Opinion
Claim No. 136554
10-24-2024
Bella Reyes, Claimant, v. The State of New York, Defendant.
For Claimant: Gabriel Law Firm, PC By: Patrick J. Garvey, Esq. For Defendant: Hon. Letitia James, Attorney General of the State of New York By: Phillip J. Dillon, Esq., Assistant Attorney General and Hussein Mohamed, Esq., Assistant Attorney General
Unpublished Opinion
For Claimant: Gabriel Law Firm, PC
By: Patrick J. Garvey, Esq.
For Defendant: Hon. Letitia James, Attorney General of the State of New York
By: Phillip J. Dillon, Esq., Assistant Attorney General and Hussein Mohamed, Esq., Assistant Attorney General
Javier E. Vargas, J.
This Court, having presided over the instant trial on April 3-5, 2024, heard the testifying witnesses, examined the pleadings and exhibits in evidence, listened to the arguments raised by counsel during trial, and perused the post-trial memoranda of law, hereby makes the following findings of fact and conclusions of law.
I.
By Claim filed July 6, 2021, the claimant, Bella Reyes (hereinafter "claimant"), commenced the instant action against the defendant, State of New York (hereinafter "State"), to recover damages for personal injuries allegedly sustained, as a pedestrian, from a motor vehicle accident involving a driver employed by the New York State Department of Corrections and Community Supervision (hereinafter "DOCCS") on April 23, 2021. The DOCCS vehicle negligently came into contact with the claimant's person on Jamaica Avenue at its intersection with 163rd Street in Queens County. Claimant allegedly sustained serious injuries to her cervical spine, lumbar spine, left knee, left ankle and left shoulder as a result of the accident. The Claim was bifurcated for trial on the questions of liability and damages. This Court held the liability portion of the trial on October 19, 2023, and issued an Order Directing Judgment (Vargas, J.) of same date, finding the State 100% liable for the accident, attributing no comparative fault to the claimant. The Court repeatedly encouraged a settlement between the parties, unsuccessfully.
From April 3rd through April 5th, 2024, an in-person trial was held on the issues of serious injury (Insurance Law § 5102[d]), and damages. The claimant testified as to her personal injuries, medical treatments, and related surgeries as well as their impact on her life and called one expert witness to support her claim for damages: Dr. Jerry Lubliner, a board-certified orthopedic surgeon. To support its argument that the claimant failed to establish both serious injury and a causal nexus to the accident, the State called the following witnesses: Dr. Devon A. Klein, a radiologist, and Dr. Jeffrey Dermksian, a board-certified orthopedic surgeon, who conducted an Independent Medical Exam (hereinafter "IME") of the claimant. During the trial, the following exhibits were entered into evidence, on consent: claimant's exhibits 1-15, 17 and 19-23, and State's Exhibits A-C.
II.
The trial began on April 3, 2024, with the testimony of claimant, a 47-year-old woman, who, through a Court interpreter, testified that she has a high school diploma and some college credits from her native Ecuador, and lived in Queens County but eventually moved to Newark, New Jersey, where she worked in a factory "packing makeup" and then as a housekeeper for two years prior to the accident (see Transcript ["Tr."] 4/3/24 at 29-30, 62). As a housekeeper, she testified that her duties included dusting, sweeping, mopping, vacuuming, and cleaning kitchen cabinets and bathrooms, where she would get on her hands and knees to clean (see id. at 31). She has three children, the youngest is 17, the middle child is 23, and the oldest, 26 (see id. at 34-35). On April 23, 2021, the claimant was involved in the subject accident where she was struck by a vehicle, as a pedestrian, on her left hip and knee causing her to fall to the ground (see id. at 34-35, 66, 157-158). She has not gone back to work since the accident, and testified that her husband's construction job is now their only source of income (see id. at 33-34).
At the time of the accident, claimant's neck, head, shoulder, hip, knee, ankle, and left elbow, which was covered with debris from the road, hurt her most (see id. at 37-38). An ambulance arrived shortly after she was struck, a collar was placed on her neck, and she was helped onto a stretcher from where she was sitting at the curb because "the pain in [her] body was unbearable" (id. at 36-37). She was then taken to the emergency room at Jamaica Hospital Medical Center for treatment, where she claimed she attempted to communicate that her head, neck, shoulder, left hip, left knee and left ankle hurt, but stated that the individual she was speaking to only understood a little bit of Spanish (see id. at 38-39). "My shoulders my entire upper back, my lower back hurt. In fact, my body was in shreds" (id. at 39). The emergency room report states that the claimant "was crossing the street when she was hit by a car turning her way, she was hit on the left side of her hip, and she fell down" (Exh. 1 at 12). Said report further evidences that she complained about pain in her head, neck, and right shoulder, and that she had an abrasion on her left elbow (see id.).
The claimant testified that she was given an x-ray to see if she had sustained any fractures (Tr. 4/3/24 at 40), and had never received any sort of x-ray, a Magnetic Resonance Imaging test ("MRI"), or CT Scan prior to this accident (see id. at 41). None of the x-rays or CT Scans indicated severe trauma or broken bones, but the cervical spine CT scan demonstrated the presence of degenerative disc disease at the C6/C7 cervical spine (see Exh. 1, at 20). She was released from the emergency room at around 7:00 p.m. that night and given a prescription for Tylenol to fill at her pharmacy (see Tr. 4/3/24 at 40,42).
The claimant then testified that, after a few days, her pain had not subsided, and the prescribed medication was not helping, so she sought additional care (see id. at 44), on the advice of counsel. On April 26, 2021, she met with Dr. Arkadiy Shusterman, an orthopedist, at Englington Medical, where she complained of lower back, neck, head, left shoulder, left knee, and left ankle pain (see id. at 45-46). She stated that she never told anyone at this facility she had prior injuries (see id. at 64). Dr. Shusterman asked her to move her neck, lift her arms, bend forward and backwards, kneel, and squat down, and that she complained about these movements causing her "a lot of pain" (id. at 47). He prescribed physical therapy, chiropractic care, and acupuncture three times a week, which the claimant testified to attending more than 50 total sessions (see id at 48, 53). However, these treatments only made her feel worse, especially those that made her lift and lower her arms, and she eventually told them she did not want to do certain exercises anymore (see id. at 51-52). Furthermore, she always left her chiropractic appointments with headaches (see id. at 52).
The claimant further testified that Dr. Shusterman prescribed MRIs and referred her for additional tests involving needles to her back, neck, left knee and her lower back (see id. at 53-54, 56), known as Nerve Conduction Velocity or NCV tests. Relevantly, the record reflects that the MRI from Dynamic Medical Imaging of her left knee was taken on June 18, 2021, and reveals "joint effusion, soft tissue edema, sprain of the medial collateral ligament, and [a] tearing of the posterior horn and body of the medial meniscus. The lateral meniscus is intact" (Exh. 3). With respect to her left shoulder, the MRI report of July 2, 2021, indicated a "[m]arrow edema [or swelling] from a bone contusion involving the distal clavicle. Fluid within the acromioclavicular joint. Findings which may cause impingement" as well as "partial thickness tearing of the supraspinatus tendon" in the shoulder (id.). The MRI of her left ankle, that same day, showed "tearing of the anterior talo-fibular ligament with fluid in the area of tendon defect" (id.). Notably, the MRI of her cervical and lumbar spine, conducted on July 15, 2021, found "no compression fracture or destructive changes," but shows several posterior disc bulges on C3/C4 and C5/C6 discs impinging upon the thecal sac, central disc herniations in the cervical spine at the C4/C5 and C6/C7 discs impinging upon the spinal cord and nerve root, and bulging discs in the lumbar spine at L4/L5 and "L5/S1 disc level, impinging upon [the] anterior thecal sac" and epidural space, respectively (id.).
As a result of these findings, Dr. Shusterman suggested to the claimant that she should have surgery to the knee, and he referred her to Dr. Randall Ehrlich to be treated for the pain in her left knee at his OrthoCare Surgical clinic (see Tr. 4/3/24 at 68-69). He also referred her for treatment with Dr. Michael Gerling, spinal cord specialist due to the pain, bulges and herniations in her neck, upper and lower back (see id. at 68, 82). Claimant stopped going to Dr. Shusterman at Englington Medical in December 2021, because her insurance no longer covered the treatments (see id. at 63-64).
She then saw Dr. Ehrlich, an orthopedist, on July 1, 2021, where she complained of pain to her left ankle, left hip and left knee, which was "crackling" and "wanted to become dislocated" (id. at 69-70). The claimant testified again that she had never stated to anyone at this facility that she had ever been previously injured (see id. at 70). She relayed to Dr. Ehrlich that her ability to kneel, squat or walk was limited to "at-most three blocks," and the more she would walk the more it felt like her leg locked up (id. at 70-71). The record reflects that Dr. Ehrlich recommended undergoing an arthroscopic procedure on her left knee (see id. at 58; Exh. 4 at 4), but claimant sought a second opinion prior to agreeing to that procedure (see Tr. 4/3/24 at 73), and met with Dr. Andrew Miller, an orthopedic surgeon, at Linden Orthopaedics on July 18, 2022. Dr. Miller tried to bend her knee, have her kneel, and bend forward at the waist, but she claimed that this exam was painful and felt impossible (see id. at 74, 77). The record reflects that the claimant underwent a "diagnostic arthroscopy, resection of medial plica [and] saucerization of a lateral meniscus" in her left knee, which was performed by Dr. Miller on July 22, 2022, and released the same day (see id. at 79 ; Exh. 8, 9). She was prescribed Oxycodone for the pain, which she took for a few days, but the side effects were too strong (see id. at 80-81). While the claimant testified that the knee surgery did not help her at all, the report from her follow up appointment with Dr. Miller, on August 21, 2022, indicated that she was only suffering from mild knee pain at that time (see Tr. 4/3/24 at 79; Exh. 8).
According to the claimant's testimony, she also met with Dr. Gerling, an orthopedic surgeon in Manhattan on August 17, 2021, where she discussed the pain in her neck, her upper and lower back, and left shoulder (see Tr. 4/3/24 at 81-83). She complained that the pain in her neck affected her head, preventing her from turning her head and moving her neck and performing certain activities (see id. at 86-88). Dr. Gerling conducted a physical exam where he asked her to move her neck from side to side and forward to back, to lift her arms, and to hinge at the waist, which movements caused her pain (see id. at 89). Claimant further testified that Dr. Gerling sent her for more MRIs of her neck (see id. at 88), which were performed on April 12, 2022, and again showed bulges at the C3/C4 and C5/6 and herniations at C4/C5 and C6/C7 (see Exh. 5).
Prior to any surgery, the claimant stated she received four injections in her neck at Pain Physicians NY beginning in August 2021, and those injections were painful to endure (see Tr. 4/3/24 at 106-107, 109, 110). She claimed that she didn't feel any relief, not even momentarily, from these injections, and developed high blood sugar because of them (see id. at 112). On April 13, 2022, claimant underwent neck surgery at Hudson Regional Hospital in New Jersey (see id. at 91). At that time, Dr. Gerling performed fusion discectomy surgery, where he removed some discs from her neck, placed three screws, and she was released from the hospital the same day (see id. at 90-92). Dr. Gerling again prescribed oxycodone, as well as pregabalin, for the pain but she did not take them to completion because of the "ugly" side effects (see id. at 94-95, 151-152). He recommended that she continue physical therapy, which she did at Synergy SpineCare and Rehabilitation Medicine in New Jersey in September 2022 (see id. at 114), but she complained that she was still experiencing pain as well as numbness and tingling in her neck, arms and legs (see id. at 95).
Afterwards, the claimant went on to testify that she received treatment from Dr. Guatam Khakhar twice for her neck, upper back, lower back, left knee, and left hip (see id. at 120-121). While she claims that she never told anyone in his office that she had been hurt in a prior accident, the record reflects that his report vaguely notes a prior work injury that was asymptomatic at the time of the accident (see id. at 121; Exh. 11 at 2). She also testified about her appointments with Dr. Jerry Lubliner where she also complained of pain in her neck, upper and lower back, left hip and knee (see id. at 125). Each of these doctors made her perform physical exams and that she testified to experiencing a lot of pain during the exams (see id. at 47, 126, 181, 183). As with all the other appointments, she claims that she never indicated to Dr. Lubliner she had been in a prior accident or suffered a prior injury (see id. at 183).
The claimant's testimony then turned to damages, and she testified that she can "no longer work, do household chores [or] take care of [her] youngest child" (id. at 112, 123, 129). She stated that she has trouble walking long distances and using stairs because of the pain in her knee, that she uses a cane and that the members of her family must do the shopping or assist her (see id. at 80). Also, she noted that the pain in her hip and knee causes her to lose sleep (see id). Claimant explained that she still feels numbness and tingling in her arms, legs, and fingers that disrupt her sleep (see id. at 96). She can turn her neck slightly and slowly, but if she moves too fast, she experiences a lot of pain (id.). Still, she has trouble bathing because she cannot raise her arm, and it hurts to sit or stand for prolonged periods (see id. at 126, 130-131).
Prior to the accident, she would go out and socialize, do chores, go for walks, and go to the park, but now she "lives with myself" as she just stays home due to the pain (id. at 127). She claims to be only able to walk about one block without a cane, and she is always limping (see id. at 130). The claimant stated that she has a new grandchild and a one and a half year old niece, but she cannot carry or play with them due to her injuries (see id. at 127, 132). Although doctors have recommended another surgery to alleviate the disc issue in her lower back, she testified that she cannot afford to have that surgery (see id. at 116; Exh. 6). Thereafter, the State stipulated that the claimant's medical liens totaled $112,249.00, including one U.S. Claims loan for her neck surgery of $38,700 that she took out at a 32% interest, and now amounts to $76,985 (see Tr. 4/3/24 at 141-143).
On cross-examination, the State brought up several issues as to Claimant's credibility including her statement that the injections caused her to experience high blood sugar (see id. at 147). The State further pointed to medical records where she alerted several of her doctors to a previous Type II diabetes diagnosis; however, the claimant adamantly testified at trial that her diabetes diagnosis was only "gestational" in nature and had resolved itself "one or two months" after her pregnancy (id. at 147-148; Exh. 2 at 56; Exh. 6 at 2). Notably, the records show that she told doctors at Englington that she had a family history of diabetes, and that her mother had died because of the disease; however, the claimant railed against this notion, testifying that her mother was alive and did not have diabetes (see Tr. 4/3/24 at 150). The State queried claimant regarding several further inconsistencies between claimant's medical records and her testimony: how she testified to swelling in her knee that was never recorded in the Englington records; that she complained to EMS about her head, neck, shoulders, upper and lower back, and hip, even though the Police Accident Report only identifies "minor injuries to head, left forearm and left side of hip" (Exh. 14; Exh. 1 at 4); and that she claimed she could not extend her leg fully but the report from Englington medical said that she could (see Tr. 4/3/24 at 168-171; Tr. 4/4/24 at 180, 182, 187; Exh. 2 at 6, 10). The claimant reiterated her disagreement with the medical reports, claiming that they must be wrong (see Tr. 4/3/24 at 166, 171; Tr. 4/4/24 at 180, 181, 187). Claimant could not recall further inconsistencies in her testimony that the individual she spoke to at the emergency room only spoke a little Spanish, which was inconsistent with the report stating the VOYCE interpretation system was used to communicate with her (see Tr. 4/3/24 at 163, Exh. 1 at 5).
The State's cross-examination concluded on the morning of April 4, 2024. When queried that two months after the surgery, medical reports confirmed that she could fully extend her knee and that no swelling was present, the claimant again disagreed with the report (see Tr. 4/4/24 at 179-180). Although claimant testified that her son-in-law drove her to a deposition on June 23, 2022, she could not recall the statements she made at the deposition: that she drove herself one hour to the attorney's office in Long Island from New Jersey (see Tr. 4/4/24 at 194-196, 208; Exh. A at 5-6). For the last two years, the claimant further admitted to driving on the highway to get her son to and from school twice a day and turning her neck to use her mirrors to safely change lanes and get out of parking spaces (see Tr. 4/3/24 at 45; Tr. 4/4/24 at 196-198). When queried as to how she arrived to Court for the trial, claimant testified that she arrived via her husband and that he was in the car (see Tr. 4/4/24. at 199). She also admitted to only going to Synergy for physical therapy once, even though the prescription was for twelve sessions, because "there was a lot of traffic... That was the main reason" (id. at 200-201, 209, 217). Finally, the claimant acknowledged that, although she stated she could not have lumbar surgery due to lack of insurance, she previously took out a loan to cover her neck surgery and could have done so for this surgery (see id. at 201)
On redirect, the claimant attempted to clarify several issues. She claimed that her pain varies day to day and is influenced by several factors, including the weather (id. at 207, 209). Furthermore, she stated that the ease of getting a loan was not the issue for her, it was that the interest rates were so high, she was worried she would never pay off the debt (see id. at 210). She also testified that she has exercise machines and routines that she completes at home (see id. at 209). When pressed on re-cross as to whether she could find physical therapy providers closer to her home, claimant stated that she had but they were unaffordable (see id. at 217). When asked by this Court for further clarification, she stated that her insurance lapsed six months prior to trial, and even when she had it, it did not cover physical therapy or pain management (id. at 223-224). Claimant was also adamant that the pain she was experiencing had nothing to do with diabetic pain (see id. at 222) or neuropathy.
The claimant's next witness was Dr. Jerry Lubliner, a board-certified orthopedic surgeon, who has been practicing medicine for 35 years and examined the claimant as a medical expert twice: on March 28, 2023, and on January 24, 2024 (see id. at 226-227, 229). He recalled that claimant told him that she was struck by a motor vehicle as a pedestrian, which caused her to fall over injuring her neck, right shoulder, left upper extremity, right hip, lower back, left knee, and left ankle (see id. at 231-232). Dr. Lubliner confirmed that the claimant never disclosed incurring any other injury prior to the accident (see id. at 232-233). He testified that he performs all physical exams himself and that he measured the claimant's gait, checked related extremities, determined range of motion, and checked for radiculopathy - or a pinched nerve - in the claimant's back (id. at 233-234). During these physical exams, the doctor stated that he moves the patient's limbs himself, so he tells every patient that these exams should not hurt, and if they do hurt, to tell him and he will stop the motion (id. at 234). At the first exam, the claimant had 20 degrees of motion on all planes of her neck, while the normal range of motion is 40 degrees of both flexion and extension, 60 degrees of lateral flexion, and 80 of lateral rotation (see id. at 235-236). This mattered to the doctor because if range of motion issues are occurring more than a year after surgery, then they are "permanent deficiencies or permanent impairment" (id. at 237). According to Dr. Lubliner's report, the claimant was experiencing involuntary spasms at the limit of extension; however, he also stated that she had a negative Spurling test, which indicated she was not experiencing cervical radiculopathy (see id. at 236, 246; Exh. 12).
Moving to the lower back, Dr. Lubliner testified that, although the claimant did not present at the emergency room with back pain directly after the accident, she did note back pain that radiated down her legs when she saw Dr. Shusterman three days later (see Tr. 4/4/24 at 237). He noted that her range of motion in the back was 40 degrees for forward flexion (whereas 80 is normal), 40 degrees for extension (normal), 40 degrees for lateral flexion (60 is normal), and 40 degrees for lateral rotation (80 is normal) (see id. at 238). Dr. Lubliner also performed a straight leg raising test, which was positive for sciatica on both sides, indicating radiculopathy (see id. at 238).
Regarding the claimant's left knee, Dr. Lubliner testified that his first physical exam demonstrated a loss of range of motion, along with "swelling, weakness,...[thigh] atrophy, and pain" (id. at 242-243). He testified that these findings were "objectively consistent positive findings to confirm her complaints of [knee] pain" (id. at 243). Furthermore, he performed all these tests again in January 2024, and the claimant appeared worse while also complaining of pain and numbness in her left arm and with 10 degrees less motion in her knee (see id. at 244).
Dr. Lubliner also testified that he reviewed the findings of the NCV tests the claimant received at Englington Medical on July 8, 2021, for the cervical spine and July 15, 2021, for the lumbar spine (see id. at 246; Exh. 2 at 63-71). He explained that the NCV test is conducted to find nerve signal impairment caused by disc herniations and demonstrated C5 and L5/S1 radiculopathy consistent with the claimant's complaints (Tr. at 245-246). Dr. Lubliner also reviewed the claimant's MRIs of 2021 and 2022, and opined that they were consistent with the findings of herniations at C4/C5, C6/C7, and with a bulging disc at the C5/C6, and noted the presence of arthritis at the C6 vertebrae (see id. at 262). Also, the images of her back from 2021 demonstrated bulges at L4/L5 and L5/S1, with the September 2022 images showing a complete herniation of the L4/L5 disc (see id. at 271-272). He testified that the images of the claimant's shoulder, denoting a signal change and a partial tear in the left rotator cuff, are consistent with the MRI report findings (see id. at 274-275).
Dr. Lubliner explained that the claimant also received injections in her neck prior to surgery in order to create space in the affected area and to relieve pain, and while there is no guarantee that injections will work in most cases, doctors try them first because they are a more conservative method than surgery (see id. at 266). He also described the neck surgery that the claimant underwent as an anterior cervical discectomy and fusion (hereinafter "ACDF") surgery on April 13, 2022, where Dr. Gerling removed the discs at C4/C5 and C6/C7 and then fused those vertebrae by placing metal spacers and screws in the bones to stabilize them (see id. at 252-255). He also stated that the surgeon's choice to leave the disc in at the C5/C6 level helped the claimant to retain some range of motion in her neck (id. at 252).
Dr. Lubliner testified to causality, severity, and damages, believing that the claimant's injuries were caused to a reasonable degree of medical certainty by the car accident (see id. at 280). He testified that herniated discs could occur when there is an awkward motion that acts to push the disc outside of the annulus it sits in (see id. at 250, 262). Although the claimant has osteoporosis, he could find no developmental reason for her pain, so it was obvious to him that the accident caused the herniations that lead to surgery in her neck (see id. at 279). He stated that both the American Medical Association and New York State recognize "a fusion as a permanent impairment" (id. at 276). The loss of motion and recurring pain in her back and neck will be with her for the rest of her life, impairing her ability to sleep, drive, work, perform activities, and enjoy life (see id. at 242). He also stated that her left knee still has swelling, atrophy and pain, loss of muscle, and loss of range of motion will both impact her ability to walk long distances and will compound the other pain she is feeling from the lumbar radiculopathy (see id. at 243-244, 276). Dr. Lubliner agreed with Dr. Gerling that claimant would need surgery on her lumbar spine, as well as a new MRI, new CT scan, and injections, which cost $2,500 each in the New York area which he opined would probably will not work (see id. at 278). The least invasive surgery for a discectomy would entail removal of the disc at L4/L5 with no fusion, a procedure which would be considered ambulatory with an estimated cost of between $55,000.00 and $75,000.00 (see id. at 278; Exh. at 9).
On cross-examination, the State pressed Dr. Lubliner on the necessity of future lumbar surgery (see id. at 282). The doctor stated that, even though he would try injections first, it was more likely than not she would need lumbar surgery given the progression of her MRIs from 2021 to 2022 (see id. at 282-283). Dr. Lubliner noted that out of one hundred cases that looked exactly like the claimant's, the injections would work only in a small percentage (see id. at 284). The State also questioned the witness on prior history, and Dr. Lubliner testified that claimant had no prior injury to the afflicted areas (see id. at 285-286). Dr. Lubliner admitted to only using the MRI reports, physical evaluations, and the surgeons' operative reports, and not the MRI films themselves, to make his report in March 2023, but he clarified that he reviewed the MRI films himself after he submitted his report, and they supported his conclusions (see id. at. 288). He also admitted that he did not speak to any of the surgeons or treating physicians in preparation of his report (id. at 289, 300). With respect to the knee surgery, Dr. Lubliner testified that finding a different tear than was suggested in the MRI report is not unusual (see id. at 291). When asked whether the notable lack of swelling in the knee, the ability to fully extend it during the examination, and the negative McMurray test negated the need for knee surgery, the doctor conclusorily stated that Dr. Shusterman's referral to Dr. Miller indicated that surgery was necessary even if asymptomatic (see id. at 293-294). Relevantly, he also stated that she did not use a cane in his office and did not demonstrate a limp or abnormal gait (id. at 304).
Dr. Lubliner testified that there did not appear to be any hardware malfunctions or adjacent level disease that was impacting the claimant's healing in her neck (see id. at 302-303). When asked if the claimant had any accelerated degenerative disease that would impact healing, the doctor stated that it was not possible to determine without a more recent MRI or CT scan (see id. at 302). However, he acknowledged that the presence of degenerative disc disease or arthritis and osteophyte complex in the claimant's neck preexisted the accident and "didn't just come from the accident" (id. at 307-308). He testified that claimant's arthritis may cause dryness of the disc, making it easier for the disc to herniate - but the dryness is not only because of the arthritis (see id. at 309-310).
On redirect, Dr. Lubliner acknowledged that the claimant may use a cane for longer distances (see id. at 315). When asked by the Court why the surgeon did not wait longer to preform neck surgery, Dr. Lubliner explained that there are reasons to push up the surgery such as radicular pains, an absent reflex or more than a year of conservative management that is not working (see id. at 316). He clarified that, while the claimant has diabetes, it would impact healing through fighting infections, but this would not affect disc herniations (see id. at 318-319).
Thereafter, the State commenced its case upon the claimant resting hers. The State's first witness was Dr. Devon Klein, a board-certified radiologist, who testified that the injuries to the claimant's neck and lumbar spine were due to "age-related" degeneration and not the accident because the MRIs showed "dessication," arthritis and the presence of degenerative processes (id. at 329-330). He found that most of the claimant's cervical discs show that they are lacking fluid, and appeared dark on the MRI "because [they] lost some of the inherent fluid within the disc" (id. at 329). He explained as follows:
So a disc, when we're young, is filled with fluid to help absorb shock and vibration. With time, the fluid gets absorbed, or reabsorbed out of the disc. And the term is called dessication. And the disc looks darker on an [MRI] than [that of] a younger person or healthier disc would...(id. at 327). Relevantly, Dr. Klein testified that there was also a lack of soft tissue swelling around her neck or lumbar spine indicative of acute trauma in the MRI right after the accident (see id. at 330-331, 353). "Certainly if we see blood, acute blood, or it keeps swelling, then we can be pointed in the direction that something is acute" (id. at 330) or traumatic. Per the doctor, the claimant's cervical spine also showed bony "productive changes or protrusions that we call osteophytes. The lay term is spurring," thus "the loss of disc signal and some osteophytes indicates to me that there's a degenerative process underlying" (id. at 331).
As for the claimant's knee, Dr. Klein testified that the claimant has a "congenital variant" of a "discoid meniscus," and did not suffer a meniscal tear either lateral or medial as a result of the accident (id. at 340-342). However, Dr. Klein acknowledged that the claimant's left ankle was "partially injured," specifically "[t]he anterior talofibular ligament which is the most commonly injured ligament in the ankle, but not a complete tear" (id. at 344). But "there was no swelling, there was no fracture, [or] bone contusion" visible (id.). Within a reasonable degree of medical certainty, he additionally testified that the claimant did not suffer a torn rotator cuff in her left shoulder, but has tendinitis or "tendinosis, but tendon injury, but not a tear" (id. at 345, 346).
Upon cross-examination, Dr. Klein stated that he based his opinion and report solely on the MRI films and reports because they were the only things that were presented to him (see id. at 352). He also reiterated that the damage in the neck was due to underlying disease because the images did not "show acute trauma," but he could not exclude that the underlying degenerative disease was exacerbated by trauma (id. at 353). Dr. Klein also stated that a surgical arthroscopic procedure, not an MRI, is "the gold standard for determining a tear" in the knee, so the surgeon would be in the best position to tell when someone had a tear in their knee (id. at 356, 358, 359). He also acknowledged that fusing the spine together limits someone's ability to move the neck in certain directions (see id. at 360).
The State's final witness Dr. Jeffrey Dermksian, a board-certified orthopedic surgeon, testified that he performed an IME on the claimant on August 18, 2022 (see Tr. 4/5/24 at 379). For this examination, he reviewed the claimant's medical records, took a medical history, and performed a physical exam (see id. at 380), acknowledging the importance of knowing of any prior accident to get an accurate history (id. at 380-381). Based on his review of the claimant's medical records and his physical examination, Dr. Dermksian concluded within a reasonable degree of medical certainty that claimant "had sustained an injury that had resolved at the time when [he] saw her in August of 2022" (id. at 382).
Specifically, with regard to her cervical spine, he concluded that within a reasonable degree of medical certainty that there was no causally related significant injury to her cervical spine (see id. at 383). MRIs and CT scans of the claimant's back and neck demonstrated signs of age-related degeneration, both arthritis and the presence of osteophytes, not induced by acute trauma due to the lack of swelling present (see id. at 383, 386-387). His physical exam revealed no weakness, no atrophy and normal reflexes, but revealed degenerative disc disease and degenerative disc bulging because of "the loss of water content in the disc" (id. at 384, 385). He stated that her "osteophyte complex" is also a degenerative arthritic condition creating a "bone spur," which can cause pain in her neck and is treated with "anti-inflammatory medication, potentially some physical therapy" (id. at 387). Although the claimant's NCV test showed radiculopathy at the C5 level, he did not find this significant because it was not correlative with the disc permeation at C4/C5 (see id. at 389). Further, he observed over exaggerated tenderness from the claimant during the physical exam (see id. at 383, 399). He made similar findings with respect to claimant's lumbar spine and claimed that the necessity for lumbar surgery is not related to the accident, as disc herniations are most often the result of age-related, atraumatic degeneration (id. at 390, 393-394, 401-402). He also noted that the NCV test indicating subacute, right side, radiculopathy at the L5/S1 was not consistent with the claimant's complaints of left side leg pain and that the straight leg raising test was negative (see id. at 400).
According to Dr. Dermksian, the claimant's knee injury was not, within a reasonable degree of medical certainty, causally related to the accident (see id. at 403). Like Dr. Klein, he testified that the MRI of the claimant's knee indicated "degenerative tearing of the medial meniscus" (id. at 404). He explained somewhat confusingly that "the meniscus that apparently was torn on the M.R.I. was not torn because the doctor did not record doing surgery on it, and then he did surgery on the other side of the knee, which again, in [his] opinion is a developmental problem, not related to an accident" (id. at 405). However, he couched this statement by clarifying the tear could be associated with either age related wear or a traumatic event (see id. at 406). Dr. Dermksian also testified that, during the physical exam, which was four to five weeks after her surgery, the claimant had a negative McMurray test (see id. at 407). He explained that a "McMurray test is a physical exam where you twist the knee in a certain mechanism looking to see if somebody has a tear that correlates with pain while palpating" (id.).
Regarding her left shoulder specifically, he stated that the claimant's shoulder MRI demonstrated tendinosis and some edema or swelling at the end of her clavicle that could either be age related and opined "being struck by a car certainly is a possibility" (id. at 408-409). There was a bone contusion to the shoulder, where "you can get a black and blue of the bone, and that's where we get this swelling in the bone itself" (id. at 456). However, the only way to treat this is to let it heal (see id. at 409). He also noted that at the physical examination claimant demonstrated "exaggerated tenderness" when he palpitated the area, and that the location of the pain was in the trapezium, the muscle that goes from the shoulder to the neck, not to the shoulder itself (id.). Dr. Dermksian similarly testified that the claimant merely suffered a "mild sprain of the [left] ankle based on the MRI review," which might or might not be related to the accident (id. at 410-411), and "would call pulling, straining of some of the [ankle] fibers, but not a tear... as in tearing a piece of paper" (id. at 450).
During cross-examination, Dr. Dermksian admitted that he only examined the claimant for 20-30 minutes on one occasion and based his opinions on that time and the 2021 MRI reports and images, stating he had not seen the MRIs and reports from 2022 (see id. at 421-422, 434, 446). He also stated that the operating surgeon is in a better position to diagnose the patient rather than the doctor reading the MRI (see id. at 417). Also, he explained that he chose not to record range of motion during his exam because it is subjective and could be decreased due to sheer refusal to move rather than inability by the claimant; however, he conceded that range of motion could decrease due to a spinal fusion surgery (id. at 431-432, 435-436). He reiterated his lodestar position that, even though the claimant was a pedestrian hit by a moving vehicle, she did not receive any injury to the areas claimed to be injured as a result of the accident, because all her injuries were degenerative or congenital in nature (id. at 423-424, 439-442). When pressed on the issue of the bone contusion in the left shoulder, he conceded that of all the parts the claimant alleged were injured, the only one that could possibly be related to the accident was her shoulder due to the presence of swelling (id. at 457-458). Finally, he testified that there is no ability to influence or exaggerate the outcome of NCV tests, and that neck injuries could cause numbness, tingling, and clumsiness in the hands (see id. at 465, 467-468). The only notable clarification on redirect examination was that, in the doctor's opinion, the degeneration could not predispose injuries to be worse (see id. at 470).
At the close of its case, the State moved for a CPLR 4401 directed verdict arguing that the claimant did not prove a serious injury under Insurance Law § 5102(d) that was causally related to the accident. The State noted the unexplained cessation of the claimant's treatment, her lack of credibility as a witness, and stated that Dr. Lubliner failed to reconcile his findings with the conclusions of Dr. Dermksian, rendering them speculations. In opposition, the claimant argued that there was ample evidence of permanent and severe injuries disrupting her life that were causally related to the accident. The claimant argued that the gap in treatment can be easily squared with her insurance company's refusal to pay for said treatment and the severe financial burden of taking out another loan for treatment at over 30% interest. Further, the claimant argued that the inconsistencies in testimony were purely confusion due to the amount of time since the accident and the volume of treatments and appointments she has received. This Court reserved decision on this motion and afforded counsel time to file post-trial briefs or memoranda of law. After the trial concluded, each party submitted briefs on June 10, 2024, relaying the arguments brought up during the CPLR 4401 motion and including a myriad of case law and verdicts relevant to the judicial determination of what damages, if any, to award.
III.
The claimant is seeking damages for injuries to her cervical spine, lumbar spine, left shoulder, left ankle and left knee as a result of the accident. New York's No-Fault Law (see Insurance Law § 5101, et. seq.) was enacted to "significantly reduce the number of automobile personal injury cases litigated in the courts" by limiting the "unfettered" common-law right to sue for injuries sustained in motor vehicle accidents (Licari v Elliott, 57 N.Y.2d 230, 236-237 [1982] [internal quotations omitted]; see Pommells v Perez, 4 N.Y.3d 566, 570-571 [2005]). The No-Fault Law provides that, in order for a claimant "to bring an action for 'non-economic loss' i.e., pain and suffering, he or she must demonstrate [a] 'serious injury'" under at least one of the categories set forth in Insurance Law § 5102(d) (Poole v State of New York, 68 Misc.3d 1218 [A] [Ct Cl, McCarthy, J. 2020], citing Lamana v Jankowski, 13 A.D.3d 134, 136 [1st Dept 2004]; see Insurance Law § 5104[a]; Pommells v Perez, 4 N.Y.3d at 571).
In relevant part, "'Serious injury' means a personal injury which results in...; significant disfigurement; a fracture;...; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system..." (Insurance Law § 5102[d]). To show a permanent loss or consequential limitation of use of a body organ or member, claimant must present medical evidence of continuing and permanent disability or limitation of use as a result of the accident (see Perl v Meher, 18 N.Y.3d 208, 217 [2011]). And, to establish that the claimed limitation is "consequential," a claimant must demonstrate that it is important or significant through competent medical evidence (see Toure v Avis Rent A Car Sys., 98 N.Y.2d 345, 357 [2002]). "The chief difference between the Significant Limitation and the Permanent Consequential Limitation categories, is that, under the Significant Limitation category, the limitation is not required to be total or permanent (Decker v Rassaert, 131 A.D.2d 626, 627 [2d Dept 1987]), although a permanent injury can qualify (Bellamy v Kaplan, 309 A.D.2d 583, 583 [1st Dept 2003])" (Poole, 68 Misc.3d at 16). Furthermore, to meet these criteria, the Court of Appeals has held that the plaintiff/claimant is "required to demonstrate restricted range of motion based on findings both contemporaneous to the accident and upon recent findings" (Perl at 217 [internal quotation omitted]).
Courts have held that curtailed performance of customary daily activities and subjective proof of pain, combined with the objective proof of a significant, permanent loss of range of motion by a medical expert, are sufficient to demonstrate permanent injury to the spine in accordance with Insurance Law § 5102(d) (see id., citing Lopez v Senatore, 65 N.Y.2d 1017, 1020 [1985]; see also Gleissner v Lo Presti, 135 A.D.2d 494, 495 [2d Dept 1987]). However, these limitations must not be minor, and courts have dismissed injury claims where the doctors have testified to limitations that appear to be based on subjective complaints (see Galatro v Randall, 240 A.D.2d 537 [2d Dept 1997]; Dwyer v Tracey, 105 A.D.2d 476 [3d Dept 1984]). The Court of Appeals has warned that a case may not survive the serious injury inquiry where additional contributory factors interrupt the chain of causation between the accident and claimed injury - such as a gap in treatment, an intervening medical problem or a pre-existing condition; however, the Court can take into consideration the claimant's economic realities when considering whether an explanation of gap in treatment is sufficient (Pommels v Perez, 4 N.Y.3d at 572; Rodriguez v Yong Wan Oh, 2 Misc.3d 134 [A], 2004 NY Slip Op 50208[U] [App Term 2004]).
Based on the aforementioned legal principles, the witnesses' trial testimony, their demeanor, and the admitted evidence, the Court finds that the record established, by a preponderance of the evidence, that claimant sustained serious and significant injuries only to her left shoulder and left knee as a result of the accident. Significantly, the claimant was struck on her left side and knocked down by a vehicle, moving at some rate of speed, as a pedestrian (see Tr. 4/3/24 at 33, 35, 66). She later presented in the emergency room complaining of pain in her neck, head, left forearm and left side of the hip (see Exh.1 at 4). Prior to this, reports corroborate that she had not experienced any prior injury to those particular areas (see Exh. 5 at 44; Exh. 2 at 4). Three days later, the claimant saw Dr. Shusterman with complaints of lower back, neck, head, left shoulder, left knee, and left ankle pain (id. at 45-46). MRIs taken within three months of the accident indicated objective findings of trauma with the presence of edema and swelling in her left shoulder with a partial tear of the supraspinatus tendon, and edema and sprain of the medial collateral ligament and tearing of the medial meniscus in her knee, and tearing in the anterior talo-fibular ligament in her ankle (see Ex. 3). The claimant did not rush into surgery on her neck and knee, but records indicate that she sought pain management solutions such as physical therapy and injections (see Exh. 6). Moreover, no records were produced, or testimony elicited, that the claimant sought prior treatment for any condition related to those affected areas prior to the accident, nor for any congenital defects. Thus, this Court finds that the claimant's injuries to her left knee, left shoulder and left ankle are deemed causally related to the accident that occurred on April 23, 2021, albeit the left ankle injury was not serious.
Although there is the issue with Dr. Khakhar's medical history, he indicated only that there was an asymptomatic injury generally and it should be noted this statement did not change his findings of causality (see Exh. 11).
With respect to serious injury, the Court's analysis rests on whether claimant demonstrated significant limitation in the use of her left shoulder and left knee as defined by Insurance Law 5102(d). While the record supports past pain and suffering for injuries sustained to claimant's left knee and left shoulder, the Court finds that her testimony, temperament and overall mannerisms not credible as to the testimony elicited regarding the currentness and continuity of her injuries particularly as to the neck and knee. As the State noted, the claimant's testimony that her son-in-law drove her to the deposition is blatantly inconsistent with her deposition testimony that she drove herself with only a leaner's permit from her home in New Jersey to her attorney's office on Long Island (see Exh. A at 5-6; Tr. 4/4/24 at 196). Nor did the Court believe her statement that her husband drove her to the Manhattan trial from New Jersey and remained in the car downstairs for the approximate seven hours of trial time (see Tr. 4/4/24 at 199). She also stated that the individuals assisting her at the emergency room spoke little English, which is inconsistent with the hospital's use of a Spanish interpretation system during her time there (see id. at 39; Exh. 1 at 5). Moreover, she reiterated during cross-examination that she suffered from gestational diabetes, but her deposition testimony and the records from Dr. Gerling and Pain Physicians NY clearly state the claimant suffers from Diabetes Type II (see Ex. 5 at 29-31, Exh. 6 at 2) and there is some indicium of neuropathy in her injuries. It should be further noted that this Court, much like Drs. Klein and Dermksian, found the claimant's courtroom mannerisms indicative of embellishing and over exaggerating her current pain, given her use of a cane for the walk from the counselor's table to the witness stand in the courtroom, when she apparently only uses the cane for longer distances (see Tr. 4/3/24 at 80, 130). As such, this Court shall only find serious injury in the left knee and left shoulder so far as it is corroborated by the records and objective testimony of the medical experts.
With respect to the left knee, there are medical records which evidence a serious, significant and consequential injury to her knee, including the MRIs taken within months after the accident indicating the presence of swelling or edema and sprain of the medial collateral ligament and tearing of her meniscus (see Exh. 3). The medical records from Linden Orthopaedics also showed that she had a positive effusion of the knee, also known as water on the knee - which occurs when excess fluid accumulates in or around the knee joint - tenderness, "positive McMurray" test and "positive crepitus," all common symptoms of a meniscus injury or arthritis (Exh. 8). On July 22, 2022, the claimant underwent an arthroscopic procedure to repair her torn lateral meniscus (see id.; Exh. 12, at 4). The claimant's expert, Dr. Lubliner, testified that there was a current 20 degree overall range of motion deficit post-surgery and pain on her left knee, and the claimant testified as to her continuous pain, swelling, weakness and problems working, walking, doing chores and shopping (see Tr. 4/4/24 at 242-243) stating: "[S]he's obviously not getting better" in her knee (id. at 244). This causally-related injury to her knee finds further support in the testimony of the State's experts, who acknowledged the possibility of those symptoms being caused by a traumatic injury (see id. at 404, 406).
(see Stedman's Medical Dictionary at 570 [27th ed., 2000]).
"Crepitus" means crackling or "the grating of a joint, often in association with osteoarthritis" (Stedman's Medical Dictionary at 424 [27th ed, 2000]).
However, Dr. Lubliner's record also indicates that claimant's gait was normal during his later examinations, that the tests performed negative for any meniscus or ligament pathology and that she did not use a cane in his office, which corroborates the observations of Drs. Klein and Dermksian (see Exh. 15; Tr. 4/5/24 at 304, 407-408, 418-419). Treating physician Dr. Gerling relevantly wrote in his medical records that the claimant "display[ed] a grossly stable gait" (Exh. 5, at 4). The other medical records from Linden Orthopaedics indicate the claimant experienced only "mild pain and stiffness" weeks post-surgery on August 1, 2022 (see Exh. 8). Further, Dr. Lubliner's report from January 24, 2024, indicates that the limit to the range of motion is due to the radicular pain caused by the claimant's lumbar condition (see Exh. 15). Thus, the evidence is somewhat ambivalent as to whether the claimant has suffered a permanent and consequential injury to her knee, and supports a reduction of the award of future damages for her knee.
Likewise, although the claimant was also able to establish a significant limitation as to her left shoulder injury, there is no permanency. The record shows that the claimant did present at Dr Shusterman's office within days of the accident with pain in her left shoulder and that the doctor noted left shoulder swelling and impingement (see Exh. 2 at 3). The MRI report for the shoulder demonstrated a "marrow edema from a bone contusion," impingement and partial tear of the supraspinatus tendon shortly after the accident (Exh. 3). Indeed, even the State's experts confirmed the shoulder "tendon injury" - albeit not a tear - in their testimony (Tr. 4/4/24 at 345-346, 457-458). Nevertheless, there seems to be no real follow up efforts by any of the doctors related to this injury, corroborating Dr. Dermksian's statement that there was nothing to do for the shoulder except let it heal (see Exh. 3; Tr. 4/5/24 at 409). Some reports from the treating physicians even indicate the claimant's pain transferred from her left shoulder to her right shoulder around November 2021, at the same time she complained about serious radicular pain in her arms (see Exh. 2 at 3, 24; Exh. 5). Further, Dr. Lubliner's reports demonstrate no deficit on her range of motion of the left shoulder, that pain in her shoulders is associated with the pain in her cervical spine (see Exh. 12, at 5; Exh. 15). This leads the Court to conclude that, although serious injury occurred to the left shoulder as a result of the accident, it was temporary and had resolved itself by the time Dr. Dermskian saw her in August 2022 (see Tr. 4/5/24 at 382).
On the other hand, the Court finds that the claimant failed to meet her burden of showing by a preponderance of the evidence that she sustained a serious injury to the cervical and lumbar regions of her spine as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 N.Y.2d at 345; Gaddy v Eyler, 99 N.Y.2d 955, 956-957 [1992]). She failed to provide credible and competent medical evidence in the form of testimony and reports establishing that the alleged injuries to her cervical and lumbar spine constituted serious injuries causally related to the accident under either the permanent consequential limitation of use, 90/180-day category or significant limitation of use (see Islam v Apjeet Singh Makkar, 95 A.D.3d 1277, 1278 [2d Dept 2012]; Richards v Tyson, 64 A.D.3d 760, 761 [2d Dept 2009]; Staff v Yshua, 59 A.D.3d 614 [2d Dept 2009]). Although claimant's neck and lumbar spine conditions were undisputedly characterized as serious and permanent by Dr. Lubliner and corroborated by the MRIs, NCV testing and the cervical fusion surgery (see Exh. 3; Tr. 4/3/24 at 84, 233-234, 240, 242), Drs. Klein and Dermksian credibly opined within a reasonable degree of medical certainty that the claimant's cervical and lumbar spine reveals long-standing, multilevel and progressive degenerative disc disease antecedent to the accident (see Tr. 4/5/24 at 403-404, 425-429, 439-442). The spinal MRIs within months of the accident specifically referenced that there was "no compression fracture or destructive changes" or lesions, thereby excluding the existence of a traumatic or acute accident related injury (Exh. 2 at 31; see Poole v State of New York, 68 Misc.3d 1218[A]). Nor did the records demonstrate injuries such as a causally-related disc bulge, herniation, fracture, dislocation or hematoma, as opposed to the preexisting, "multilevel degenerative disc disease" (Marino v Amoah, 143 A.D.3d 541 [1st Dept 2016]; see Walker v Metropolitan Transp. Auth., __ A.D.3d __, 2024 NY Slip Op 04477 [2d Dept 2024]).
While this Court has viewed several MRIs of lumbar and cervical spines in other cases during its career, the undersigned was startled by the level of dessication of the claimant's cervical spine evidenced by the darkness in multiple of her discs, revealing - as explained by the experts - the degenerative process of dryness and spurring of the discs, not related to an acute trauma or edema (see Tr. 4/4/24 at 327, 329-330; Tr. 4/5/24 at 383-386). The Court carefully viewed the MRIs and CT scans admitted into evidence and finds the explanation provided by the State's experts as to the age-related degenerative nature of her spinal conditions much more convincing and apparent than the one by the claimant's expert. Indeed, even the claimant's expert, Dr. Lubliner, acknowledged that there was arthritis, osteoporosis, degenerative processes and osteophytes on her spine "well before the accident" (Tr. 4/4/24 at 307-308). Claimant's CT scan report and Dr. Gerling's medical records confirmed an accelerated "degenerative disc disease... with a small... disc osteophyte complex" (Exh. 1 at 20; see Exh. 7). As such, the cervical fusion surgery undertaken on the claimant was performed for pre-existing degenerative changes not causally related to the accident, as Dr. Klein testified (Tr. 4/4/24 at 329-331).
Nor was there any reasonable or supported explanation for the lengthy gap of two years in claimant's medical treatments for her spinal injuries post-November 2022 (see Pommells v Perez, 4 N.Y.3d at 574; Hwang v Ilgar, 178 A.D.3d 784, 785 [2d Dept 2019]). The Court does not place much credibility on the claimant's conclusory statements that the treatments were not covered by insurance and that she feared overwhelming medical debt, especially because she candidly testified that the main reason for the cessation of treatments was that "there was a lot of traffic" (Tr. 4/3/24 at 200-201, 209, 217). It defies credulity that someone with such an excruciating spinal cord pain would defer medical treatment merely because of traffic. Moreover, although the claimant stressed that she is no longer working, there was no evidence provided as to her husband's salary or the family's earnings (see Tr. 4/3/24 at 34), and why couldn't they afford any type of insurance or even sporadic physical therapy. As such, the assertion by the claimant's expert in March 2023 that the cervical and lumbar spine injuries "were causally related to the accident is speculative" (Perez-Torres v Cocoa Point Car Serv., 225 A.D.3d 554, 2024 NY Slip Op 01686 [1st Dept 2024], citing Alverio v Martinez, 160 A.D.3d 454, 455 [1st Dept 2018]).
IV.
Having established the serious injury threshold for the left shoulder and left knee, the Court also finds that, based upon a preponderance of evidence, the claimant is entitled to an award of non-economic loss to justly and fairly compensate her for the injuries she sustained as a result of his accident. This Court "may grant any type of relief within its jurisdiction appropriate to the proof whether or not demanded, imposing such terms as may be just" (CPLR 3017). When deciding on an award of damages to a person injured by the negligence of another, the objective is to compensate the victim, not to punish the wrongdoer, and "restore the injured party, to the extent possible, to the position that would have been occupied had the wrong not occurred" (McDougald v Garber, 73 N.Y.2d 246, 253 54 [1989]; see Poole v State of New York, 83 Misc.3d 1295 [A] [Ct Cl 2024]).
It is well-established that awards of damages for past and future medical expenses must be supported by competent evidence that determines the need for, and the cost of, medical care (see Chung v Shaw, 175 A.D.3d 1237 [2d Dept 2019], quoting Pilgrim v Wilson Flat, Inc., 110 A.D.3d 973, 974 [2d Dept 2013]). The record reflects that the parties stipulated that the claimant's past medical liens amount to $112,249.00, and this Court hereby awards this amount to cover her past medical bills owed. Although testimony also indicates that the claimant will need surgery in the future on her lumbar spine, since that injury was not caused by the accident, the Court will not make an award to cover the hypothetical need for that procedure. As such, the Court declines to awards any sum for future medical expenses.
V.
An award for pain and suffering is a question of fact and will not be disturbed unless it "deviates materially from what would be reasonable compensation" (CPLR 5501[c]). Because pain and suffering awards are "not subject to precise quantification, examination of comparable cases is necessary to determine whether the award materially deviated from reasonable compensation" (Nolan v Union Coll. Trust of Schenectady, NY, 51 A.D.3d 1253, 1256 [3d Dept 2008], quoting Acton v Nalley, 38 A.D.3d 973, 976 [3d Dept 2007] ; see Poole v State of New York, 83 Misc.3d at 16]). Moreover, awards for pain and suffering are not subjected to a precise calculation and the "factors to be considered... 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" (id.). "It is relevant to consider the impact on the enjoyment of life, the ability to perform typical daily tasks and previously enjoyable activities, and the overall impact of the injuries" (Richardson v State of New York, UID No. 2022-018-339 [Ct Cl, Fitzpatrick, J., Nov. 3, 2022]; see Agness v State of New York, UID No. 2019-018-056 [Ct Cl, Fitzpatrick, J., Sept. 11, 2019]).
In the instant case, in determining the measure of the claimant's past pain and suffering, the Court is persuaded that, immediately after the accident, the claimant experienced serious injury to her left shoulder, left knee and, to a certain extent, her left ankle. Such injuries required the claimant to undergo hours of physical therapy, compresses, and a meniscal repair surgery on her left knee. There is no doubt that the claimant's injuries caused her to experience severe pain in the months following the accident. However, some of those injuries were not fully permanent and it appeared to this Court that claimant sought to embellish her pain and suffering via her testimony. Indeed, it seems hard to believe that none of the medical treatments provided any measure of relief, as she complained.
Nevertheless, given the progressive nature of the claimant's left knee and shoulder injuries, her advancing age, and having reviewed all the evidence and listening to the experts testify, the Court finds that the claimant has suffered damages resulting from the accident, for past pain and suffering in the amount of $150,000; and future pain and suffering in the amount of $50,000 (compare Barry v State of New York, UID No. 2012- 018-308 [Fitzpatrick, J., April 19, 2012] [$120,000 awarded for past pain and suffering and $50,000 for future pain and suffering although claimant's pain was exaggerated at the time of trial]; Bounds v State of New York, UID No. 2008-009-189 [Ct Cl, Midey, J., August 28, 2008] [$80,000 awarded for past pain and suffering and $125,000 awarded for future pain and suffering with the court finding that claimant suffered a mild, partial and permanent disability as a result of the accident]).
Accordingly, the claimant shall be awarded damages as follows:
1. Past pain and suffering: $150,000.00
2. Future pain and suffering: $50,000.00
3. Past Medical Expenses: $112,249.00
4. Future Medical Expenses: $0
For a TOTAL damages award of $312,249.00; with statutory interest thereon from October 19, 2023, the date of liability determination at the rate of 9% per annum, and may recover the amount of any filing fee that has been paid pursuant to Court of Claims Act § 11-a(2). Let judgment enter accordingly.