In a decision filed May 15, 2007, this Court found that the State of New York
was 70% responsible for the accident which resulted in the injuries suffered by
Wallace Johnson, and that the Claimant was 30% responsible for his injuries. The
Court found that the State of New York had negligently caused Mr. Johnson injury
by directing him to perform his inmate work assignment under dangerous
conditions at the Fishkill Correctional Facility. This Decision deals only with
the issue of damages. A trial of the matter was held on October 10, 2007.
Claimant seeks total damages in the amount of ten million ($10,000,000.00)
dollars, as set forth in his claim and amplified in his bill of particulars, for
past and future pain and suffering, past and future medical expenses, and for
his diminished work capacity and employment opportunities.
At the damages trial, Mr. Johnson, and his treating orthopedist, Dr. Jonathan
Holder, were the only witnesses to testify. Additionally, medical records, as
well as x-rays and an MRI, were submitted and discussed by Dr. Holder. The
defendant did not call any witnesses. Only claimant’s counsel submitted a
post-trial memorandum of law.
Wallace Johnson testified that he was born on August 21, 1955, and thus was 47
years old at the time of the accident. He is unmarried, and has two (2) adult
children. He obtained his GED while incarcerated, and had worked “as a
for approximately fifteen (15)
years prior to his incarceration. No evidence of his earnings for that period
was submitted. While incarcerated, he worked on the compound crew, working on
the facility grounds, and testified that he earned approximately $15.00 every
two (2) weeks. The crew mowed lawns, trimmed bushes and did other landscaping
work. He has a life expectancy of 26.6 years from the date of
According to notations in the medical
records maintained by the New York State Department of Correctional Services
[DOCS], Mr. Johnson is approximately 6 feet, 4 inches tall and at the time of
the accident and thereafter weighed between 285 and 300 pounds. [See
Claimant stated that when he fell at the work site on July 25, 2003, he was
unable to leave the area unassisted, and was “pushed in a
wheelchair” to the regional medical unit [RMU] located at the facility.
When he arrived there, photos were taken, he was given pain medication and a
video conference was held with personnel at Westchester Medical Center
[Westchester] to determine whether he needed to be taken to that facility for
treatment. Once a determination was made to transfer him to Westchester, Mr.
Johnson testified that he rode in a wheelchair to the facility transport van,
and held onto the officers’ shoulders to “hop onto” the van.
He recalled that it took “about an hour” to arrive at Westchester,
and stated that “nothing had been done in the RMU to stabilize the
ankle” and that he “was in severe pain - every time they hit a bump
. . . [he] felt it.”
At the Westchester emergency room, he recalled describing his accident as part
of the history taken, and complained of pain in his “ankle, leg and
back,” although only complaints of ankle pain are recorded in the
emergency room records.
[Exhibit 1]. He did
not receive treatment for back pain on either the first day, or any other day
during his eight (8) day stay at Westchester. He was provided with “pain
medication” and x-rays were taken. After the x-rays were taken, he was
“wheeled to a room on a stretcher.” They “stabilized”
his leg. It was his understanding that he had suffered a fractured ankle. He was
confined to bed.
He was hospitalized for eight (8) days at Westchester Medical Center. Three
(3) days after he began his stay in the hospital, he had bone reduction surgery
in his right ankle, and a plaster cast was applied. He was released to the RMU
at Fishkill on August 1, 2003.
When he arrived at RMU, no notation was made of any complaint of back pain in
the intake information. [Exhibit 2]. Claimant said that at some point he had
complained of back pain in the RMU relative to this accident, but “not
walking in the door.” He remained in the RMU for three (3) months.
During the first part of his stay in RMU, he was confined to bed, and he
“used a wheelchair to get around.” He estimated that he used the
wheelchair for the first two (2) months. Thereafter, he used crutches for
approximately two (2) weeks, but began to experience lower back pain with such
use. He used a cane in the last month also. The first cast was replaced by
another two (2) plaster casts during this period, he said. Finally, he was
provided with an air cast for support, that he “wears to this day.”
There appeared to be some conflicting instructions from his treating doctors
with regard to the use of the air cast, in that it was certainly initially
prescribed as an accommodation for partial weight bearing, and was to be used
for approximately two (2) months and then discontinued - presumably because
claimant was expected to improve.
He also said that during that three (3) month period he wore a “back
brace.” To his knowledge, he wore the back brace because of the pain he
experienced when he got out of the wheelchair and started to use crutches, and
was told to try “weight bearing. That’s when the back started to
hurt and I couldn’t stand up straight.”
Physical therapy was prescribed while he was in the RMU. He recalled having
three (3) sessions of physical therapy, of seven (7) visits per session. Each
session lasted about two (2) weeks.
Claimant was released to the general population, on or about October 21, 2003.
The only medication he was receiving at the time of his placement in the general
population was 600 milligrams of Motrin as memorialized in a prescription dated
October 30, 2003. He acknowledged that this was the same pain medication he had
received prior to the subject accident of July 25, 2003 because of a prior back
He said he did not “go back to mowing lawns,” but conceded on
cross-examination he was offered other programs “after a while.”
Specifically, he was assigned to the horticulture program, and did some raking
and planting. The only medical limitation upon his work at that time was that
he refrain from lifting heavy objects.
Prior to the accident that is the subject of this claim, Mr. Johnson was in a
car accident in April 2000. After the April 2000 accident, he admitted he
suffered back pain, and had been treated for same on and off since. Such
treatment included pain medication, physical therapy, and “electric shock
treatment” therapy. He agreed that from April 2000, and throughout
calendar years 2000, 2001, and 2002 he had complained of back pain and received
treatment for it, including pain prescriptions for Naprosyn and Motrin; and had
been referred with some regularity for diagnostic consultations with
orthopedists. [See Exhibit 2]. Indeed, the ambulatory health record [AHR]
for that period confirms that claimant - two years after the car accident-
sought medical intervention and follow up for chronic back pain on April 3,
2002. [Ibid.]. He saw medical personnel at Southport Correctional
Facility for complaints of back pain and was referred for consultations
throughout 2002, and upon his transfer to Fishkill he complained of back pain in
September 2002 and there received updated prescriptions for 800 milligrams of
Motrin, three (3) times per day. [Ibid.]. He acknowledged that some of
the complaints of pain he had in 2002, concerned not just pain in his back, but
pain in his legs and feet. He said he had “shooting pains through the
bottom of . . . [his] feet and felt ‘restless’ while lying in
bed.” He conceded that this also was one of his current complaints, too,
but said that it is “worse now.”
Mr. Johnson said that his back pain was more severe now than it had been before
the July 2003 accident; explaining that it had not been as
“constant” before. He said that in 2000, 2001 and 2002 he would do
something physical and back pain would be triggered; but he had “good
days,” and would take Naprosyn or Motrin and feel better. Now, he said,
it is “constant.”
A review of Mr. Johnson’s AHR indicates he complained of foot and back
problems when he arrived at Southport Correctional Facility in a note dated May
29, 2001. [Exhibit 2]. There are indications of prescription pain medication
being issued in response to complaints of back pain for the balance of 2001.
[Ibid.]. He was prescribed pain medication in June 2002 (Motrin); August
2002 (Motrin); October 2002 (ibuprofen), November 2002 (Motrin), and February
2003 (Motrin). [Ibid.]. In February 2003 he was also prescribed the use
of a cane because of “palpitations and blood pressure problems.”
One week before the subject accident, on July 17, 2003, he complained of
numbness and sudden sharp pains radiating to both feet while sitting or lying in
bed. He said he had such pains prior to the accident of July 25, 2003 and has
had them since. He said he “still has to get up and stomp them out to make
it go away.” There are no recorded complaints specifically citing lower
back pain between February 2003 and the period after the accident of July 25,
2003 until in or about September 2003, when he began to use crutches to
ambulate. [See Exhibit 2].
Progress notes from the RMU in October 2003, included notations to the effect
that claimant had no complaints of pain [see Exhibit 2, Progress Notes
10-18-03], and that he was using an ankle brace and one crutch to
A smattering of complaints of pain in his ankle, knees and lower back,
stiffness, and referrals to the orthopedist as well as prescriptions for pain
medication and suggestions for physical therapy are noted in 2004 and 2005, as
well as medical restrictions to refrain from lifting more than 25 pounds.
[Exhibit 2]. As noted, he nonetheless worked in the horticulture program.
After consulting with Dr. Jonathan Holder - who was a consulting orthopedist
under contract with DOCS and first saw claimant commencing in 2003 - a second
surgery to remove loosened hardware that appeared to be causing him pain and had
been inserted in the first surgery, was performed at Mt. Vernon Hospital [Mt.
Vernon] on October 17, 2005. [See Exhibit 3]. Mr. Johnson returned from
Mt. Vernon to Fishkill on the day of the surgery, thereafter spending one (1)
month in the RMU. The immediate treatment after this second surgery was keeping
his foot elevated, bed rest and pain medication. He said he “was in pain
all the time.” Additionally, he was receiving injections in his stomach to
“thin [his] blood.” He estimated that he “got out of bed by
using crutches” for the last three (3) weeks of his one (1) month stay in
When he was discharged from the RMU to the general population he said he
“could not work on the compound gang,” because he was “not
allowed to lift anything over fifteen (15) pounds” as he remembered it.
After this second surgery, physical therapy was again prescribed. He had
“two (2) more sessions of seven (7) sessions each. The last one was in
2006.” He recalled being prescribed ibuprofen in a dosage of between 600
and 800 milligrams per day. He continues to take pain medication as needed in
the same dosage, as prescribed by Dr. Holder.
Mr. Johnson said that when he wears “high-top shoes it kinda bothers my
ankles from where I have scars from the surgery on both sides.” Claimant
has scars on the left and right sides of his right ankle, each approximately
five (5) inches long. The scar on the right side is approximately 1/4-inch wide.
The scar on the left side is L-shaped, and narrower than the scar on the right
side. He testified that he cannot currently walk or stand for long periods of
time, he cannot run, or squat, and “jumping is out of the question.”
He said that prior to this accident he had not injured his ankle.
He reported that today he has back pain “all the time,” although
some days are worse than others. He said that “it radiates down to the
ankle” sometimes, and that he has difficulty sleeping. When he
“bends down, [he] feels it; when [he] sits down [he] feels it.”
Dr. Jonathan Holder testified based upon his treatment of the claimant since
2003, review of the medical records [Exhibits 1, 2, 3], an MRI taken on July 16,
2007 [Exhibit 4], as well as a more recent evaluation made on September 24,
2007, when Dr. Holder examined Mr. Johnson and took x-rays of his ankle.
[Exhibit 6]. Additionally, he noted that before September 24, 2007 the last
time he had examined claimant had been on January 12, 2006 as a follow-up to the
October 2005 surgery. At that time, the consultant report from Dr. Holder in
claimant’s AHR notes that Mr. Johnson was doing physical therapy,
including walking two miles per hour. [See Exhibit 2, page 122]. There
was no tenderness and a decrease in swelling, Dr. Holder noted on the consultant
report form. [Id.]. In terms of range of motion, the following notes were
made: “ROM DF 15° PF 30° Able to squat & full ROM. Stable
orthopedically. No restrictions.” [Id.].
He was unaware of any x-rays taken of claimant’s back prior to September
2003. Moreover, he was the “ankle specialist.” Others in his
group were “involved with the spine” he explained.
He testified that he examined him in 2003 as an orthopedic consultant rendering
clinical care - he did not really testify as to a month - but it was sometime
after the accident. A review of the AHR indicates that such examination occurred
on or about October 23, 2003. [Exhibit 2; Page 373]. The consultation note for
that date provides that the right ankle was still swollen and that the range of
motion of the ankle was somewhat limited. [Ibid.
]. The directions given
by Dr. Holder then were to “continue ankle brace X 1 month, then DC.
Continue [physical therapy] for [range of motion], swelling reduction.”
Dr. Holder testified that on October 17, 2005, he performed surgery at Mt.
Vernon Hospital to remove the loose hardware from Mr. Johnson’s right
ankle. [See Exhibit 3]. Dr. Holder agreed on cross-examination that the
removal of such hardware is not an unusual procedure, and not unanticipated. To
perform the operation, he used a fluoroscope in the operating room to visualize
the hardware. He agreed that at that time he did not note any marked arthritic
changes in his operative report, and that such would have been a significant
observation, as would any note concerning the status of the joint concerning
arthritis. [See Exhibit 3]. Dr. Holder noted, however, that he was
“primarily worried about the hardware.”
The discharge instructions given to Mr. Johnson after the October 17, 2005
surgery were that he was to rest for 24 hours, elevate his right ankle for the
same period of time, and not allow it to be weight bearing for three (3) weeks.
[Exhibit 2; page 181]. He was to ambulate with crutches for the three (3) weeks,
and to take analgesics as needed. [Id.]. Physical therapy was also
After the follow-up visit of January 12, 2006 while claimant was still
incarcerated, the next time Dr. Holder saw Mr. Johnson was after his release
from prison. During the examination of claimant on September 24, 2007, Dr.
Holder took a full history, he said, noting the accident, the initial surgery to
his ankle immediately after the accident, and the subsequent surgery he himself
performed in October 2005. When that history was taken, complaints of lower back
pain, as well as the earlier accident of April 2000 wherefrom, Dr. Holder
stated, Mr. Johnson had experienced “occasional discomfort”, was
noted, as was lower back pain occurring in 2003 upon Mr. Johnson’s use of
In terms of Mr. Johnson’s subjective complaints on September 24, 2007,
Dr. Holder reported that Mr. Johnson complained of ankle pain with limited
ability to walk, particularly for long distances, or on uneven terrain, when Mr.
Johnson would feel some instability of the right ankle. Mr. Johnson complained
that he would experience sharp pain and tingling into the foot, and occasional
numbness from the knee down to the top of the foot. He said his ankle felt
stiff in the morning, as well as at night, and would sometimes swell,
particularly when he stood or walked for any period of time. He complained that
his back hurt when standing, or walking or after any work activity and he was
using ibuprofen 800 milligrams for pain relief. He told the doctor that he was
attempting to seek employment at that time, but was not involved with any
“active medical treatment.”
During Dr. Holder’s physical examination of claimant on September 24,
2007, he evaluated Mr. Johnson’s lower back and right ankle. While
evaluating his lower back, Dr. Holder testified that he observed that Mr.
Johnson was standing erect and was not using a brace or cane. No deformities
were noted, the legs were equal and he had no pelvic tilting or obliquity.
When the doctor palpated the spine, it revealed some tenderness in the midline,
as well as some muscle spasms on the sides of the spine. Mr. Johnson’s
range of motion was somewhat limited. He had 70 degrees of flexion and 20
degrees of side bending with 20 degrees of extension. A straight leg raise
elicited low back pain at the level of 70 degrees elevation off the exam table.
There were some “negative nerve tests” and there was a
“negative malingering sign. He did have some decreased sensation on the
right side, particularly where the L-4 - L-5 nerve root . . .
[unintelligible] the skin.” Muscle strength was noted weak on the
right great toe elevation which Dr. Holder said is consistent with the L-5 nerve
root. Knee and ankle reflexes were equal, and a “modest degree of nerve
involvement” was noted. When Dr. Holder performed his examination of the
right ankle, he saw claimant favoring the right side with an antalgic gait.
There was limitation of motion as well as swelling localized to the front of his
ankle, and tenderness on either side of the ankle. Although he saw a modest
degree of flat-footedness it appeared bilateral. Mr. Johnson was unable to
perform a single leg stance or stand on the right side for greater than 3
seconds without losing balance. On the left side, he was able to maintain a
single leg stance for more than 5 seconds. He could not perform a heel raise or
go up on the balls of his toes on the right side. Range of motion tests showed
3 degrees of dorsal flexion on the right foot, with 7 degrees on the left foot.
Plantar flexion - or pointing the toes downward - was 15 degrees on the right,
with 25 degrees on the left. Inversion, or turning the ankle in, was 10 degrees
on the right, and 5 degrees on the left. For eversion, or tilting the ankle to
the outside, there was 0 degrees on the right, and 5 degrees on the left. He
found no ligament problems, or instability of the ankle, and said that the
fracture sites and the scars were not tender, and Mr. Johnson had good blood
flow to foot. There were no prominences or bone spurs, that he could palpate.
Dr. Holder took an x-ray that day. [See Exhibit 5]. He said that the
x-ray revealed a minor degree of calcium loss generally throughout the ankle
area. There was a development of joint space narrowing where the cartilage
usually is, and signs of early arthritis. The surrounding tarsal joints, distal
to the ankle joint, also showed some modest degree of degenerative change. There
was some spur formation noted at the distal tibia right at the anterior portion
of the ankle joint and also at the tail or neck just on the instep. The
fracture sites themselves were “well healed” on this x-ray, Dr.
The “impressions or diagnosis” he noted were that Mr. Johnson had
a “bimalleolar right ankle fracture treated with open reduction and
internal fixation, and an aggravation of a prior low back syndrome with a
possible progression of a herniated disc giving rise to a radiculopathy on the
right side.” Dr. Holder opined with a reasonable degree of scientific and
medical certainty that the accident of July 25, 2003 was a competent producing
cause of the right ankle fracture described, and also contributed to the
aggravation of the lower back condition when combined with the difficulties with
ambulation Mr. Johnson experienced when he started to use crutches. He thought
the treatment claimant received for the right ankle, including the two
surgeries, was appropriate. He first opined that the post-traumatic arthrosis
found in the joint was causally connected to the July 25, 2003 accident, as is
claimant’s limited range of motion and limited strength.
He further opined that permanent changes to Mr. Johnson’s right ankle
were a result of the subject accident. To reach that conclusion of permanency,
he explained, part of the methodology, would be to compare the operation of the
two (2) ankles, to review the treatment Mr. Johnson was given for effectiveness
- including the courses of physical therapy, braces, the warm soaks - and to
observe that these treatments had not had a good effect in increasing his range
of motion or strength. If there is no improvement “you can conclude that
it is likely that this condition will be permanent.”
Dr. Holder said that it was “likely” that Mr. Johnson would require
“some type of procedure on his ankle.” He said it could be a
“debridement, that is a cleaning of the joint to remove excessive or
accumulated tissues that need to be cleared so that the ankle joint can move
more efficiently, or, if there is significant arthritic deterioration, an ankle
fusion which would stop the ankle from moving because there is so much pain, or
so much arthritis, versus an ankle replacement, which would restore the ankle
motion but get rid of the arthritic joint.”
With regard to the aggravation of claimant’s lower back condition, Dr.
Holder’s opinions were more circumscribed overall. He opined within a
reasonable degree of medical and scientific certainty, that the accident of July
25, 2003 was a substantial cause of aggravation of the prior back condition. He
simply could not say - and to his credit, would not - that he could quantify any
degree of aggravation of claimant’s chronic lower back pain stemming from
the subject accident. The medical evidence supporting a claim of aggravation
were essentially claimant’s “subjective complaints and his history
of prior back problems escalating after the ankle injury.”
He testified about the earlier x-ray reports - not the x-rays themselves -
[Exhibit 2, pages 100 and 105], and conceded that such x-rays of the back would
show only bone versus soft tissue in any event. He was asked to discuss an MRI
taken in July 2007, by Open MRI of Elmira. [See Exhibit 4]. Comparisons
of x-rays to an MRI was acknowledged to be, at best, an inexact science. The
July 2007 MRI showed, he said, that there was “extruded disc herniation at
the L-4 - L-5 level” of the spine, “impressing on the right ventral
thecal sac and causing impression and posterior displacement of the exiting
right L5 nerve root from the thecal sac.” This condition would cause, and
subjectively does cause, the claimant to suffer pain, and appeared consistent
with his physical examination of claimant, he said.
Dr. Holder acknowledged that he could not determine whether the herniation
shown in the July 2007 MRI was present prior to the July 25, 2003 accident. He
would say, however, that “it is possible that there may have been a more
mild condition that progressed to this stage as noted on the MRI,” based
primarily on the history that Mr. Johnson reported of complaints of intermittent
back pain before the July 2003 accident becoming constant. He testified that it
was “more likely than not” that Mr. Johnson would need some type of
operative intervention with regard to his back within the next ten (10) years.
He said there could be some type of “micro diskectomy with a small
incision to remove a small portion of the herniated disk. If there were a more
substantial problem with arthritic changes or mechanical problems, some spine
surgeons may indicate spinal fusion in a limited capacity.”
On cross-examination, Dr. Holder acknowledged that the August 17, 2000 x-ray
report - taken after the previous car accident - and the September 29, 2003
report were written by different doctors and had different levels of detail.
[Exhibit 2; pages 105 and 100]. Between those two x-rays, there had been three
(3) years of treatment for the chronic back conditions, he conceded, and also
conceded that he could not know based upon these or any other medical records
available whether Mr. Johnson suffered a herniated disk after the car accident
of April 2000. He agreed that most of his opinion concerning aggravation was
related to Mr. Johnson’s subjective complaints. Dr. Holder agreed that
“for a short period of time not to linger” one might experience pain
after spending six (6) weeks in bed and commencing physical therapy and the use
of weight adjusting implements such as crutches, and possessing prior lower back
complaints of pain.
The last notation the witness made in the AHR of complaints of back pain was in
May 2004. Dr. Holder acknowledged that although this was the last notation he
had made concerning complaints of back pain, such complaints might have been
“delegated” by the facility to the “spine specialist”
while claimant was incarcerated.
Notably, although Dr. Holder had indicated that he had reviewed
claimant’s AHR prior to testifying, he said he did not review them
“extensively”, and was primarily familiar with his own treatment,
and then also acknowledged that he did not recall having ever seen the actual
x-ray film of August 2000 or September 2003. He again conceded that his
conclusions regarding the progression to herniation and aggravation were largely
based on Mr. Johnson’s subjective complaints. He did not have, or did not
review, a progression of radiographic information. He saw the 2007 MRI. He saw
the x-ray he took on September 24, 2007. He conceded again that the x-rays
would not show the material of a disk but rather the bone, and the relationship
between bone matter, from which one might infer a condition. He agreed that he
could infer that there was an ongoing process of degeneration when the x-ray was
taken in September 2003, that likely pre-dated the subject accident that had
occurred only two (2) months earlier in July 2003. He conceded that because he
had not seen the actual earlier x-ray, and relied only on the words of the
report, he could not “quantify” any changes. He further agreed, that
if he “had two MRI’s” a more accurate comparison might be
possible. To draw a conclusion regarding progressive degenerative changes to a
reasonable degree of medical certainty based upon an x-ray report and an MRI he
ultimately had to concede was not possible.
With regard to the right ankle, Dr. Holder acknowledged that some arthritic
changes are expected with regard to this type of fracture, saying it is
“inherent in the injury.” There is no indication of how quickly
such changes might occur, and it depends on the activity level of the patient.
Dr. Holder acknowledged that some post-fracture joints will stiffen with disuse.
He indicated also that “in some instances the more you use it the more you
will wear it out.”
On redirect examination, Dr. Holder also said that while it is difficult to
draw conclusions from the x-ray reports and the later MRI alone concerning the
progression of claimant’s back condition, when combined with the
patient’s history, his subjective complaints and the available records he
could infer to a reasonable degree of medical certainty that there was some
progression or escalation of his symptoms probably due to a herniated disk
causing some pinching of a nerve.
No other witnesses testified.
Perhaps the most elusive aspect of any damages award for personal injury is the
past and future pain and suffering experienced by the Claimant. Courts sometimes
look to other awards given because this item of damages is not subject to
“precise quantification.” Karney v Arnot-Ogden Mem. Hosp
251 AD2d 780, 782 (3d Dept 1998), lv dismissed
92 NY2d 942 (1998).
Indeed, where ankle fractures are involved, a broad range of awards have been
found to be either “reasonable compensation”, or not, [see
generally Condor v City of New York
, 292 AD2d 332 (2d Dept 2002),
98 NY2d 607 (2002); Clark
v N-H Farms, Inc.,
15 AD3d 605 (2d Dept
; Ciano v Sauve
AD3d 556 (2d Dept 2007); Hughes v Webb
40 AD3d 1035 (2d Dept 2007); Lamb v Babies
302 AD2d 368 (2d Dept
and a pre-existing injury does not
entirely preclude recovery where it is sufficiently established that the new
accident aggravated a previous condition. See Mihalko v Regnaiere
36 AD3d 983 (3d Dept 2007).1
Nonetheless, while case law sometimes is of assistance in assessing what
circumstances warrant a particular type of monetary award, each situation is
different, and is driven by its peculiar facts. The Court is persuaded that
immediately after the accident of July 25, 2003 and the bimalleolar fracture of
his ankle, Mr. Johnson experienced pain and suffering, underwent surgery placing
some hardware in his ankle which was successful, and thereafter underwent a
second surgery to remove such hardware, was hospitalized on both occasions, and
has experienced a permanent limitation of the flexibility and range of motion of
his ankle, as shown in tests performed by his treating orthopedist. Some of his
symptomology, clearly, is related to various factors that the treating
orthopedist simply could not quantify, including lack of current medical
treatment on Mr. Johnson’s part, the level of activity engaged in by
claimant who is a large man, and other conditions seen in the medical records
such as blood pressure concerns, hepatitis, asthma, and a family history of
diabetes not discussed during the trial.
The court finds that Mr. Johnson experienced pain in the past by suffering a
bimalleolar ankle fracture that required two (2) surgeries, and that he will
experience intermittent pain to some degree and limitation of movement in the
future. Such ankle pain is managed with pain medication, and may require further
operative procedures. There was nothing in the record concerning the utility of
any future physical therapy. He has scars. He cannot stand for long periods or
walk for a long time, but does not require the use of a cane or crutches or
other implement to ambulate, and the use of the air cast did not appear to be
consistent as an actual medical need. Indeed Dr. Holder did not discuss it as a
Whether Mr. Johnson’s lower back pain is associated with the motor
vehicle accident of 2000, degenerative changes resulting from that, degenerative
changes resulting due to aging and/or due to other physical ailments, or the
incident at issue, is clearly hard to test objectively. As noted above, there
are no recorded complaints specifically of lower back pain between late February
2003 and the period after the accident of July 25, 2003 until in or about
September 2003 when he began to use crutches to ambulate, which would tend to
suggest that some degree of exacerbation resulted from the fall in July 2003.
Little to no testimony was elicited to explain which of the neurological tests
performed regarding the back had an objective basis, however, and most involved
the subjective complaints of the patient. Dr. Holder conceded that he was not a
spine specialist. Dr. Holder, however, was the only medical witness interpreting
what information there was. Thus while Dr. Holder would not expansively opine
any degree of exacerbation caused by the fall, as the only expert his opinion
was essentially uncontradicted, as his credibility was not markedly challenged
Moreover, he appeared to recognize that based upon what objective medical data
was available that the present progression or escalation of Mr. Johnson’s
lower back symptoms - although probably due to a herniated
causing some pinching on a nerve -
was not necessarily causatively connected to the accident of July 25, 2003.
While some degree of exacerbation of Mr. Johnson’s previous lower back
pain condition is supported on the record, there simply was not enough
information available to accurately identify the causes.
Accordingly, having reviewed all the evidence and after listening to the
witnesses testify, observing their demeanor as they did so, and assessing their
credibility in the process, the Court finds that the claimant has suffered
damages resulting from the accident of July 25, 2003 for past pain and suffering
in the amount of $65,000.00; and future pain and suffering is in the amount of
$80,000.00, or a total of $145,000.00, reduced by the amount of claimant’s
comparative fault earlier found to be 30 %, for a total damages sum due to
claimant in the amount of $101,500.00. The Clerk of the Court is directed to
enter judgment in the amount of $101,500.00, together with interest from April
9, 2007, and to return the amount of any filing fee paid.
All motions made at trial and not heretofore ruled upon are hereby