New York State Court of Claims

New York State Court of Claims

SINGH v. THE STATE OF NEW YORK, #2008-036-405, Claim No. 109854


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:

MALONEY & LETOWSKY, LLP By: Paul H. Maloney, IV, Esq.
Defendant’s attorney:
By: John L. Belford, IV, Esq. Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 30, 2008
New York

Official citation:

Appellate results:

See also (multicaptioned case)


This is the court’s decision on damages after a 10-day trial on this issue which followed the court’s earlier summary judgment decision dated on December 29, 2006 finding the defendant liable.

Claimant’s damages claim consists of economic damages, that is, past and future medical expenses and past and future lost income; and non-economic damages, that is, past and future pain and suffering. A summary of the relevant evidence insofar as it pertains to the court’s findings follows.

Claimant’s Case

Baljinder Singh

Claimant was born on July 16, 1981, in Jalandhar, in the Punjab region of India. He came to the United States on March 21, 2001 (see Claimant’s Immigration Status, infra). At trial he testified through a Punjabi interpreter.

On August 12, 2003, claimant was working for L&B Construction Company (“L&B”), which had a contract with the State to demolish and clear a burned-out fisheries barn at the New York State Environmental Conservation Area in Ridge, Long Island. While working below ground level at the site of the building being demolished, a device he referred to as a “concrete breaker,” a hydraulic jackhammer, which was jerry-rigged to a “Bobcat” backhoe, broke loose and fell down on him. He testified his head was cut and he was bleeding from his back, lips, eye and thigh, and that he was in terrible pain when he was carried out of the construction site, crying out because of the pain. (44).[1] He was taken by ambulance to a helicopter and then transported by air to Stony Brook University Medical Center (“Stony Brook”).

Claimant’s Medical Care

At Stony Brook, claimant was found to have suffered fractures of his back, sacrum and right hip, and he underwent surgery to repair the hip. Claimant spent nine days in the hospital, and was discharged from Stony Brook on August 21, 2003. On a scale of 1 to 10, he estimated his pain at the time of discharge to be an 8. After discharge, he remained bedridden at home for three months (having to use a bed pan) except for occasional follow-up visits at the hospital. (57).

Thereafter, he began walking with a walker and started therapy. For about three weeks in January-February 2004, he made three visits a week by car service to Queensboro Medical, P.C., a rehabilitation facility, where he received electric stimulation and heat therapy. He was taking pain medication at the time. (62).

For the next four or five months, while still using a walker, he made several visits a week to the Total Medical Rehabilitation facility in Queens to do exercise therapy and receive pain medication. (67).

Then, on Christmas Eve, 2004, claimant took himself to the emergency room at Jamaica Hospital because his pain had intensified to the point that he was crying out. (67-68). He was given medication for his pain and released. The next day, however, he had to be taken back to Jamaica Hospital by ambulance and was kept overnight until being released on December 26, 2004. He returned to that hospital twice in mid-January 2005 to receive pain medication. On several occasions between February 3, 2005 and March 21, 2005, he also received steroid injections to relieve his pain.

On March 27 and April 4, 2005, he had to go to the emergency room of Queens Hospital Center, again complaining of pain, and received injections to relieve it. By then, he had begun using crutches to walk. During that time he also was making three or more visits a week to the Island Musculoskeletal Care facility for electric stimulation and heat treatments to relieve his pain. He complained of not being able to sit; having pain in his back, hip, thigh and head; not being able to sleep or to put on his shoes and socks without help; and being unable to climb steps. (84).

On August 24, 2005 claimant began treatment at All Family Medical, P. C. (“All Family”), a rehabilitation facility located in Richmond Hill, Queens, near his home. He went there as often as four times a week. He received injections and heat treatment for pain in his lower back and hip. He testified the pain in his lower back was separate from the pain associated with his hip, but sometimes the pain in his lower back would move toward his right hip and down his right leg. (661). He complained of severe pain whenever he stood up. He said he also had trouble sleeping because of the pain; that he would wake up after an hour or so and would stay awake for three or four hours.[2] (665-66). All Family administered acupuncture treatments for claimant two or three times a week. (671).

Claimant’s visits to All Family spanned a two-year period, from August 2005 until late July 2007. During that time, he received 60-70 injections for his pain, as well as seven months of acupuncture treatments. He testified that the relief afforded him from an injection lasted only 15-20 minutes. (659, 671). When confronted on cross-examination with an entry in the All Family records of his October 20, 2005 visit that “patient states that his pain has improved significantly” and asked whether he told this to the doctor, claimant denied that he did. (981). When confronted with an April 19, 2006 entry that patient states “his pains have improved,” he denied ever having said this. (985). When confronted with a February 10, 2006 record of his visit to All Family stating he was able to dress and undress without difficulty, claimant denied ever having told this to the doctor and asserted that he was not asked to undress at that visit. (981).

One month after his treatments at All Family had begun, claimant also went to see Dr. Drew Stein on September 27, 2005. Dr. Stein took x-rays and thereafter told claimant he needed to perform surgery to remove screws that had been put in his hip at Stony Brook, which he did on November 5, 2005. See summary of Dr. Stein’s testimony, infra.[3] According to claimant, following this operation, Dr. Stein recommended that he see Dr. Nachum Levin, who specializes in hip replacements. Claimant did so on May 5, 2006. See summary of Dr. Levin’s testimony, infra.

At the recommendation of his counsel in this case, claimant also visited Dr. Glenn Jakobsen at North Shore Medical Rehabilitation facility (“North Shore”). Since February 23, 2006 and through the time of trial, claimant made frequent visits to North Shore. For much of this same time – over a year and a half – he also continued his treatment at All Family, often visiting both these facilities on the same day. The two are about 45 minutes apart by subway, and claimant often would go to one facility by subway, and then leave to take a subway to the other. He had to climb and descend stairs to the subway and walk about 7 or 8 minutes on these trips. (1439). Each of his respective therapy and treatment sessions lasted 30 to 45 minutes. Claimant testified that throughout his two years at All Family he is “sure” pain medications were prescribed.[4] Also, on the recommendation of Dr. Jakobsen, between July 2006 and February 2007, claimant made four visits to Dr. Vikas Varma, a neurologist at Neuro-Pain Care, P.C., there to receive an aggregate of nine injections for his complaints of lower back pain. Mr. Singh testified they provided “ no relief at all.” (1473).

Finally, in May 2007 claimant underwent a total hip replacement operation performed by Dr. Nachum Levin at NYU Hospital for Joint Diseases.

Claimant testified he remains in pain when he walks, sits down and goes up and down stairs. The pain is in his hip and his lower back, he said. (683-86). On a number of occasions during his testimony at trial, claimant asked permission to stand to relieve what he said was pain associated with sitting in the witness chair. When he was sitting in the courtroom to observe the trial, the court gave him permission to stand when he felt he needed to. The court observed him doing so throughout the trial. In the presence of the court, claimant also appeared to walk with a limp. “Since the accident, I always walk with a limp,” he testified.[5] He said the last time he took any medication was a month before the trial. (1442).

Claimant’s Income

Claimant testified that at the time of the accident on August 12, 2003 he had been working for L&B for over two years, having started shortly after he migrated to the United States in July 2001. At trial, he claimed that at the time of the accident, he was earning approximately $900 a week, or an average of $3,600 per month. This sum, he said, was derived from a substantial amount of overtime work, including his working a six or seven-day week, almost every week. (701). According to claimant, he “mostly” worked a seven-day week, and that he thought he took one day off in a month. He said that from the time he started working for L&B in April 2001 up to the accident, he would have taken an aggregate of between one and two months off. (703-4). He testified he worked 12 or 14 hours a day, “sometimes” 20. (697). He was paid $90 a day, for an eight hour day, he said; then an additional $45 for four hours of overtime or an additional $90 for 8 overtime hours.[6] (947). On cross-examination claimant said he had no bank account prior to his accident. He said he kept around $600 to $700 per month and sent the rest to India, either by Western Union or through friends whom he trusted. (950-51). He had no receipts for these transactions. (949). He acknowledged that while he was working he filed no tax returns and paid no taxes on any of the money he purportedly earned.[7] (951).

Claimant’s Immigration Status

Claimant arrived in the United States from his native country, India, on March 21, 2001 when he flew to Fort Lauderdale, Florida. Upon landing, claimant, who is a member of the Sikh religion, sought political asylum claiming that he feared for his life in India where his brother, a member of the Congress Party, recently had disappeared. His request for political asylum was denied. At trial here, he testified he had appealed that ruling and, to his knowledge, the appeal was pending at the time he suffered his accident. He told the court he believes the appeal is still pending.[8] (30)

Dr. Drew Stein

Orthopedic Surgeon

Dr. Stein is an orthopedic surgeon and an assistant professor at NYU Hospital for Joint Diseases. He first treated claimant on September 27, 2005 for complaints of hip and lower back pain. Dr. Stein reviewed the patient’s Stony Brook records which show a fracture of the right femoral neck, left transverse process fractures of L-1, L-2 and L-3 of the lower back, an inferior articular facet fracture of the right L-5 of the lower back, and a right comminuted sacral fracture. Ex. 14 (9/27/05 at p. 3) (160).  Dr. Stein testified that each of the transverse process fractures of the L-1, L-2 and L-3 was displaced, which the doctor explained means “one of those pieces has just moved to a placed [sic] it shouldn’t and now it’s lying in a spot where it never was.” (161). He did not believe back surgery was indicated but he did diagnose possible avascular necrosis (“AVN”) in the right femoral head and concluded that surgery to remove the three screws inserted in claimant’s right femoral neck would first be required before an accurate MRI could be obtained in order to make a definitive determination of AVN. Ex. 14. He performed that surgery on November 3, 2005, successfully removing two of the screws, but he was unable to remove part of the third screw and decided to stop to prevent any further injury to the patient. Although leaving the hardware continued to prevent Dr. Stein from making a definitive diagnosis of AVN, he referred his patient to Dr. Nachum Levin for his opinion and to consider hip replacement surgery. In Dr. Stein’s view, without a total hip replacement, the patient would continue to experience chronic pain. Ultimately, Dr. Levin performed a total hip replacement. Dr. Stein opined that despite claimant’s hip replacement he is likely to have chronic pain and defined “chronic” as “[p]ain lasting longer than six to twelve months depending on the body part.” Dr. Stein also testified that claimant would walk with an antalgic gait, or a limp, and will not be able to participate in certain recreational sports. (193).

On cross-examination, Dr. Stein noted that the Jamaica Hospital radiology reports (Ex. 6) showed the L-1, L-2, L-3, and L-4 fractures as “unremarkable.” (384). He acknowledged he saw nothing in the Jamaica Hospital MRI report or the report of the x-ray which he had done that was an indicator of pain in claimant’s lower back, or any “stenosis” (i.e., impingement on the spinal column) or any problem with claimant’s lower back for that matter. (385-390). He also acknowledged that his notes of claimant’s follow-up visits with him do not reference any complaints by claimant of back pain. (394, 395, 402, 441). Dr. Stein said that when claimant first came to see him he was not on any medication, that he prescribed Vicodin to all his patients but was not clear whether he actually prescribed it for claimant. (395); see n 4, supra. In his report of claimant’s last visit with him on July 25, 2007, the doctor noted claimant “[will not be able to] work in the construction field and will need to find other forms of employment in the future.” Ex. 14 (7/25/07 at p. 2).

Dr. Nachum Levin

Orthopedic Surgeon

Dr. Levin is a specialist in orthopedic surgery at NYU Hospital for Joint Diseases. He first saw claimant on May 5, 2006 and then again nine months later on February 7, 2007. Even though Dr. Levin suspected AVN, he felt a hip replacement for claimant at such a young age was premature. However, he reluctantly concluded that because claimant’s pain had become intolerable, a total hip replacement was warranted. (487-88). He observed that claimant was limping significantly and he was having difficulty performing the activities of daily living, walking and sleeping. On May 3, 2007 he performed the operation. Ex. 16. It was successful, according to the doctor. Nevertheless, Dr. Levin opined that he considered claimant to have a disability because an artificial hip is not going to function like a natural one (572), even though claimant would be able to perform the activities of normal living. (610). He testified that claimant can expect some aches and pains in the future (573). Dr. Levin explained that the aftermath of this third surgery and its impact on the tissues of the hip area from a buildup of scar tissue was a likely source of post-surgical pain for claimant. (536). Thigh pain also can be expected until the bone grows into the artificial stem, usually within a year, but in 90-95 percent of successful hip replacements the hip becomes “nearly completely pain free,” he said. (612-613).

Dr. Levin testified that claimant would need additional hip replacement surgeries every 10 to 15 years, but conceded that as technology improved, artificial hips could be expected to last longer. (548). He said the current cost of a hip replacement operation was $45,000, including $10,000 for his fee. (555). He noted there was nothing in his reports which indicated claimant was reporting back pain, although on claimant’s visit on February 2, 2007, he said his hip pain was “intolerable,” according to Dr. Levin’s report. Ex. 15; (609).

Dr. Glenn Jakobsen

Physical Medicine and Rehabilitation

Dr. Jakobsen is a specialist in physical medicine and rehabilitation at North Shore Medical Rehabilitation, P. C., apparently having been selected and recommended by claimant’s counsel to evaluate and treat claimant.[9] Dr. Jakobsen began to evaluate and treat claimant on February 23, 2006. (1001). At his first evaluation he noted claimant complained of pain and stiffness in his lower back and right leg. (1003). He found claimant had spasms in the paraspinal muscles indicating he was in pain in the lumbar spine. (1006-07). He also noted tenderness in the region of the right hip, which he defined as a complaint of pain while he touched the patient. (1008). He noted claimant may have a pinched nerve in the neck based on a “Kemps” test he administered. (1011). He also noted claimant exhibited a decreased range of motion in his hip and a “gait disturbance” (a limp). (1013). Dr. Jakobsen prescribed physical therapy two or three times a week and trigger point injections every week or two (1016) in an attempt to relieve the spasms. (1020). This treatment began on June 20, 2006 and still was continuing at the time of trial (the last treatment was on October 9, 2007). (1019). Dr. Jakobsen testified that claimant’s lower back condition is related to his hip condition in that his hip “probably worsens his lower back condition.” (1054).

On June 26, 2007, Dr. Jakobsen did a clinical revaluation of claimant after his total hip replacement. The record of this visit states that claimant was complaining of right hip pain and stiffness, but also noted claimant said “I feel better.” The record does not show claimant had complained of back pain. Ex. 11. Dr. Jakobsen also told the court that the elimination of AVN by the total hip replacement “could have led to an improvement in his pain.” (1076-77).

Dr. Jakobsen arranged for an MRI and an electromyogram (EMG) in an effort to determine whether the patient was suffering from lumbar radiculopathy, that is, a pinched nerve, as the doctor suspected. He explained that an EMG is the only diagnostic test which indicates the source of pain. Without it, he would not be able to diagnose a pinched nerve, he said. (1104, 1130). The EMG was conducted on April 21, 2006, by Dr. Jakobsen’s colleague, Dr. Steven Wilson. Dr. Jakobsen opined that the April 21, 2006 EMG showed right-sided radiculopathy at L-5 of the spine, which he defined as pressure on the nerve root causing pain. (1044).

Dr. Jakobsen did not have a further EMG performed after claimant had his total hip replacement. He said this was because workers’ compensation would not authorize more than one EMG. (1130). On cross-examination it was pointed out that Dr. Wilson had written that the EMG showed there was “acute denervation,”1[0] and Dr. Jakobsen was asked whether this meant it was a recent injury. The doctor testified that “acute” has two meanings: either the injury has just occurred or it is something “fresh or evolving, something active.” He acknowledged that if the radiculopathy was ongoing, the report should have noted the nerve damage as “chronic.” (1121-22). The EMG registered fibrillations in the affected muscle of plus one on a scale of zero (normal) to four. (1124).

On cross-examination Dr. Jakobsen also acknowledged that during a number of claimant’s trigger-point injection sessions after his total hip replacement surgery, he complained only of hip pain, not back pain. (1132). He testified nevertheless that he believes claimant experiences both hip and back pain. (1053). Contrary to claimant’s contention that the trigger-point injections and heat treatments he had been receiving relieved his pain for only 15 to 20 minutes after each such session, Dr. Jakobsen’s opinion was that claimant’s pain must have been relieved for at least a day after each one. (1071). He also testified his records indicate that when claimant first came to his office he was not taking any medication to relieve pain and that he did not prescribe any medication for pain. He was not aware of claimant having taken any pain medication from any time in 2006 and prior to his hip replacement surgery in May 2007. (1088). The doctor said his review of other medical records indicates claimant had been on pain medication, specifically referring to Percocet which had been prescribed by Dr. Vikas Varma , the neurologist to whom Dr. Jakobsen referred claimant. (1093).

Dr. Jakobsen opined that even after claimant’s hip replacement, he would have a great deal of difficulty with his activities of daily living. He saw claimant’s long-term prognosis as “rather bleak.” (1049, 1051). The doctor testified claimant would need future ongoing therapy at $308.57 per month, and also would require at least three future hip replacements which, together with the costs of necessary post-surgical physical therapy for an estimated 12 weeks after each operation, would cost an estimated $400.34 a week. (1056-57).

Claimant’s Medical Exhibits

Stony Brook records were introduced as Ex. 3. They show claimant’s injuries, including skin laceration of the right forehead, right femoral neck fracture (hip), left transverse process fractures of the L-1, L-2, L-3 and L-4 in the lower spine, a right L-5 inferior articular facet fracture and a comminuted right sacral fracture. They also show that the right femoral neck was operated on and “3 cannulated screws stabilizing [the femoral] neck” were inserted.

Exhibit 4 consists of records of claimant’s visits to Queensboro Medical documenting his complaints of pain in his right hip and his inability to walk without the assistance of crutches at that time. Exhibit 5 includes reports of claimant’s treating physicians at Total Medical Rehabilitation, documenting his complaints of pain in his neck, lower back and intermittent pain in his right hip.

Exhibit 7 consists of records from Dr. Y. Kim of Madison Avenue Orthopedic showing that on February 3, 2005 claimant was walking with a cane and complaining of “persistent back

pain and right leg pain.” Dr. Kim prescribed two epidural steroid injections, but the record notes claimant said he did not experience relief. Exhibit 8 is a March 27, 2005 record from Queens Hospital Center Emergency Room showing claimant was complaining of hip and back pain. Exhibit 9 is a record of claimant’s April 7, 2005, April 28, 2005 and June 9, 2005 visits to the Island Musculoskeletal Care facility reporting his complaints of lower back pain and pain in his right hip. The report of his third visit on June 9, 2005 notes spasm and tenderness to palpation in his paraspinal muscles, more on the right side. That report also notes claimant “continues to complain about pain in his lumbosacral spine and right hip.” The report of his second visit on April 28, 2005 noted there is spasm of the paraspinal muscles on the right side but that the patient stated “his condition is slowly improving.” Ex. 9.

Exhibit 12 are the records of claimant’s four visits to Dr. Vikas Varma on July 12, 2006, July 18, 2006, January 2, 2007 and February 6, 2007, referred to supra. These reports note claimant’s complaints of pain in his back, right hip and right buttock. On claimant’s third visit, Dr. Varma prescribed Percocet. Exhibits 15 and 16 are records relating to claimant’s care by Dr. Levin and the hip replacement surgery he performed. The August 17, 2007 entry, documenting claimant’s last visit before the trial, notes that claimant’s condition is improving and he is walking without a cane; and that the doctor expects claimant’s thigh pain will “resolve over the next year or so.” The report also notes Dr. Levin explained to claimant that pain “is quite common while ingrowth is still occurring.” Ex. 15 (8/17/07).

Dr. Richard Schuster

Claimant’s Earning Capacity

Dr. Schuster is a neuropsychologist specializing in rehabilitation. For 32 years he worked as a consultant to the Vocational Educational Services for Individuals with Disabilities, an agency of the State of New York. (869-70). At the request of claimant’s counsel, on August 28, 2006, he conducted a six hour evaluation of claimant, including tests, for the purpose of determining his future earnings capability. He concluded claimant was in the low average range of intelligence. (753). He also noted his limited ability with the English language. Dr. Schuster said claimant’s ability to work was limited to an unskilled type of position, e.g. basic factory jobs, with an average earning potential of $25,950, or $11.38 an hour, plus another $5,000 for fringe benefits for an estimated total of $30,950. (787, 832). Dr. Schuster then reduced this estimate by 75% based on his view that claimant is likely to work only “episodically” due to his disabilities (813) during his expected work life, with attendant continuous rehabilitation treatment and therapy of the type claimant already has received at All Family and North Shore. On cross-examination, the doctor conceded his application of a 75% discount to claimant’s estimated earnings potential of $30,950 was based on general statistics associated with all forms of disabilities, and not specifically the effects of a hip replacement per se. (855).

Dr. Frank Tinari


Dr. Tinari is an economist retained by claimant to render an opinion as to claimant’s lost earnings and future medical costs. His opinion is that claimant’s past and future earnings losses range between $2.4 and $2.8 million, and that he calculated claimant’s past and future medical and related expenses to be in excess of $1.3 million. These calculations accounted for projected future periods of unemployment in the construction trades (which claimant would have experienced had he continued in that line of work) and the job-related expenses he would have incurred. Dr. Tinari’s wage opinion used a wage growth factor of 4% for future wage increases (which he termed a “middle projection,” as opposed to 3%, which he said was in the “low range.”(1522). His lost earnings opinion is based on the premise that claimant was earning $900 a week and that he is not capable of working full time in the future for a predicted work span of 39 years. He admitted on cross-examination that his estimates of lost earnings would be exponentially reduced if claimant had not been earning as much as $900 a week at the time of the accident. (1554). Dr. Tinari also used Dr. Schuster’s 75% discount described supra to calculate claimant’s lost earnings capacity.

Dr. Tinari’s opinion as to projected future medical costs includes the cost of future rehabilitation treatments at $308.57 per month, based on Dr. Jakobsen’s contention as to their continuing need and cost, plus the cost of two future hip replacements every 20 years for which he further relies upon Dr. Jakobsen’s estimate of $46,000 for each surgery, plus an estimated 12 weeks of more attentive rehabilitation per operation at $400.34 per week. (1548). He then applied an annual inflation factor of 5.75% and projected these future medical costs to be in excess of $1.3 million.

Defendant’s Case

Dr. Leon Sultan

Orthopedic Specialist

Dr. Sultan is a specialist in orthopedics who was retained by defendant to examine claimant and evaluate his claim. He examined him on January 6, 2006, June 27, 2007 and August 29, 2007. (1160). He testified he believed claimant’s hip replacement to be a “very satisfactory result” (1170) and that the fractures in claimant’s back had clinically healed, meaning there was no longer evidence of fractures. (1190, 1197). His examination showed a “slight non-antalgic favoring of the right lower extremity,” which means he was favoring his right leg to avoid pain as he walked. (1171). Dr. Sultan testified he conducted various tests on claimant and concluded there was nothing he would designate as a neurological problem. (1187).

The doctor reviewed an x-ray report from Jamaica Hospital on December 25, 2005, and said no abnormality in claimant’s lower back was detected. (1195, 1200).1[1]

As to the likelihood of when claimant might need additional hip replacements, Dr. Sultan opined the period would be well beyond 15 years, probably 25 to 35 years depending upon claimant’s activity. (1210). He disagreed that tenderness is an objective clinical finding for pain, but agreed that AVN is painful and that claimant had developed AVN in his right femoral neck prior to his total hip replacement. (1223, 1231). Finally, in response to a question by the court, Dr. Sultan said that in view of his analysis of claimant’s hip on his last visit of August 29, 2007, with respect to claimant’s claim of pain “24/7,” “one has to doubt whether the individual is

really telling me the truth or not.“ (1258).1[2]

Dr. Mark Zuckerman

Neurophysiology Specialist

Dr. Zuckerman is a specialist in clinical neurophysiology retained by defendant to examine claimant, which he did on January 17, 2006 and September 18, 2007, after reviewing various medical records and notes relating to claimant’s medical condition. He said claimant reported pain in the lumbar area (8 on a scale of 10); pain from his right hip to his knee and thigh; and no shooting pain in the lower extremity (i.e. leg). He noted mild tenderness and muscle spasm. Dr. Zuckerman’s records indicate that on his first visit, claimant was taking pain medication as needed (1802), but that on his second visit shortly before trial he was “not currently taking any medications and has used none for the past month.” Reports dated January 17, 2006 and September 18, 2007. Dr. Zuckerman testified his diagnosis after claimant’s first examination consisted of his findings that there was “some sensory loss superficially in the right lateral thigh” and “some fractures of the spine and a right hip fracture and a lumbar sprain.” (1737-38). Dr. Zuckerman said claimant may have pulled some interspinous ligaments, which he said “heal with time.” (1754).

During Dr. Zuckerman’s first examination, claimant felt a tuning fork in his feet. According to the doctor, had there been a peripheral nerve problem, he would not have been able to feel it. (1744-45). When claimant entered his office for the first examination he favored his right leg; less so when he left. (1746). The doctor found muscle spasm in the first examination, which came and went.

During the second examination, unlike the first, the doctor found no muscle spasm when he palpated along the spine on each side of the lumbar region and he observed no tenderness. He opined that the lumbar sprain could have caused the lower back pain claimant reported during his first examination; and the pelvic fractures and possible torn ligaments also could be the cause of the pain. He testified that following the second examination he found the “sensory disturbances in the thigh had resolved.” (1738). Regarding claimant’s spine and the lumbar sprain, Dr. Zuckerman “did not find any neurologic dysfunction.” (1738). He testified he specifically found “no evidence of any lumbar sacral radiculopathy.” (1738). The doctor said that if claimant had lumbar sacral radiculopathy he would have a shooting pain down his leg or numbness in the foot. (1738). The doctor did not find this was the case when he tested for it in his medical evaluation. (1738, 1745-49).1[3]

Joseph Pessalano

Claimant’s Earning Capacity

Mr. Pessalano is a certified rehabilitation specialist retained by defendant to analyze claimant’s ability to work in the future. He reviewed medical records and conducted a brief interview of claimant. He opined that claimant is able to work in a full-time capacity in a number of occupations in the New York City Metropolitan area “with average salaries ranging from $23,310 on the low end to $40,320 on the high end.” (1298). Mr. Pessalano identified

various job categories from a U. S. Department of Labor, Bureau of Labor Statistics publication entitled “Occupational Outlook Handbook,” all in the manufacturing sector, including bindery operator (book binding), wood pattern maker, optical goods worker (assembling eyeglasses), and knitting machine tender (watcher). These, he said, were examples of the kind of work available to claimant given the limitations of his artificial hip, low average intelligence and lack of English language skills. (1318, 1366). He said he believed claimant could work a 35- to 40-hour a week job now and he could see no explanation for why claimant has not sought employment. He did observe claimant’s demeanor as a “flat effect,” (1317) a symptom of depression, which can be disabling, but opined that with remedial help, claimant could “work a normal uninterrupted work life.” (1326). Mr. Pessalano acknowledged he did not know how much time claimant’s physical therapy was consuming. He said the type of work available to claimant does not require fluency in English because such jobs typically are learned through demonstration. (1395). He disagreed with Dr. Schuster’s opinion that claimant’s work capacity had to be reduced by 75% because, in his view, future hip replacement surgeries and follow-up physical therapy sessions were not likely to be so disabling as to preclude him from working in his chosen occupation. (1405, 1408). Jobs of the type suitable for claimant are available through relief agencies, and through friends and relatives in the community, he said.

Dr. Thomas Fitzgerald


Dr. Fitzgerald is an economist retained by defendant to render an opinion with respect claimant’s lost earnings and future medical costs. As to claimant’s total lost earnings, Dr. Fitzgerald offered three choices depending on the court’s finding as to claimant’s future ability to work, ranging from a low of $88,478 (no future inability to work) to $742,516 (using Dr. Schuster’s 75% “reduced labor force participation”) (1626) to a high of $1,035,081 (total inability to work in the future plus the $88,478 figure for past lost earnings). The principal areas where he took issue with the conclusions of Dr. Tinari, claimant’s economist, were with regard to the estimated average work span of a construction worker such as claimant (which Dr. Fitzgerald saw as extending to age 54, not 61.2 as Dr. Tinari saw it) (1670);1[4] the amount of claimant’s earnings at the time of the accident ($90 a day for an estimated working period of 47.5 weeks a year, as opposed to the much higher claimed earnings for a 52-week year used by Dr. Tinari); and the estimated growth rate for future earnings (2.75% which Dr. Fitzgerald took from the Social Security Trust Fund solvency assumption rate, as opposed to the higher 4%, 20-year Bureau of Labor Statistics rate [1986-2006] applied by Dr. Tinari).

Dr. Fitzgerald also took issue with Dr. Tinari’s opinion regarding the future cost of physical therapy. He said Dr. Tinari’s overall estimated costs should be reduced by applying the more appropriate inflation rate of 3.1% for medically-related services costs, not the 5.75% rate for medical costs like the hip replacements which Dr. Tinari used. As a consequence, he found the future costs to be $424,137, as opposed to Dr. Tinari’s estimated $635,000. (1637). Dr. Fitzgerald basically agreed with Dr. Tinari’s estimated cost of the two future hip replacements at $652,000. (1639).

* * *

The court’s findings of fact and conclusions of law follow.

The court having previously found defendant liable, claimant is entitled to be compensated for all losses resulting from the injuries he sustained (PJI 2:277). Claimant bears the burden to prove his damages. A damage award should compensate for actual sustained losses as well as items of damage that will be incurred in the future (PJI 2:277).

Claimant is entitled to an award of non-economic damages to compensate him for his injuries and for any conscious pain and suffering caused by the defendant since the time of the accident to the date of the award (PJI 2:280). The award may take into consideration the effect claimant’s injuries have had on his ability to enjoy life, including loss of his ability to perform daily tasks, to participate in activities which were a part of his life before the injury, and to experience the pleasures of life, if he is aware, at some level, that he has suffered the loss of such pleasures (PJI 2:280.1). The award may encompass any mental suffering, emotional and psychological injury and any physical consequences resulting from the emotional distress caused by defendant (PJI 2:284).

Claimant also is entitled to recover for future pain, suffering and disability and the loss of his ability to enjoy life with respect to any of his injuries or disabilities. In this regard, the period of time the injuries or disabilities are expected to continue is to be taken into account. If the court finds the injuries and disabilities are permanent, the period of time claimant can be expected to live is taken into consideration, including reference to statistical life expectancy tables, among other considerations (PJI 2:281).

Claimant also is entitled to an award of economic damages comprised of two parts:

(i) Expenses incurred and to be incurred; that is, the reasonable expenditures he necessarily has incurred for medical services and medicines, including physician’s charges, nursing charges, hospital expenses, diagnostic expenses and x-ray charges. If the court finds claimant will need medical, hospital or nursing expenditures in the future, an amount for those anticipated expenses which are reasonably certain to be incurred and that were necessitated by claimant’s injuries are to be included (PJI 2:285); and

(ii) Past loss of earnings and loss of future earning capacity; that is, any earnings claimant has lost as a result of his injuries caused by defendant from the time of the accident until the date of the award (calculated by the number of days claimant was disabled from working and the amount claimant would have earned had he not been so disabled)1[5] and any reduction in claimant’s capacity to earn money in the future. Loss of past earnings must be proved with reasonable certainty. Loss of future earning capacity is determined on the basis of claimant’s actual earnings before the accident and his prospects for future advancement, the probabilities of his future earning capacity before the accident, and the extent to which the court finds these prospects and probabilities have been reduced by the injuries, including the time claimant would reasonably be expected to work had he not been injured, the nature and hazards of his employment and other circumstances which would have an effect on his earning capacity (PJI 2:290).

Applying these legal principles to the evidence, the court finds as follows:
1. Claimant is entitled to $162,992.91 for past medical expenses (as stipulated by the parties).

2. Claimant is entitled to $697,045 for future medical expenses.

3. Claimant is not entitled to an award for past lost earnings.

4. Claimant is entitled to $84,223 for loss of future earning capacity.

5. Claimant is entitled to $1,500,000 for past pain and suffering.

6. Claimant is entitled to $375,000 for future pain and suffering.

A discussion of certain aspects of the evidence as it bears on the court’s findings follows.

There is no dispute as to the amount of past medical expenses to which the parties have stipulated.

Claimant seeks $1.285 million for future medical expenses for his remaining life expectancy of 49 years, comprised of the cost of future hip replacements and attendant post-surgical rehabilitation, and ongoing monthly rehabilitation treatments for the rest of his life. Approximately half of the aggregate amount sought, i.e. $635,774 is attributable to the claim for ongoing rehabilitation. The court finds claimant failed to prove his need for ongoing future rehabilitation as opposed to his future surgical and immediate post-surgical rehabilitation needs, and thus denies that portion of his future medical expenses claim.

The initial physical therapy claimant received during 2004 and the first half of 2005 was designed to aid his healing and alleviate pain from the totality of his injuries, that is, the lumbar, sacral and hip fractures he sustained. By the fall of 2005, the focus of claimant’s physical therapy appears to have centered primarily on the pain he was experiencing in his right hip. It was at this time that Dr. Stein zeroed in on possible AVN as the source of that pain. Ultimately, Dr. Levin’s diagnosis of progressive AVN led to claimant’s total hip replacement surgery performed in May 2007.

The NYU Hospital post-surgery radiology report notes that the “avascular necrotic right femoral head and proximal neck has been removed.” Ex. 16. Dr. Jakobsen’s note on claimant’s first physical therapy visit on June 26, 2007 following the surgery portends a successful outcome for claimant. “I feel better,” claimant reported. Ex. 11. Dr. Jakobsen testified that to achieve a successful post-surgical recovery from a hip replacement operation, a regimen of 12 weeks of physical therapy, consisting of three sessions a week, is required. By claimant’s August 17, 2007 follow-up visit with Dr. Levin, the doctor noted claimant “is improving. He is walking without a cane at this point.” Claimant did complain of thigh pain, which Dr. Levin explained to him is “quite common while ingrowth [of the bone into the artificial stem] is still occurring.” Ex. 15. Dr. Levin testified that in 90-95 percent of successful hip replacements the patient becomes “nearly completely pain free” within a year or so.

Apart from the transient 12 weeks of physical therapy recounted supra, which should accompany the post-surgical recovery claimant will have to undergo after each of his future hip replacements, the only other claimed reason for claimant to need ongoing future rehabilitation treatments throughout the rest of his life apparently relates to the pain he has reported experiencing in his lower lumbar area. Dr. Jakobsen ascribes this pain to two sources: spasms of the paraspinal muscles on either side of the spinal column (which exhibited themselves upon his palpation of these muscles), and right-sided radiculopathy at L-5 of the spine (shown to be an acute denervation as opposed to chronic, and registering 1 on a scale of 0 to 4 as reflected in a 2006 EMG test performed by his colleague). With regard to the spasms, Dr. Jakobsen prescribed trigger-point injection therapy in mid-2006 to increase blood flow to the area and eliminate the muscular aspect of this pain. For both the spasms and the radiculopathy, he prescribed electric stimulation and physical therapy to reduce the general pain level in the lower back. These treatments continued to the date of the trial. He opined that this “symptomatic” care will be required twice a month throughout claimant’s lifetime. He testified that the respective conditions of claimant’s hip and back were interrelated and that his hip condition had worsened his back condition. The court infers from this that the ultimate pain-free recovery from the hip replacement surgery projected by Dr. Levin will have a salutary effect on whatever lower back pain symptoms claimant has been experiencing. This inference appears particularly persuasive in light of the post-hip replacement evaluations conducted by Drs. Zuckerman and Sultan.

Dr. Zuckerman testified that when he examined claimant on January 17, 2006, like Dr. Jakobsen, he, too, found intermittent muscle spasms upon palpation along the spine. The doctor additionally found evidence of a lumbar sprain because claimant reported pain at an 85 percent forward flexion. The doctor also opined that claimant’s lower back pain may have been caused by his having pulled some interspinal ligaments which heal with time. By the time of Dr. Zuckerman’s second examination on September 18, 2007, he did not find evidence of muscle spasms or of any neurologic dysfunction from the previous evidence of a lumbar sprain. Dr. Zuckerman took issue with Dr. Jakobsen’s opinion that claimant had lumbar radiculopathy. He said that regardless of what an EMG may have registered, claimant did not exhibit pain radiating down to the foot nor any numbness, symptoms which Dr. Zuckerman opined were necessary for such a diagnosis. Dr. Sultan testified that claimant’s reports of “intermittent back pain” were a “subjective complaint without any objective findings.”

In sum, the court finds claimant failed to carry his burden of proof on the need for ongoing future rehabilitation therapy, except for 12 weeks of such care following each of two future hip replacement operations he will require. Dr. Jakobsen’s reading of the EMG done by his colleague as positive for lumbar radiculopathy was met by an equally persuasive negative diagnosis by Dr. Zuckerman based on his unrebutted testimony of the physical symptoms required to establish this condition. Dr. Jakobsen was the only physician of those who examined claimant to opine he had a lumbar radiculopathy.1[6] Dr. Zuckerman’s findings pertaining to a lumbar sprain and possible pulled interspinous ligaments, and the findings of both Drs. Jakobsen and Zuckerman pertaining to claimant’s muscle spasms, present plausible alternative explanations for claimant’s lower back pain. The court is not persuaded that any of these conditions are chronic in the sense they would equate with a persistent pain for the remainder of claimant’s life. The post-surgical hip pain claimant now is experiencing should disappear within a year or so, according to Dr. Levin. To the extent claimant’s hip pain has adversely affected his lower back pain (per Dr. Jakobsen), it is reasonable to infer that claimant’s back pain is likely to recede and obviate the need for life-long rehabilitation therapy.

Claimant is thus awarded future medical costs consisting of two future hip replacements in the amount of $652,713 ($46,000 per operation @ 5.75 percent annual inflation for medical costs), and attendant physical therapy after each operation of 12 weeks @ $400.34 per week as proffered by Dr. Jakobsen and not disputed by defendant. The court has applied a 4.5 percent inflation factor to the costs of physical therapy, testified to by Dr. Tinari, which amounts to $44,332. The combined amount for future medical costs is $697,045.

Turning to past earnings, the court finds claimant has not carried his burden of establishing loss of actual past earnings with “reasonable certainty.” (Poturniak v Rupcic, 232 AD2d 541, 542 [2d Dept 1996] (“plaintiff has the burden of establishing loss of actual past earnings with reasonable certainty”); Gomez City of New York, 260 AD2d 598 [2d Dept 1999] (unsubstantiated testimony and no pertinent documentary evidence insufficient to prove past lost earnings with reasonable certainty); see also Papa v City of New York, 194 AD2d 527 [2d Dept 1993], lv dismissed 82 NY2d 918 [1994] (“It is the plaintiff’s burden to establish his own loss of ‘actual’ past earnings with ‘reasonable certainty’ – e. g. by submitting tax returns and/or other relevant documentation” [citations omitted]).

Claimant testified at his deposition that he earned a “lump sum” of $90 a day. One of his trial counsel was present at that deposition. At trial, however, claimant changed his story and claimed he really made around $900 a week because of a huge amount of overtime he said he had worked. Claimant then sought to bolster his trial assertion by calling his former employer, Rajinder Singh Bawa, and a co-worker, Jagjit Singh. These efforts fell well wide of the mark. Mr. Singh Bawa invoked the Fifth Amendment when asked to confirm his own deposition testimony that he paid claimant $900 per week, and to verify claimant’s account regarding the amount of overtime he worked. Claimant’s co-worker, Mr. Singh, administered the coup de gr
ce on the overtime question by testifying that both he and claimant worked “little” overtime.

With this disparity and inconsistency of testimony, documentary evidence such as W-2 forms and tax returns assume greater importance to satisfy the legal standard of proof. Here, most probably because of claimant’s questionable immigration status and his not having a social security number, no W-2 forms ever were issued to him and he did not file tax returns when required. There is no independent evidence that the purported tax returns prepared for him shortly before trial were, in fact, filed. Claimant admitted the taxes shown as ostensibly due were not paid. But for the trial, it is reasonable to infer the filled-out tax forms would not exist at all. The amounts reflected on them also are suspect. They are inconsistent with claimant’s deposition testimony and the trial testimony of his colleague Mr. Singh which contradicted claimant’s effort to ascribe the larger amounts to his having worked overtime. The purported returns are not credited as proof of claimant’s earnings here. (Karwacki v Astoria Med. Anesthesia Assoc., P.C., 23 AD3d 438, 439 [2d Dept 2005] ["Even assuming that the plaintiffs’ tax returns were properly submitted in evidence, they failed to establish with reasonable certainty the injured plaintiff's damages for past and future lost earnings."]).

The only other documentary evidence offered by claimant and admitted over defendant’s objection are two Payroll Reports submitted by L&B Construction to the New York State Department of Labor covering the demolition job on which claimant was injured for the respective weeks ending August 8, 2003 and August 15, 2003 (Ex. 17), and a Form C-240 submitted by L&B Construction in connection with a job-related claim for workers’ compensation filed by claimant (Ex. 17A). Not only did Mr. Bawa, L&B’s owner, ultimately invoke the Fifth Amendment as to their content, the court also notes they are inconsistent with claimant’s testimony in three respects: the records for the week of August 8, 2003 show he worked only one day that week, not the six or seven days he claimed he worked constantly (and that one day is reported for the same job as the one where he was injured, which claimant testified he did not start until a week later); the records for the week of August 15, 2003 show him as having worked two days on the job where he was injured, although he testified he was injured the very first day of the job (34); and the records show claimant as having a social security number although he testified he did not have one.

The record on the question of past loss of earnings is thus replete with testimonial and documentary efforts to inflate whatever amount of work claimant did do and the amount of pay he earned. This effort undoubtedly originated with claimant’s evidently unscrupulous employer for a far different purpose, that is, to obtain a State construction contract and commensurate payments by filing documents purporting to show L&B’s ostensible compliance with prevailing wage laws despite taking advantage of claimant and his undocumented alien status. In the courtroom, however, it morphed into an unfortunate effort by claimant himself to obtain an inflated amount from defendant based on testimony and documents so questionable that whatever might have been done to persuade the court of the amount claimant earned “with reasonable certainty” was sacrificed as a result. Claimant is not entitled to an award of past lost earnings.1[7]

With regard to the claim for loss of future earning capacity, the court notes that claimant’s failure to prove past earnings does not ipso facto preclude him from showing he is entitled to such an award. (Kirschhoffer v Van Dyke, 173 AD2d 7, 10 [ 3d Dept 1991] [“Recovery for lost earning capacity is not limited to a plaintiff’s actual earnings before the accident, however, and the assessment of damages may instead be based upon future probabilities.” (emphasis added)]; Grayson v Irvmar Realty Corp., 7 AD2d 436, 439 [1st Dept 1959] [“it is undisputed that a person tortiously injured is entitled to recover for impairment of future earning capacity, without limitation to the actual earnings”].)

In considering an award of future earnings here, the decision in Balbuena v IDR Realty LLC (6 NY3d 338 [2006]) is pertinent. Although the Court of Appeals held that plaintiffs’ status as undocumented aliens not legally authorized to work in the United States did not preclude a lost earnings award solely because they were hired by employers who did so in violation of the Immigration Reform and Control Act, 8 USC § 1324a et seq. (2005), the court noted that their status still could be considered by a jury “[where] a defendant in a Labor Law action could, for example, allege that a future wage award is not appropriate because work authorization has not been sought or approval was sought but denied” (6 NY3d at 362; see also Barahona v Trustees of Columbia Univ. in City of N.Y., 11 Misc 3d 1035, 1037 [Sup Ct, Kings Co 2006] [“Plaintiff put his immigration status at issue when he sought damages for future lost earnings . . . [and] a jury may consider the likelihood that plaintiff will remain in this country”]).

The court has considered claimant’s current status as an undocumented alien subject to deportation. At the end of the trial, however, it was far from certain that claimant was going to be deported. While Mr. Tse testified a warrant to deport claimant was outstanding, no evidence was forthcoming from Mr. Tse or from defendant that Immigration and Customs Enforcement was ready to take, or subsequently has taken, action to actually arrest and deport him. The court notes accounts of the millions of undocumented immigrants who are routinely hired in low-end jobs throughout the State and our nation. The court thus concludes that without additional evidence having been introduced as to claimant’s actual deportation, claimant is not precluded from pursuing a claim for future lost earning solely due to his undocumented alien status.

Both claimant’s and defendant’s occupational experts appeared to agree essentially on claimant’s likely job prospects given his educational status, low English language skills and low average intelligence. Dr. Schuster pegged claimant’s annual income at approximately $25,000 plus an approximate $5,000 in unspecified fringe benefits, while Mr. Pessalano projected a range of between approximately $23,000 and $40,000. The principal difference between the two economists was their respective evaluations of the impact, if any, claimant’s claimed disability and his prospective need for future hip replacements would have on his ability to obtain and retain a job. Dr. Schuster opined claimant’s earning capacity was likely to be reduced by as much as 75% throughout his projected work life, while Mr. Pessalano disagreed because, in his view, future hip replacement surgeries and follow-up physical therapy sessions were not likely to be so disabling as to preclude him from working. (1405, 1408). The court is not at all persuaded that claimant’s future earning capacity needs to be reduced by Dr. Schuster’s factor of 75%.1[8]

The court finds that claimant should be able to secure a job which pays approximately $25,000. The court recognizes, however, that claimant’s need for future hip replacements probably will have some temporary negative impact on his future earning capacity. He will be out of work for a time following each surgery and may not be able to retain his then current job as a result. It appears to the court that a 12-week post-surgical rehabilitation period is a reasonable guideline for determining the periods during which claimant is likely to be entirely disabled from working after each surgery, and that the possibility claimant may be further impeded from returning to the work force in his old job or in finding a new one should be factored in as well. The court concludes claimant’s future earning capacity is likely to be diminished in each of two periods when claimant is likely to have future hip replacement operations, and awards $84,223 (factoring in wage growth projections of 3.1 percent per annum for a nine-month period following each projected hip operation occurring 15 and 35 years from the last hip operation).

Turning to compensation for past pain and suffering, claimant seeks an award aggregating $1.850 million comprised of $1 million pertaining to his hip injury, $500,000 pertaining to his back injuries and $225,000 pertaining to his sacral injury. Claimant’s Post Trial Brief at 40. Defendant, in taking issue with these amounts, does not suggest any others but argues that claimant “has shown a propensity to lie about crucial issues,” e.g. the amount of his earnings and aspects of his immigration status, and that his testimony should not be credited on this claim, which depends so heavily on his own account regarding the amount of pain and suffering he has experienced. Defendant’s Post Trial Brief at 25.

The court finds there is more than ample credible evidence that from the time the jackhammer fell to hit claimant’s head and landed on his torso through the date of this award, claimant has been made to experience the most severe forms of pain and suffering.

After claimant was lifted in agony from the below ground site where he was working, he needed emergency transport by ambulance and helicopter before his injuries could be appropriately attended to. At Stony Brook he underwent the first of three hip surgeries he has had to endure to date. Upon discharge from the hospital, he spent three months in bed, unable to exercise his bodily functions without using a bed pan. Thereafter, he was required to use a walker for several months, followed by crutches.

Since his three-month bed-ridden convalescence at the end of 2003 up to the trial, he has been traveling to various rehabilitation facilities, three or four days a week, primarily to address his pain. He received heat and electric stimulation treatments, exercise therapy and injections for the pain he has experienced in his hip and lower lumbar areas. For a year and a half, he traveled to two different facilities on each rehabilitation day for this purpose. His injection therapy also has encompassed trigger point injections. Acupuncture treatments also have been administered.

Claimant testified that since the accident he “always” walked with a limp. The court’s observation of the claimant is that he slightly favored his right leg when walking to and from the witness stand and as he is shown on the surveillance videotape. This is consistent with the observations of the physicians (Stein-limp; Levin-limp; Sultan-favoring right leg). All this indicates a continuing effort by claimant to avoid further pain by altering his gait.

Claimant testified his pain has prevented him from sleeping more than an hour or so at a time, between waking intervals of three to four hours, and that he had to learn optimum sleeping positions from his physical therapists. While it appears to the court that this account of such a sparse amount of sleep over such a sustained period of time is exaggerated, it is not difficult to believe that the multiple fractures of his back, hip and sacrum have had a significant adverse impact on claimant’s capacity for uninterrupted sound sleep.

It is altogether credible that several of those who testified observed claimant to be suffering depression from all he has undergone. Two who testified referred to his exhibiting a debilitating “flat effect.” The court, too, observed this in claimant’s demeanor, both when he was on the witness stand and as he was a courtroom spectator.

The nature and sources of claimant’s pain since the accident appear to have shifted from time-to-time, depending on the state of his medical condition and the surgeries he has undergone at various points. As one source of pain appears to have receded with healing, another source of pain appears to have replaced it. In the aftermath of his accident, for example, the four lumbar fractures described by Dr. Stein as “unremarkable” undoubtedly were a source of pain until they “clinically healed,” as opined by Dr. Sultan. The aftermath of the first surgery to fix claimant’s hip with three screws obviously became a second source of pain. Although it reasonably can be inferred the healing process in both these areas progressed somewhat in 2004, the objective evidence is that by the end of the year, at Christmas, claimant was crying out in such pain that he had to be taken by ambulance to the hospital for pain injections which continued into the first part of 2005.

By the fall of 2005, the source of claimant’s far more severe pain tentatively was diagnosed by Dr. Stein as AVN. Regardless of what other healing had occurred since 2003, all doctors who testified agreed that AVN and its progression is exceptionally painful. Its suspected presence led Dr. Stein to perform a second surgery to remove the screws in claimant’s hip which had been inserted at Stony Brook so a definitive diagnosis could be made. The aftermath of this second surgery and its impact on the tissues of the hip area produced yet another independent source of pain from a build up of scar tissue, according to the testimony. By the time claimant went to see Dr. Levin in the spring of 2006, two sources of hip pain existed, the remnants of post-operative pain (one-half of the third screw remained after Dr. Stein’s operation because he feared any further efforts to remove it would further injure claimant) and the AVN. Even though Dr. Levin, too, suspected AVN, he felt a hip replacement for claimant at such a young age was premature. A year later, however, claimant presented at Dr. Levin’s office complaining of pain which had become intolerable. Dr. Levin was persuaded he could no longer defer the operation. In performing the successful hip replacement in May 2007, he removed the source of the AVN pain but in its place claimant has had to deal with the post-surgical pain of a third operation and also a prolonged thigh pain caused by bone growth into the artificial stem. He had to walk with a cane for several months.

Claimant’s complaint of lower-back pain appears to have engendered the stiffest skepticism from defendant as to its ostensible source – indeed, even its very existence. As recounted in the court’s discussion of future medical expenses, supra, Dr. Jakobsen’s diagnosis of lumbar radiculopathy has been met with a credible refutation by Dr. Zuckerman. There is other credible evidence, however, to support alternative sources of claimant’s complaints of lower back pain. At various points, doctors testified of finding spasms of the paraspinal muscles, a lumbar sprain and possible pulled interspinous ligaments. In addition, as noted supra, Dr. Jakobsen testified of the adverse effect claimant’s hip pain could have on his back pain. Sufficient evidence exists for the court to find claimant’s past and current complaints of back pain, even if intermittent, to be credible.

For the past pain and suffering claimant has been made to endure, including the substantial diminution of his ability to perform daily tasks, to participate in the activities which were a part of his life before the injury and to experience the pleasures of life, the court awards him $1,500,000.

There remains the matter of future pain and suffering. Claimant contends he should receive an aggregate award of $1.725 million for what he allegedly will have to endure for the rest of his life because of the permanent ramifications of his hip, back and sacral injuries. Claimant’s Post-Trial Brief and Memorandum of Law at 40. Again, defendant does not counter with any particular amount, but stresses that the court should view this aspect of the claim “with a skeptical eye.” Defendant’s Post-Trial Memorandum at 25. The court indeed is skeptical of the extent – if at all – claimant may experience permanent pain and an altered lifestyle once he has completely healed from his May 2007 hip replacement surgery.

The court is persuaded that at the time of the trial, which took place a little over seven months after claimant’s operation, he still was suffering pain in his hip and thigh. Dr. Stein had opined that despite the hip replacement claimant was likely to experience “chronic” hip pain, which he defined as pain lasting longer than 6 to 12 months. Dr. Levin testified that this pain could be expected to continue for a “year or so” until the femur fully grows into the artificial socket. The court accepts Dr. Levin’s prognosis and concludes claimant should be compensated for pain and suffering due to his hip replacement operation through the end of 2008. In addition, the court accepts Dr. Levin’s prognosis that claimant can be expected to experience some minor aches and pains associated with having to live with an artificial hip for the rest of his life. Claimant also will be required to undergo at least two more total hip replacements during his life, for which he is likely to experience the same degree of pain and suffering after each as he has experienced with this one. In this regard, the court accepts Dr. Schuster’s 12-week rehabilitation period as a reasonable guideline for determining the period of time claimant is likely to be disabled following each of these additional surgeries, and also accepts Dr. Levin’s opinion that claimant’s post-operative pain is likely to continue for a year or so with its attendant suffering and diminution in quality of life.

Claimant’s request to be compensated for future pain and suffering associated with his back and sacral injuries are another matter, however. The court is especially skeptical as to the degree, if any, that there is likely to be continuing, life-long pain and suffering stemming from these injuries. While, as noted supra, the record clearly supports an award for past pain and suffering associated with a lumbar sprain, muscle spasms and possibly pulled interspinous ligaments, the court has found that claimant has not proved a lumbar radiculopathy. Even as Dr. Jakobsen opined that radiculopathy did exist, he acknowledged the EMG report described the condition as “acute,” and said that had there been evidence of a long-term condition, the report would have described the condition as “chronic.” Absent persuasive evidence that claimant’s lumbar fractures and injuries, and sacral fracture and injuries are permanent or that the pain associated with any of them is chronic in the sense of being life-long conditions, the court rejects the notion of an award for projected life-long pain and suffering. Drs. Sultan and Zuckerman opined that claimant’s lumbar and sacral fractures have healed. Also, to the extent claimant’s hip condition worsened his lower back pain because the two are “related” (as Dr. Jakobsen believed [1054]), the court concludes it is reasonable to infer claimant’s lumbar pain likely will recede as his post-operative hip pain diminishes and then ceases, which, as Dr. Levin testified, should happen in a year or so.

For the pain and suffering claimant will undergo until his hip heals from his 2007 replacement operation, for the future pain and suffering he will experience when he requires each of two future hip replacement operations and the one year of post-operative pain he is likely to experience after each of these future hip replacement surgeries, as well as for his diminished capacity to engage in certain recreational sports and the attendant minor aches, pains and discomfort associated with claimant’s having to live with an artificial hip at a young age and for the remainder of his life, the court awards $375,000.

In sum, claimant is awarded a total amount of $2,819,260.91, in accordance with the breakdown of the specific categories of damage stated in the court’s findings supra at p. 26, plus interest at 9% per annum from the court’s summary judgment decision entered on December 29, 2006.

Since the amount of future damages exceeds $250,000.00, a structured judgment is required (CPLR 5041 [e]). The Court therefore directs that judgment be held in abeyance pending a hearing pursuant to CPLR article 50-B. The Court encourages the parties to agree upon the discount rate to be applied and to formulate a structured settlement of their own (see CPLR 5041 [f]). In the event that this does not prove possible, each party shall submit a proposed judgment in writing conforming to the requirements of CPLR article 50-B within 120 days of service of this decision upon them by the Clerk of the Court. A hearing will thereafter be scheduled at the mutual convenience of the parties and the Court.

June 30, 2008
New York, New York

Judge of the Court of Claims

[1]. Numbers in parentheses refer to pages in the transcript of the trial.
[2]. In a questionnaire claimant filled out for Dr. Tinari, claimant’s expert economist (testimony summarized infra), claimant said that before his accident he slept about 52 hours a week, but after his accident he slept about 45 hours a week. (1582-83).
[3]. See also Ex. 33, a chart listing all of claimant’s hospital and medical facility treatments and visits since his first admission to Stony Brook through his August 3, 2007 visit to the North Shore Medical Rehabilitation facility. At trial, records of his visits up to just before commencement of this trial were introduced as Exs. 10A, 11A and 11B.
[4]. The evidence as to claimant’s use of pain medication is inconsistent. The All Family medical records reflect that two months after he started there, October 20, 2005, he was not taking any medication, but the medical record of his June 12, 2007 visit almost two years later indicates he was “currently taking [painkillers].” Ex. 10. On his first visit to Island Musculoskeletal on April 7, 2005, the report indicates he was not taking any medication. Ex. 9. Similarly, on his first visit to North Shore on February 23, 2006, and on his visit on July 26, 2006, Dr. Jakobsen’s report indicates he was not taking any medication. Ex. 11; (1079, 1087). Also, on his first visit to Dr. Stein, on September 27, 2005, the report indicates he was not taking any medication; and on November 15 and November 29, 2005, after Dr. Stein’s operation which partially removed the screws in claimant’s hip, he was not on pain medication. Ex. 14. Dr. Stein testified he was not aware of claimant ever having been on pain medication based upon his review of the records he prepared. (408).

[5]. The medical records of the various doctors and rehabilitation facilities reflect inconsistent observations about claimant’s gait, e.g. All Family on October 20, 2005, and again a year later on October 12, 2006, “Normal including tandem walking.” Ex. 10, (10/20/05, at p. 1; 10/12/06, at p. 1). On August 17, 2007, Dr. Levin noted that claimant “is walking better.” Ex. 15.
Near the end of trial, defendant produced a witness who conducted video surveillance of claimant as he exited the courthouse building and walked up and down Broadway during a lunch hour break in the trial proceedings. The videotape of claimant was received into evidence. Ex. K. It shows claimant coming out of the courthouse building, walking slowly south on Broadway and then north on Broadway. He did not appear to be walking with a limp, but seemed possibly to be favoring his right leg as he walked quite slowly, in an amble-like fashion.

[6]. In an attempt to support his claim regarding his earnings at the time of the accident, claimant subpoenaed L&B’s owner, Rajinder Singh Bawa. L&B’s contract with the state obligated L&B to pay a prevailing wage to its employees, such as claimant. Ex. E. In a deposition Mr. Bawa gave before trial, he testified that L&B paid its laborers approximately $900 a week, and that claimant was paid approximately $900 per week for a six day week. (Ex. 50 at 30). At trial, however, Mr. Bawa refused to verify the accuracy of his deposition testimony, invoking his Fifth Amendment right against self incrimination. (295-96). When asked to verify his payment of the prevailing wages as required by the L&B contract and to verify claimant’s assertion regarding the amount of overtime he worked, Mr. Bawa also invoked his Fifth Amendment right and refused to do so. He refused to verify the accuracy of payroll records (Exs. 17, 17A, 48), or the amount of money claimant was paid, other than to acknowledge it was safe to say that claimant was paid between $60 and $90 a day. (361). This is consistent with claimant’s testimony at his deposition, where he testified as follows:

Q: What was your salary, or were you paid per hour? How were you compensated?

A: A lump sum of $90 per day.

Q: From the time that you started – first started working for them until the time of the accident, was it always $90 a day?

A: In the beginning they were giving me 60, 65.

Ex. I at p. 14.
Another employee of L&B, Jagjit Singh (not related to claimant), was called as a witness by claimant. He testified that claimant worked from 8 AM to 4:30 PM six days a week, and sometimes seven. (1857). When this witness was asked by the court whether he worked seven days a week “a lot” or “a little,” he testified it was a “little.” When he was asked if he worked “a lot” or “a little” overtime, he said it was a “little” overtime. When asked the same question by the court as it pertained to claimant, again he said claimant worked “little” overtime. (1858).
[7]. Claimant introduced purported U. S. Tax Returns for 2001, 2002, and 2003, prepared on September 5, 2007 shortly before trial. Pursuant to a leading question, “[Y]ou filed [these] or [they] were filed on your behalf . . .?” he answered, “Yes sir.” (936). On cross-examination, he said he gave the numbers to his attorney, who filled out the forms. (952). No mailing or filing receipts were introduced. Claimant also testified he did not pay the taxes shown on the returns to be owing. Defendant objected to the admission of the purported returns because they were prepared for this litigation, not in the regular course of business. The court admitted them for what they are worth. See the court’s discussion of its finding with regard to past earnings, infra at pp. 30-33.

[8]. Near the end of the trial, defendant called Man Tse, a special agent with the U. S. Immigration and Customs Enforcement Agency of the Department of Homeland Security. He testified he reviewed computer records which he said showed claimant had failed to appear at a May 20, 2004 hearing, although his immigration attorney was present. At that hearing the immigration judge denied claimant’s application for political asylum. Mr. Tse further testified that claimant’s subsequent appeal of that decision was denied and he was ordered to be deported. The agent testified there is an outstanding warrant for claimant to be deported. (1871). During cross-examination, claimant’s counsel showed Mr. Tse what appeared to be an application filed on October 12, 2007, four days before this damages trial commenced, to stay claimant’s deportation and reopen his petition for asylum. The application asserts that claimant’s original immigration counsel had negligently failed to seek a stay based on claimant’s unavailability for the May 20, 2004 hearing due to the injuries sustained in his accident and had failed to prevent a deportation order from being issued. Mr. Tse had no knowledge of the application. The court sustained defendant’s objection to the admission of the application into evidence. Ex. 51 for Identification. (1876).

At the close of the trial it was not clear to the court whether claimant was likely to be deported. Over objection from defendant, the court left the record open so the parties might clarify the issue. Neither party submitted further evidence, although by letter dated November 30, 2007, claimant’s counsel asked that the record be left open until February 8, 2008, so this court might be apprised of any ruling of the Immigration Court pertaining to claimant’s emergency motion to stay his deportation; and by letter dated December 10, 2007, counsel for claimant sent the court a NY Law Journal article reporting on a Second Circuit decision reversing a Board of Immigration Appeals decision which had denied a claim for political asylum where the applicant’s lawyer failed to appear at the hearing and the immigration judge proceeded anyway. By letter dated December 5, 2008, defendant’s counsel renewed his objection to leaving the record open. The court has not received any further communications pertaining to this matter from either claimant or defendant.
Based on the record before the court, the order for claimant’s deportation remains outstanding. Whether it has been or will be enforced is unknown to the court at the date of this decision.
[9]. Dr. Jakobsen testified he did not recall, and that his records did not show, how claimant came to be referred to his office for treatment. But claimant testified that his attorney sent him to Dr. Jakobsen. (1435).
1[0]. “Denervation” is defined as the loss of nerve supply. Stedman’s Medical Dictionary (27th Ed 2000).

[1]1. Defendant objected to Dr. Sultan’s testimony about the x-ray report and also about an MRI report prepared on January 13, 2006. (1199). The court ruled that testimony about the MRI report should be stricken but reserved its ruling on the testimony about the x-ray report. The court now allows the testimony to the extent it is his opinion regarding records in evidence (Ex. 6), even though the doctor acknowledged he did not rely on either report when he examined claimant.
1[2]. Defendant objected to Dr. Sultan’s opinion as non-responsive to the question and the court reserved. The court now allows the testimony as the doctor’s conclusion based on, and consistent with, his medical testimony.
1[3]. In his direct testimony, Dr. Zuckerman sought to offer his opinion that the EMG tests done for Dr. Jakobsen and referred to in Dr. Jakobsen’s July 26, 2006 report (Ex. 11) were not done adequately. Claimant objected to the introduction of that opinion on the basis that claimant’s CPLR 3101(d) disclosures did not provide sufficient notice of Dr. Zuckerman’s intention to address the adequacy of the tests. Initially, the court permitted Dr. Zuckerman to provide his opinion and his explanation for why the tests were improper. During cross-examination, however, it became clear to the court that the records detailing the tests (Ex. 53 for identification) were not in evidence (as opposed to reference to the tests in Ex. 11, which is in evidence). The records had been provided to Dr. Zuckerman by defense counsel just prior to trial and he had not intended to opine on the subject at all until defense counsel discussed the issue with him shortly before he took the stand to testify. Claimant renewed his objection and moved to strike Dr. Zuckerman’s testimony with respect to the tests. The court granted the motion on CPLR 3101 (d) grounds, but received Dr. Zuckerman’s opinion that his own examination of the claimant showed no evidence of lumbar radiculopathy or a pinched nerve. (1845).
1[4]. Dr. Tinari added 9 years (and consequential inflation) because he assumed that in the construction industry no one works continuously; for these purposes, Dr. Fitzgerald assumed continuous work with no interruptions, thus assuming retirement at 54 (with consequential lower inflation).
1[5].With regard to such loss of earnings, claimant is under a duty to make a reasonable effort to minimize that loss (PJI 2:325 and Comment). This includes endeavoring to find alternative employment (McLaurin v Ryder Truck Rental, 123 AD2d 671 [1986]), or seeking vocational rehabilitation (Bell v Shopwell, Inc., 119 AD2d 715 [1986 ]). If claimant has not made a reasonable effort within his means, he cannot recover damages which result from his failure to make such an effort (Mayes Co. v State of New York, 18 NY2d 549, 554 [1966]; People’s Gas & Elec. Co. v State of New York, 189 App Div 421 [1919]). Defendant has the burden of proving claimant failed to so mitigate his damages (Cornell v T.V. Deelopment Corp., 17 NY2d 69 [1966]).
1[6].This court is not the first to question a medical opinion proffered by Dr. Jakobsen. In Portsmouth General Hospital v Dobbs (1999 WL 1134521 [Va. App.]), the court there affirmed a state commission’s workers’ compensation award based on the commission’s accepting the medical testimony of the treating physician while rejecting the testimony of Dr. Jakobsen. The court found Dr. Jakobsen “examined on a limited basis and failed to diagnose” the ultimate problem at issue. Id. at 3. Here, it is not so much that Dr. Jakobsen examined . . . claimant on a limited basis, but that the two complete examinations and the EMG he testified about in support of his opinion were conducted before claimant underwent his total hip replacement operation to relieve the AVN-related pain, which Dr. Jakobsen testified had been related, and had contributed, to claimant’s back pain.
1[7]. In view of the court’s finding that claimant is not entitled to an award of past lost earnings, the court does not reach the issue of duty to mitigate. The court does find, however, that at the time of the trial claimant had recovered sufficiently from his hip replacement surgery to enable him to work at the type of job Dr. Schuster and Mr. Pessalano testified would be available to him.

1[8]. Dr. Schuster’s “discounts” have been questioned in other cases as well. In Triantafilidis v State of New York (Ct Cl Claim No. 108196, filed Apr. 28, 2006, Scuccimarra, J.), the court found his opinion that the claimant would work only “episodically,” amounting to a two-thirds reduction in work life, to be speculative based on inadequate information. The court noted “Dr. Schuster did not adequately explore alternate work possibilities, and did not seem informed about the Claimant’s medical condition.” Id. at16. In Man-Kit Lei v City Univ. of N.Y. ( 33 AD3d 467 [1st Dept. 2006]), the Appellate Division rejected Dr. Schuster’s opinion that the claimant in that case would suffer a 30% reduction in his work life based on his persistent and pervasive psychological problems, and that the claimant there was thus at risk of developing a pattern of low-paying jobs. The court found his analysis to be “essentially generic. . . . It did not focus on claimant’s interests and or aptitudes.” 33 AD 3d at 469. Similarly, in this case, the court finds Dr. Schuster failed to adequately consider the fact that after suffering from AVN, claimant received a total hip replacement, which was done to relieve his pain, and that the operation was a success. As a result, Dr. Schuster erroneously assumed claimant was so disabled from his earlier injuries and would need such extensive rehabilitation that his projected earnings capacity would suffer. He failed to consider whether the successful hip operation ultimately linewould enhance claimant’s ability to work after a period of post-surgical healing. The court finds the testimony of Mr. Pessalano more persuasive in this regard, that is, claimant’s hip operations ultimately are not going to adversely impact his future earnings capabilities in the types of jobs available to him.