New York State Court of Claims

New York State Court of Claims

BARRINGTON v. THE STATE OF NEW YORK, #2009-029-039, Claim No. 112252


Synopsis


Claimant awarded $135,000 damages for fractured femur and other lesser injuries resulting from use of excessive force by correction officers.

Case Information

UID:
2009-029-039
Claimant(s):
HENRY BARRINGTON
Claimant short name:
BARRINGTON
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112252
Motion number(s):

Cross-motion number(s):

Judge:
STEPHEN J. MIGNANO
Claimant’s attorney:
ERNEST HOLZBERG & ASSOCIATESBy: Richard M. Holzberg, Esq.
Defendant’s attorney:
ANDREW M. CUOMO, ATTORNEY GENERALBy: Jeane L. Strickland Smith, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 19, 2009
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

After trial of the liability portion of this claim, defendant was found liable for damages resulting from its employees’ use of excessive physical force on May 30, 2005 (Barrington v State of New York, UID No. 2008-029-028, July 25, 2008). This decision follows the damages trial.


At the liability trial, claimant testified that he was being frisked by correction officers with his hands on the bars in front of him, when one of the officers:
“pulled him from the bars and slammed him to the ground and the next thing he knew all of the officers were hitting and stomping him. He claimed that the two officers he could not identify grabbed his two legs and held them like a wheelbarrow while Ohl, Burch and Huttel punched him in the face. When the two officers lifted his legs, he felt pain in his left leg and heard a cracking sound. He stated he cried, “you broke my leg.” Two officers lifted him from the floor and he cried out again and the officers pushed him back down. Ohl told him to get up, Huttel cuffed his hands behind his back, Ohl said, “get him out of here,” and other officers dragged him out into the hallway and threw him against the wall, where he was standing on one leg. A woman (named Eileen, presumably a nurse) and an inmate came with a stretcher and brought him to the clinic.”
(Barrington v State of New York, supra)

Claimant testified that, at the clinic, Nurse Eileen cleaned his nose and face and put an ice bag on his leg and a brace on his neck. He described his pain at the time as a seven on a scale of one to ten. In addition to the fractured leg, he had a bloody nose, the side of his face was swollen and he had pain in his wrist and neck. He was taken to St. Francis Hospital by ambulance and he stated that something happened that greatly increased his pain when he was being transferred to the ambulance.

Dr. William Thompson, a board-certified orthopedic surgeon specializing in sports medicine, examined claimant in the emergency room, where he was complaining of pain in his left leg, neck, back, face and head, and crying out “cut my leg off” (Exhibit 3, p 6). He was administered IV morphine in the ER. Claimant told the doctor that he had been in an altercation with the guards and that his leg had been twisted and he heard a loud crack and had immediate pain. X-rays (Exhibits DD and GG) showed a spiral fracture of the left femur in the metadiaphyseal region of the knee, not intruding into the joint. Dr. Thompson advised that the mechanism of such a fracture is a “twisting motion,” which was consistent with what claimant described to him (TM Vol. 1, p 18). [1] The x-rays also showed a plate and screws that had been used in the repair of a previous fracture of claimant’s left tibia.

Dr. Thompson explained that the proximity of the fracture to the knee joint necessitated an open reduction with the placement of a metal plate and thirteen screws, because the forces exerted on the joint by the quadriceps and hamstring muscles would otherwise prevent proper healing. The surgery was successful and claimant was discharged from the hospital on June 2, 2005.

Claimant spent about two months in the Green Haven infirmary after his discharge from the hospital. After that, he was in the special housing unit for a few days and was then transferred to general population on keeplock status. Claimant did not recall the name of the pain medication he was given in the infirmary but stated it was something stronger than ibuprofen. His Ambulatory Health Record (Exhibit 4) shows the administration of Percocet through mid-June, at which time he was switched to Ultram. He was on crutches for nine or ten months after the surgery and after that was allowed to use a cane, which he stated he used through the latter part of 2008. He had three or four courses of physical therapy, each course lasting approximately eight weeks. Claimant testified that he still does not have full use of his leg, and that he still has pain for which he takes Naprosyn 500 mg twice a day. He claimed he can no longer play soccer or basketball, which he previously did, and he has a surgical scar on his left leg running from the thigh to the knee.

Claimant is currently able to walk without the aid of crutches or a cane, but he stated that when he moves around too much he sometimes experiences a sharp pain in his left knee.

On cross-examination, claimant was asked about his rather extensive medical history, which includes multiple gunshot wounds (Exhibit A, p 59), a plate and screws installed in his left knee to repair a prior fracture of the tibia and “several severe bilateral knee problems,” including degenerative joint disease in both knees (id., pp 61-62). He nevertheless claimed that prior to the May 2005 injury that was the basis of this claim he only experienced minor pain that did not require medication.

Following claimant’s discharge from the hospital, Dr. Thompson next saw him on June 20, 2005, at which time he prescribed a course of physical therapy. The doctor noted that claimant was still complaining of pain. On July 26, Dr. Thompson saw claimant again and performed tests that showed that the range of motion of claimant’s left knee was zero to 95 degrees rather than the normal zero to 130 or 140 degrees. The doctor recommended continued physical therapy. Dr. Thompson’s next examination, on September 6, 2005, records that claimant’s range of motion had improved to 115 degrees but claimant was complaining of pain in his right leg, which the doctor attributed to overusing the leg to compensate for the limitations of the injured left leg.

Dr. Thompson’s next examination was November 19, 2008, in preparation for his trial testimony. He found that claimant had full extension of the left leg but flexion was “limited at 100 degrees with a firm end point . . . once he hit 100 degrees, it was fairly rigid, which is usually due to muscular incompliance or non-compliance or stretch ability of the muscle and/or scarring” (TM Vol. 1, p 30). X-rays showed that the fracture had fully healed and that the installed hardware was properly in place. Dr. Thompson found a degree of muscle atrophy of the lower thigh muscle, which he stated was the result of disuse, and noted that claimant complained of pain particularly with use of the knee, often associated with changes in the weather. Claimant told him that he was taking Naprosyn 500 mg two or three times a day for the pain. The doctor observed that claimant had not had any improvement in three to four years and opined that it was not likely that claimant would experience any further recovery and that his condition is permanent.

According to Dr. Thompson, claimant might benefit from a total knee replacement sometime in the future to alleviate the result of the effects of the subject injury as well as claimant’s prior tibia fracture.

On cross-examination, Dr. Thompson stated that his conclusion that claimant suffered from muscle atrophy of his left thigh was based on visual comparison with claimant’s right thigh, but he did not do an examination of claimant’s right leg and did not evaluate the range of motion of the right leg for the purpose of comparison. He acknowledged that claimant had arthritis in his left knee and that such condition pre-existed the subject injury. He was also aware that, in addition to the pre-existing fracture of the left tibia, claimant also had a previous fracture of his right leg.

Dr. Robert Hendler, also a board-certified orthopedic surgeon, examined claimant on November 10 and December 16, 2008, and testified for the defendant. He stated he conducted a complete examination of both legs, and found that claimant’s right leg had a “bow leg deformity (TM Vol. II, p 207), significant atrophy of the right thigh and advanced osteoarthritis of the right knee. He found that claimant’s left knee had full extension and 140 degrees of flexion, which is considered normal. He also found that the ligaments in the left knee were not damaged or stretched and that the knee was stable, and that there was no muscle atrophy of the left leg. Claimant walked with a normal gait, without a limp.

Looking at claimant’s medical records and x-rays, Dr. Hendler opined that Dr. Thompson did an “exemplary job” in the surgical repair of the fractured femur (id., p 216), which healed in anatomic alignment. He noted that unlike the prior tibial fracture, the fractured femur did not extend into the knee joint and would not likely lead to arthritic changes.

Dr. Hendler’s conclusion was that the injury sustained in the subject incident did not lead to any permanent loss of function or use, did not result in any loss of range of motion or stability of the knee and had no effect on the pre-existing arthritis of the knee.

On cross-examination, Dr. Hendler acknowledged that the type of femur fracture sustained by claimant is initially very painful and that the installation of hardware typically results in chronic or permanent complaints of aches and pain in damp weather, which he described as the most common complaint after such a fracture has been successfully treated surgically. On the other hand, he stated that pain without weather changes was unusual and that there would be no reason for episodes of sharp pain after the fracture was healed.

While there is no question that claimant suffered a severe and painful injury to his left femur in the subject incident, it is equally clear that, as of the date of the injury, claimant had a lifetime history of significant injuries to his legs, including the prior fracture of the left tibia that, unlike the current injury, extended into the joint itself, and a prior fracture of his right femur (Exhibit 4, p 66). It is also clear that both his left and right knees demonstrated “post-traumatic degenerative joint disease” on x-rays taken shortly after the May 30, 2005 fracture of the left femur and that such degenerative changes predated and were unrelated to the injuries suffered in this incident (id., p 71, see generally pp 66-72).

Thus, although claimant is entitled to compensation for the pain and suffering he sustained as the result of the use of excessive force by defendant’s employees, the court finds that, other than the occasional aches and pains that both doctors agreed are typical after an open reduction and internal fixation of a femur fracture, claimant failed to prove that any of the symptoms and limitations of his activities following the healing of the fracture can be attributed to this injury rather than the pre-existing condition of his legs. Even accepting Dr. Thompson’s evaluation that the range of motion of claimant’s left knee is limited – an evaluation with which Dr. Hendler did not concur – there is no basis for the conclusion that it is more likely than not that such limitation is the proximate result of the subject injury, as opposed to the prior tibia fracture, which had a greater impact on the knee than the femur fracture.

Lastly, the court has also considered the short-term, non-permanent injuries to claimant’s face and wrist resulting from the incident. On the record here, these injuries are not implicated in any future award.

There is no support in the trial record for any award for future medical expenses, notwithstanding Dr. Thompson’s speculation that claimant might benefit in the future from knee replacement surgery to address the effects of the repeated knee injuries. There is also no basis for an award for past medical expenses as the only information before the court is that claimant’s hospital bill was paid by some combination of Medicaid, insurance and direct payment by the State. There is no indication that any liens have been asserted against the recovery in this case.

Based on the foregoing, the court finds that claimant is entitled to damages of $105,000 for past pain and suffering and $30,000 for future pain and suffering. The Clerk of the Court is directed to enter judgment in the amount of $135,000, together with interest at the statutory rate from July 25, 2008, the date of the liability decision and the return of any filing fee actually paid.


June 19, 2009
White Plains, New York

HON. STEPHEN J. MIGNANO
Judge of the Court of Claims




[1].It was noted that defendant’s physician agreed that the mechanism of the injury was a twisting motion, and that such was consistent with claimant’s account of how his leg had been broken.