New York State Court of Claims

New York State Court of Claims

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.

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):

Claimant’s attorney:
BY: James F. Foley, Esq.,Of Counsel.
Defendant’s attorney:
Attorney General
BY: Patrick F. MacRae, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant’s attorney:

Signature date:
May 6, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


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. Meyer[1], 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[2].

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 $262,000.00 (rounded).[3]

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 evidence.[4]
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 trial.

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 services.

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 her injuries.

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 adjusted.

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 trial[5], 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
Syracuse, New York

Judge of the Court of Claims

[1]. Unless otherwise noted, all references to “claimant” are to Kerilynn J. Wasney.
[2]. Dr. McGowan’s report incorrectly sets forth a total loss of $1,220,854.00.
[3]. 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).
[4]. 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.
[5]. See Dr. McGowan’s report (Exhibit 6).