (Percocet) three to four times per day, but that his pain level never went below 6 on a scale of 1 to 10.

While still incarcerated at Auburn Correctional Facility, claimant was fitted for a body-powered prosthetic device, and was also weaned off the Percocet drug and placed on Neurontin. He testified, however, that the Neurontin had the side effect of making him drowsy and incapable of functioning properly.

Claimant was transferred to Walsh Correctional Facility in August, 2006. Claimant testified that his depression deepened, because it was well known that inmates with terminal illnesses or diseases were transferred to and housed at this facility. Approximately six months later, however, claimant was transferred to Oneida Correctional Facility.

While at Oneida, claimant testified that his pain remained at a level of 5 to 6 on a scale of 1 to 10. Nevertheless, he requested that the Neurontin be replaced with Naprosyn, since the Neurontin left claimant in what he described as a catatonic state. While still at Oneida, and utilizing the prosthetic device, claimant requested and was assigned work duties, including groundskeeping.

Claimant testified that his prosthetic device consists of a harness attached to his right shoulder, with cables running across his back to a device attached to his left arm, which allows the left hand prosthetic to open and close. The device, however, places pressure on his shoulder and neck, resulting in extreme pain to these areas.

Claimant further testified that he was released from prison approximately one year ago, and that he has since moved to North Carolina to live with an uncle. He earns approximately $150.00 per week doing painting work or other jobs for another uncle. He testified that he has difficulties using a computer keyboard and mouse, as well as a cell phone, as a result of having only one hand and the prosthetic device. Claimant testified that he still encounters considerable pain on a daily basis, both from the site of the amputation as well as pain caused by use of the prosthetic device.

He further described the limiting effects that his amputation has had on his social, emotional and romantic life, which has caused him additional depression and humiliation.

Finally, claimant testified that he had applied for, but was denied, social security disability benefits, apparently due to the fact that he was still capable of some limited type of employment.
EXPERT TESTIMOMY
John F. Mosher, Jr., M.D., the surgeon who performed both operations, also testified at trial. Dr. Mosher testified that he was the surgeon who treated claimant immediately after the accident, and that it was his decision to attempt to reattach claimant’s hand. He also attempted to salvage portions of the four fingers on claimant’s left hand, but that the thumb had been too severely crushed in the accident to save. Dr. Mosher further testified that this decision to attempt to save claimant’s hand and four fingers necessitated an eight hour operation, which also included skin grafting to repair damage to the forearm.

As previously testified to by claimant, this operation ultimately proved unsuccessful, and a second operation was performed by Dr. Mosher to amputate claimant’s left hand.

Dr. Mosher also testified that a person will experience greater pain from a crush injury of the type suffered by claimant herein, when compared to an injury in which a person suffers a clean amputation. A crush injury, as explained by Dr. Mosher, results in more damage to a person’s nerves, bones, and tissue. Additionally, Dr. Mosher testified that claimant suffered additional pain as a result of his decision to try and save his hand and fingers, both following the initial operation and then ultimately being required to undergo further surgical procedures when this attempt proved unsuccessful.

As a result of the amputation which was eventually performed by him, Dr. Mosher offered the opinion that claimant suffered a 95% permanent impairment to his upper extremity, equating such impairment to a 57% permanent impairment to his whole body. He also offered the medical opinion that claimant will continue to experience pain as a result of the injuries suffered by him in this accident.

Matthew Mikosz, a “National Upper Extremity Specialist” employed by Hanger Prosthetics and Orthotics, also testified on behalf of claimant. Mr. Mikosz provided testimony as to the various prosthetic devices available for claimant, including the body-powered device, equipped with a harness, that claimant currently utilizes.

Mr. Mikosz testified that in his opinion, a myoelectric device equipped with an i-Limb would be appropriate and beneficial for claimant’s use. He recommended the i-Limb myoelectric device over both the body-powered prosthetic device, but also over other myoelectric devices currently on the market. Specifically, Mr. Mikosz testified that the i-Limb myoelectric device has a more conforming grip, an opposing thumb, and more grasping patterns than other devices, all of which allow for the grasping of such items as credit cards, keys, and circular objects. In his opinion, use of this device would increase claimant’s level of functioning, as well as his employability.

Mr. Mikosz testified that this i-Limb device is “state of the art” myoelectric prosthetic technology, and that future research and development will be directed towards this type of technology. In his opinion, other myoelectric devices and technology are, or soon will be, obsolete and antiquated.

Mr. Mikosz testified that the i-Limb myoelectric device would have a life span of approximately three to five years, and that it would therefore be reasonable to project a four year life expectancy for this device. His expert report, containing costs and maintenance schedules for this device, was admitted into evidence at trial (Exhibit 8).

Under cross-examination, Mr. Mikosz testified that he anticipated the cost of this device would increase over a period of time, due to the incorporation of new technologies and additional functions, and that these anticipated increases were incorporated into his expert report.

Michael Hall, owner and president of Rehab Technologies, in Syracuse, New York, also was qualified as an expert in prosthetic devices and testified at trial. In his report (see Exhibit 6), Mr. Hall recommended the “Ottobock” myoelectric device as an appropriate prosthesis for claimant. At trial, however, Mr. Hall changed his opinion, and agreed with Mr. Mikosz that the i-Limb myoelectric device was state-of-the-art equipment, and therefore better suited for use by claimant, and that the i-Limb device would bring a meaningful improvement to claimant’s life.

The Court notes that both experts recommended that claimant be provided not only with the myoelectric device, but also with a body-powered prosthetic similar to which claimant was currently using.

William C. Blanchfield, Ph.D., an economist who qualified as claimant’s expert, testified as to the acquisition, maintenance, and replacement costs of the devices which were recommended for claimant’s use by both Mr. Mikosz and Mr. Hall. In his testimony, Dr. Blanchfield summarized these calculations and costs which were set forth in his expert report. In his expert report (Exhibit 10), Dr. Blanchfield itemized his estimates for purchase costs, maintenance costs, and replacement periods for each of the three devices (a body-powered device; the “Ottobock” myoelectric device; and the i-Limb myoelectric device) which were recommended by Mr. Mikosz and Mr. Hall.

As set forth in his report, Dr. Blanchfield determined that the total cost to provide a body-powered prosthetic device over claimant’s lifetime[2] will be $88,957.00, with total maintenance costs for the devices of $48,960.00. Dr. Blanchfield calculated that the cost to provide the i-Limb device over claimant’s lifetime would be $1,505,352.00, with total maintenance costs of $541,914.00[3].

In making these calculations, Dr. Blanchfield testified that he referred to the Consumer Price Index (CPI) maintained by the United States Department of Labor, Bureau of Labor Statistics. He testified that the CPI is divided into many different categories and that he believed that the medical care component was the most appropriate category to utilize in making his calculations, rather than a category such as supplies or commodities. Relying upon the costs for medical care, he estimated a 5.1% increase per year in costs associated with such prosthetic devices.

Lawrence M. Spizman, an economist, was qualified as State’s expert, and testified at trial. Dr. Spizman testified from his economic report (Exhibit A) in which he also estimated the costs of the various prosthetic devices recommended by Mr. Mikosz and Mr. Hall. In his report, however, Dr. Spizman applied a 2.511% growth rate, rather than the 5.1% growth rate utilized by Dr. Blanchfield. According to Dr. Spizman, the 2.511% growth rate was the proper rate based upon the CPI time frame from 1996 through 2006. Based upon his use of the “general” CPI growth rate, Dr. Spizman determined that the total aggregate cost for claimant’s life-care plan will be $1,840,446.00. (Exhibit A, Table 1). Dr. Spizman assumed that any device or equipment would have to be replaced every four years.

Alternatively, Dr. Spizman calculated a life-care plan utilizing a growth rate based upon the actual costs of specific prosthetic devices from 2004 to 2007. Dr. Spizman calculated this growth rate at 1.388%. Utilizing this rate, he calculated a total aggregate cost (again assuming a four-year replacement cost) of $1,549,763.00 (Exhibit A, Table 1A).

Finally, Dr. Spizman calculated the total costs for these prosthetic devices on a five-year replacement basis, which reduced the total cost to $1,343,927.00 (utilizing a 1.388% growth rate) or $1,555,794.00 (utilizing a 2.511% growth rate).
ANALYSIS
From the testimony provided by claimant and Dr. Mosher, there is no question that claimant suffered a horrific and painful crush injury to his dominant left hand in the industrial accident on March 15, 2002. Not only did claimant experience immediate and extreme pain, and a significant loss of blood at the time of this accident, he also had the shock of seeing that his hand was literally hanging off of his arm.

Claimant testified that the pain was so intense that even with a morphine drip, he experienced absolutely no relief from this pain for at least the first three days that he was hospitalized. Even after his original surgery to reattach his hand, and upon his release from University Hospital to the infirmary at Auburn Correctional Facility, claimant testified that he was still in great pain. Claimant testified that his level of pain did not even begin to decrease until approximately 1½ months after the accident. Claimant continued to experience severe pain directly related to the injury, and also extreme pain at times when his dressing had to be changed on a weekly basis, up until the point in time when his hand had to be amputated.

Dr. Mosher testified that the type of injury suffered by claimant resulted in more pain and suffering than a straight amputation, due to crush damage to the nerves, bones, and surrounding tissue.

Significantly, and as noted above, claimant’s left hand, which had to be amputated, was his dominant hand, which made adjustments to the loss of this hand even more difficult for this claimant.

The Court found claimant to be a most credible witness, forthright and honest in his testimony. The Court further accepts claimant’s testimony that he continues to experience pain from his injury on a constant basis, and that the use of his current prosthetic device also causes additional pain to his shoulders and back.

Based on the foregoing, therefore, the Court finds that claimant has suffered damages for past pain and suffering in the amount of $500,000.00. Also, in accordance with the foregoing, and based on the continued pain experienced by claimant and the severe limitations placed on his normal day-to-day activities, the Court determines that $850,000.00 is an appropriate award for future pain and suffering.

As previously set forth in this decision, a substantial part of the trial testimony was directly related to the issue of appropriate medical care and prosthetic devices, and the future costs related to such devices. Although defendant’s attorney questioned the reliability of the relatively new i-Limb technology, both of claimant’s prosthetic experts testified that these devices were far superior to the body-powered devices, or other myoelectric devices, currently on the market. Furthermore, Mr. Mikosz testified that future improvements in this area will be directed to the i-Limb technology. Based on the testimony, therefore, the Court finds that the i-Limb prosthetic device will best compensate claimant for the loss of his hand.

Additionally, both experts testified, without contradiction, that even with the myoelectric i-Limb prosthetic device, claimant will also require a body-powered prosthetic device, for use on these occasions when the i-Limb is inappropriate or inadequate.

Furthermore, and based upon the testimony of claimant’s prosthetic experts, the Court finds it reasonable to expect that all of the devices recommended herein will need to be replaced every four years.

As set forth herein, claimant’s economic expert, Dr. Blanchfield, and defendant’s economic expert, Dr. Spizman, offered significantly different testimony with respect to the consumer price index growth rate to be utilized in the determination of any future costs. As previously stated herein, Dr. Blanchfield utilized a growth rate of 5.1% by applying the medical care component of the Consumer Price Index, while Dr. Spizman relied upon either (1) the general growth rate of 2.511% or (2) a projected growth rate of 1.388% based upon a comparison of costs for prosthetic devices from 2004 through 2007.

After a consideration of this testimony and an examination of their reports, and taking into consideration the fact that medical expenses do not necessarily rise at the same rate as other expenses, the Court finds and determines that the appropriate growth rate to be applied in this matter, applicable to the projected costs of prosthetic devices, is 5.1%.

Therefore, based upon claimant’s life expectancy of 32 years[4], and applying a growth rate of 5.1% with a scheduled equipment replacement period of four years, the Court hereby finds that claimant should be awarded the sum of $2,185,183.00, the cost of future prosthetic devices. The amount represents the purchase and maintenance costs of both the i-Limb myoelectric device and a body-powered device, based upon the calculations provided by Dr. Blanchfield.

Defendant contends that any such award for the future costs of prosthetic devices should be offset by social security or medicare coverage. Although defendant argues that claimant is presently eligible for social security disability benefits, claimant testified at trial that he had in fact applied for, but was denied, such benefits. Even though claimant has been denied these benefits, defendant further contends that claimant, with the assistance of counsel, should be able to qualify for social security disability. Such an argument, however, is pure speculation, especially in light of the fact that claimant has already been denied such benefits.

At a minimum, however, defendant also contends that claimant, when he reaches the age of 65, will be eligible for Medicare coverage, and that Medicare will then assume the costs of any future medical care, including the costs of prosthetic devices. Again, this Court finds such an argument to be pure speculation, as there was no evidence presented at trial to convince this Court that Medicare will, with reasonable certainty, assume the costs (either partially or fully) of the specific prosthetic devices to be provided pursuant to this decision. Accordingly, this Court does not find that the award covering the purchase and maintenance costs of the prosthetic devices made herein should be offset by any amount, either in the present or future.

Finally, the Court determines that there was insufficient proof to justify any award for past or future lost wages.

Based on the findings herein and the entire trial record, therefore, the Court finds that claimant is entitled to be awarded damages as follows:


Past Pain and Suffering $500,000.00


Future Pain and Suffering $850,000.00


Future Medical Expenses (purchase,

maintenance, and replacement of

prosthetic devices) $2,185,183.00


Total Amount Awarded $3,535,183.00



The Clerk is directed to enter judgment in favor of the claimant and against the State of New York in the amount of $500,000.00 (the total of the award for past damages) in accordance with this writing, which constitutes the Court’s decision pursuant to CPLR 4213(b). The amount awarded herein shall carry interest at the rate of 9% per year from the date of the determination of liability on December 28, 2006 (see Dingle v Prudential Prop. & Cas. Ins. Co., 85 NY2d 657; Love v State of New York, 78 NY2d 540).

Judgment as to future damages (medical costs and pain and suffering) will be held in abeyance pending a hearing pursuant to CPLR Article 50-B, which will be scheduled as soon as practicable.

Any filing fee paid by claimant may be recovered pursuant to § 11-a(2) of the Court of Claims Act.

LET JUDGMENT BE ENTERED ACCORDINGLY.


September 30, 2008
Syracuse, New York

HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims




[1]. Unless otherwise indicated, all references and quotations are taken from the Court’s trial notes.
[2]. According to hospital records (Exhibit 12, p. 1), claimant’s date of birth was November 19, 1963. At the time of the damages trial, claimant was nearly 44 years of age, with a life expectancy of 32 years to the age of 76 (Exhibit 10, p.2).
[3]. Since Mr. Hall now recommends the i-Limb device over the “Ottobock” device, the costs associated with the “Ottobock” device have been intentionally omitted herein.
[4]. See Footnote 2.