Opinion
# 2012-029-015 Claim No. 115405
06-06-2012
SLIM ZOUAOUI and MARY ZOUAOUI v. THE STATE OF NEW YORK
Synopsis
Damages for extensive devastating injuries including multiple chronic MRSA infections resulting in essential loss of dominant arm. Case information
UID: 2012-029-015 Claimant(s): SLIM ZOUAOUI and MARY ZOUAOUI Claimant short name: ZOUAOUI Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 115405 Motion number(s): Cross-motion number(s): Judge: STEPHEN J. MIGNANO BLOCK O'TOOLE & MURPHY, LLP Claimant's attorney: By: Daniel P. O'Toole, Esq. and Robyn Brazzil, Esq. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL Defendant's attorney: By: Jyotsna Gorti, Assistant Attorney General Third-party defendant's attorney: Signature date: June 6, 2012 City: White Plains Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Slim Zouaoui ("claimant") seeks damages arising out of a March 11, 2007 automobile accident on Route 6 in the Town of Somers. In the court's prior decision (UID No. 2011-029-010 [April 13, 2011]), defendant was found fully liable for the collision giving rise to the injuries that were the focus of the damages portion of the trial.
In the accident, claimant sustained severe and devastating injuries to his left (dominant) arm. It was not disputed by defendant that since the accident claimant has undergone 28 surgical procedures , including multiple skin grafts, that he experienced four recurrences of Methicillin-resistant Staphylococcus Aureus (MRSA) infection requiring extensive treatment involving the insertion of PICC lines to administer antibiotics directly to the heart, or that he has received and continues to receive narcotic pain medication which caused him to develop colitis and hemorrhoids, requiring surgery. It is also undisputed that claimant has virtually no function in his left arm, that there is no hope for the future restoration of any function and his realistic options at this point are to live with his arm as it is or have the remaining elbow bones permanently fused, which entails the strong risk of reactivating the MRSA infection.
There was certain reference in the record to "29 surgeries" but the difference of one procedure has no material effect on this case.
Dr. Richard Magill, an orthopedic surgeon specializing in upper extremity surgery, described claimant's treatment from an orthopedic standpoint over the five years since the accident. Claimant was taken by ambulance from the accident scene to Westchester County Medical Center where X-rays taken showed a comminuted fracture of the humerus about two inches above the elbow, a fracture of the ulna below the elbow and a dislocation of the proximal ulna radial joint. The lower portion of claimant's humerus, including the entire trochlea and the medial epicondyle were missing, "on the road somewhere." (Transcript [Tr.] Vol II, p 13). The fractures were open and contaminated and there was extensive soft tissue damage as well - the flexor pronator muscle group was avulsed from the bone to which it had formerly been attached and was no longer there and the ulnar nerve was transected. Dr. Magill stated: "[W]ith this presentation . . . there's little hope of any great function. The elbow is destroyed. You're talking right away about salvage procedures for the elbow" (id., p 25). He noted that claimant was not a candidate for a total elbow replacement due to his age, the poor condition of the remaining bone and the fact that the wound was contaminated, and observed that claimant's options were limited, at that point, to an allograft or a fusion.
On the date of the injury, Dr. Magill's partner, Dr. Asprinio, performed surgery consisting of irrigation and debridement, internal fixation of the ulnar fracture with plates and screws and application of an external fixator to stabilize the elbow. Further debridement and development of a "soft tissue envelope" (id., p 29) were contemplated in order to prepare the elbow for the allograft, involving the implantation of cadaver bone. Wound debridement and the soft tissue development and skin grafting that were a necessary corollary to the orthopedic treatment were under the supervision of Dr. Michael Koch, a plastic surgeon. By June 2007 the condition of claimant's arm was sufficiently improved so that the allograft could be performed and on June 8, 2007, Dr. Magill installed the cadaver bone using plates and screws and also attempted to restore some function to the ulnar nerve via a graft from the sural nerve in claimant's leg. The hope was that the allograft would incorporate into the remainder of claimant's humerus and achieve a stable elbow with flexion and extension and to get some recovery of the ulnar nerve. Dr. Magill testified that the elbow did achieve some functioning initially but the allograft ultimately failed, and the nerve graft succeeded in restoring slight sensory function but no motor function. Claimant was hospitalized for a week and released on June 15, 2007. Five days later he returned to the hospital, a wound culture revealed the presence of MRSA, and claimant was admitted for three weeks of antibiotic therapy.
Dr. Magill described MRSA as a naturally occurring bacteria that has developed drug resistance over the years and is particularly virulent. It is treated with Vancomycin, a drug so toxic that it damages blood vessels and must be inserted into a vein via a PICC line, a catheter inserted into a vein that delivers the medication very close to the heart. Claimant was able to return home with the PICC line in place, but it became infected on three occasions during August 2007, requiring emergency room treatment.
In October 2007 heterotopic bone was discovered growing in the soft tissue surrounding claimant's wound. When claimant was admitted for surgery to remove the bone, a pocket of pus was discovered in the elbow meaning the infection had returned. Dr. Magill indicated that cadaver bone was a good hiding place for the MRSA bacteria, as was the installed hardware, and the presence of infection reduced the likelihood of success of the graft. Multiple irrigation and debridement procedures were performed during a three week hospitalization, as well as two grafts, all extremely painful. Just three days after discharge claimant returned to the emergency room complaining of stomach pain and fever and was diagnosed with C. difficile colitis, caused by antibiotic usage.
In January 2008, Dr. Magill performed surgery to remove the metal plates that had been installed with the allograft and as much of the installed foreign material as possible, and also to release the contracture that had formed around the remainder of the elbow. At that point, seven months post-surgery, Dr. Magill was still hopeful the infection could be cleared and the allograft would be successful. A March 2008 examination showed very limited range of motion and X-rays showed that the radial head had fused to the ulna, something Dr. Magill described as part of the heterotopic bone problem and which required further surgery, which was performed on May 13, 2008. A week later, pus started draining from claimant's arm and he returned to the hospital. During an irrigation and debridement on May 20, pus was noticed in the medial elbow, specifically in the cadaver bone, indicating that claimant's infection was chronic and recurrent.
By the end of June 2008, the graft was still infected despite months of antibiotic therapy, the X-rays did not look good, and Dr. Magill concluded the graft had failed and had to be excised. After removing the graft from what was left of claimant's humerus, Dr. Magill created a spacer from cement mixed with antibiotics and placed it in what was now the elbow cavity in order to prevent scar tissue from forming and to maintain the integrity of the space. At that point, the doctor was hopeful that perhaps a second allograft could be attempted. Claimant testified that the spacer decreased his pain to the point where he was able to manage it without narcotics for a few months. In July, Dr. Magill discussed with claimant the possibility of attempting another graft if they were able to control the infection. August 18 was claimant's last day on antibiotics and the plan was to see if claimant could remain infection-free for six months. However, by the end of the year, claimant's white blood count began to elevate and other symptoms of infection returned.
In February 2009 claimant recognized symptoms of MRSA, returned to the emergency room and was admitted for 10 days, during which Dr. Magill removed the cement spacer and other foreign material and further irrigated and debrided the infected area. Claimant testified that the removal of the cement spacer and the resulting bone on bone contact ratcheted up the level of his pain considerably.
During examinations in March and April 2009, Dr. Magill found very limited range of motion of the elbow, with pain resulting from bone-on-bone contact, and a slight degree of sensation in his little finger but no motor function of the portion of the hand enervated by the ulnar nerve. Dr. Magill's plan at that time was to perform a fascia arthroplasty involving the implantation of membrane on the surfaces of the humerus and ulna to provide a gliding surface, addressing the bone-on-bone contact problem, which was performed in October 2009.
When Dr. Magill saw claimant in March 2010, he had improved, but was experiencing instability in the elbow, which was "flopping back and forth and side to side and causing pain" (Tr. Vol. II, p 112). Dr. Magill described claimant's situation at this point as "not something that is covered in the textbooks" (id., p 106). He performed further surgery, including implanting another cement spacer and a ligament reconstruction using tendon allografts, without much success. Dr. Magill described attending a meeting at which an experimental procedure attempting to repair destroyed elbows - "cue ball" surgery - was discussed and he determined that such would be appropriate for claimant. The surgery was delayed due to claimant's gastrointestinal problems leading to a hemorrhoidectomy in November. This procedure was performed in June 2011, but it was not successful and the implanted cue balls (antibiotic-soaked cement balls) were eventually removed.
According to Dr. Magill, claimant's only options for treating the elbow in the hope of it having any degree of function are a metal and cement arthroplasty or another allograft and he does not consider either option viable. Both procedures have a very high risk of infection given claimant's history of multiple surgeries, poor bone stock, young age and most significant, the MRSA infection that likely still lurks within him. Another option is a fusion, where the remainder of the humerus is connected to the ulna and the elbow is permanently fixed at a 90 degree angle. While Dr. Magill testified that a fusion might ease claimant's pain as it would eliminate the bone-on-bone contact that is the source of much of it, it might not be effective because of phantom pain: "after several years . . . chronic pain becomes implanted in the brain, and doing anything outside of the brain does not necessarily eliminate that pain circle" (id., p 122). The remaining option is to perform no further surgery and leave the arm the way it is. Dr. Magill testified that claimant can live with the arm in its current condition for the remainder of his 39-year life expectancy, but he would be living with pain and dysfunction. He noted that claimant had been consulting with an orthopedic surgeon at the Hospital for Special Surgery, Dr. Robert Hotchkiss, who is developing an experimental elbow replacement device that has yet to be approved by the FDA. Dr. Magill's impression was that claimant was thinking strongly about having such surgery if it becomes available in the future but the doctor had no idea how far into the future the surgery might become an option. Dr. Magill's opinion was that claimant's history would preclude such surgery - he opined that the chance of failure would be near 100% - and that a more realistic option was a fusion, which would be his recommendation, but that is claimant's decision to make, not the doctor's. A fusion, like any surgical procedure, also runs the risk of reactivating claimant's MRSA infection.
The sole defense witness to testify at this trial was Dr. Michael Elia, an orthopedic surgeon who examined claimant and reviewed his records. Dr. Elia did not take issue with any aspect of Dr. Magill's testimony whatsoever. He agreed that claimant was not a good candidate for a further allograft, elbow replacement surgery or a fusion because of the necrotic tissue and chronic infection in the elbow. He opined that claimant's situation was "difficult . . . any path that you choose is going to have its downside" (Tr. Vol VI, p 9) and that one of those options was to simply "leave the elbow the way it is if he can live with it the way it is" (id., p 10).
Dr. Magill testified that the cause of claimant's current pain is bone-on-bone contact within the elbow, the ulnar injury and the elbow instability. The elbow has been essentially destroyed, the left ulnar nerve is dysfunctional, he has very restricted functioning of his left hand and generally has very limited functioning of his entire left upper extremity. These are permanent conditions. Dr. Magill described his goal of trying to control claimant's pain as not having been reached and testified that it was likely that his pain would continue, at a level requiring narcotic medication comparable to his current regime, for his remaining 39-year life expectancy. Additionally, Dr. Magill testified that it is likely that he will require continued orthopedic attention for the remainder of his life, annual X-rays, and physical therapy 24 to 36 times per year. The doctor noted that claimant has come under the care of a pain management specialist, Dr. Edwin Richter, and he was asked about Dr. Richter's observation that claimant might benefit from the installation of a morphine pump. Dr. Magill had no opinion as to whether such an approach would be warranted in the future but he noted that the reason for contemplating such a procedure was the gastrointestinal problems that oral ingestion of claimant's pain medication causes.
Dr. Robert Koch, a board certified plastic surgeon, addressed the soft tissue and skin graft aspect of claimant's treatment. Dr. Koch and the partners in his practice performed 11 separate surgical procedures, including six skin grafts, on claimant. In addition to multiple debridement procedures necessitated by the initial injury and loss of skin, restoration of the soft tissues surrounding the elbow was required in order to create an enclosure for the allograft. According to Dr. Koch, every time claimant received either orthopedic treatment or incision and drainage of infected tissue, the grafted skin would be compromised and require further attention. By May 2008, these repeated therapies had created a situation where "a much more robust type of reconstructive flap" (Tr. Vol III, p 31) was required and Dr. Koch performed a more extensive tissue graft using the latissimus dorsi muscle from claimant's back, leaving him with permanent sensory and functional loss on the left side of his back and left shoulder.
Dr. Edwin F. Richter, III, a practicing physiatrist who is also the associate clinical director of rehabilitation at the Rusk Institute, examined claimant on two occasions and testified on his behalf. On the first examination, in May 2011, claimant presented with a visibly obvious shortened left arm, extensive scarring around the elbow and the graft donor sites on his back and left leg, no pronation or supination of the left elbow and severely limited extension and flexion, with pain. Claimant reported numbness and shooting pain in the area of the left ulnar nerve, intermittent shoulder pain and clicking and severe elbow pain that was interfering with sleep. At that time, he was taking Percocet for pain. The doctor noted that claimant had developed colitis secondary to the antibiotics used to fight the MRSA and had developed hemorrhoids secondary to constipation caused by his pain medication. His examination revealed a minimally functioning left arm.
By the date of Dr. Richter's second examination of claimant in December 2011, he had come under the treatment of a pain management specialist, Dr. Richmond, and his analgesic regime at that time included extended-release morphine, Nucinta, Neurontin, trazodone (for sleep) and Zoloft (for depression). He had also begun seeing a psychiatrist, a psychotherapist and, with his wife, a couples counselor.
Dr. Richter testified that claimant will need medical care for the rest of his life, including monthly visits to an orthopedist or physiatrist and a pain management specialist, X-rays biannually and physical or occupational therapy 24 to 36 sessions per year. He agreed that claimant is a very poor candidate for elbow replacement and is likely to require fusion surgery within the next ten years and stated that, regardless of what treatment lies in claimant's future, he will require an analgesic regime comparable to his current one. Dr. Richter was asked about the possible use of a morphine pump and he initially described it as a "potentially useful option" (Tr. Vol IV, p 45) in addressing the gastrointestinal complications arising from claimant's use of opiates, but later described his reluctance to recommend it, mainly because of the likelihood of reactivating the MRSA.
Claimant also testified on his own behalf. At the outset, the Court notes that claimant was an exceptionally candid, straightforward and persuasive witness, describing his injuries, his mental state and his daily pain in undramatic terms. He did not engage in hyperbole and he was able to distinguish among degrees of pain from extreme to mild in a straightforward manner, contrasting, for example, the extreme pain arising from the MRSA infections with the relief received from the initial placement of the cement spacer. The court finds nothing about his testimony feigned or exaggerated to any degree.
Claimant was 33 years old at the time of the accident, married with a four-month old son, a native of Tunisia with a master's degree in computer science and employed since 2003 with Planet Payments, a leading provider of remote financial transaction technology. He was instrumental in building the firm from a startup to an international leader in the field and by December 2006 he had risen to the position of senior vice president for infrastructure and security. He remains employed by that firm, notwithstanding his extensive injuries and his current daily regime of medication that includes extended release morphine, Dilaudid, Neurontin, trazodone and Zoloft. He has been able to work despite his extensive injuries and long periods of treatment because he can do so from home, via computer and telephone. His retention by that firm despite extensive periods of hospitalization and treatment indicates his importance to the company and the extent of his knowledge and skills.
Claimant testified that he has been in pain virtually from the moment of the accident. In addition to the severe elbow pain that is documented in his voluminous medical records, including bouts of excruciating pain subsequent to the orthopedic surgeries as well as in connection with the hemorrhoids, claimant testified as to the "unique" (Tr. Vol I, p 110) nature of the pain associated with the post-surgical wound treatment after his skin grafts, and described his pain after the latissimus graft surgery as "surreal" (id., p 230). Notwithstanding the hemorrhoid surgery, claimant testified to continuing rectal bleeding and pain secondary to his use of narcotics.
Claimant also testified as to the effect of his injuries on his daily life and his relationship with his wife and young children, his inability to do any work around the house, having to give up all of his prior hobbies including billiards and guitar which were major interests, and as to the psychological sequelae resulting from the effects of his injuries. His testimony in this regard was entirely credible, supported by the undisputed, objective medical proof.
Claimant stated that he consulted with a psychiatrist, Dr. Kasinger, who was not particularly helpful (Ex. 40, psychiatric evaluation dated August 4, 2010) and that he is currently taking Zoloft, an antidepressant prescribed by Dr. John Wang (Ex. 46, Progress Notes dated April 14, May 24 and July 26, 2011). He testified he has since started psychotherapy and sees Dr. Wang only for medication purposes, that he is supposed to see him once a month but it's hard to find the time between his other medical appointments and his job. After seeing several other psychotherapists who were not helpful, he consulted with Froma Benerofe (Ex. 48, Progress Notes reflecting five sessions between June and August 2011), whom he testified he currently sees once per week at a cost of $100.00. In addition, he and his wife have seen a couples therapist about three or four times and he anticipates that they will continue to see her.
Although claimant continued to work after the accident and remains employed at the same position he formerly had and earned $166,012 in 2011, his contention was that he was poised for advancement within the company and that such advancement was derailed by his injuries. He testified that although he was able to continue to work and his tax returns show a generally steady increase in income, his hours and his ability to travel were curtailed and his pre-accident expectations were for promotions and a significant increase in salary. According to claimant, although he developed the infrastructure upon which the success of Planet Payment is based, only the corporate name is known in the industry. He stated that after his promotion from vice president to senior vice president in December 2006 he was beginning to do work that would have resulted in his personal name becoming known.
Claimant's federal income tax returns show an income from Planet Payment of $143,685 in 2007, the year of the accident, $141,223 in 2008, $117,529 in 2009 and $162,797 in 2010 (Exs. 164 - 167). The reduction in 2009 was due to an industry-wide reduction in revenues due to the economy generally and not related to claimant's specific situation.
Charles Kincaid, a vocational rehabilitation counselor, interviewed claimant and testified on his behalf. He stated that claimant told him that prior to the accident he had been advancing in his field and that based on conversations with executives with the firm, as well as corporate headhunters, claimant had expected a promotion in April 2007 and that this formerly upward career trajectory had been ended by his injuries. Based on this information, Kincaid researched the salaries of chief information officers and chief technology officers in similar sized companies and concluded that claimant is "stagnant . . . he would have progressed, he would have increased even if not at that particular company that he was definitely a candidate for a higher level position that he would have continued to increase in his earnings and responsibility" (Tr. Vol III, p 130). He asserted that claimant would have been a chief technology officer or chief information officer by April or at least some time in 2007, earning $220,000.00 annually, but for the accident. He stated that he based this conclusion on a database of job titles compiled by the Economic Research Institute and his understanding that the gross revenues of Planet Payment were slightly over $64 million in 2010. He specifically stated on direct that his conclusion was not based on anything that claimant told him.
Kincaid also testified that claimant's injuries reduced his work life expectancy by about 21 to 24% and that he would retire five to six years earlier than if he had not been injured.
Other than the contention that claimant's work life expectancy was reduced by 6.5 years by his injuries, which was not disputed, the basis of the claim for past lost earnings as well as future loss of earning capacity was Kincaid's conclusion that claimant was about to have been promoted to a position earning $220,000.00 annually when he had the accident, resulting in the loss of the anticipated promotion. Starting with that assumption and utilizing a 3% annual growth rate, Alan Leiken, an economist testifying for claimant, projected what his earnings would have been had he received the promotion and worked his full pre-accident statistical work life expectancy (age 67), what they will be given claimant's current position and his reduced work life expectancy, and calculated a loss of $5,372,635.
Kincaid testified on direct that his conclusions were not based on what claimant had told him - alleged conversations between claimant and the CEO of his firm concerning claimant's future there - and that he independently concluded, based on analysis of industry data, that claimant "had the capacity to earn over $200,000 a year" (Tr. Vol III, p 134). On cross-examination he was asked if his assumption that claimant would have received a promotion in 2007 to a position paying $220,000.00 annually was based on something claimant told him, he replied: "Yes, it was based on my interview with him and also my expectations for where he would have gone" (id., p 144). Asked what that expectation was based on, he replied : "It's based on the offer that . . . it came from his CEO as well as what he told me about headhunters/recruiters who were interviewing him for jobs in that price range" (id., p 145).
The final witness was claimant's wife, Mary Zouaoui, who spoke about the changes in claimant's and her life since the accident. Formerly an active person who was very helpful around the house and involved with home renovation, between his physical limitations and managing his pain his post-accident ability to contribute in these areas has been greatly curtailed. Although they are still able to travel, this also has been greatly limited by claimant's limitations. She testified that claimant's attitude towards his job changed in 2009, after the failure of the allograft, the removal of the spacer and the onset of continual bone-on-bone pain began to limit the amount of time and attention he could devote to the job. She observed a "slow erosion" (Tr. Vol III, p 182) of his responsibilities at Planet Payment as well as of his self image, thinking he was a burden to the company. She described her husband as a formerly outgoing man, involved in the world, who is now "all consumed by his pain and getting through the day" (id., p 190). She testified that they decided to go to counseling, which has been helpful but she feels they have a lot of work to do.
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There was virtually no dispute as to the medical aspects of the evidence. Indeed, defendant opens its post-trial submission by noting: "The facts relating to claimant's treatment after the accident are not in controversy. The course of his future treatment is also, after this trial, not in controversy." As previously noted, claimant's sole witness, Dr. Elia, agreed with claimant's physicians with respect to every significant aspect of their testimony. Claimant's past medical, hospital and pharmacy expenses amounting to $1,507,929 are unchallenged (Exs. 78 - 94, 159-160, 201) and the portion of the judgment to be entered in this case for past damages will include that amount.
Claimant also seeks damages for future medical needs as follows:
1. Physicians' (orthopedist or physiatrist) services at an annual cost of $1,800, applying a growth rate of 4% totaling $157,144 over claimant's 39-year life expectancy.
2. X-ray every one to two years, totaling $14,654.
3. Elbow fusion surgery within 10 years at a cost of $17,107.
4. Physical therapy for the remainder of claimant's life at $125 per visit amounting to $293,016.
5. Physicians' services (pain management specialist) at an annual cost of $1,650 amounting to $144,048.
6. Psychiatrists' services at an annual cost of $1,650 amounting to $144,048 over claimant's remaining life.
7. Psychotherapists' services at an annual cost of $2,500 amounting to $218,255 over claimant's remaining life.
8. Couples' counseling at an annual cost of $1,800 amounting to $157,154 over claimant's remaining life.
9. Medications as per claimant's current regime for his remaining life at $650 monthly, increasing by $135 monthly if no morphine pump is installed, amounting to $762,341 with the pump or $914,809 with no pump.
10. Expenses associated with installing and maintaining a morphine pump, including IV medication and pump replacement every five years, all totaling $743,535.
The first five of these items, specifically claimant's need for medical services, X-rays and physical therapy and the likelihood of future fusion surgery are amply supported in the record without contest and those items will be included in the award of future damages. Items 6, 7 and 8 - the cost of a psychiatrist, a psychotherapist and a couples' counselor - are not so supported. The court's conclusion that claimant will require lifetime orthopedic attention, X-rays and physical therapy is based on undisputed medical testimony. No testimony from any psychiatric provider who has rendered treatment to claimant or from an expert in a relevant field was provided and a one-year history of therapy combined with the testimony of Dr. Richter that he "anticipated" that claimant would require such therapy for life is not an adequate substitute for what this court would require before awarding damages for a lifetime of such treatment. The court finds an adequate basis in the record for reimbursement of psychiatric costs incurred to date (those costs are reflected in the past medical expense figure) and for three additional years of all three therapies, amounting to a total of $18,000, part of the future damage award.
The proof as to the cost of the medication that claimant will require for the rest of his life was dependent on whether a morphine pump will likely be installed in the future. While such an approach is sometimes utilized for patients requiring chronic pain medication, the proof indicated that the risk of infection would make it problematical at best for claimant. Dr. Richter testified that he would be hesitant to recommend it for claimant and there is an insufficient basis for the costs to be included in the damages award. Other than the costs of the pump, claimant's request is fully supported by the evidence, and the judgment to be entered for future damages should include the amount of $914,809 for medication (Ex. 170).
Claimant's proof as to the value of the household services he is no longer able to perform as the result of his injuries - a total of $381,747, with $22,786 being past and $358,961 being future - was uncontested, and the judgment to be entered will include those respective amounts.
The final items of pecuniary damages sought are for alleged loss of earnings and diminution of future earning ability. As discussed above, claimant contends that he would have earned $345,605 more than the $731,246 he actually earned for the years 2007 - 2011 if he had not been injured in the subject accident due to an imminent promotion. The court finds that the proof with respect to these years was insufficient for the court to make the conclusion advanced by claimant, particularly the absence of any proof other than claimant's own testimony that he expected to receive a promotion, and defendant is correct in characterizing the request for lost income as being based on speculation.
Conversely, the proof as to the long-term effect of claimant's injuries on his career, the likelihood that he would have advanced further in the profession economically by now had he not been injured, his proven talent and ambition, the effect of long-term narcotic use on his performance, claimant's limited employability within the industry should he need to look for work in the future, the shortening of his work life by six years, and the resulting effect on his income over the remaining 23 years of his (reduced) work life expectancy was undisputed and amply supports claimant's contention of loss of future income. Absolutely nothing in this record contradicts any of these factors or the testimony of claimant's experts on these points. Accordingly, the court finds that claimant has established damages for future lost earnings in the amount of $4,983,030, which should be included in claimant's future damages.
In summary, the court finds claimant's total pecuniary damages amount to the following:
Past medical costs $1,507,929.
Future medical needs 1,558,778.
Past household services 22,786.
Future household services 358,961.
Future lost earnings 4,983,030.
$8,431,484.
In assessing damages for non-pecuniary losses in cases involving serious personal injuries, courts are guided in part by what other courts have done in similar circumstances, a necessarily flawed process because each case is unique, each person's experiences their own and an individual's pain and suffering cannot be quantified, compared and weighed, case against case. The court has nevertheless considered the decisions submitted by the parties, particularly the appellate decisions, as background for the evaluation to be made herein.
Sanders v New York City Tr. Auth. (83 AD3d 811); Aguilar v New York City Tr. Auth. (81 AD3d 509); Firmes v Chase Manhattan Auto Fin. Corp. (50 AD3d 18); Hotaling v CSX Transp. (5 AD3d 964); Bondi v Bambrick (308 AD2d 330).
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The court has already noted that claimant was a singularly credible witness in describing the effects of his injuries, and perhaps just as significant the effects of the treatment required for those injuries - chronic constipation, hemorrhoid surgery with all of the associated pain, repeated MRSA infections requiring extensive and invasive treatment - on his life. Claimant was just as credible in relating the emotional roller coaster created by repeated attempts at achieving some sort of function, all resulting thus far in failure and increased pain, and in describing his reluctance to attempt whatever relief might result from a permanent fusion because he still holds out hope that a viable approach to functionality may lie in the future. While defendant disputed some specific items of damages requested by claimant, and the economic proof did not support every item of special damages sought, there was no dispute as to the extent of claimant's injuries, the severe and debilitating pain that claimant has already endured, the certainty that claimant faces a lifetime of pain and narcotic usage, and the profound and permanent effects that claimant's injuries have had on his life and on his relationship with his family. The court finds that $4 million and $7 million constitute reasonable compensation for claimant's past and future pain and suffering, respectively.
Additionally, the record supports a damage award to Mary Zouaoui for the loss of her husband's services in the amount of $250,000 (past) and $500,000 (future).
To recapitulate, total damages proven in this case are as follows:
Claimant Slim Zouaoui:
PAST DAMAGES
Medical costs 1,507,929
Household services 22,786
Pain and suffering 4,000,000
FUTURE DAMAGES
Medical costs 1,558,778
Household services 358,961
Lost earnings 4,983,030
Pain and suffering 7,000,000
Claimant Mary Zouaoui:
Past loss of services 250,000
Future loss of services 500,000
Since claimant's future damages exceed the statutory threshold and CPLR Article 50-B requires entry of a structured judgment providing for periodic payments, the parties are each directed to prepare a proposed judgment as provided in the statute, incorporating the terms of this decision, to be served and filed within 30 days of the filing date of this decision. The parties shall also advise the court of any other issues that need to be addressed prior to the entry of final judgment. As soon as possible after receipt of the parties' submissions, the court will schedule a hearing for the parties to submit whatever proof and argument is necessary to address any issues that must be resolved prior to entry of a final judgment pursuant to the statute. Thereafter, the court will issue an order directing entry of judgment.
June 6, 2012
White Plains, New York
STEPHEN J. MIGNANO
Judge of the Court of Claims