New York State Court of Claims

New York State Court of Claims
REYNOLDS v. THE STATE OF NEW YORK, # 2012-009-102, Claim No. 106738

Synopsis

The Court awarded the total sum of $1,017,500.00 in this damages decision, following a liability trial in which this Court found that a New York State Trooper had used excessive force against claimant during a routine traffic stop.

Case information

UID: 2012-009-102
Claimant(s): DAVID M. REYNOLDS
Claimant short name: REYNOLDS
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 106738
Motion number(s):
Cross-motion number(s):
Judge: NICHOLAS V. MIDEY JR.
Claimant's attorney: CHARLES BURKWIT, ESQ. and
ROBERT L. BURKWIT, ESQ.
Defendant's attorney: HON. ERIC T. SCHNEIDERMAN
Attorney General
BY: Bonnie G. Levy, Esq., and
Ed J. Thompson, Esq.,
Assistant Attorneys General
Of Counsel.
Third-party defendant's attorney:
Signature date: May 14, 2012
City: Syracuse
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

In a Decision dated December 23, 2009 and filed February 18, 2010, this Court found that a New York State Trooper had used excessive force against claimant during a traffic stop on December 20, 2001, and therefore determined that the defendant State of New York was 100% liable for the injuries suffered by claimant. A trial limited to the issue of claimant's damages has now been held, and this Decision addresses that issue.

As is apparent from trial, claimant contends that as a result of this incident, he suffered a closed-head injury, and herniated disks in both his cervical spine and lumbar spine. Claimant further alleges that these injuries have caused permanent and chronic pain, and that he also endures emotional pain and suffering.

Claimant testified at the liability trial that after he was stopped and handcuffed, Trooper Thomas Connor slammed his head several times against the back window of the car, punched him several times in the back of his head, and pulled on his hair, which was in a ponytail. He also testified at that trial that Trooper Connor forced his head several times against the back of the trunk of the car. He also testified that when he was released, he was bleeding from his nose and mouth, and that his shirt had blood on it.

At this damages trial, claimant reiterated his testimony regarding the physical actions taken by Trooper Connor against him during the traffic stop on December 20, 2001. Claimant added that when Trooper Connor grabbed him and rammed his head back and forth against the trunk of the car, he heard both his neck and back "snap"(1) . He further added that Trooper Connor slammed him against the trunk and yanked him back up several times.

Additionally, he testified at this trial that when he was handcuffed by Trooper Connor, he complained that the handcuffs were too tight, and that in response Trooper Connor tightened them even further against his wrists, leaving red marks. He also testified that Trooper Connor punched him in his head, leaving a bump that never healed and continues to hurt him to this day.

Claimant testified that following this encounter, he went to Myers Community Hospital for treatment, and that he complained of headaches and neck pain. He testified that at the hospital, he was placed in a neck brace, and he was administered ice treatments for his head and neck.

Claimant testified that when he left Myers Community Hospital, he went to the State Police Barracks to register a complaint against Sergeant Connor, and Sergeant Clark took photographs of his injuries, which were received into evidence (Exhibits 1-4). These photographs depict a swelling and blackened left eye, which claimant stated that he sustained when his face was slammed against the trunk of the car.

Claimant further testified that on that evening, he continued to have neck pain with bad headaches, and he therefore went to Newark-Wayne Hospital, where he was given pain medication. Claimant testified that he then began treatment with his primary care physician, Hwang Chang, M.D., who has prescribed Vicodin and/or Hydrocodone to claimant since this incident, and that he has continuously been on pain medication since the incident. Claimant testified that during the course of his treatment, Dr. Chang has referred him to several specialists, and it has been recommended that he have neck and back surgery to alleviate his pain.

Claimant testified that his neck pain, especially on his left side, gravitates down into his arms and hands. He testified that his back pain prevents him from laying down to sleep, and as a result he has to sleep in a chair.

Claimant further testified that because of these injuries, he can no longer hunt, play sports, do roofing work or shovel snow, and that he cannot lift any object exceeding 25 pounds. He testified that he has nightmares all of the time about the assault.

He also testified that because of his constant pain, he had to relinquish physical custody of his daughter since he could not provide proper care for her.

Claimant testified that he is not currently under any medical treatment, and testified that since he is on Medicaid, he has difficulty obtaining medical treatment since many physicians will not accept Medicaid patients.

Claimant also testified that he has experienced memory loss and stuttering, none of which he had prior to this incident.

Claimant acknowledged at the outset of his testimony that he was not working due to a prior disability, and therefore he had not made any claim for past or future loss of earnings.

Under cross-examination, claimant acknowledged that his current treating physician will accept the medical insurance that claimant now has, but that he has not sought treatment by this physician as nothing appears to help him. He also admitted that although prescribed, he does not take Vicodin for pain, nor does he take Ambien to help him sleep, because he stated that neither worked. He acknowledged that he smokes marijuana several times a week, and has been doing this for several years, to take the pain away.

Claimant further acknowledged that in 2003, he worked in a cemetery mowing lawns and watering flowers, when he made approximately $100.00 per week. He also acknowledged that during 2005 and 2006, he made a little money by shoveling snow from roofs and driveways. He also acknowledged that on three occasions in 2008 and 2009, he worked as a roofer for his "Uncle Chet". Claimant acknowledged that he did not disclose any of these activities to his physicians or the expert witnesses who testified at this trial.

Bonnilyn M. David, a former girlfriend of claimant, also testified at the trial. She testified that claimant came to her house immediately after the altercation with Trooper Connor, and that she took photographs (Exhibits 5-7) of the injuries suffered by claimant. She testified that claimant was hysterical, that his eye was bruised and swollen, and that he had blood coming from both his nose and his lip. She further testified that prior to the incident, claimant had never complained of either neck or back pain, that he did not have a bump on the top of his head, and that he did not stutter or have any word finding difficulties. She testified that subsequent to this incident, claimant has had nightmares, that he started stuttering, and that he has difficulty sleeping.

Steven M. Ess, D.C., testified as both a treating chiropractor and as an expert in the area of chiropractic treatment. Dr. Ess testified that he first met with claimant on January 28, 2005 and treated claimant for several sessions during that year. Dr. Ess treated claimant a total of seven times in 2005, during a one month period. Dr. Ess also examined claimant in 2011, prior to this damages trial.

Dr. Ess testified that in 2005, claimant presented with a decreased cervical range of motion, with severe pain when he rotated his head, and that he complained of constant headaches, numbness in his left arm, pain between his shoulder blades, and lower back pain. Dr. Ess further testified that in 2005, he reviewed a cervical spine MRI of claimant which had been taken on December 17, 2002, and that this MRI showed large disc herniations at C5-6 and C6-7 (Exhibit 32), and that these disc herniations were the primary source of claimant's neck pain.

Dr. Ess testified that he referred claimant to Dr. Huckell for a surgical consult. It was his understanding that Dr. Huckell recommended surgery, but that the surgery was declined by claimant.

Based on his review of an updated cervical spine MRI performed on March 17, 2011 (Exhibit 34), Dr. Ess testified that claimant's symptoms still existed, and they had progressed into a degenerative state.

Dr. Ess concluded that the degenerative change in claimant's spine resulted from the injured discs, and further that the injuries to the spine in that area were caused by the assault. Dr. Ess testified that even though claimant did not complain of any neck pain when he first went to Myers Community Hospital immediately after the incident, it is very common to have a delayed onset of symptoms with spinal injuries.

Dr. Ess also testified with regard to his examination of an updated lumbar spine MRI of March 17, 2011 (Exhibit 36). Dr. Ess testified that this study established that claimant suffered an anterior disc herniation pointing to the front, and a posterior disc herniation pointing to the back. It was his opinion that these disc herniations were also caused by the altercation with Trooper Connor, based upon claimant's description of the incident. He further opined that claimant's symptoms were not likely to improve over time.

Dr. Ess also offered testimony regarding the surgical options available to claimant for both his cervical and lumbar spinal injuries.

With regard to the cervical disc herniations, Dr. Ess explained the proposed three-level cervical fusion (Exhibit 37). In his opinion, such surgery would significantly reduce, but not eliminate, claimant's neck pain and improve his quality of life.

Dr. Ess also discussed the proposed two-level lumbar fusion (Exhibit 38), and opined that this surgery would also reduce claimant's pain, but that he would still be left with some degree of permanent restriction.

In sum, Dr. Ess opined that claimant has a permanent limitation in use in both his cervical and lumbar spine areas, and without surgical intervention these injuries will worsen over time. Dr. Ess further opined that both injuries were sustained in the assault against claimant in the 2001 incident. Dr. Ess further concluded that due to his condition, claimant must avoid any heavy lifting, prolonged sitting and standing, or reaching over his head, and that he requires periods of rest and positional change to accommodate his pain.

Clifford J. Ameduri, M.D., who was found qualified by the Court as an expert in the area of physical medicine and rehabilitation, testified on behalf of the claimant. Dr. Ameduri had examined claimant in February 2011, and based his testimony on both this medical examination as well as his review of claimant's medical records.

Based upon his physical examination, Dr. Ameduri concluded that claimant had a diminished range of motion in his neck and cervical spine area, as well as some restriction (although not as severe) in the lumbosacral spine.

Additionally, based upon his review of claimant's medical records from Myers Community Hospital, Dr. Ameduri concluded that claimant had suffered a closed-head injury during the altercation. He further concluded that claimant now exhibits many symptoms consistent with post-concussive syndrome, such as difficulties with both short-term and long-term memory, inattention to detail, inability to concentrate, blurred vision, and stuttering. Dr. Ameduri testified that claimant displayed these symptoms when he conducted his examination in February 2011, and concluded that these symptoms are permanent in nature.

Dr. Ameduri also testified with regard to the cervical spine injuries, with particular reference to the December 17, 2002 MRI study. Dr. Ameduri testified that the MRI showed a herniated disc at the C6-7 level, as well as a disc protrusion at the C5-6 level. He also reviewed the updated MRI performed on March 17, 2011 (Exhibit 34) and testified that there were degenerative and chronic changes in the area of the original injury. He further testified that these degenerative changes frequently developed after trauma, and he attributed these degenerative changes to the trauma suffered by claimant in the incident of December 2001. Dr. Ameduri testified that claimant's complaints of pain were consistent with the injuries depicted on the MRI.

Based on these findings, Dr. Ameduri recommended that claimant undergo two separate cervical fusion surgeries, one at the C3-4, C4-5 level, and a second surgery at the C5-6 level. He testified that this recommendation is based on his opinion that a two-stage procedure would be safer than trying to do all of the corrective surgery in one operation. Dr. Ameduri further testified that even with successful surgery, claimant will not regain full range of motion, and claimant will have lifting restrictions on a permanent basis following the surgery.

Dr. Ameduri also offered testimony with regard to the lumbar injuries complained of by claimant. He reviewed the March 17, 2011 lumbar spine MRI study (Exhibit 35) and noted herniated discs at the L3-4 and L4-5 level, which he attributed to the December 2001 altercation with Trooper Connor. He further testified that claimant's complaints of lower back pain are consistent with the MRI study showing these herniated discs.

Based on these findings, Dr. Ameduri recommended a two-level fusion surgery to correct these injuries. Dr. Ameduri testified that even with successful surgery, claimant will continue to experience some pain and that he will also be left with some restriction in movement.

Under cross-examination, Dr. Ameduri acknowledged that claimant was a "poor historian" with regard to his past medical history. He further acknowledged that persons engaged in hard labor are more likely to develop back pain than a person engaged in a professional line of work.

Furthermore, Dr. Ameduri acknowledged that although it was his opinion that claimant suffered a concussion in the December 2001 incident, there was no mention of a concussion in any of the medical records that he reviewed, and that he did not state this opinion in his report to claimant's counsel prior to the trial.

Kenneth W. Reagles, Ph.D., was found qualified by the Court as an expert in life-care planning, and testified on behalf of claimant. Prior to trial, Dr. Reagles prepared a life-care plan for claimant, which was received into evidence (Exhibit 31).

In his report and testimony, Dr. Reagles identified five "enduring problems" (Exhibit 31, pages 12-13) currently experienced by claimant. Dr. Reagles identified these problems as disc herniations of the cervical spine, disc herniations of the lumbar spine, a closed-head injury, neurological and chronic pain, and lingering emotional issues. In his report, Dr. Reagles created a life-care plan setting forth the future health related goods and services that are required to address and treat these five enduring problems. The plan sets forth a description of the goods and services, the time period for which such goods or services will be required, the unit cost of the goods or services as well as the frequency that they should be provided, and the present annual costs of the individual goods or services.

The goods and services recommended by Dr. Reagles include periodic evaluations by a physiatrist, annual visits to claimant's family physician, a neuropsychological evaluation, an evaluation by the concussion management program at SUNY Upstate Medical University, a speech therapy evaluation, treatments at a pain management facility for his cervical spine, lower back and headache pain, chiropractic treatment and physical therapy, and a smoking cessation program, as well as the costs of medications and radiological studies such as MRI's and x-rays. Dr. Reagles also included in his report costs associated with the two recommended cervical spine surgeries, and the recommended two-level lumbar surgery.

It is important to note that the report and testimony of Dr. Reagles was limited to establishing these costs for such goods and services, but not for the purpose of establishing whether the "enduring problems" either existed or were caused by the altercation with Trooper Connor in December 2001. William C. Blanchfield, Ph.D., was found qualified by the Court as an expert economist, and testified on behalf of the claimant. Dr. Blanchfield utilized the present cost of claimant's future medical care as set forth in the life-care plan of Dr. Reagles, and calculated the projected future health care costs for claimant over his expected lifetime. His analysis is documented and was received into evidence at trial (Exhibit 45). As set forth in his analysis, Dr. Blanchfield either accepted the present value (as calculated by Dr. Reagles), or applied a 2% or 4% growth rate in arriving at his projections. Additionally, as set forth in the analysis, Dr. Blanchfield projected claimant's life expectancy to age 77. With all of this information, Dr. Blanchfield concluded that the total projected cost for claimant's future health care is $1,138,403.00.

Arlen K. Snyder, M.D., was retained by defendant and performed an independent medical examination of claimant on March 25, 2011. Dr. Snyder was the only witness to testify on behalf of the defendant, and testified based upon his IME as well as his examination of claimant's medical records and reports.

Dr. Snyder testified that the medical records did not indicate that claimant had suffered a concussion as a result of this incident, nor had claimant received any medical treatment for a concussion. Additionally, Dr. Snyder testified that claimant did not stutter during his exam; there is only one reference to stuttering in the medical records that he reviewed; and there is no indication that claimant ever received medical treatment for this stuttering.

With regard to claimant's lower back complaints, Dr. Snyder testified that based upon his review of claimant's medical records, the first indication of any lower back pain did not occur until mid-2004. Additionally, based upon his review of the MRI performed in 2011, Dr. Snyder opined that any abnormalities in this area were "age-related", and he did not attribute these abnormalities to the December 2001 incident. In sum, Dr. Snyder concluded that any difficulties that claimant was experiencing with his lower back simply could not be attributed, with any degree of medical certainty, to the December 2001 incident which is the basis of this claim.

With regard to claimant's injuries to his cervical spine, Dr. Snyder reviewed a cervical spine x-ray taken of claimant on January 28, 2002, shortly after the incident, and noted that claimant exhibited mild, degenerative changes, which he opined pre-existed the December 2001 incident. However, Dr. Snyder acknowledged that the December 17, 2002 MRI showed a herniated disc at C6-7, with degenerative changes at the C5-6 level. Although he did not attribute these disc problems to the December 2001 incident, he further acknowledged, under cross-examination, that the bulging and herniated discs could have been caused by a traumatic event. He also acknowledged that the injuries shown on the MRI's were consistent with the subjective complaints of pain made by claimant.

Additionally, Dr. Snyder admitted that there was no reference in claimant's medical records to any prior complaints of neck or back pain prior to the December 2001 incident.

FINDINGS

As is apparent from the testimony, claimant seeks damages for a myriad of injuries that he attributes to the altercation with Trooper Connor on December 20, 2001. Defendant contends that claimant has failed to establish that these medical problems were all caused by this altercation.

Based on the testimony, medical records, and in particular the photographs taken by Sergeant Clark (Exhibits 1 - 4) and by Bonnilyn David (Exhibits 5 - 7), there can be no question that claimant suffered a swollen, bloody, and blackened eye in the altercation with Trooper Connor. No other plausible explanation was provided that would account for this injury, which required medical attention immediately after this incident.

Furthermore, the medical records establish that claimant was diagnosed with a "closed-head injury", also as a direct result of this incident. Claimant, however, was never diagnosed with a concussion, and even Dr. Ameduri, claimant's medical expert, made no reference to a concussion in his medical report. Nevertheless, claimant testified to suffering from chronic and severe headaches, blurred vision in his left eye, dizziness, and stuttering, all as a result of his confrontation with Trooper Connor. Based on claimant's testimony, as well as the photographic evidence, as well as the testimony presented at trial, the Court finds that such injuries and complaints are attributable to, and the direct result of, the altercation with Trooper Connor.

Claimant also testified that he continues to suffer from these ailments, and at this point in time, claimant's expert opines that these conditions are permanent in nature. The Court notes, however, that claimant is currently not undergoing or seeking medical treatment for these conditions, he is not currently taking any medication for these conditions and, during his testimony and appearance at the trial, did not appear to be outwardly exhibiting any of these symptoms. As a result, the Court finds that further medical treatment for these conditions is not warranted.

Claimant also testified, with supporting medical records and testimony, that he suffered cervical herniated discs at the C4-5, C5-6, and C6-7 levels in this incident. The medical records confirm that claimant complained of neck pain shortly after the incident with Trooper Connor, and the Court finds that claimant has established that the injuries to his cervical spine area, including the herniated discs, were suffered by claimant in his altercation with Trooper Connor.

Although defendant's expert, Dr. Snyder, prefers "conservative" treatment for these injuries, the medical testimony provided by claimant satisfies the Court that the recommended anterior cervical discectomy and fusion surgery would be beneficial to claimant in alleviating some (but not all) of his neck pain and related pain and numbness. Dr. Ameduri testified that in his opinion, the surgery should be performed in two separate procedures, and the Court accepts this recommendation as well.

Claimant further complains that he suffered herniated discs in the lumbar spine area at the L3-4 and L4-5 levels. With regard to these injuries, however, there is no record or indication that claimant made any complaints, or sought medical treatment, until well after the altercation with Trooper Connor. As testified to by Dr. Snyder, the first reference in the medical records that suggested any complaints of lower back pain occurred in 2004.

Based on claimant's description of the altercation given at both the liability and the damages trial, together with this significant lapse in time between the altercation and initial complaints of lower back pain, the Court finds that claimant has failed to establish, by a preponderance of the evidence, that these lower back injuries and complaints are proximately related to the December 2001 incident.

In sum, the Court finds that claimant has established, by a preponderance of the evidence, that he suffered a swollen and blackened left eye, a closed-head injury (leaving a permanent bump) resulting in concussion-like symptoms, and injuries to his cervical spine for which two surgeries are recommended. Claimant also established that he suffered insignificant injuries to his wrists where the handcuffs were placed on him, although apparently no medical treatment was required.

The Court further finds that claimant has suffered with the symptoms and after-effects of these injuries for the past ten years, including chronic pain, headaches, dizziness, and limited range of motion in his neck. The Court further finds that although the recommended cervical surgery should dramatically enhance claimant's quality of life, as well as significantly reduce his chronic pain, the medical experts agreed that claimant would still experience some residual pain and restricted movement, even with these surgeries.

Based on the foregoing, therefore, the Court finds that an appropriate measure of damages for claimant's past pain and suffering is $225,000.00. Taking into account claimant's total life expectancy of 77 years, as well as the testimony adduced at trial, the Court finds that the appropriate measure of damages for claimant's future pain and suffering is $475,000.00.

With respect to past medical and prescription costs, claimant submitted medicaid liens from the Wayne County Department of Social Services in the amount of $7,082.23, together with a Medicaid lien from the Oswego County Department of Social Services in the amount of $1,319.55 (Exhibit 48, pages 12-13 [Exhibits C and D]). Claimant has also requested the sum of $18,171.32 for past medical expenses, as set forth in his "First Supplemental Verified Amended Bill of Particulars" (Exhibit 48), Response 13(d). The Court notes, however, that all of the expenses set forth in Response 13(d) cannot be attributed to the injuries suffered by claimant in the altercation with Trooper Connor. Accordingly, the full amount requested by claimant for past medical and prescription expenses cannot be awarded. Accordingly, the Court finds that a fair measure of damages for past medical and prescription expenses is $17,500.00, inclusive of the lien amounts set forth herein.

As for future health related goods and services set forth in the life-care plan prepared by Dr. Reagles (Exhibit 31), the Court initially notes that this plan obviously provides for certain care and treatment for injuries that claimant failed to establish were caused in the altercation with Trooper Connor. Furthermore, as previously indicated, based on claimant's testimony that he is not currently under any medical treatment, that he is not currently taking his prescribed medication for pain and sleeping aids and that he rather smokes marijuana to relieve his pain, the Court agrees with defendant's expert that conservative treatment is appropriate for his future medical care (except for the recommended surgeries for his cervical herniated discs). Accordingly, the Court hereby awards the sum of $300,000.00 for future medical care and services, which includes the amounts set forth in Dr. Reagles life-care plan for the two recommended cervical surgeries.

Finally, the Court notes that claimant, who was previously disabled, made no claim for past or future lost wages.

Accordingly, and based upon the findings herein and the entire trial record, the Court finds that claimant is entitled to be awarded damages as follows:

Past Pain and Suffering $225,000.00
Future Pain and Suffering $475,000.00
Past Medical and Prescription Expenses $17,500.00
Future Medical and Healthcare related Goods and Services (including 2 cervical surgeries) $300,000.00

Total Amount Awarded

$1,017,500.00

Since the amount of future damages exceeds $250,000.00, a structured judgment is required pursuant to CPLR 5041(e). Accordingly, judgment will be held in abeyance pending a hearing pursuant to CPLR Article 50-B, which will be scheduled as soon as practicable. The Court encourages the parties to agree upon the discount rate to be applied and to formulate a structured settlement of their own (CPLR 5041[f]). In the event the parties fail to reach agreement, each party shall submit a proposed order directing judgment in writing conforming to the requirements of CPLR Article 50-B within 90 days of service of this Decision upon them by the Clerk of the Court.

Any filing fee paid by claimant may be recovered pursuant to 11-a(2) of the Court of Claims Act.

May 14, 2012

Syracuse, New York

NICHOLAS V. MIDEY JR.

Judge of the Court of Claims


1. Unless otherwise indicated, all references and quotations are taken from the Court's trial notes.