Opinion
# 2016-041-504 Claim No. 120451
03-23-2016
MARK FABIANO AND KATHERINE FABIANO v. THE STATE OF NEW YORK
SACKS & SACKS LLP By: James McCrorie, Esq. Adam Levien, Esq. Kevin Lillis, Esq. ROEMER, WALLENS, GOLD & MINEAUX, LLP By: Matthew J. Kelly, Esq.
Synopsis
Claimant injured in fall from construction site who suffered, among other injuries, spinal T12/L1 fracture leading to decompressive lumbar laminectomy and surgical insertion of stabilizing hardware and permanent spinal cord stimulator is awarded damages for medical expenses, lost earnings, and pain and suffering in the amount of $958,098.17 for past losses and $1,460,200.00 for future damages.
Case information
| UID: | 2016-041-504 |
| Claimant(s): | MARK FABIANO AND KATHERINE FABIANO |
| Claimant short name: | FABIANO |
| Footnote (claimant name) : | The caption has been amended to reflect proper spelling. |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 120451 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | FRANK P. MILANO |
| Claimant's attorney: | SACKS & SACKS LLP By: James McCrorie, Esq. Adam Levien, Esq. Kevin Lillis, Esq. |
| Defendant's attorney: | ROEMER, WALLENS, GOLD & MINEAUX, LLP By: Matthew J. Kelly, Esq. |
| Third-party defendant's attorney: | |
| Signature date: | March 23, 2016 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
This Court, by Decision and Order dated September 30, 2013, granted Mark Fabiano (claimant) summary judgment on his Labor Law 240(1) cause of action of a claim related to a fall from height that he endured on September 21, 2011, while engaged in bridge painting at Exit 21 of the New York State Thruway. A trial on damages was conducted June 16, 2015 to June 18, 2015.
Mark Fabiano and his wife Katherine Fabiano, derivatively, have brought this claim. Unless otherwise noted, all references to claimant hereafter shall refer to Mark Fabiano alone.
Claimant's fall injured, primarily, his spine. He also suffered a severely lacerated lower lip which required suturing, the resultant scar of which is now covered by facial hair that claimant wears, and three broken teeth which required dental crowns. Virtually the entire damages trial, however, was devoted to the consequences, physical, medical and vocational, to claimant, of his spinal injuries.
Of the trial's two orthopedic experts, the testimony of Dr. Andrew Merola, claimant's treating spinal surgeon, was substantially more persuasive than that of defendant's orthopedic expert, Dr. Bryan Bilfield.
Initially, Dr. Merola is a spinal specialist and Dr. Bilfield is a general orthopedist. Dr. Merola performs between 200 and 225 spinal surgeries annually, while Dr. Bilfield hasn't performed spinal surgery since his residency in 1978, thirty-eight years ago. Dr. Bilfield has never implanted a spinal cord stimulator, one of the surgical procedures claimant underwent.
Next, Dr. Merola was claimant's treating physician, performed claimant's spinal fusion surgery, and treated claimant several times (17 office visits) over a number of years. Dr. Bilfield examined claimant once, approximately three and one-half months prior to trial. Finally, Dr. Merola simply testified in a more confident and more persuasive manner than did Dr. Bilfield.
Notwithstanding the foregoing, claimant failed to prove by a preponderance of the credible evidence that his accident of September 21, 2011 aggravated a pre-existing condition of the cervical area of claimant's spine which was attributable to previous trauma and/or age-related degeneration (beyond claimant's affirmative failure of preponderant proof, not herein detailed, see, for example, Trial Transcript (TT), pp 241-245 and pp 313-314). Accordingly, no award of damages of any character is made specific to that aspect of Mr. Fabiano's claim.
In addition to addressing the cervical region of claimant's spine, the trial produced evidence related to injury to a lower region of claimant's spine, the T 12/L 1 area. This is where the thoracic area of the spine meets the lumbar area, which is lower on the spine, and is commonly described as where the mid back and lower back meet. The trial further produced evidence related to the consequences to Mr. Fabiano of that injury.
Claimant was 49 years old on the day of his accident, and 53 years old at time of trial. Claimant fell to pavement from a scaffold height of approximately 15 feet, landing on his feet before falling forward to his knees. After falling at about 9:00 p.m. on the evening of September 21, 2011, claimant was transported by ambulance to a local hospital. Claimant testified that during his fall, he apprehended that he was falling, that after the fall he tried to stand and could not, that he felt immediate pain in his heels, back, neck, head and arms, that he was bleeding from a split lower lip, that his back was "screaming," that he tried to hold his breath to control the pain, that during the ambulance ride he was in pain due also to the bumpiness of the ride and that he was given a morphine shot in the ambulance.
At the hospital, his lip was sutured, additional morphine was provided, and CT scans of his neck and back and x-rays of his heels were taken. He remained in the hospital for six hours, during which he endured "[c]onstant, sharp pain in the center of the middle of my back, my neck was sore, my head hurt too." He was then transported by a co-worker back to the site of his fall, where he met his wife, and they then returned to their home in Pennsylvania by car.
In the days following his accident, claimant "felt like I had been run over by a truck," had pain in his head, neck, lip, back, legs and heels, and saw his primary care physician, who, on a second visit shortly thereafter, removed his sutures.
On September 30, 2011, nine days post accident, claimant was first seen by Dr. Merola, a spinal specialist in New York City, and began treatment with him lasting for the next several years. Claimant made complaints of pain to Dr. Merola, who ordered another CT scan, suggested exercise and physical therapy to claimant, and referred claimant to Dr. Aric Hausknecht, a New York City based neurologist, who saw claimant on October 6, 2011.
Claimant began seeing Dr. Merola and Dr. Hausknecht on a regular basis, six to seven times per year. He began using prescribed painkillers and muscle relaxers, began physical therapy twice weekly for about six months, and endured ongoing pain in his heels, back and neck. He described a squeezing sensation of varying intensity in his back, "electricity-type jolts running down my legs initially," and he also received two rounds of epidural injections in his neck and back from a pain management specialist, Dr. Arden Kaisman, in an unsuccessful attempt to relieve pain. During this time, claimant wore a lumbar sacral support belt.
Ultimately claimant underwent surgery performed by Dr. Merola on January 10, 2013, which fused the T12/L1 vertebral bodies. The surgery is called a decompressive lumbar laminectomy, "that is a removal of the boney covering of the spinal canal at the T12 and the L1 segments, extending it down to the L2 segments, to include the L2 nerve roots, with a spinal fusion utilizing a pedicle screw rod implant system at T12 and L1 to stabilize the fracture area and kyphotic site" (TT, pp 192-193).
Claimant reported apprehension about undergoing surgery, and that his surgical pain "hurt like hell." His surgical stay in hospital lasted two days. After surgery, claimant performed home exercise and stretching, wore his lumbar support belt, and, for six to seven months, wore a bone stimulator prescribed by Dr. Merola in an effort to grow bone over the implanted hardware.
The surgery relieved claimant's "electricity-type" pain running down his legs and he no longer needed a cane to walk. He did experience continuing "gnawing fist" pain in the middle of his back and required continued prescription narcotic pain relief medication, which left him lethargic. Claimant also had a local dentist repair his three broken teeth.
While the surgery provided relief to claimant of the shooting pain in his legs, his back pain was "constant, variable and constant," and as time went on, "it got worse and then the rest of my back started to hurt as well." As a result, in an effort to reduce his pain, claimant was first outfitted with an external spinal cord stimulator, which substantially reduced his back pain, replacing a "burning and stabbing sensation" with a "tingling."
The external "trial" spinal cord stimulator was replaced surgically on an out-patient basis (although under general anesthesia) with an implanted permanent spinal cord stimulator that initially provided claimant less relief than had the external device. After adjustment, the permanent stimulator, while helpful, did not completely remove claimant's pain. Claimant does report a reduction in his pain levels, and the reduction by 50% (four pills per day to two) of his prescription pain medication intake, although medical testimony was heard to report that his prescription pain medication needs had been reduced to one pill per day. He describes his current pain as "[a] continuous, aggravating, like a toothache or like a ringing in your ears . . . [o]ther noises drown it out, but eventually it's still there." He describes feeling pain every day, with increasing and decreasing intensity and, "the intensity changes, but it's always there." Although expressing a desire to return to work, as of trial he had not returned to employment.
Claimant also testified of severely circumscribed recreational activities that he had previously enjoyed, such as skiing, fishing and playing soccer with his sons and grandchildren, and of more difficult vehicular travel that requires more stopping and resting. He testified that his thoughts about the future make him depressed.
Claimant, upon cross-examination, acknowledged the following:
•although testifying that the epidural injections had provided him no pain relief, the medical records of Dr. Kaisman of April 4, 2012 (Exhibit 11) reflect claimant reporting an "80% initial improvement" in pain after receiving his lumbar injection;
•the evening of his accident, claimant was never admitted to the hospital;
•that claimant was never hospitalized from the date of his accident to January 10, 2013, the date of his spinal surgery, a period of sixteen months, and that he was never again hospitalized after surgery;
• that from September 21, 2011 to June 16, 2015, claimant was hospitalized for a total of two days;
• although he testified that he had landed on his heels after falling, he has not had any medical treatment for his heels;
• that he drives and also, several times per week, cares for an 18 month old grandchild;
• that his spinal fusion has "taken hold"; and,
• that his medical records reflect that on various occasions he has reported 100% pain relief (when the spinal cord stimulator was on) or 95% pain relief, although his medical records also reflect reports of "constant pain" and that he recently reported his pain level as a "7 out of 10."
Dr. Merola, in initially examining claimant, observed a kyphotic gait pattern, indicating claimant walked with a forward pitch. He also noted tenderness to the touch in claimant's lower back and lumbosacral radiculopathies (radiating pain from spinal nerve roots). He diagnosed "a thoracolumbar junctional fracture with a compression fracture of L1." Upon seeing claimant a second time, Dr. Merola prescribed a lumbar support belt brace for claimant.
CT scans dated October 3, 2011 (Exhibits 13 and 14) revealed a chip of claimant's T12 vertebral body and a fracture line through the L1 vertebral body. Dr. Merola testified claimant's fall was consistent with a "compression fracture with a kyphosis of the thoracolumbar junction." Dr. Merola continued to treat claimant, who was also subsequently seen by Dr. Hausknecht, a neurologist, Dr. Kaisman, a pain management specialist, Dr. Douglas Schwartz, a physical medicine and rehabilitation specialist and Dr. Jose Colon, who surgically implanted claimant's spinal cord stimulator.
Subsequent to claimant's epidural injections by Dr. Kaisman, Dr. Merola, in June 2012, recommended a surgical procedure to claimant, a lumbar laminectomy (removal of the lamina covering the spinal canal) and the spinal fusion of the T12/L1 bodies to stabilize that area of claimant's spine. Dr. Merola performed that surgery on January 10, 2013, describing it in detail at trial (TT, pp 196-197). Titanium screws were permanently implanted to help ensure successful fusion. Dr. Merola described the fusion surgery as a success. He also indicated that he was able to improve claimant's spinal alignment, reducing claimant's kyphosis.
Although the surgery did not alleviate all pain in claimant's thoracolumbar region, claimant reported a month after surgery that severe shooting pains down into his legs and feet had abated. He did, at that time, continue to limp and present a forward pitch to his gait. After his spinal fusion surgery, claimant used a bone stimulator for six to seven months to promote bone growth. Nine months post surgery, Dr. Merola assessed claimant's lumbar area range of motion as between 40% and 50% of normal motion.
Dr. Merola continued to treat claimant over a series of visits. He testified that claimant would complain of pain each and every visit. Assessing claimant to have chronic ongoing pain, Dr. Merola recommended in December 2014 that a spinal cord stimulator be utilized to provide electrical stimulation, in attempt to manage claimant's pain and to reduce his reliance upon prescribed pain medications. Dr. Colon permanently implanted the spinal cord stimulator on April 24, 2015.
Dr. Merola provided detailed, informative and credible testimony. The Court credits the following opinions, specific to claimant's medical condition, that he expressed at trial:
1. The fracture to claimant's T12/L1 spinal area was caused by claimant's fall on September 21, 2011;
2. The radiculopathy (radiating pain) emanating from claimant's lumbar region was caused by claimant's fall on September 21, 2011;
3. The claimant's spinal fusion surgery was necessitated by the injury he sustained in his fall;
4. The need for the implantation of claimant's spinal cord stimulator was needed to address chronic pain that claimant endures as a result of his fall;
5. As a consequence of the injury sustained in his fall, claimant will have chronic lumbar area pain "into the future;"
6. Claimant's thoracolumbar injury, sustained in his fall, will be progressive;
7. Claimant will endure pain while engaged in the activities of sitting, standing and bending;
8. Claimant "is continuing to suffer from the chronic permanent residual sequela of injuries," necessitating future care (see Exhibit 5, note of February 28, 2014);
9. Claimant has "chronic pain, it means pain imprinted into the central nervous system, whereby there's a neurological component of the pain, secondary to the traumatic injury itself" (TT, pp 216); and,
10. Claimant should seek and receive ongoing orthopedic care.
Upon cross-examination, Dr. Merola conceded that claimant's compression fracture was "33 percent, 25 percent, something like that," that there was no disc herniation, that claimant, prior to his accident, had preexisting "chronic issues" in the area of the fracture caused by his fall, described in Exhibit 1, p 13 of 18, as "chronic compression of the L1 superior end plate," and that on various other doctor visits, claimant had reported no or substantially reduced pain.
The Court found the testimony of defendant's medical expert at trial, Dr. Bilfield, and the medical opinions he expressed, to be unpersuasive.
The Court, having considered the credible and persuasive medical evidence, will now address claimant's past and future medical expenses, past and future lost earnings and past and future pain and suffering. PAST MEDICAL EXPENSES
The parties stipulated that claimant's past medical expenses totaled $253,098.17 (TT, p 9, lines 1-9). FUTURE MEDICAL EXPENSES
Preliminarily, the only testimony during trial seeking to establish the life expectancy of claimant as of the time of trial, as a 53 year old male, was provided by Mr. Ronald Missun, a labor economist utilized by claimant as an expert to quantify economic damages. Mr. Missun, in his calculations and testimony, used a 27 year life expectancy for claimant, testifying that he simply referenced "U.S. Life Tables" produced by the "Center of Disease Control."
The Court generally uses, and will do so in this matter, the New York Pattern Jury Instructions, Civil, Volume 1B, Appendix A, a life expectancy chart based upon the National Center for Health Statistics, Vital Statistics of the United States, as its authoritative source to determine, as a matter of fact, claimant's life expectancy, especially absent medical evidence specific to claimant's life expectancy. Appendix A cites that males in the 53-54 age range have a life expectancy of 24.9 years, which the Court will round to 25 years. Accordingly, the Court's award to claimant of prospective damages, economic or otherwise, will be based upon claimant's remaining life expectancy of 25 years beyond trial. Any award for future lost earnings will of course be based upon claimant's remaining work life.
Several witnesses gave relevant testimony and provided relevant exhibits on issues pertinent to claimant's prospective medical needs and costs. On this point, Dr. Merola, Dr. Barry Root, board certified in physical medicine and rehabilitation, and Mr. Missun provided proof for claimant, and Dr. Bilfield and Mr. Duff Driscoll, a Certified Public Accountant with experience in auditing, accounting, tax work and business/asset valuation, provided proof for defendant, each with evidentiary strengths and weaknesses, and each with varying levels of persuasiveness on a particular issue or aspect of prospective medical needs and costs. These variances involved the determination of appropriate increases in cost to claimant of medical and professional services over his remaining life, the need (or not) for specific medical services and care (e.g. facet injections), the need (or not) for claimant to have ongoing cervical spine care, the length of battery life for claimant's spinal cord stimulators (and therefore, the number and cost to claimant of a succession of spinal cord stimulators), and the amount and cost of pain medication over claimant's remaining life.
The Court finds as follows:
1. Claimant's life expectancy beyond trial is 25 years;
2. The Court credits claimant's witnesses regarding claimant's required prospective medical needs, including those needs necessitated by a spinal cord stimulator battery life limited to five years, with two exceptions:
a. as previously indicated, the Court makes no award for prospective medical costs related to claimant's cervical spine care;
b. claimant failed, through his doctors, to prove by a preponderance of the credible evidence that he requires the prospective medical treatment of facet injections - - Dr. Merola, his treating spinal surgeon, neither offered or suggested prior to operating on claimant that facet injection treatment be undertaken, nor did Dr. Merola ever opine at trial that such treatment was suggested or necessary for claimant in the future- - accordingly, no award for same is therefore made; and,
3. The Court credits Mr. Driscoll's testimony critical of claimant's use of a long-term growth rate over 60 years of 5.9% for medical services and 4.9% for professional services, discredits claimant's suggested alternative use (in his post trial submission) of a 30 year growth rate for those services (5.0% and 4.1%, respectively, as found in Table 1 of Exhibit 23), and credits Mr. Driscoll's use of a 3.4% growth rate for such services (which is both the five year growth rate he advocates and cites at TT, p 605, and also the approximate blended growth rate of medical services and professional services over the 10 year period of 2004-2014 cited in Table 1 of Exhibit 23 prepared by claimant's own economic expert, Mr. Missun).
Accordingly, in consideration of all of the foregoing and of all of the credible trial evidence, the Court awards claimant $327,200 for future medical costs.
The Court will next consider claimant's past and future lost earnings: "The basic rule is that loss of earnings must be established [by claimant] with reasonable certainty, focusing, in part, on [claimant's] earning capacity both before and after the accident" (Johnston v Colvin, 145 AD2d 846, 848 [3d Dept 1988]; see Shubbuck v Conners, 15 NY3d 871 [2010]; Kirschhoffer v Van Dyke, 173 AD2d 7, 10 [3d Dept 1991]). PAST LOST EARNINGS
As of the date of trial, claimant had not worked since his accident on September 21, 2011. Credible medical and vocational testimony confirmed that claimant was not, as of the time of trial, capable of returning to the workforce. At all relevant times, claimant was a member of his local union, Pennsylvania based, Local 41. Mr. Missun testified and provided a report (Exhibit 23) for claimant in an effort to quantify claimant's lost earnings during the time period between his accident and trial, and Mr. Driscoll testified and provided a report (Exhibit D) for defendant on that point. Each made certain (and different) methodological choices to reach his respective calculations.
For example, Mr. Missun employed a three-year look back period to calculate claimant's average number of hours worked per year (1500 hours), and Mr. Driscoll employed an eight-year look back to calculate that number (rounded up, to claimant's advantage, to 1400 hours). Mr. Missun used a three-year look back at claimant's W-2 wage information (not claimant's tax returns) during claimant's peak earning years of 2008-2010 as the base upon which to begin calculating claimant's average annual wages (augmented thereafter by a seven-year period of Local 41 wage increases between 2008-2015), and Mr. Driscoll used claimant's union, Local 41's, contracted hourly wage rates between 2011-2015 (adjusted for Mr. Fabiano's duties, responsibilities, shifts, work differentials, etc) multiplied by the projected 1400 hour annual workload of claimant to arrive at lost annual wage calculations. Mr. Driscoll more specifically tailored his calculations to claimant's actual job title, job responsibilities and work schedule than did Mr. Missun. Mr. Missun criticized Mr. Driscoll's exclusive use of Local 41 hourly wage rates in making his calculations, pointing out that claimant often worked in geographic areas far from his home and local union, which generated him higher hourly wages. Defendant countered by asserting that having access only to claimant's W-2 information, and the claimant's use of that W-2 wage information only, did not give as complete a picture as would have having access to (or claimant's use of) claimant's tax returns to calculate hourly wage earnings for claimant independent of any reimbursed or unreimbursed business expenses he would have incurred during frequent travel to work beyond his local union area (i.e. to calculate claimant's net hourly wage earnings). Defendant further countered that claimant failed to sufficiently (or at all, for that matter) delineate between wages earned under his union Local 41 and wages earned under either higher or lower paying union wage jobs elsewhere, and, therefore, by reason of these analytical limitations or shortcomings, failed to prove his calculations.
Each economic expert testified earnestly and each expert explained his methodology and his process. Having said that, and also recognizing that the burden of proof to establish past or future lost earnings with reasonable certainty remains upon claimant, the Court found the methodologies utilized by and the testimony and report of Mr. Driscoll to be more sound, more compelling and more persuasive than those of Mr. Missun. The Court credits Mr. Driscoll's conclusion that claimant has suffered past lost earnings, which includes wages, benefits and social security contributions, in an aggregate amount of $295,000. FUTURE LOST EARNINGS
On the issue of future lost earnings, the parties agreed with each other on at least two points. Based upon credible and consistent medical and vocational testimony for each side, future employment opportunities available to claimant would be limited to sedentary work, if at all. The vocational and economic evidence for each side further agreed that claimant's remaining work life beyond trial was either 7.7 years or 7.8 years (the modest discrepancy was due only to a measuring period starting point difference of one month). The parties did differ by a period of six months as to the starting point of alternative work (i.e. sedentary work) potentially available to claimant in the future, which results in modestly different calculations for set-off against claimant's future lost earnings (as does, of course, different annual wage, benefits and growth rate assumptions made by each party).
Claimant's trial witnesses relevant to the issues raised by claimant's remaining work life were claimant himself, Dr. Merola, Dr. Root and Mr. Missun and, for defendant, Dr. Bilfield, Mr. Driscoll and a vocational rehabilitation counselor, Connie Standhart, who was also credentialed as a certified disability management specialist. Based upon the credible testimony of these witnesses (excluding Mr. Missun and Mr. Driscoll, whose testimonies on this point were confined to opinions on the economic implications of potential future claimant employment), the Court finds that the claimant has both the ability and capacity for sedentary work in the future and further, that claimant has the strong desire to return to the workforce (see Dr. Merola, TT p 211, lines 3-7, TT pp 230-231, TT pp 263-264; Dr. Root, TT pp 314-315; Ms. Standhart, TT pp 417-419, TT pp 429-432, TT p 459, and Exhibit C, pp 11-12). Further, based upon the credible evidence presented by all of these witnesses, the Court finds that claimant would be compensated for sedentary work at wages beginning at $23,000 per year. The Court will utilize that starting annual wage as the base for determining set-off against claimant's future lost earnings.
For many of the same reasons set forth in the discussion of claimant's past lost earnings, the Court found the testimony and report of Mr. Driscoll to be superior to and more persuasive than that of Mr. Missun on the issue of future lost earnings. Beyond the fact that Mr. Driscoll established a more sound base annual wage for claimant upon which to begin calculating future lost wages, as was also done in calculating past lost wages, the methodologies, reasoning, reference markers, and source materials used by Mr. Driscoll to reach conclusions on projected growth rate and fringe benefits (including health and welfare and pension computations) were better supported and better explained than the testimony and conclusions of Mr. Missun. Mr. Missun's testimony and report on future lost earnings were more conclusory, less well supported, less specific and, ultimately, less persuasive than that of Mr. Driscoll. The Court credits Mr. Driscoll's conclusions on claimant's future lost earnings. Moreover, the Court further credits Mr. Driscoll's conclusions on future earnings available to claimant in prospective sedentary employment.
Accordingly, the Court finds that claimant has suffered future lost earnings in the amount of $741,500, reduced, or set off, by an amount equal to $223,500 he would otherwise earn in prospective sedentary work. The claimant is therefore awarded $518,000 for future lost earnings. PAST AND FUTURE PAIN AND SUFFERING
"An award for pain and suffering is inherently a subjective inquiry, not subject to precise quantification, and generally presents a question of fact" (Petrilli v Federated Dept. Stores, Inc., 40 AD3d 1339, 1343 [3d Dept 2007]; Osiecki v Olympic Regional Dev. Auth., 256 AD2d 998, 1000 [3d Dept 1998]).
"Moreover, factors to be considered in evaluating such awards include the nature, extent and permanency of the injuries, the extent of past, present and future pain and the long-term effects of the injury" (Nolan v Union Coll. Trust of Schenectady N.Y., 51 AD3d 1253, 1256 [3d Dept 2008]; lv denied 11 NY3d 705 [2008]). The trial court's award will not be disturbed unless it "deviates materially from what would be reasonable compensation" (CPLR § 5501 [c]).
Defendant, in its post trial brief, has cited cases in its discussion of proposed awards for claimant's past pain and suffering that set forth amounts ranging from $100,000 to $300,000 and amounts ranging from $100,000 to $500,000 for claimant's future pain and suffering (see Cicola v County of Suffolk, 120 AD3d 1379 [2d Dept 2014]; Ramos v New York City Tr. Auth., 90 AD3d 492 [1st Dept 2011]; Hairston v Metro-North Commuter R.R., 34 AD3d 233 [1st Dept 2006]; James v Farhood, 96 AD3d 503 [1st Dept 2012]; Ellis v Emerson, 57 AD3d 1435 [4th Dept 2008]).
Claimant cites, among other cases, three Appellate Division, Third Department, cases providing a range of recovery for past pain and suffering in amounts from $325,000 to $1,016,000 and from $508,000 to $1,500,000 for future pain and suffering (see Kirschhoffer v Van Dyke, 173 AD2d 7 [3d Dept 1991]; Walsh v State of New York, 232 AD2d 939 [3d Dept 1996]; Leonard v Unisys Corp., 238 AD2d 747 [3d Dept 1997]), before requesting that the claimant be awarded $2,000,000 for past pain and suffering and $2,000,000 for future pain and suffering.
Claimant's accident has had, and will continue to have, a profound and negative impact upon his physical well-being, now, and for the remaining 25 years of his expected life. In assessing an appropriate award to claimant for past and future pain and suffering, the Court has read and carefully considered a great number of reported cases, some with injuries, ramifications and circumstances quite similar to those of Mark Fabiano and some, less similar.
Ultimately, the Court was most influenced by two cases of relatively recent vintage from the Appellate Division, Third Department, neither of which were cited by either party in their post trial submissions.
In Beadleston v American Tissue Corp. (41 AD3d 1074 [3d Dept 2007]), a tractor-trailer driver sustained four thoracic compression fractures and upper dorsal and lumbar strains when struck by falling waterlogged bales of waste paper weighing more than 1,000 pounds. Plaintiff, apparently, never underwent surgery of any kind (nor had any hardware permanently implanted), as surgery is never mentioned in the court's discussion of damages. A jury awarded him nothing for past pain and suffering and $600,000 for 30 years of future pain and suffering. Among other issues related to awards for past and future medical expenses and past and future lost wages, the Third Department ordered a new trial unless defendant agreed to increase plaintiff's award for past pain and suffering to $75,000, and plaintiff agreed to reduce his award for future pain and suffering to $450,000.
In Acton v Nalley (38 AD3d 973 [3d Dept 2007]), plaintiff suffered a fracture at the L1 vertebra with permanent 38% vertebra compression, continued to experience pain on a daily basis, was able to control his pain with nonprescription pain medication, had resumed full time work and, with some limitations, continued to enjoy certain recreational activities that he had enjoyed prior to his accident, such as riding all terrain vehicles and snowmobiles. Plaintiff was injured while sitting in a junkyard car, dropped while it was being moved by a front-end loader. The fracture had healed, but for the 38% permanent compression of the front portion of his L1 vertebra. As in Beadleston, infra, plaintiff apparently neither underwent surgery nor did he have permanent hardware implanted. A jury awarded plaintiff $75,000 for past pain and suffering and $750,000 for future pain and suffering. The Third Department ordered a new trial unless plaintiff agreed to a reduction of his award for future pain and suffering to $450,000.
The Court concludes that claimant Mark Fabiano suffered a more traumatic accident, and suffered more dire consequences by reason of his resulting injuries, than either of the plaintiffs in Beadleston or Acton. In consideration of the foregoing, and in further consideration of all of the credible evidence at trial, in light of claimant's fall, two surgeries (each requiring implanted hardware), permanent damage to claimant's spine, claimant's injuries to his lip and to his teeth, claimant's past pain and continuing chronic pain, and claimant's diminished quality of life, the Court awards claimant $400,000 for past pain and suffering and $600,000 for future pain and suffering. DERIVATIVE CLAIM OF KATHERINE FABIANO
Claimant and his wife Katherine described, each in rather modest depth and detail, the limitations claimant's injury has placed upon daily life for them, and the resultant effect upon their marital relationship of 35 years. Claimant, prior to his injury, was a very handy individual who would take care of any needed household repairs or chores and would care for their 1.5 acre property. Now, he must rely upon his wife or sons for such matters. He and his wife moved from their main house to a one floor, 800 square foot in-law apartment on their property to, in part, locate their sons and families nearby in an effort to provide greater ease for their sons to help care for the property. The move was also made to, in part, accommodate a son's family - - "they needed help with the situation they were in." Claimant described his wife as resentful of his limitations, and of his loss of self-sufficiency and newly required reliance upon her, and that these changes have "strained" their relationship.
The following exchange represents Katherine Fabiano's complete testimony concerning the effect claimant's injury has had upon their marital relationship:
"Q. How, if at all, has your marital relationship been affected since the accident, from comparing it before the accident?
A. It's been strained, but, you know, we're married, we'll get through it.
Q. Can you tell us in what way it's been strained? I know it's difficult, but just to the best of your ability?
A. It's just - - it's been hard, that's all."
In light of the paucity of evidence in support of Katherine Fabiano's derivative claim, she is awarded the sum of $10,000 for past loss of services, and $15,000 for future loss of services. SUMMARY
Claimants Mark Fabiano and Katherine Fabiano are awarded damages as set forth below.
Past Medical Expenses: $253,098.17
Future Medical Expenses: $327,200.00
Past Lost Earnings: $295,000.00
Future Lost Earnings: $518,000.00
Past Pain and Suffering: $400,000.00
Future Pain and Suffering: $600,000.00
Katherine Fabiano Past Loss of Services: $10,000.00
Katherine Fabiano Future Loss of Services: $15,000.00
Claimants are awarded past damages totaling $958,098.17 and future damages totaling $1,460,200.00.
Since the amount of future damages exceeds $250,000, a structured judgment is required pursuant to CPLR 5041 (e). The Clerk of the Court of Claims is directed to stay entry of judgment in accordance with this Decision until a hearing is held 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 an order directing judgment 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 the CPLR 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 with regard to collateral source issues and the structured judgment.
All interest calculations shall be determined at such hearing.
Any filing fee paid by claimants shall be recovered pursuant to §11-a (2) of the Court of Claims Act.
All trial motions not previously decided are hereby denied.
March 23, 2016
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims