New York State Court of Claims

New York State Court of Claims

SANCHEZ v. THE STATE OF NEW YORK, #2008-038-110, Claim No. 109713


Synopsis


Claimant awarded past damages of $100,000 and future damages of $375,000 for facial and skull injuries, diffuse axonal injury causing memory and cognitive problems, and olfactory nerve damage causing dysosmia (distorted sense of smell). Claimant husband awarded damages of $25,000 on his derivative claim

Case Information

UID:
2008-038-110
Claimant(s):
LINDA SANCHEZ and DANIEL J. SANCHEZ
Claimant short name:
SANCHEZ
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109713
Motion number(s):

Cross-motion number(s):

Judge:
W. BROOKS DeBOW
Claimant’s attorney:
FRIEDMAN, HIRSCHEN & MILLER, LLP
Jeffrey N. Miller, Esq. andJeanne M. Gonsalves Lloyd, Esq.
Defendant’s attorney:
ANDREW M. CUOMO, Attorney General of the State of New York
By: Paul F. Cagino, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 16, 2008
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

In a decision and order dated April 20, 2007, this Court directed entry of an interlocutory judgment holding defendant 100 percent liable for the injuries suffered by claimant Linda Sanchez when a large chunk of the concrete roadway smashed through the windshield of her car while she was driving on Interstate 90 in the City of Albany on October 18, 2003 (Sanchez v State of New York, UID # 2007-038-102, Claim No. 109713, DeBow, J. [Apr. 20, 2007]). The damages phase of the trial of this claim was conducted on November 14, 2007 in Albany, New York. At trial, claimants presented the in-court testimony of claimants Linda Sanchez and her husband, Daniel J. Sanchez, who sues derivatively.[1] Claimants also presented the prerecorded testimony of the following witnesses: (1) Dr. John Waldman, a neurosurgeon; (2) Dr. Lawrence Kaufman, an otolaryngologist; (3) Dr. Steven Parnes, an otolaryngologist; and (4) Dr. James Miller, a plastic surgeon, all of which was received into evidence on stipulation of the parties. Defendant presented the prerecorded testimony of Dr. Kevin Barron, a neurologist, which was also received into evidence on stipulation. Numerous exhibits, including the chunk of concrete that struck claimant, were received into evidence. After listening to the witnesses testify and observing their demeanor as they did so, and upon consideration of that evidence and all of the other evidence received at trial and the applicable law, the Court makes the following findings and conclusions regarding the damages to be awarded to claimants.
Linda Sanchez’s Injuries
Detailed findings of fact regarding the accident on October 18, 2003 are set forth in this Court’s decision on liability (id.). At the time of the accident, claimant was 53 years old, with a medical history that included a heart attack in 1995, and treatment of high blood pressure since 1995. As she was driving at or near highway speed with two of her grandchildren in the back seat, a chunk of concrete measuring approximately 9" x 12" x 6" hit the front hood of her car, penetrated the windshield, hit the steering wheel, and then struck claimant on the left side of her forehead, rendering her unconscious. Claimant’s car drifted off the right side of the roadway, eventually striking a tree beyond the right shoulder of the roadway and coming to rest. At the time of the accident, claimant was wearing a lap belt with a shoulder harness seatbelt.

Claimant regained consciousness while she was still in her car. Her first memory after the accident is of regaining consciousness while lying “halfway on [her] back,”[2] seeing a large hole in the windshield, reaching for a tissue because there was blood in her eye, and realizing that she was being attended to by another person. Claimant inquired many times about the safety of her grandchildren before again losing consciousness. Claimant regained consciousness as she was being transferred into an ambulance, at which time she saw her daughter-in-law and her grandson. Claimant again inquired about the well-being of her grandchildren, and then lost consciousness until she was in the emergency room at Albany Medical Center (AMC).

Claimant was admitted to AMC, and was treated by neurosurgeon Dr. John Waldman. Initial CT scans of claimant’s skull taken the day of the accident indicated that she had suffered numerous skull fractures in the area of her left eye socket involving the forehead bone behind her left eyebrow, the bones of the outer upper part of the eye socket, the roof of the eye socket, and the upper part of the eye socket near the temple, as well as fractures of the bones along the left side of her sinuses behind her nose. In addition, the initial CT scans indicated a small epidural hematoma (i.e. a blood clot between her skull and the dura, the fibrous material that covers and protects the brain), a traumatic subarachnoid hemorrhage (blood in the fluid between the brain and the dura), and bloody fluid in the ethmoid sinus. The CT scans also revealed pneumocephalus (air inside the skull cavity), indicating that the dura may have been torn at the time of the injury. The CT scans also indicated that claimant had sustained trauma in the area of the skull where the olfactory nerve (the nerve that senses odors) is located. In addition, claimant had a deep laceration of approximately two inches on her forehead above her left eyebrow.

Surgical intervention to reduce or repair the fractures was unnecessary, and the fractures in her skull were left to heal on their own. Cranial surgery to address the blood and air within claimant’s skull was determined to be unwarranted, as the blood in claimant’s skull was not life-threatening, and CT scans taken the day after her accident indicated that the intracranial blood and air were resolving. Dr. Waldman advised claimant to refrain from blowing her nose because of the cranial fractures and the injuries to her skull. While claimant’s facial laceration was sutured at AMC on the date of the accident, no reconstructive work was performed during her hospitalization.

Claimant was hospitalized from October 18 through October 20, 2003. During her first night at AMC, claimant drifted in and out of consciousness and experienced pain in her entire head, with pain in her eye sockets that felt like “somebody was sucking [her] eyes out.” Claimant was given one dose of morphine – a powerful pain medication – during that first night, and was given aspirin, Tylenol and Lortab to treat the pain during her hospitalization, with the dosages reducing toward the end of her hospital stay. Swelling around claimant’s eyes caused her to have difficultly seeing during her first night at AMC, especially out of her left eye. Claimant was weak and dizzy that first night, and experienced bouts of nausea and vomiting. Following her discharge from AMC, claimant convalesced at home for at least two weeks before resuming work on a part-time basis as a bookkeeper and cleaner for her husband’s contracting business. In addition to the physical pain, claimant testified that she feared death in the weeks following her accident, as her father had died suddenly from a cerebral hemorrhage a week after sustaining a head injury.

Neurological Injuries

After the accident, claimant suffered from neurological problems that she did not have before the accident. According to claimant, in the six or seven weeks following her accident, her thinking was “way off.” Specifically, claimant had problems with comprehension and expressing herself, and had difficulty carrying on conversations and remembering the names of close family members. Claimant had difficulty planning her day and performing simple tasks that had come easily to her before the accident. Claimant suffered daily headaches for approximately two months after her accident that she treated with ibuprofen. During the first six to eight weeks following the accident, claimant had a difficult time controlling her emotions and would cry for no reason. Claimant also suffered from problems with her balance in the six months following the accident, and she experienced three episodes during which she blacked out momentarily.

Claimant’s initial problems started to subside a few months after the accident, but she continues to experience noticeable difficulties. At trial, claimant presented as lucid and composed, and she expressed herself in a relatively focused manner and without apparent difficulty. However, she testified that she continues to have difficulty finding “the right words for things,” although there are some days when she has no such problem. Claimant is distracted easily and sometimes loses her train of thought, and she occasionally has difficulty conversing and keeping her thoughts in order. She has difficulty concentrating, focusing and following directions. As an example, claimant now finds it more difficult to keep the books for her husband’s business, as she often loses track of categories, places items in the wrong place, adds columns incorrectly, and is now slower to catch any accounting mistakes that she has made. Claimant finds that she must read and re-read things in order to refresh her memory of them, and this has caused her to resort to reading magazine articles instead of books. In addition, claimant has difficulty planning tasks and multi-tasking, and must be more deliberate in planning tasks that were previously easy for her, such as sewing and planning holiday meals. While claimant experiences headaches less frequently than she did immediately following the accident, her headaches are more intense than they were before the accident. Claimant requires more sleep and is more easily fatigued than she was before the accident. Her neurological problems provide her with a constant reminder of the accident. Emotionally, claimant feels frustrated and “stressed out” because she cannot do many of the things of which she was capable before the accident, and she feels a sense of insecurity and unhappiness because she does not feel as capable as before the accident. Claimant’s husband confirms that claimant is more forgetful and moody, has problems understanding things, and is not as confident as before the accident.

Dr. Waldman, who treated claimant at AMC immediately after the accident and on four occasions between October 2003 and June 2005, testified that claimant suffered two head traumas in the accident. Being struck by the concrete chunk caused a direct impact injury that caused her skull to impact the frontal lobes of her brain, an area of the brain that is responsible for executive function and that is involved in memory. When her car struck the tree, she sustained a second trauma which was described as an acceleration/deceleration injury, or “coup/contrecoup injury” (Claimant’s Exhibit 23, at 73; Defendant’s Exhibit D, at 29) which could cause the brain to move back and forth within the skull, possibly smacking against the bone. Dr. Waldman stated that the impact of the concrete chunk against claimant’s head, along with the shaking of her brain within her skull after her vehicle hit the tree likely resulted in a “diffuse axonal injury” (Claimant’s Exhibit 23, at 27), which occurs when axons – the cable-like connections between nerve cells in the brain – are torn or sheared as the result of trauma. The damage to the axons renders certain parts of the brain unable to communicate with other parts of the brain, and memory and cognitive problems can occur. Damage to these axons is permanent, as brain cells cannot regenerate when injured. A diffuse axonal injury is at a microscopic level that cannot be objectively diagnosed by radiological studies. Based upon the nature of claimant’s accident, the injuries to her head, and her continued complaints of memory and cognitive problems in the years following the accident, Dr. Waldman has concluded that claimant’s post-accident memory and cognitive difficulties are caused by a diffuse axonal injury that is structural and permanent in nature.

Claimant underwent a neuropsychological evaluation that consisted of numerous tests that measured claimant’s vision and perception, language, memory, cognition, academic achievement and personality, and which was performed over the course of three visits in May and June 2006. The report of neuropsychologist Maria Lifrak, PhD (Claimant’s Exhibit 34) concluded that while claimant has made a good recovery from her accident and has no significant impairment in overall memory function, she has mild difficulty recognizing people’s faces as well as with multi-tasking and complex divided-attention tasks. Claimant’s verbal fluency was noted as mildly impaired. Notably, the evaluation report concluded that claimant was giving her best effort in performing the tests and was not malingering.

Dr. Kevin D. Barron, a neurologist who is defendant’s independent medical examiner, examined claimant on October 1, 2007. As part of his examination, Dr. Barron took claimant’s medical history and performed a general physical examination and neurological examination, both of which failed to indicate any brain abnormalities. Dr. Barron administered a Mini Mental State Examination,[3] on which claimant scored a perfect score of 30 out of 30; a score below 27 would be considered abnormal. He also administered an oral examination that he personally devised to measure brain function,[4] on which claimant “did well” (Defendant’s Exhibit D, at 19), indicating to Dr. Barron that she had no impairment of mental functioning. After performing his examination of claimant, Dr. Barron reviewed numerous medical records of claimant’s initial emergency care following the accident and her subsequent follow-up care. In Dr. Barron’s opinion, claimant did not suffer any permanent impairment to her memory or general brain function as a result of the October 18, 2003 accident. Rather, Dr. Barron believes that claimant had a diffuse axonal dysfunction from which she has recovered. Dr. Barron further testified that it is typical for persons in their 50s to have some memory impairment due to age, and further testified that the side effects of Lopressor – a blood pressure medication that claimant has been taking since 1995 – include faintness, memory impairment and short-term memory loss. Dr. Barron expressed skepticism of neuropsychological evaluation reports in general, stating that they “tend greatly to exaggerate the deficits or perceived deficits that the person has” (Defendant’s Exhibit D, at 43).

There is no objective radiological evidence, such as a CT scan or MRI, that conclusively demonstrates that claimant has suffered a permanent brain injury, and the Court recognizes that Dr. Waldman’s diagnosis rests in great measure upon claimant’s subjective complaints of memory and cognitive problems. However, the Court evaluated the demeanor of claimant and found her to be a highly credible witness with respect to her memory and cognitive impairments, and the Court does not believe that claimant is malingering or exaggerating her symptoms. Claimant’s testimony was substantiated by that of her husband, and, to some degree, by Dr. Lifrak’s neuropsychological evaluation report. The Court credits claimant’s testimony that she suffered and continues to suffer memory and cognitive difficulties since the date of the accident, and further credits Dr. Waldman’s testimony that these problems are the result of a permanent diffuse axonal injury caused by the accident.

The Court declines to accord much, if any, weight to Dr. Barron’s opinion that claimant suffered no permanent memory and brain function impairment. Beyond the fact that Dr. Barron’s current professional activities consist mainly of serving as an expert witness, he examined claimant only once, whereas Dr. Waldman’s diagnosis derives from his observation and evaluation of claimant on multiple occasions over a period of approximately 18 months. Similarly, Dr. Lifrak’s report was rendered upon numerous and varied assessments performed on several occasions over a period of time. Moreover, in conjunction with its assessment of Dr. Barron’s demeanor, the Court finds his brusque and unexplained dismissal of the work of all neuropsychologists undermines the weight of his testimony in this case. Finally, the court is unpersuaded by defendant’s argument that claimant’s memory problems may be caused by age-associated memory impairment, as there is no evidentiary support for that argument other than Dr. Barron’s generalized testimony about the experiences of people in claimant’s age group. Similarly, defendant’s contention that claimant’s memory may be affected by the daily blood pressure medication she takes is without evidentiary support, and is, in any event, undermined by the evidence that claimant took the medicine for approximately eight years preceding her accident, but did not experience memory difficulties until immediately after sustaining head injuries in the accident.

The Court finds that as a direct and proximate result of the October 18, 2003 accident, claimant suffered a brain injury that has caused permanent memory and cognitive deficits. However, based upon the Court’s observations of claimant at trial and claimant’s neuropsychological evaluation, the Court finds that the effect of this injury upon claimant is mild. This is, of course, not to trivialize the seriousness of the injury as perceived and experienced by claimant in her daily life, but is based upon the absence of evidence of objective or apparent substantial functional impairments. The Court further finds that the functional difficulties claimant suffers are compounded by the emotional effect upon her of these mild impairments. In sum, based upon the weight of the credible evidence, the Court finds that claimant suffered injuries as a result of the October 18, 2003 accident that have caused mild memory and cognitive impairments that are permanent, and which have had, and will continue to have, a moderate impact on claimant’s quality of life.
Olfactory Injury

Approximately a month after the accident, claimant blew her nose and smelled an unpleasant odor that smelled like “rotten garbage.” Claimant was examined by Dr. Waldman on January 20, 2004, at which time he thought that the odor may have been related to blood residue from the accident in her sinuses. When the odor did not subside, Dr. Waldman referred claimant to Dr. Lawrence Kaufman, an otolaryngologist.

Claimant was evaluated and treated by Dr. Kaufman’s practice on four occasions between March and June 2004. When claimant first presented to Kelley Sasur, a physician’s assistant in Dr. Kaufman’s practice, claimant complained of an unpleasant odor that she had experienced for about four months. She also reported a loss of taste and smell, unless she was presented with a strong smell or taste that overcame the unpleasant smell. Ms. Sasur performed a general physical examination of claimant’s ear, nasal and throat cavities, as well as a sinus endoscopy – a procedure utilizing an instrument that allows visualization of the inside of the nasal cavities. A CT scan that was performed revealed evidence of minor sinus disease, for which claimant was prescribed steroids and antibiotics which ultimately provided claimant with no relief from her symptoms. Dr. Kaufman testified that the diagnostic procedures were performed to search for a condition that was “reversible or treatable as a cause for her complaints regarding her sense of smell” (Claimant’s Exhibit 34 at 8), such as an inflammation or infection in her sinuses. No such causal condition was detected. Claimant was subsequently administered a test that objectively assesses an individual’s ability to smell, during which the subject scratches and smells 40 items and attempts to identify the aroma. The results of this test indicated to Dr. Kaufman that claimant lacked the ability to discern any of the smells that had been presented.

Dr. Kaufman ultimately diagnosed claimant with dysosmia (an altered sense of smell) that was caused by damage to claimant’s olfactory nerve, which is responsible for the sense of smell. The olfactory nerve enters the nasal cavity through the thin bones that separate the brain and the nasal cavity, and, according to Dr. Kaufman, the force involved in claimant’s accident was sufficient to break the bones surrounding the olfactory nerve, shear or damage the olfactory nerve, which caused claimant’s dysosmia. Dr. Kaufman opined that the evidence of minor sinus disease that appeared on the CT scan was not significant enough to be the cause of claimant’s symptoms, and that the accident was the competent producing cause of the dysosmia. Dr. Kaufman further opined that the damage to claimant’s olfactory nerve is permanent and irreversible.

Dr. Steven Parnes, an otolaryngologist, was engaged by defendant to perform an independent medical examination of claimant, but was called to testify as claimant’s witness. On September 14, 2007, Dr. Parnes examined claimant’s ears, nose and throat, and performed a sinus endoscopy, which failed to detect any abnormalities. Dr. Parnes performed an alcohol sniff test on claimant, which indicated that her sense of smell has a deficit of approximately eighty percent. Dr. Parnes also tested claimant’s sense of taste, which appeared to be normal. Dr. Parnes diagnosed claimant as having a significantly diminished and distorted sense of smell that was caused by injury to her olfactory nerve. Dr. Parnes is of the opinion that the October 18, 2003 accident was the producing cause of claimant’s olfactory impairment, and that the injury to claimant’s olfactory nerve is permanent and cannot be corrected.

Claimant continues to experience a loss of her sense of smell, having difficulty smelling cooking food, propane, fire, flowers and “fruity things.” Moreover, claimant continues to have a substantially altered sense of smell, complaining that she smells “rotten garbage” or other offensive odors from the moment she wakes up every morning until she goes to bed at night. The foul odors that claimant smells become worse when she inhales deeply through her nose or when air is being circulated. When the malodor becomes especially intense, claimant becomes nauseated. According to claimant, the malodor that she continually perceives significantly and negatively affects her enjoyment of life and is a constant reminder of her accident.

The Court finds claimant to be a credible witness with respect to her complaints about the loss and distortion of her sense of smell. The Court also finds persuasive the testimony of both Dr. Kaufman and Dr. Parnes, and finds that the October 18, 2003 accident caused a permanent injury to claimant’s olfactory nerve, and that the injury is the cause of the loss and alteration of her sense of smell. Further, the Court finds that the effect of this injury is pervasive, and has had and will continue to have a profound impact on claimant’s quality of life.

Forehead Injury

Claimant suffered a laceration of approximately two inches in length above her left eyebrow as a result of the accident. The laceration was sutured while claimant was at AMC, and was thereafter periodically evaluated and assessed by Dr. James Miller, a plastic surgeon. The laceration was deep, involving the skin, the fatty tissue below the skin and the muscle. The resulting scar was a depressed, indented scar involving the layers of tissue beneath the skin, and described by Dr. Miller as being of “full thickness, extending from the skin down to the bone” (Claimant’s Exhibit 26, at 6), and as a “very dense and heavy scar, one that would tend to fix [claimant’s] brow and limit its mobility” (id.). The muscles in the forehead are mobile, which allows one to raise or lower one’s eyebrows, and the laceration and the resulting scar “tethered” claimant’s left forehead to the bone, fixing it in one spot (id. at 6-7).

The injury to claimant’s left forehead also damaged the left frontalis muscle nerve, a nerve that supplies sensation to the forehead and scalp area. This nerve damage caused brow ptosis, a drooping of and inability to lift the left eyebrow. Claimant testified that the drooping of her left eyebrow made it feel as though there was always something heavy on top of her eye and eyelid, and that she could not open her left eye as much as she could prior to the accident. Further, claimant complained that the droopiness restricted her ability to see correctly out of the eye, and that her field of vision was impaired. The drooping of claimant’s left brow caused asymmetry between her left and right brows, and thus, the drooping brow was both a functional and cosmetic deformity.

On June 10, 2005, Dr. Miller performed surgery on claimant to improve the appearance of the skin scar, to untether the scar from the bone and improve the functionality of the brow. To revise the skin scar, Dr. Miller cut out the old scar down to fresh tissue, and then repaired that tissue surgically so that the resulting scar is “more precise, more surgical, less traumatic in nature” (id. at 9). The skin scar is still visible, although it is lighter and less apparent than it was before the surgery. Dr. Miller could not state that the tethering of the muscle to the bone was corrected 100 percent. Rather, Dr. Miller believes that permanent damage has been caused to the muscle, the brow and the mobility of the brow. The surgery also involved a brow lift on both eyebrows, which eliminated the drooping in the left brow and achieved symmetry between the right and left brows. The brow lift had favorable results. Claimant testified that the surgical procedure was extremely painful, and the amount of pain she experienced in the days following the surgery was comparable to the pain she felt during the days following the accident. In addition, following the surgery, claimant was nauseated and her face was significantly bruised and discolored.

A visible though faint scar is still present on claimant’s left forehead, and that scar is permanent. Further, while the droopiness of claimant’s left brow was mitigated by the surgery, claimant complains that the brow has again begun to droop. There was evidence at trial that her brow will likely continue to worsen and droop over time, and that she may need another brow lift in the future. Her left brow now appears to be approximately an eighth of an inch lower than it was after the plastic surgery, and according to claimant, it has restricted her field of vision. Claimant has noticed that when she looks at things directly out of her left eye she has no difficulty seeing, but when she looks to the left, her vision is somewhat distorted and she sees “floaters.” Moreover, claimant experiences eye strain in her left eye that she did not experience prior to the accident. Claimant also experiences an “annoying sensation” in the left side of her forehead and scalp whenever she brushes her hair on the left side of her head, and she testified that this “annoying sensation” is a continuing reminder of the injuries she sustained on October 18, 2003.

The Court finds that claimant has suffered permanent injury to her forehead and left brow as a direct result of the October 18, 2003 accident. The injuries affect her appearance as well as the functionality of her left eye. The Court finds that these injuries are mild and have had, and will continue to have, a moderate impact on claimant’s quality of life.
Daniel J. Sanchez’s Derivative Claim
Claimant Daniel J. Sanchez testified credibly about the effect of his wife’s injuries upon him and their relationship. After her discharge from AMC following the accident, claimant convalesced at home for a period of two weeks while Mr. Sanchez and their daughter-in-law cared for her, bathed her, and fixed her meals; further, Mr. Sanchez did all of the housework during this period. He slept in a different bed on several occasions during that period because she was uncomfortable. After the accident, Mr. Sanchez found claimant to be more moody, not as “easy going,” and she cried more often. According to Mr. Sanchez, claimant misinterprets what he says more frequently, which leads to disagreements. Moreover, he finds that claimant is more quiet than she was before the accident, and that she now sometimes gives him the “silent treatment.” Mr. Sanchez does many things that claimant used to do before the accident, such as hanging pictures or curtains, or performing errands at the houses of claimant’s mother and aunt. Further, claimant asks Mr. Sanchez to drive her places more frequently than before the accident, which he attributes to her accident.
DAMAGES
Claimant Linda Sanchez seeks damages for past and future pain and suffering due to defendant’s negligence. Claimant has suffered three discrete injuries for which she seeks compensation for her pain and suffering – the physical pain and residual effect of the traumatic injuries to her forehead and skull, the diffuse axonal injury that has resulted in difficulties with memory and cognition, and the injury to the olfactory nerve that has caused dysosmia. An award for pain and suffering should compensate for the physical and emotional effects of the injury, and the Court should consider the effect the injury has had on claimant’s ability to enjoy a normal life (McDougald v Garber, 73 NY2d 246 [1989]; Lamot v Gondek, 163 AD2d 678 [3d Dept 1990]). While such damages are not amenable to “precise quantification” (Karney v Arnot-Ogden Mem. Hosp., 251 AD2d 780, 782 [3d Dept 1998], lv dismissed 92 NY2d 942 [1998]), this Court has exhaustively reviewed verdict reports for cases in which comparable injuries were sustained.

It is clear to the Court that Linda Sanchez has suffered and will continue to endure substantial pain and suffering as a direct and proximate result of the October 18, 2003 accident. First, the traumatic physical injuries to claimant’s face and skull caused her a considerable amount of physical pain and discomfort immediately after the accident and in the weeks following the accident, and she suffered comparable amounts of pain on the day of her facial surgery and during the following days. Claimant suffered a deep laceration to her forehead that, despite the corrective surgery, has left her with physical deformities including a visible scar and brow ptosis, which mildly impairs her vision. These deformities are a daily reminder of the accident. Second, claimant suffered a permanent diffuse axonal injury that has resulted in memory and cognitive deficits that have moderately impacted her quality of life and have caused her frustration and distress. Third, claimant has suffered a permanent injury to her olfactory nerve that has resulted in a significant and unpleasant distortion of her sense of smell that is arguably worse than having no sense of smell at all, and which is a constant and disturbing reminder of the accident. Accordingly, the Court awards damages to claimant Linda Sanchez as follows:
Past Pain and Suffering $100,000

Future Pain and Suffering[5] $375,000

Claimant Daniel J. Sanchez has proven that he has suffered a loss of consortium as a result of the accident, and the Court finds that claimant Daniel J. Sanchez is entitled to an award of damages as follows:
Loss of Consortium $25,000

The amounts awarded herein shall carry interest at the interest rate of 9% per year from the date of the determination of liability on April 20, 2007 (see Love v State of New York, 78 NY2d 540 [1991]).

Since the amount of future damages awarded to claimant Linda Sanchez exceeds $250,000.00, a structured judgment is required (see CPLR §5041[e]). Let judgment be held in abeyance pending a hearing pursuant to Civil Practice Law and Rules Article 50-B. The Court suggests the parties agree upon an attorney's fee calculation, and the discount rate to be applied to formulate a structured settlement of their own (see CPLR §5041[f]). In the event that the parties cannot reach such an agreement, each party will submit a proposed judgment in writing, conforming to the requirements of Civil Practice Law and Rules Article 50-B within 120 days of the 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.

It is ordered that to the extent that claimant has paid a filing fee, it may be recoverable pursuant to Court of Claims Act § 11-a(2).

Any motions not previously ruled upon are hereby DENIED.

May 16, 2008
Albany, New York

HON. W. BROOKS DEBOW
Judge of the Court of Claims




[1]. Unless otherwise noted, all references to “claimant” shall mean Linda Sanchez.
[2]. All quotations are to the Court’s trial notes or the trial’s digital sound recording, unless otherwise indicated.
[3]. According to Dr. Barron, the Mini Mental State Examination is a standard and accepted examination in the field of neurology that tests orientation and brain function by asking simple questions such as having the date, the day of week, and the name of the town where the Examination is being administered. Brain function is further tested by asking the subject to spell a simple word forward and backward, identifying an everyday object, copying a simple diagram, writing a sentence, or performing simple arithmetic.
[4]. Dr. Barron’s own test includes asking the subject to solve simple logic games, perform simple rote memory exercises, and to answer other questions that call on the subject to analyze and interpret.
[5]. The Court has taken judicial notice of a life expectancy table (see 1B PJI 3rd, Appendix A, p.1638) that assigns claimant a future life expectancy of 25.6 years, based on her age of nearly 57 years at the time of the trial on damages. Defendant draws the Court’s attention to the evidence adduced at trial that claimant suffered a myocardial infarction in 1995 and underwent a lumpectomy and radiotherapy to remove and address cancerous cells found in her breast in late 2004. However, it would be purely speculative for the Court to find – as defendant urges – that these events reduce claimant’s life expectancy, as no evidence was adduced at trial to support such a finding.