CLARK v. THE STATE OF NEW YORK, #2008-009-186, Claim No. 105883
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.
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
NICHOLAS V. MIDEY JR.
MAJER H. GOLD, ESQ.
HON. ANDREW M. CUOMO
Michael R. O’Neill, Esq.,
September 30, 2008
See also (multicaptioned
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
As set forth in this Court’s prior decision on liability, on the date of
the accident claimant was working in the “blanking
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
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
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.
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.
As set forth in his report, Dr. Blanchfield determined that the total cost to
provide a body-powered prosthetic device over claimant’s
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
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
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
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
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
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
, 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
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.
Syracuse, New York
HON. NICHOLAS V. MIDEY JR.
Judge of the
Court of Claims
. Unless otherwise indicated, all references
and quotations are taken from the Court’s trial notes.
. 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).
. 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.