Opinion
# 2019-029-100 Claim No. 121086
12-23-2019
MARK HAYO v. THE STATE OF NEW YORK
LAW OFFICES OF SCOTT J. KOPLIK By: Scott J. Koplik, Esq. LETITIA JAMES, ATTORNEY GENERAL By: J. Gardner Ryan, Assistant Attorney General
Synopsis
After a trial on damages, the court found claimant is entitled to damages in the total amount of $3,583,703.63, reduced by 50% pursuant to the prior decision on liability, for a total of $1,791,851.82, together with interest. A structured judgment conforming to the requirements of CPLR Article 50-B will be formulated and entered.
Case information
| UID: | 2019-029-100 |
| Claimant(s): | MARK HAYO |
| Claimant short name: | HAYO |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 121086 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | STEPHEN J. MIGNANO |
| Claimant's attorney: | LAW OFFICES OF SCOTT J. KOPLIK By: Scott J. Koplik, Esq. |
| Defendant's attorney: | LETITIA JAMES, ATTORNEY GENERAL By: J. Gardner Ryan, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | December 23, 2019 |
| City: | White Plains |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
By decision filed March 10, 2016 (Scuccimarra, J.), claimant Mark Hayo and defendant State of New York were each found 50% liable for any harm claimant suffered as a result of claimant's accident on January 19, 2011, when ice fell from the roof of Davis Hall, an employee residence at Bedford Hills Correctional Facility ("Bedford Hills"), and struck him on the head. By administrative order dated September 24, 2018, the claim was transferred to this court's individual assignment calendar. This decision relates only to the issue of damages after a three-day trial on April 23-25, 2019, and submission of post-trial memoranda of law.
Claimant testified at trial and called the following six witnesses: David H. Rosenbaum, M.D., a neurology expert; Charles A. Kincaid, Ph.D., a vocational rehabilitation expert; Jason W. Brown, M.D., a neuropsychology expert; Prof. Kristin Kucsma, M.A., an economics expert; Prof. Richard Goodman, a general science, physics and chemistry expert; and Samuel Kim, M.D., claimant's treating neurosurgeon. The State called no witnesses. The following exhibits were admitted on stipulation: Claimant's Exhibits 50-51, 54-65, 76-85, 101, 104, 109-110, 112-114, 116-117, 121-123, and 133-134; State's Exhibit B; and Court Exhibits 1-10. Additional exhibits were admitted during the trial.
Curricula Vitae for claimant's six witnesses were admitted into evidence as Court Exhibits 2-3, 5-6 and 8-9.
At the close of the trial, defendant made an oral application for the court to draw an adverse inference against claimant for failing to call several of his treating physicians as witnesses at trial. The court took the application under submission, expecting that the parties would discuss the issue in their post-trial memos. Claimant did so, but defendant did not, which the court considers an abandonment of the prior application. The court finds that defendant is not entitled to an adverse inference. The witnesses were equally available to defendant to be subpoenaed for trial (see Houlihan Parnes Realtors v Gazivoda, 106 AD2d 550, 550-551 [2d Dept 1984]).
Claimant testified that he was 52 at the time of the accident and employed by the New York State Department of Corrections and Community Supervision ("DOCCS") as the Plant Superintendent for Bedford Hills. He lived in staff housing on site, played golf and fished, rode a motorcycle, traveled, and renovated a home for himself and his wife in the Dominican Republic, where they now live. Claimant described his job duties as Plant Superintendent, which is physically and mentally demanding (4/25/19 T: 401-406). He described what happened when the ice struck him on January 19, 2011:
"[date] T: [#]" refers to the relevant page(s) of the transcript for the specified day of trial.
"As I turned, I had like, an explosion on my head, and I found myself at the bottom of the landing outside the staircase. I believe there's three steps there. I found myself laying on the sidewalk. I had a warm sensation on my face, which when I touched it, I could - my hand was covered with blood. I - in front of me, I could see a block of ice with blood on it. I noticed that there was a railing there. I kind of crawled - it wasn't - I couldn't just grab it, but it was there. I grabbed it, propped myself up.
I entered back into Davis Hall, and just to the left when you enter is a community men's room for people that don't have apartments, don't have their own bathroom, the - individual rooms have a community bathroom. I remember going in there, looking at myself in the mirror, and my scalp was hanging off my head, and I was, you know, bleeding profusely. I took off my shirt, put the scalp back, tied my shirt around there. Then I exited and I started - I knocked on a few doors, and I was yelling for help, I need some help" (4/25/19 T:409-410).
A photograph of the block of ice was admitted as Exh. 72. The ice block was measured as 14 by 10 by 2 inches in size (see 4/24/19 T: 301, 303 [Prof. Goodman]; 4/25/19 T: 416-417 [Hayo]).
Claimant was taken to the emergency room at Northern Westchester Hospital, where it took 18 staples to close the gash in his scalp (see Exh. 110 at NWH00004). He was diagnosed with a five-millimeter subdural hematoma, sent to the ICU, had orthopedic and neurological testing, and was discharged the next evening with pain medication, and referred to his primary care physician Crossley O'Dell, M.D. (id. at NWH000098-000107; 4/25/19 T: 418-421; Exhs. 77-81 [photographs of claimant's head injury]). Dr. O'Dell diagnosed claimant with a subdural hematoma, post-traumatic headache disorder, post-concussion syndrome, neck pain, shoulder pain and balance problems. He classified claimant as totally disabled and unable to return to work (Exh. 112 at WHA000039-000042; 4/25/19 T: 421-422). At a later visit, Dr. O'Dell removed the staples and referred claimant to neurosurgeon Dr. Benzil (4/25/19 T: 422).
Dr. Benzil told claimant he was suffering from stenosis and cervical compression. She recommended physical therapy, and surgery to remove the bone from cervical levels C1 to T1 and install metal rods. After claimant got a second opinion, he cancelled the surgery. He went ahead with physical therapy at her office in Mount Kisco. He also went to see a Dr. Khabie who prescribed physical therapy for his shoulder, which he landed on when he fell after the ice block hit him. Dr. Khabie had done a knee scope on claimant years earlier (id. at 423-426).
The physical therapy gave claimant only temporary relief. His headaches and pain continued. Claimant also had dizziness, electricity "shooting down" through his body, numbness, and problems with balance and forgetfulness. In 2012, he went to see a Dr. Hausknecht, who diagnosed cervical compression, stenosis, spinal cord impingement, post-concussion syndrome and traumatic brain injury. The doctor recommended, and claimant received, epidural steroidal injections in the spine, which did not help (4/25/19 T: 426-427; see Exh. 123 [certified records of neurologist Aric Hausknecht, M.D.]). Dr. Hausknecht referred claimant to Dr. Samuel Kim, who proposed less drastic surgery that did not involve putting rods in his back. Claimant agreed and had the surgery in September 2015. The surgery brought some relief from pain and his movement increased a little. Dr. Kim told him that his spine at cervical levels C5 and C6 would need attention at some point (id. at 428-431). Claimant went back to Dr. Hausknecht, then more recently started treatment with a group at NYU Langone, seeing pain management specialist Dr. Craig Antell, neurologist Dr. Bendo, physiatrist Dr. Shah, and primary care physician Dr. Vetrano (id. at 431-433).
After his March 21, 2013 evaluation of claimant, Dr. Hausknecht noted that claimant reported experiencing neck pain, an electric-like sensation, clicking and cracking in his neck, weak hands, daily headaches, feeling dizzy and off-balance, and difficulty with memory and concentration. On examination, Dr. Hausknecht found, inter alia,"[w]ith a reasonable degree of medical certainty, the injury of 1/19/11 is the substantial cause of his condition" (id. at AH000125-129).
Defendant's objection to testimony about claimant's treatment at NYU Langone was sustained. Claimant had not produced records of that treatment.
Prior to his accident, claimant had not had a concussion or traumatic brain injury, and he had not injured or received medical treatment for his neck or cervical spine. He currently takes Ambien for sleep, Duloxetine for nerve pain in his neck, and ibuprofen for inflammation and pain. After taking Hydrocodone for eight years after his accident, claimant's doctor switched him to Duloxetine because of problems with opioids (id. at 433-435). Claimant is no longer able to work as a Plant Superintendent, to play golf or to fish. He cannot lift more than twenty pounds and no longer has a motorcycle. After fifteen minutes of walking, he must stop because of pain. He has daily headaches, often gets dizzy looking up and down, has to brace himself to avoid falling, uses a walking stick, and has pain when he kneels down, bends, and rotates his neck to look to his side, making driving difficult. Pain inhibits his ability to pursue other activities, such as swimming, snorkeling, raising chickens, grilling and beekeeping. Claimant also has memory and attention deficits, resulting in his forgetting things, like whether he brushed his teeth or put a pot of water on the stove to boil (id. at 436-446).
On cross-examination, claimant testified that he believed he lost consciousness after being hit by the ice. He did not recall falling on his shoulder, or saying at the hospital and telling doctors that he did not lose consciousness. He did not recall Dr. Peretz, Dr. Khabie's associate, treating his neck. Exhibit 133, claimant's certified medical records from Somers Orthopaedic Surgery and Sports Medicine, shows claimant saw Dr. Peretz. A note in the records states that claimant went to 18 of 43 physical therapy sessions, and that the first 12 were helpful but he had little improvement with the next 6. Presented with a report by a neurologist who examined claimant in July 2011 (Exh. 112), claimant testified that Dr. O'Dell referred him to the neurologist, and he had no reason to dispute the written findings in the report, but did not recall the initial evaluation with the doctor (4/25/19 T: 447-459).
The court accepted Dr. David Rosenbaum as an expert in neurology (4/23/19 T: 37). Dr. Rosenbaum reviewed claimant's medical and hospital records from the time of the accident through the doctor's evaluation of claimant on January 16, 2019. Among these records were results from, inter alia, CT scans, MRIs, CT myelograms, EEG/NCVs, and an electroencephalogram. He also reviewed a report by neurologist Dr. Hausknecht, who concluded claimant is totally and permanently disabled, and a neuropsychological evaluation done by Dr. Jason Brown (id. at 147-149; Exh. 25 [1/17/19 Report by Dr. Rosenbaum]).
Over defendant's objection, the court admitted Exhibit 25, Dr. Rosenbaum's Report, subject to weight (4/23/19 T: 58).
Dr. Rosenbaum testified that claimant sustained permanent spinal and traumatic brain injuries from being struck in the head by the ice, with the following effects: post-traumatic headache disorder causing daily headaches; reduced memory, focus, concentration, attention and learning; painful spinal disc herniations at six levels causing pain, limitations in range of motion, movement and turning, and arm weakness, numbness, tingling and loss of sensation (4/23/19 T: 38-48, 51, 57). The neurologist concluded that claimant was unable to return to work as Plant Superintendent at Bedford Hills, he was likely to require additional spinal fusion surgery, he was permanently disabled, and his cognitive function would rapidly decline as he ages (4/23/19 T: 54).
In Dr. Rosenbaum's opinion, to a reasonable degree of medical certainty, claimant's injuries and symptoms were caused by the block of ice striking his head. Claimant was 52 and, like "a hundred percent" of the general population at age 52, had some existing spinal degeneration at the time of the accident. He had not previously undergone treatment for either spinal or traumatic brain injury. His injuries were not caused or exacerbated by a preexisting degenerative spinal condition (4/23/19 T: 39, 42, 44, 46-47, 51, 56, 126-127).
On cross-examination, Dr. Rosenbaum acknowledged that an emergency room note indicates claimant did not lose consciousness. Dr. Rosenbaum also acknowledged that a CT scan showed claimant's hematoma was gone in ten days (4/23/19 T: 60, 63-64). Claimant's March 25, 2011 CT scan and the myelography, showed he had calcium in the ligament between the spinal cord and the bone, which is not unusual in people claimant's age, and some osteophytes (id. at 78-82). The doctor agreed with the conclusion of claimant's initial neurologist, Dr. Benzil, that even though claimant had degenerative change, the trauma "significantly aggravated it" (id. at 74-82; Exh. 114 [Dr. Benzil's report]).
Dr. Rosenbaum explained that claimant has "cervical radiculopathy, documented by EMG testing, as well as his symptoms" (id. at 97), and that radiculopathy comes from an irritation of the nerve roots produced by arthritic change, trauma, or a combination of the two. The doctor did not see that claimant reported sensory loss on the right or left when he was being treated by Dr. Benzil in 2011-2012, but irritation resulting from trauma would not have necessarily been immediate. "The disc herniation [. . .] produces inflammation, and it's an ongoing process" (id. at 97-99). Dr. Rosenbaum based his assumption - that the accident weakened claimant's discs, making them more likely to herniate, "on the fact that he did not have any of these symptoms prior to the accident, and developed them after the accident in a progressive way" (id. at 102). Dr. Rosenbaum acknowledged that claimant has "certain morbidity risks, including obesity and high blood pressure," but his primary physician's records going back to 2010 do not show complaints of headache or neck pain (id. at 120, 125).
Claimant has 80-90% of his movement, with the remainder limited by pain. There is no limitation on the use of his arms, but the paresthesia in his hands creates pain, numbness and tingling, and claimant has dropped things (id. at 120-121).
The court accepted Dr. Jason Brown as an expert in the field of neuropsychology. Dr. Brown testified that Dr. Hausknecht referred claimant to him. On July 14, 2016, he performed a series of neurocognitive testing on claimant. In Dr. Brown's opinion, claimant has cognitive deficits from a traumatic brain injury proximately caused by the ice hitting his head on July 19, 2011, his deficits are unlikely to improve with time or medical treatment, and he is permanently disabled (4/24/19 T: 208, 216; Exh. 16 [neuropsychological evaluation]). He testified that claimant's major problems are with memory and attention, and his cognitive deficits are consistent with a frontal lobe injury. Claimant's limitations include poor focus, memory, attention and concentration, resulting in his inability to perform tasks at work and potentially dangerous activities like driving (4/24/19 T: 208-225).
On cross-examination, defendant asked Dr. Brown about notes created by claimant's primary care physician Dr. O'Dell on several dates in 2011 and 2012 after the accident, that claimant's memory was "intact" (Exh. 112 [Dr. O'Dell's notes] at WHA000043; 4/24/19 T: 225, 230, 238, 241-242). Dr. Brown testified that Dr. O'Dell did not do any memory or cognitive testing, and he created his notes on an electronic template with an auto-fill function that caused inconsistencies. For example, the notes made about claimant's office visit on June 29, 2012 include, in the same paragraph, inconsistent statements that "[t]he patient presents for insomnia," and "[t]he patient denies [. . .] difficulty initiating sleep, difficulty maintaining sleep" (id. at 224-225); Exh. 112 at WHA000070).
On redirect examination, claimant referred to Dr. O'Dell's notes after claimant's October 26, 2012 office visit (Exh. 112 at WHA000074). Those notes state, in part: "Update on injury[.] Symptoms are the same DISSINESS, Balance, Memory[.] Seen by MD in the DOMINICAN REPUBLIC for pain control" (emphasis and spelling included). On re-cross-examination, defendant pointed out that "intact" appears after "Memory:" in the same set of notes (id. at WHA000075).
The court accepted neurosurgeon Samuel Kim, M.D. as a treating physician. Dr. Kim described the discectomy and fusion surgery he performed on claimant on September 14, 2015. Claimant had a large herniated disc at level C6-C7 of his cervical spine. During the surgery, he removed the disc and replaced it with a "spacer" held in place by titanium screws. The goal of the surgery was to alleviate claimant's "symptoms of pain, weakness, numbness and tingling" (4/25/19 T: 367). In the doctor's opinion, to a reasonable degree of medical certainty, the block of ice that fell and hit claimant was the "precipitating event" for his injuries. Dr. Kim testified that the surgery was successful. He last saw claimant in April 2019 before the trial. Although claimant would have "some physical restrictions for his activity," his pain was "dramatically improved," the function in his hands was improved and he was "able to walk effectively." In light of claimant's age, the doctor said it was likely that claimant will need some surgery in the future (4/25/19 T: 341-357; Exh. 116 [Weill-Cornell medical records]).
On cross-examination, Dr. Kim acknowledged that Percocet, which he had prescribed for claimant, has effects on the cognitive and psychiatric abilities of the patient. At some point he stopped prescribing Percocet as it is a narcotic and can become addictive. The doctor also testified that the accident aggravated and worsened claimant's existing degenerative changes at other disc levels in the cervical spine (4/25/19 T: 356-358, 367).
The court accepted Charles Kincaid, Ph.D. as an expert in the field of vocational rehabilitation. Dr. Kincaid interviewed claimant and administered a vocational test to him. In Dr. Kincaid's opinion, to a reasonable degree of medical certainty, claimant is not employable, in his prior capacity as Plant Superintendent at Bedford Hills. The witness explained that, "Based on his - his significant functional limitations, and according to his doctor, his treating doctor, Dr. Hausknecht, and [. . .] his condition was permanent, it was unlikely to improve, that because of the nature of his limitations, that he would be unable to sustain work of a competitive nature in his local labor market" (4/23/19 T: 143; Exh. 32 [Dr. Kincaid's report]). Dr. Kincaid also concluded that claimant would not be a candidate for vocational rehabilitation because of his "advanced vocational age," and his "ongoing condition" (id. at 144). "[B]ased on the nature of his injuries and his ongoing permanent condition, his earning capacity, in my opinion, is eliminated" (id. at 145). Dr. Kincaid found that in 2009 claimant earned $92,304 as a Plant Superintendent at Bedford Hills, and in 2010 he earned $91,125 (id. at 144).
The court accepted Professor Kristin Kucsma, M.A. as an expert in the field of Economics. Prof. Kucsma is the chief economist and managing director of the Sobel Tinari Economics Group. In formulating her opinion, she reviewed claimant's tax returns, his retirement plan and documents related to his pension benefits, the vocational report by Dr. Kincaid, and a completed fact-finding questionnaire. She also consulted sources and used a methodology considered to be professionally reliable by experts in her field (4/24/19 T: 243-247). In her opinion, to a reasonable degree of economic certainty, the total value of claimant's economic loss is $935,327 (id. at 261-264), comprised of three components:
Value of Loss Component of Analysis
$491,895 adjusted earnings in past years
$341,126 adjusted earnings in future years
$102,306 pension income
The professor described her analysis in detail. In general, claimant's adjusted earnings in past years was determined by calculating his pre-injury earnings base ($89,343), taking reductions from that amount for work-life adjustment, unemployment benefits, and job maintenance expenses, and then calculating what he would have earned "had he continued his employment through the present time" (4/24/19 T: 251-261; Exh. 11 at 3-4 [excerpted tables and charts from updated appraisal]).
Claimant's adjusted earnings in future years was calculated by determining his statistical date for retirement, if not for his injuries, to be September 6, 2023 (64.9 years old), and then using his pre-injury earnings base to calculate what he would have earned if he "had been able to continue working from the present time through his statistical date of retirement" (4/24/19 T: 256; Exh. 11 at 5).
Claimant's economic loss due to reduced pension benefits was calculated by determining the annual pension benefit he would have been entitled to receive from his statistical date of retirement ($53,334), continued until his statistical date of death of December 13, 2038 (4/24/19 T: 258-259; Exh. 11 at 6-7).
On cross-examination, the professor acknowledged that she had not considered collateral sources, such as disability and social security benefits. Claimant's counsel objected to the line of questioning as collateral sources of income are addressed in a post-trial hearing under CPLR 45. He agreed that the parties understood they would "adduce the evidence" of collateral sources at the trial, but "address it in the post-trial brief" (4/24/19 T: 266-267). Prof. Kucsma testified that if the court were to apply social security and disability benefits as an offset, a "full analysis" would be required to consider that claimant's social security benefits would have been higher if he had continued working through his statistical date of retirement (id. at 268-269).
The court admitted two defense exhibits, a Plant Superintendent Job Description (Exh. B), and a September 21, 2011 letter to claimant from The Hartford notifying him that his claim for long-term disability benefits had been approved (Exh. C).
Claimant has the burden to show that the accident was a substantial factor in bringing about the injuries he suffered. The court finds that claimant met his burden. He presented testimony by medical experts who opined that he sustained permanent spinal and traumatic brain injuries resulting from his being struck in the head by falling ice, with the following effects: post-traumatic headache disorder; reduced memory, focus, concentration, attention and learning; spinal disc herniations at six levels causing pain, limitations in range of motion, movement and turning, and arm weakness, numbness, tingling and loss of sensation. Drs. Rosenbaum and Brown are highly trained professionals in their respective fields of neurology and neuropsychology who have previously testified as experts. They reviewed documents, reports and records claimant submitted as evidence, and examined claimant. The court found them both to be credible, persuasive witnesses, and their testimony to be well supported by the evidence. In the absence of any State expert to the contrary, the court has no option but to accept the testimony of these doctors, and to reject defendant's argument that claimant's injuries are the result of his pre-existing degenerative changes (see Mihalko v Regnaiere, 36 AD3d 983 [3d Dept 2007] [prior injury aggravated by subsequent injury not preclude recovery]).
With respect to pain and suffering, any award for such injuries "is inherently a subjective inquiry, not subject to precise quantification, and generally presents a question of fact" (Leto v Amrex Chem. Co., Inc., 85 AD3d 1509, 1511 [3d Dept 2011]). "[F]actors 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," including the effect on the capacity to enjoy life, engage in daily tasks and/or activities that once brought pleasure, as well as any loss of self-esteem (Nolan v Union Coll. Trust of Schenectady, N.Y., 51 AD3d 1253, 1256 [3d Dept 2008], lv denied 11 NY3d 705 [2008]; see Ciuffo v Mowery Constr., Inc., 107 AD3d 1195, 1197 [3d Dept 2013]; Garrison v Lapine, 72 AD3d 1441, 1443 [3d Dept 2010]).
An award for injury must fall within a range that does not "deviate [] materially from what would be reasonable compensation," which range may be determined by reference to similar cases in which damages were awarded (see Osiecki v Olympic Regional Dev. Auth., 256 AD2d 998, 999-1000 [3d Dept 1998]; CPLR 5501 [c]). An award also may include an amount for a claimant's economic damages. "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]).
Claimant presented evidence that his accident resulted in his experiencing substantial pain. The accident was traumatic, resulting in a concussion and his scalp was lacerated requiring 18 staples. The pain from multiple herniated discs, headaches, and the additional problems claimant experienced resulted in his being prescribed several medications, opioids for eight years, several rounds of physical therapy, and spinal surgery in 2015. Claimant requests a total of $1,750,000 for past and future pain and suffering due to his debilitating spinal injuries, and an equal amount due to his traumatic brain injury.
Claimant cited to several verdicts awarding seven figure damages awards for spinal injuries with herniations requiring discectomy and fusion surgery and potential future surgery. One is particularly applicable to the circumstances here. In Nayberg v Nassau County, 149 AD3d 761 (2d Dept 2017), the Second Department affirmed a $1,600,000 pain and suffering award to a plaintiff who was 50% liable, had undergone similar surgery to claimant's at the same C6-C7 level, and was likely to need additional surgery. The award was split $600,000 for past pain and suffering, and $1,000,000 for future pain and suffering. As reported in the Judicial Review of Damages (27 JRD 3), the plaintiff was 54 when injured. Claimant cites to additional verdicts and published decisions that incline the court to award claimant with a similar amount. One case in particular indicates that the amount in Nayberg is an appropriate starting point. In Dacaj v New York City Tr. Auth., 170 AD3d 561 (1st Dept 2019), the First Department reduced a $2,200,000 pain and suffering award to $1,675,000 over 10 years for a 69 year old plaintiff with several herniated discs resulting from a slip and fall who required spinal surgery.
Here, claimant's injuries are permanent, he was 52 when injured eight years ago and is projected to live until 2038. The court takes into consideration the testimony of his neurosurgeon Dr. Kim, who stated that claimant's pain and paresthesia were reduced by the surgery. The court also notes that the evidence shows claimant is morbidly obese, which likely exacerbates his condition. Based on the evidence and the comparable verdicts claimant has provided, the court finds that claimant is entitled to a gross award of $600,000 for past pain and suffering and $1,000,000 for future pain and suffering due to his spinal injuries.
The traumatic brain injury is more problematic. The neuropsychiatric opinion of claimant's expert Dr. Brown was not based on any cognitive testing done prior to the accident, and there was no consideration of the possible cognitive effects of the hydrocodone and other narcotics claimant took for the eight years following the accident. Dr. Kim testified that Percocet, a narcotic, that claimant was prescribed, affects cognitive and psychiatric abilities. Claimant had only been taken off of narcotic pain medication shortly before trial. Nevertheless, defendant did not provide any expert testimony to refute Dr. Brown. The court accepts Dr. Brown's expert opinion that claimant will continue to suffer with cognitive defects, post-concussion syndrome, headaches, balance problems, dizziness, and more.
Claimant cites to several verdicts and cases in which total pain and suffering awards for spinal injuries, cognitive defects and post-concussion problems have resulted from the same accident. The total pain and suffering award for Dorothy Lemon included $1,500,000 in past pain and suffering and $2,000,000 in future pain and suffering over 10 years (Coleman v New York City Tr. Auth., 134 AD3d 427 [1st Dept 2015]); $2,700,000 for future pain and suffering over 37 years and $600,000 for past pain and suffering for police officer (Andino v Mills, 135 AD3d 407 [1st Dept 2016], affirmed in part and modified in part 31 NY3d 553 [2018]); and $1,000,000 for future pain and suffering over 10 years and $500,000 for past pain and suffering for a 72 year old (Castillo v MTA Bus Co., 163 AD3d 620 [2d Dept 2018]). Unlike the plaintiff in Castillo, claimant's spinal injuries required surgery, and are likely to require a second surgery, and claimant was 52, not 72 when he was injured. An additional $1,000,000 in damages for the pain and suffering due to claimant's brain injury is appropriate, which is $400,000 for past pain and suffering and $600,000 for future pain and suffering.
Turning to claimant's economic loss, the court found claimant's expert economist Prof. Kucsma and vocational expert Dr. Kincaid credible and their testimony well supported, and defendant did not provide expert testimony to counter their opinions. Therefore, the court finds economic loss of $935,327, the amount calculated by Prof. Kucsma based on Dr. Kincaid's opinion that claimant is permanently disabled and not employable.
The only remaining economic loss issue is whether the State is entitled to an offset for claimant's private long-term disability insurance or for his social security disability payments. The court notes that although defendant's counsel acknowledged on the record at trial that the issue would be briefed in the parties' post-trial memoranda, there is no discussion of the issue in defendant's memorandum. Although the court could infer that defendant has abandoned the issue, the court will address it briefly as claimant has briefed it, and there was some evidence of monies claimant received as long-term and social security disability benefits.
CPLR 4545(a) provides, in relevant part, that: "In any action brought to recover damages for personal injury, [. . .] where the plaintiff seeks to recover for the cost of medical care, dental care, custodial care or rehabilitation services, loss of earnings or other economic loss, evidence shall be admissible for consideration by the court to establish that any such past or future cost or expense was or will, with reasonable certainty, be replaced or indemnified, in whole or in part, from any collateral source, except for life insurance and those payments as to which there is a statutory right of reimbursement." For a defendant to be entitled to an offset, there must be "a direct correspondence between the item of loss and the type of collateral reimbursement" (Oden v Chemung County Indus. Dev. Agency, 87 NY2d 81, 86 [1995]). It is defendant's burden to show it is entitled to an offset (id. at 89).
Although at trial defense counsel referred to several years of claimant's tax returns admitted as exhibits (Exhs. 56-61), defendant has not provided the court with any specific amounts of disability payments listed on those returns, calculated total amounts paid, or made any argument as to a "direct correspondence" between those payments and an item of loss included in the economic loss calculated by Prof. Kucsma. Indeed, social security disability payments are likely payments "as to which there is a statutory right of reimbursement" and thus excluded under CPLR 4545.
The second category concerns payments under a private long-term disability insurance policy claimant acknowledges he purchased from The Hartford. Defense Exh. C is a letter from The Hartford informing claimant of the amounts he would receive after his claim was accepted. The parties agreed that The Hartford stopped making payments in November 2013, but defendant did not submit any evidence of the amounts claimant actually received, or of the reason why The Hartford stopped (see 4/25/19 T: 486-489). Defendant has simply failed to carry its burden under CPLR 4545.
Finally, the court agrees with claimant that he is entitled to recover for statutory liens in the amounts of $125.04 due to CMS/Medicare and $44,631.84 due to Optum/United Healthcare, which defendant concedes. The court also finds that he is entitled to recover for the contractual lien in the amount of $3,619.75 due to his treating neurologist Aric Hausknecht, M.D. (see Bernadette Panzella, P.C. v DeSantis, 36 AD3d 734, 735 [2d Dept 2007] [sanctioning plaintiff's counsel for not repaying medical lien from proceeds of personal injury case]).
Upon review of all the evidence, including listening to the witnesses testify and observing their demeanor as they did so, the court finds that claimant is entitled to damages in the total amount of $3,583,703.63, reduced by 50% pursuant to the prior liability decision, for a total amount of $1,791,851.82 as follows:
$467,663.50 (50% of $935,327) for past and future economic loss due to his total and permanent work disability ($245,947.50 for past loss of earnings, $170,563 for future loss of earnings, and $51,153 loss of pension income).
$800,000 (50% of $1,600,000) for past and future pain and suffering due to spinal injuries ($300,000 for past pain and suffering and $500,000 for future pain and suffering).
$500,000 (50% of $1,000,000) for past and future pain and suffering for brain injury ($200,000 for past pain and suffering and $300,000 for future pain and suffering).
$24,188.32 (50% $48,376.63) to repay medical liens.
Accordingly, the court finds that the claimant has suffered damages resulting from the accident of January 19, 2011 and is entitled to a total amount of $1,791,851.82, together with interest from February 11, 2016, the date of the Court's decision establishing liability. In addition, to the extent claimant has paid a filing fee, claimant is entitled to reimbursement of the amount paid.
Since the amount of future damages exceeds $250,000, a structured judgment is required pursuant to CPLR 5041(e). Accordingly, the Clerk of the Court is directed to stay the entry of judgment in accordance with this decision until a hearing is held pursuant to CPLR Article 50-B. The court will contact the parties to schedule said hearing. For the purposes of CPLR Article 50-B, the court encourages the parties to agree upon the attorneys fee calculation and 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 120 days of the filing date of this decision.
All motions made at trial and not heretofore ruled upon are hereby denied.
December 23, 2019
White Plains, New York
STEPHEN J. MIGNANO
Judge of the Court of Claims