MEYER v. THE STATE OF NEW YORK, #2008-009-191, Claim No. 99381
Claimant was awarded the total sum of $2,177,000.00 for past and future pain and
suffering, past and future economic loss, and future medical and prosthetic
equipment and therapeutic services.
KERILYNN J. WASNEY, f.k.a. KERILYNN J. MEYER, JON R.
MEYER and JOANNE C. MEYER
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
NICHOLAS V. MIDEY JR.
FOLEY & FOLEY
BY: James F. Foley, Esq.,Of Counsel.
HON. ANDREW M. CUOMO
Patrick F. MacRae, Esq.,
May 6, 2009
See also (multicaptioned
In a Decision dated December 20, 2004, and filed January 20, 2005, this Court
found the defendant State of New York 100% liable for injuries suffered by
claimant Kerilynn J. Wasney, f.k.a. Kerilynn J.
, in an automobile accident which
occurred on September 16, 1998 in the Town of Savannah in Wayne County. A trial
limited to the issue of claimant’s damages was subsequently held, and this
decision addresses that issue.
Testimony and medical records establish that immediately following the
accident, claimant was transported to Newark-Wayne Community Hospital for
treatment. Due to the severity of her injuries, however, claimant was then
transported to Rochester General Hospital on September 17, 1998. On that date,
Dr. Michael Niles, an orthopedic surgeon, performed surgery to repair the
numerous fractures and other significant injuries suffered by claimant to her
right foot and ankle in this accident. Dr. Niles initially attempted a closed
reduction which proved unsuccessful in reducing her talonavicular dislocation
and mid-foot fracture dislocation. He then proceeded with an open reduction of
the talonavicular dislocation. During this procedure, Dr. Niles discovered that
claimant’s posterior tibialis tendon, along with an accessory navicular
bone, had been severely damaged. Dr. Niles proceeded to reduce the navicular
fracture. Claimant had also suffered a longitudinal fracture of the navicular,
which required open reduction and internal fixation with an interfragmentary
screw. Claimant had also suffered a complete laceration of the flexor hallucis
longus tendon, with the proximal portion retracted into the calf. Dr. Niles
repaired the flexor hallucis tendon to the flexor digitorum tendon, and also
reduced the mid-foot fracture dislocation. It was discovered that claimant had
also suffered significant injuries to the lateral ligament complex, including a
compression fracture of the lateral portion of the talar dome and severe
articular damage, which required open repair. According to Dr. Niles and the
medical records, claimant also suffered a traumatic tilting of the talus in the
mortise and despite an open repair, full seating of the talus in the mortise
could not be obtained.
Following surgery, prognosis for recovery was guarded, due to these significant
injuries. Claimant was discharged from the hospital on September 20, 1998, and
was provided with crutches and a wheelchair. Dr. Niles continued to treat
claimant during her recovery in several follow-up appointments.
Dr. Niles also referred claimant to Dr. Pennino, a plastic surgeon, who
performed a skin graft on October 21, 1998. Unfortunately, this initial
skin graft broke down and was unsuccessful.
Claimant was then referred to another physician, Dr. Andrew Smith, on April 7,
2000. Dr. Smith performed a full thickness skin graft and debridement of the
right foot on May 31, 2000. Following this skin graft, claimant continued to be
treated through 2006 by both Dr. Smith and Dr. Niles with regard to the limited
mobility and continued pain attributable to her right foot and ankle. At the
time of trial, Dr. Niles testified that claimant continues to endure multiple
and significant problems associated with the injuries to her foot and ankle. He
testified that claimant now has a planovalgus deformity of the right foot, which
causes her to walk on her instep and considerably alters the mechanics of her
foot. Claimant continues to experience significant pain in her foot while
walking, and sometimes even at rest. Claimant also has marked hypersensitivity
in her foot which causes sharp shooting pains that radiate up into the foot and
ankle. She has secondary deformities of her toes, and fixed flexion deformities
of her PIP joints, essentially resulting in a claw-toed deformity. Due to the
severity of the injuries suffered by her in the accident, claimant also suffers
from significant post-traumatic arthritis throughout her foot and ankle.
Based on his treatment over the course of several years, and the fact that
claimant continues to experience severe pain and limited use of her foot, Dr.
Niles was of the opinion that claimant essentially was faced with, and limited
to, two options for further treatment.
Dr. Niles testified that the first treatment option consists of a series of
four separate surgical procedures, including an ankle-joint fusion; a triple
arthrodesis that would require the fusing of three joints; another operation to
fuse the mid-foot, in order to address the post-traumatic arthritis; and a
fourth procedure to fuse multiple joints to correct deformities on her toes.
Dr. Niles also testified that even with all four of these extensive surgeries,
claimant would still be left with an abnormal gait and would continue to
experience hypersensitivity, causing severe neurogenic pain in her foot.
The other treatment option, which Dr. Niles has discussed with claimant, is to
proceed with an amputation below her knee. In his opinion, Dr. Niles testified
that this course of treatment is the more realistic option, because the other
option (consisting of the four separate extensive surgeries), would require an
extensive recovery and rehabilitation process with a limited likelihood of
success. Obviously, with amputation claimant would also be required to undergo
a long rehabilitation process in adapting to her prosthesis.
Dr. Niles concluded that claimant, as a result of the injuries suffered in this
accident, has experienced a severe functional disability which not only is
permanent, but will considerably worsen over time.
The Court notes that at the time of trial, a decision as to which course of
treatment to pursue had not yet been made by claimant.
Claimant also provided testimony with regard to the nature and extent of her
injuries, her surgeries, and the impact which this accident has had on her life
and future. The Court was most impressed with the forthright manner in which
claimant testified, as well as by her dedicated efforts and struggle to adapt to
this life-changing event.
Claimant testified that immediately following her initial surgery, she was
essentially bedridden and required assistance from her mother for all of her
daily activities, as she was required to keep her foot elevated at all times due
to the significant pain that she was experiencing. Claimant also testified that
she was unable to attend her senior year of high school from the date of the
accident in September, 1998 until April, 1999. While in high school, claimant
had been active in sports and other activities up until the time of the
accident, and in particular, had been a varsity tennis player for four years.
Obviously, as a result of the accident, she was unable to participate in varsity
tennis her senior year. Although she could not attend school, she was provided
with a tutor and was able to graduate with her class. Unfortunately, however,
claimant had to drop all of her advanced placement courses and was unable to
pursue her education after high school as she addressed her injuries.
Claimant also testified that the scars on her legs and thigh, combined with the
appearance of her foot, make her feel self-conscious and uncomfortable, in
addition to the constant pain that she endures from her injuries.
Claimant testified that since the trial on liability, she has married and has a
young son, who was born on December 28, 2005. She acknowledges that she will
have to undergo further treatment, and she appears to be resigned to the real
and likely prospect that amputation will be necessary.
At the time of the damages trial, claimant was 25 years of age, and evidence
established that she had a life expectancy of 56.3 years.
Daniel A. McGowan, Ph.D., qualified as claimant’s economic expert. Dr.
McGowan prepared a forensic economic report, received into evidence at trial
(Exhibit 6), in which he calculated and projected the economic loss suffered by
claimant as a result of her injuries.
As set forth in his report, Dr. McGowan calculated that claimant will suffer
lost earnings in the amount of $593,014.00; loss of fringe benefits of
$88,558.00; and loss of household services in the amount of $539,281.00, for a
total economic loss of $1,220,853.00
Susan M. Keating, R.N., CCM, also qualified as an expert, and testified with
regard to a life-care plan prepared by her which was also received into evidence
at trial (Exhibit 5).
In developing her plan, Ms. Keating proceeded on the assumption that claimant
will proceed with a below-knee amputation. In other words, the life-care plan
does not address the other treatment option testified to by Dr. Niles,
consisting of the four separate surgical procedures discussed previously herein.
Ms. Keating apparently adopted the recommendation made by Dr. Niles that the
best option available to claimant in her situation is the below-knee amputation.
Based on this assumption that claimant will be required to undergo a below-knee
amputation at some point in the not to distant future, Ms. Keating’s plan
sets forth the projected costs for medical services, therapeutic services,
prosthetic equipment and related items, and other life-care needs which claimant
will require for the rest of her life. Although Ms. Keating did not set forth a
total sum for these services and needs, the Court, after reviewing Ms.
Keating’s cost analysis, computes the total cost of the life-care plan at
Even though claimant’s attorney has requested that this Court adjust
these costs to reflect increases in the cost of medical services and care over
claimant’s lifetime, there is insufficient evidence before the Court on
which to base any adjustment of the anticipated costs set forth by
claimant’s expert and received into
Based primarily on the testimony of Dr. Niles and claimant, it is clearly
evident that claimant suffered a very significant injury to her right foot and
ankle in the motor vehicle accident of September 16, 1998. Claimant underwent a
series of medical procedures, with extensive rehabilitation, but nevertheless
still has a deformity in her foot which significantly affects her ability to
ambulate, and imposes severe restrictions and limitations on her daily life.
As a result of her injury, claimant was essentially deprived of her last year
of high school, from both social and educational aspects, and was unable to
attend college due to her ongoing disability and physical condition at the time.
Testimony from claimant and Dr. Niles also establishes that claimant has
experienced significant pain, caused by both nerve damage and arthritis, and
that this pain persists at the present time and will continue into the future.
From the testimony of Dr. Niles, it certainly appears to this Court that
claimant will be required at some point in the near future to undergo a
below-knee amputation, and will therefore experience future pain and suffering,
both physical and psychological, as she deals with the loss of her foot. The
Court is in agreement with Dr. Niles that claimant suffers, and will continue to
suffer, from a severe functional disability, and that this condition will only
worsen over time.
Accordingly, it is the decision of this Court that claimant be awarded the sum
of $850,000.00 for past pain and suffering, covering the eight years of pain and
suffering and loss of enjoyment of life endured by claimant from the date of the
injury up to the date of this damages trial. It is the further decision of this
Court that claimant be awarded the sum of $900,000.00 for future pain and
suffering and loss of enjoyment of life, based upon the testimony and
claimant’s life expectancy of 56.3 years as of the date of this damages
With respect to the life-care plan prepared by Ms. Keating (Exhibit 5), the
Court finds that the services, equipment and life-care needs set forth in this
plan are necessary, and that the costs attributable to these services and needs
are reasonable. Therefore, the Court finds and determines that claimant is
entitled to recover $262,000.00 as the necessary costs to implement the
life-care plan, which includes medical items, prosthetic devices, and medical
The Court has reviewed the testimony provided by Dr. McGowan and has carefully
reviewed the economic report (Exhibit 6) submitted in support of the economic
loss (lost earnings, fringe benefits, and household services) allegedly suffered
by claimant as a result of this accident. While the Court has no objections to
the methodology utilized by Dr. McGowan in projecting these losses, it
nevertheless disagrees with the applicability of his formula to the particular
facts of this case, and as a result believes that these losses have been
overvalued in his report.
First of all, claimant at the time of her accident, was 17 ½ years of age,
and obviously at that time had a limited work history. Since that time, and up
to the date of the damages trial, claimant’s work history has been
inconsistent, as she dealt with the physical limitations caused by the accident,
while at the same time pursuing her education. Based on this limited work
history, the Court is of the opinion that it is extremely difficult to
accurately project future income, let alone the future loss of income, caused by
Second, and as previously noted herein, it is expected that claimant, at some
point, will undergo an amputation of her injured foot that should, after
recovery, provide her with lasting relief from her pain, as well as
significantly increase her mobility. It is further anticipated that claimant,
after adapting to her prosthesis, will be able to more fully participate in the
workforce, without the limitations that she now experiences.
Third, and most significantly, claimant appears to be a highly motivated
individual who is making, and will continue to make, a sincere effort to achieve
and enjoy a full and complete life, both at work and at home, in spite of any
physical limitations caused by her accident. She has already demonstrated this
resolve by graduating from high school, on time, in the year following her
accident; graduating from community college; and continuing to serve as a
volunteer firefighter for several years after her accident. Since the accident,
the Court notes that claimant has experienced joy in her personal life, as she
has married and gave birth to a son in 2005.
Even after considering all of the above factors, however, the Court
nevertheless agrees that claimant, as a direct result of her injuries from this
accident, has suffered, and will continue to suffer, economic loss in the form
of lost wages and fringe benefits, and, to a lesser extent, a loss in household
production. Based on the findings herein, however, the Court finds that the
losses set forth in Dr. McGowan’s report are overvalued and must be
Accordingly, the Court finds and determines that the appropriate measure of
claimant’s lost earnings is $100,000.00, a substantial portion of which
occurred in the years immediately after the accident. The Court accepts Dr.
McGowan’s testimony and report establishing that claimant had a work-life
expectancy of 23.7 years at the time of the damages trial. The Court therefore
determines that $40,000.00 is attributable to past loss of wages, and $60,000.00
is attributable to future loss of wages.
By applying Dr. McGowan’s “assumption” that fringe benefits
should be computed at 15% of lost wages, the Court awards claimant the sum of
$15,000.00 for lost fringe benefits, with $6,000.00 attributable to past loss of
benefits, and $9,000.00 to future loss.
The Court has substantial concerns regarding Dr. McGowan’s computation of
claimant’s loss of household production. As indicated above, claimant is
a highly motivated individual who has already made significant strides to resume
a normal lifestyle. Furthermore, assuming that claimant proceeds with the
amputation, the Court believes that claimant, after adapting to her prosthesis,
will enjoy an even fuller life with less restrictions. As noted by Dr. Niles in
his testimony, he believes that claimant should be able to perform most of her
daily activities after an amputation has been performed. Accordingly, the Court
awards $50,000.00 for loss of household services. Taking into consideration
claimant’s life expectancy of 56.3 years at the time of
, and the findings set forth herein, the
Court apportions this award at $10,000.00 for past loss and $40,000.00 for
future loss of services.
Although a claim for loss of society, services and companionship had been
asserted by Jon R. Meyer and Joanne C. Meyer, claimant’s parents, no
evidence was received or testimony taken at trial in support of their claim. As
a result, the Court makes no award on this derivative cause of action.
Accordingly, based on the findings herein and the entire trial record, the
Court finds that claimant is entitled to an award of damages as follows:
May 6, 2009
HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims
. Unless otherwise noted, all references to
“claimant” are to Kerilynn J. Wasney.
. Dr. McGowan’s report incorrectly sets
forth a total loss of $1,220,854.00.
. The Court did not consider the one time
expense of surgery to fuse PIP joints, as testimony and evidence, as noted
herein, strongly suggest that claimant will instead proceed with a below-knee
amputation (see Exhibit 5, p. 16).
. In his post-trial memorandum,
claimant’s attorney requested that the Court take judicial notice of the
Consumer Price Index from the Bureau of Labor Statistics and apply a 3.88%
annual rate of inflation to the anticipated costs set forth in the life-care
plan of Ms. Keating. Experts, however, may well disagree over the proper annual
rate of inflation and since this rate was not utilized by claimant’s
expert, the Court will not apply a figure which could be the subject of much
debate and was not addressed at trial.
. See Dr. McGowan’s report (Exhibit 6).