Opinion
# 2014-030-011 Claim No. 110842
07-15-2014
WILLIAM J. OLSEN and KASEY M. OLSEN v. THE STATE OF NEW YORK
VASTI & VASTI, P.C. BY: THOMAS VASTI, III, ESQ. HON. ERIC T. SCHNEIDERMAN ATTORNEY GENERAL OF THE STATE OF NEW YORK BY: J. GARDNER RYAN ASSISTANT ATTORNEY GENERAL
Synopsis
After the damages portion of a bifurcated trial - in which claimants sought to recover over $80,000,000.00 - the court found that although claimants established that William Olsen suffered a serious injury under the No-Fault Insurance Law, they did not establish that Kasey Olsen's miscarriage two months after the car accident, and her permanent infertility in the passing years, were causally related to the accident of July 17, 2004.
Case information
| UID: | 2014-030-011 |
| Claimant(s): | WILLIAM J. OLSEN and KASEY M. OLSEN |
| Claimant short name: | OLSEN |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 110842 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | THOMAS H. SCUCCIMARRA |
| Claimant's attorney: | VASTI & VASTI, P.C. BY: THOMAS VASTI, III, ESQ. |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN ATTORNEY GENERAL OF THE STATE OF NEW YORK BY: J. GARDNER RYAN ASSISTANT ATTORNEY GENERAL |
| Third-party defendant's attorney: | |
| Signature date: | July 15, 2014 |
| City: | White Plains |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
In its prior decision on liability, this Court found that the State of New York was 100% responsible for the motor vehicle accident of July 17, 2004, which resulted in the serious injuries alleged to have been suffered by William J. Olsen and Kasey M. Olsen. The accident was caused by the reckless operation of a State police vehicle, when it struck the claimants' car at the intersection of State Route 55 and County Route 21. This decision addresses only the issue of damages, after a trial held over several days.
Claimants seek total monetary compensation in an amount over eighty million ($80,000,000.00) dollars for damages allegedly suffered as set forth in their claim, amplified in bills of particulars, and argued in a post trial memorandum of law, including property damage to their car, serious injuries suffered by Mr. Olsen and Mrs. Olsen as set forth in Insurance Law §5102(d), past and future pain and suffering, and loss of consortium. They also seek punitive damages.
In support of their claim, both claimants testified, as did claimants' expert witness in the field of obstetrics, gynecology and fertility, Fred S. Hurst, M.D. and claimants' expert in the field of orthopedic medicine, Gary R. Fink, M.D., and various documentary exhibits were submitted. In addition to cross-examination of such expert witnesses, the defendant offered the testimony of Dr. Keith A. Eddleman, M.D. as its expert in the field of obstetrics, gynecology, reproductive and Genomic science.
In a negligence action involving a motor vehicle accident an injured party may only recover damages for non-economic loss [see Insurance Law §5104(a)] if he or she has suffered a "serious injury" pursuant to Insurance Law §5102(d).
"Notwithstanding any other law, in any action by or on behalf of a covered person against another covered person for personal injuries arising out of negligence in the use or operation of a motor vehicle in this state, there shall be no right of recovery for non-economic loss, except in the case of a serious injury, or for basic economic loss . . ."
As applicable here, Insurance Law §5102(d) defines a "serious injury" as:
"[A] personal injury which results in . . . a fracture; loss of a fetus; 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; . . ."
While defendant has essentially agreed that William Olsen suffered a serious injury as required for recovery under the No-Fault Insurance law, specifically alluding to a fracture of the right fibula and the left fifth toe, the primary issues in contention at trial surrounded whether Kasey Olsen suffered a serious injury under the category of "loss of fetus," and "permanent loss of use of a body organ, member, function or system," the latter premised upon a permanent loss of use of both fallopian tubes and uterus resulting in permanent infertility. Ms. Olsen was diagnosed as pregnant on August 11, 2004, and suffered a miscarriage on September 9, 2004.
Notably, and as is true with any injury asserted to have been proximately caused by a subject accident, it is the claimants' burden to show by a preponderance of the credible evidence that the accident was a substantial factor in causing the injury suffered. In this regard, where there is evidence that the injury may have been caused by other factors not within defendant's control, while claimants need not exclude every other cause of the injuries alleged, "the proof must render those other causes sufficiently 'remote' or 'technical' to enable the [trier of fact] to reach its verdict based not upon speculation, but upon the logical inferences to be drawn from the evidence . . . (citations omitted)." Gayle v City of New York, 92 NY2d 936, 937 (1998). More generally, claimants must establish serious injury through the use of objective medical evidence. Pommells v Perez, 4 NY3d 566 (2005).
The loss of fetus category for serious injury was added by the legislature to expressly overrule the holding of Raymond v Bartsch, 84 AD2d 60 (3d Dept 1981) lv denied 56 NY2d 508 (1982), wherein the plaintiff - 9 months pregnant at the time - was precluded from recovery for her own suffering when she delivered a stillborn infant one day after she was involved in an automobile accident, because, in part, the loss of a fetus was not within any of the enumerated injuries under the statute. See Gastwirth v Rosenberg, 117 AD2d 706, 707 (2d Dept 1986); Doyle v Van Pelt, 189 Misc 2d 67, 70 (Sup Ct, Madison County 2001); see also McKendry v Thornberry, 23 Misc 3d 707, 711-712 (Sup Ct, Rensselaer County 2009). Since such amendment [see L 1984, ch 367, § 1; L 1984, ch 955, § 4], reported cases have arisen in the context of summary judgment motions - not trial determinations - and have, at most, provided that triable issues of fact as to causation preclude summary determination. See Lawman v Gap, Inc., 38 AD3d 852 (2d Dept 2007); Alladkani v Daily News, 262 AD2d 511 (2d Dept 1999); Brown v Mat Enters. of NY Inc., 97 AD3d 401 (1st Dept 2012); Brannan v Brownsell, 23 AD3d 1106 (4th Dept 2005); Flores v Neuman, 28 Misc 3d 1216(A) (Sup Ct, Kings County 2010); McKendry v Thornberry, 23 Misc 3d 707; Doyle v Van Pelt, 189 Misc 2d 67.
Other considerations at the time included the rule in an ancillary line of cases concerning medical malpractice, since abrogated, whereby medical malpractice resulting in miscarriage or stillbirth did not violate a duty of care to expectant mother, thus no recovery for emotional distress absent some independent physical injury was allowed. See Tebbutt v Virostek, 65 NY2d 931 (1985), abrogated Broadnax v Gonzalez, 2 NY3d 148 (2004).
"Left unresolved by Insurance Law § 5102(d) and post-1984 case law is whether 'loss of a fetus' represents the minimum injury that the legislature intended to require for the recovery of damages for pregnancy-related noneconomic loss in automobile actions in the state (see Damas v Valdes, 23 Misc 3d 1133[A], 2009 WL 1532831) or, as noted by the Supreme Court, whether the 1984 amendment to the No-Fault Law could be merely interpreted as reflecting a legislative intent to protect pregnancy (id., citing McKendry v Thornberry, 23 Misc 3d 707, 711 [2009])." Damas v Valdes, 84 AD3d 87, 92 (2d Dept 2011). The Second Department then went on to find that the "loss of fetus" category and the 90/180-day category are "two separate, independent, and free-standing statutory bases by which a plaintiff may be eligible for damages for qualifying noneconomic loss sustained by the use or operation of motor vehicles." Id.
It is noted parenthetically that "basic economic loss" is not defined to include property damage to an automobile, and the case law has exempted such damages from the limitations of Insurance Law §5102. See e.g. Porto v Blum, 39 AD3d 614 (2d Dept 2007). Claimants allege in their claim that they suffered the loss of the vehicle and were not reimbursed the $1,000.00 deductible for such loss. They also seek in the claim the additional sum of $2,400.00, representing the cost of renting a car until a replacement vehicle was obtained, for a total $3,400.00 property loss claim.
Although claimants request punitive damages, punitive damages are not available against the State of New York. Sharapata v Town of Islip, 56 NY2d 332, 338-339 (1982); see also Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d 382, 386 (1987).
Finally, with regard to expert testimony, "[w]here, as here, conflicting expert testimony is presented, the [trier of fact] is entitled to accept one expert's opinion and reject that of another expert." Bailey v Brookdale Univ. Hosp. & Med. Ctr., 98 AD3d 545, 546 (2d Dept 2012). "Absent an explanation of the basis for concluding that the injury was caused by the accident, as opposed to other possibilities evidenced in the record, an expert's 'conclusion that plaintiff's condition is causally related to the subject accident is mere speculation' insufficient to support a finding that such a causal link exists . . . (citation omitted)." Diaz v Anasco, 38 AD3d 295 (1st Dept 2007).
Discussion and Conclusion
On Saturday, July 17, 2004, Kasey and William Olsen had been married for approximately one year, but had been together as a couple since 1999. That afternoon William Olsen was driving with Ms. Olsen as a front seat passenger, and Julianna - Mr. Olsen's 9 year old daughter from his first marriage - was sitting in the back seat. Mr. and Ms. Olsen wore three-point harness seat belts. Kasey Olsen was balancing her checkbook in the front passenger seat of the Olsen's car, with the glove compartment door open for use as a makeshift desk. When the car entered the mouth of the intersection, it was struck immediately thereafter by the State trooper's vehicle, on the driver's side. Ms. Olsen recalled that her stomach "came in contact with the glove box, and [her] right hand came in contact with the door" at the time of the collision. On cross-examination, however, she acknowledged that she did not have a specific recollection of contacting the glove box compartment door, but rather "believed" she "hit it." [T-190]. She said her "whole front body" came in contact with the air bag. [T-57]. Both air bags deployed.
Quotations are to the trial transcript unless the context suggests otherwise, here [T-53-54].
Photographs of the claimants' vehicle show extensive damage to the driver's side front end and rear driver's side, although no particular damage is evident on the passenger side. [Exhibit 6]. Ms. Olsen thought there was more than one impact, given the damage to the car when she saw it at the wrecking yard. The car was spun around, and was facing the opposite way from their original travel direction.
Both Mr. and Ms. Olsen were taken by ambulance to the St. Francis Hospital emergency room. Julianna was unharmed.
Property Damage to the Olsen's Vehicle
Ms. Olsen testified without contradiction that as a result of the accident the family car was totaled, and while they received some compensation for the loss and were ultimately able to replace the car, they suffered an out-of-pocket loss of $1,000.00.
William Olsen
Emergency personnel from the La Grange fire department moved Mr. Olsen on a back board with his head immobilized. At the hospital, he complained of head and neck pain, and pain in his right leg and ankle. Emergency room records show that a contusion was noted on the left side of his head, in keeping with his having struck the window of the driver's side door of his car. [Exhibit 12]. His head, right ankle and spine were x-rayed. No fractures or bony dislocations were shown. A CT scan of his head found no evidence of intracranial hemorrhage. He was discharged with a diagnosis of head contusion, contusion of the right ankle, and back strain, given analgesics and advised to follow-up with his own physician.
All of William Olsen's medical records, from all providers, are contained in Exhibit 12.
Mr. Olsen followed-up with Dr. Nesheiwat - who shared a practice with Dr. Jeannie Parikh the family doctor - the next day, complaining of an acute headache. After examination he was referred for follow-up with a neurologist. He visited the office again on July 19, 2004, and saw Dr. Parikh. He complained of headache, sore ribs, and a bruised left fifth toe. On examination, the doctor found neck and back spasms and referred him for additional x-rays and an orthopedic follow-up. It was recommended that he remain out of work.
Dr. Lawrence Foster, an orthopedist, saw him on July 21, 2004. After the doctor examined Mr. Olsen and noted his discomfort on palpation over the left fifth toe, he performed an x-ray of the left foot. No obvious fracture of that area was found, although the doctor thought he might have a deep contusion versus a fracture of that toe. Dr. Foster did find, however, a non- displaced fibular neck fracture of the right knee, recommended a knee immobilizer, and referred Mr. Olsen for an MRI of the right leg. The MRI was performed on July 23, 2004, however Mr. Olsen did not return to Dr. Foster, instead treating with a different orthopedist, Dr. Gary Fink, commencing August 13, 2004.
In August 2004, Mr. Olsen also consulted with a neurologist, Dr. Michael Weintraub and with Dr. Anthony Labate, a chiropractor.
When Mr. Olsen saw Dr. Weintraub on August 11, 2004, he was complaining of a "daily posterior headache with neck pain radiating to the left shoulder" among other things. After examining him, Dr. Weintraub's impression was that Mr. Olsen had "sustained a cerebral concussion as well as a direct head injury and possible contusion. There is also a cervical whiplash with some radicular component." Dr. Weintraub recommended an MRI of the brain and neck to rule out structural pathology and delayed hematoma. At his final evaluation of Mr. Olsen on October 21, 2004, Dr. Weintraub commented that his present complaints of
" 'monstrous' headaches" and pain in his neck
"are those of cervical strain syndrome with intermittent radiculitis producing focal head pain. He also is status post cerebral concussion. He states that he is scheduled for an epidural block in his neck next Tuesday and I feel that is a good recommendation in that it should resolve all of its complaints. His MRI of the brain is normal as well as his EEG so I anticipate that there will be a good prognosis."
Dr. Weintraub indicated that he would see Mr. Olsen as needed. There is no indication that Mr. Olsen consulted Dr. Weintraub any further.
At his initial exam with Dr. Labate, the chiropractor, on August 6, 2004, Mr. Olsen was not manipulated or otherwise given therapy, but in later visits he was given range of motion tests, "some massaging" and various devices, such as a TENS unit, were used, as Mr. Olsen recalled it. [T-739]. Dr. Labate performed some "minor" adjustments. According to the medical records, he last saw Dr. Labate on September 30, 2004. At the time the doctor recommended 6 more weeks of chiropractic care. There is no indication that Mr. Olsen treated with Dr. Labate thereafter.
Mr. Olsen testified that he tried to go back to work within two weeks of the accident, due to monetary constraints, but found that he could not complete the day due to headaches and pain in his left shoulder. He returned to work two months after the accident, but still with limitations, performing only "light" work, such as installing hardware. [T-743]. He estimated that he worked only 15 to 25 hours per week for that two month period, as opposed to the 40 hours plus he had worked before the accident. He said he returned to full-time employment in late December 2004 - a little after Christmas - but was unable to perform the same duties as efficiently.
On August 13, 2004, Dr. Gary Fink, an orthopedist who also testified at trial as claimants' expert, found that Mr. Olsen had suffered a right fibular non-displaced fracture, a fracture of the little toe, left foot and had strained the shoulder and neck and injured the left rotator cuff. With regard to the knee and toe fractures, Dr. Fink said they were healing appropriately, and recommended rest. Mr. Olsen was complaining of pain around his shoulder girdle, including discomfort in the scapula area, neck and the rotator cuff area. He had full range of motion at the time.
After an MRI of the shoulder taken on August 17, 2004 seemed to indicate that the rotator cuff was intact, Dr. Fink concluded that due to downward sloping of the acromion - a section above the humeral head in the shoulder joint - the rotator cuff was nonetheless inflamed or impinged. Dr. Fink said that the shape of Mr. Olsen's acromion was such that it did not allow the rotator cuff to clear as easily, and would result in more rubbing of the rotator cuff. The course of treatment prescribed was physical therapy to strengthen and reduce the swelling of the joint, although in more severe cases of such shoulder impingement a portion of the acromion may be surgically removed to allow more space for the rotator cuff to clear. Although such surgery was discussed with Mr. Olsen during a later visit in October 2004, Dr. Fink was not considering same unless something changed.
Mr. Olsen commenced physical therapy for the shoulder on August 30, 2004 and continued that course of treatment until December 16, 2004, receiving 17 treatments overall. The final physical therapy note provides that Mr. Olsen had full range of motion in his neck and in his shoulder and that such motion was pain free in both areas.
On December 22, 2004, Dr. Fink re-evaluated Mr. Olsen. He found no continuing physiologic defects, and recommended a long-range exercise program for his shoulder and neck. Mr. Olsen indicated that he was seeing a pain management specialist for his neck. Dr. Fink said Mr. Olsen would be at "slightly increased risk" for shoulder discomfort "as a carpenter, for having the combination of a downward sloping acromion and developing some rotator cuff issues." [T-1039].
The last time Dr. Fink saw Mr. Olsen was on May 18, 2005. At that time, Mr. Olsen had recovered from his left toe and right knee injuries, but continued to complain of shoulder discomfort. Dr. Fink continued to encourage a home exercise program, and did not think anything else was required.
Mr. Olsen consulted with two pain specialists, and received two steroid injections. Dr. Edward Kirby - one of the pain specialists - diagnosed the same impingement that Dr. Fink had diagnosed, and last treated such condition with an injection of steroids on July 19, 2005. A course of physical therapy was also prescribed and Mr. Olsen was expected to return for follow-up. Mr. Olsen did not proceed with physical therapy and did not obtain any further treatment from Dr. Kirby or any other provider for these conditions.
Dr. Fink opined, with a reasonable degree of medical certainty, that as a result of the accident Mr. Olsen suffered two fractures, and also sustained a significant limitation of use and function of his left shoulder, diagnosed as impingement syndrome, which could be a significant ongoing issue given his work as a carpenter. He also acknowledged, however, that when he saw Mr. Olsen on May 18, 2005 there were no signs of impingement or rotator cuff weakness, he had full and pain free range of motion of the cervical spine, and that there were mild degenerative changes to the cervical and thoracic spine. Such degenerative process was not a result of the July 17, 2004 accident.
In sum, Mr. Olsen was able to work and essentially stopped seeking any treatment associated with the injuries suffered in this accident within one year, limiting himself to over-the-counter pain medication by his own report. The fractures healed, and the remaining aches and pains associated with his neck and shoulder were episodic. Dr. Fink did indicate, however, that Mr. Olsen is likely to suffer continued issues with his shoulder, causally related to the weakness from the accident, and the obvious fact of his physical type of work tending to exacerbate the weakness. Dr. Fink described the shoulder impingement syndrome as chronic and permanent.
Kasey Olsen
Kasey Olsen was transported on a backboard to St. Francis Hospital on July 17, 2004. [Exhibit 11]. At the hospital, her initial complaints were of neck pain, chest pain and upper back pain, and personnel noted abrasions to her left breast and right hip, as well as pelvic area seat belt abrasions. At trial she recalled that she was feeling pain in her abdomen and in her back.
All of Kasey Olsen's medical records, from all providers, are in Exhibit 11.
On physical examination, the examiner observed that Ms. Olsen experienced pain with deep respiration, the abrasions at the left breast, right and left hip were noted, and there was an area of tenderness of the mid-back on the left. There was no tenderness, swelling, or signs of hematoma between the anus and the vagina, or bleeding at the opening of the female urethra. The genital and abdominal evaluations were normal.
Ms. Olsen reported that her last menstrual period had been 2 ½ weeks earlier. A pregnancy test based upon a blood sample was negative for pregnancy.
To rule out fractures and soft tissue damage to the internal organs, x-rays were done of her chest, lumbosacral spine and pelvis. All were negative. A CT scan of her chest and of her abdominal and pelvic areas was also performed. The CT scan of her chest showed small pleural effusions in the lungs, but was otherwise unremarkable. The abdominal/pelvic scan showed no internal bleeding or acute injury.
Excess fluid in the lung.
Ms. Olsen was discharged with a diagnosis of thoracic strain, and it was noted that she had suffered a chest wall contusion. She was given pain medication, and told to seek follow-up care as needed.
On July 19, 2004, Ms. Olsen saw Dr. Jeannine Parikh, the family physician. The doctor noted Ms. Olsen's complaint of lower abdominal pain, and her report of a morning bowel movement. On examination, Dr. Parikh noted muscle stiffness in the neck and back at the right scapular area, a soft abdomen with lower abdominal tenderness, a 10 cm area of ecchymosis/hematoma at the pubic area, but positive bowel sounds. In the limbs, a right tricep hematoma with tenderness and redness is noted. The doctor diagnosed an abdominal trauma, and told Ms. Olsen to follow-up with an abdominal/pelvic CT. She was prescribed an analgesic, an anti-inflammatory, and told to place hot compresses to the area of ecchymosis. She was also advised that if she was unable to move her bowels or experienced numbness in the right arm or hand she should go to the emergency room.
Ms. Olsen testified that 11 days after the accident photographs of her bruises were taken at counsel's request. [Exhibits 7A-7E]. She said that the bruised area shown in 7A - depicting her abdomen - was "black" when she first saw Dr. Parikh, rather than the purple to yellow color shown in the photograph.
During a follow-up visit on August 3, 2004, Dr. Parikh noted that Ms. Olsen's abdominal pain, and neck, back and arm pain, had "resolved." Ms. Olsen reported that her last menstrual period had been July 2, 2004, and that she was now one week late. Dr. Parikh examined Ms. Olsen. The doctor found the abdomen soft with a slight suprapubic tenderness and no uterine enlargement. The ecchymosis in the pubic area is noted as resolved, and positive bowel sounds were noted as well. Dr. Parikh referred Ms. Olsen for a pelvic ultrasound to rule out pregnancy, and suggested that she follow up with her obstetrician/gynecologist. Dr. Parikh also advised that she should take only Tylenol for pain as needed.
A transvaginal ultrasound was performed at Sharon Hospital on August 11, 2004. The findings were that there was
"an intrauterine gestation containing an embryo and yolk sac. Surrounding the sac within the uterine cavity there is a small amount of fluid which may represent some blood. The maximal dimension of this fluid is 1.2 cm. Cardiac activity is seen with a documented heart rate of 132 beats/min. The endocervical canal is closed . . . Impression: early viable intrauterine gestation with surrounding fluid collection which may be due to acute blood. Recommend clinical correlation and follow up as warranted."
On August 18, 2004 Ms. Olsen saw her treating obstetrician/gynecologist, Howard G. Mortman, M.D. who, along with Dr. Parikh, had been sent copies of the Sharon Hospital ultrasound taken on August 11.
Ms. Olsen testified that she and Mr. Olsen had engaged in unprotected sexual relations for a period of 6 years, but she had never become pregnant. Accordingly, they sought Dr. Mortman's guidance with regard to fertility issues commencing in January 2004. At his instruction, she began to keep track of her ovulation cycles, took pre-natal vitamins, and determined that the optimal ovulation period during her menstrual cycle was between the 12th and 14th day of each month. She testified that she and her husband had sexual intercourse on July 13, 2004, and presumed that this had resulted in her pregnancy.
When Ms. Olsen saw Dr. Mortman on August 18th she reported that she had experienced light spotting and mild cramping that morning. This is the only report of vaginal bleeding in the medical records prior to the eventual spontaneous abortion on September 9, 2004.
Dr. Mortman examined her with a speculum, observed a closed cervix, and an enlarged uterus, consistent with a pregnancy of 6 to 7 weeks duration, and a reported last menstrual period of July 1. He also observed scant blood in the vaginal vault. Based on such observation, he diagnosed a threatened abortion and prescribed modified bed rest and abstinence. He gave her the number for a pregnancy hotline, arranged for an initial prenatal visit with a mid-wife, and told her to call if she experienced severe pain or a heavy flow. A follow-up ultrasound was set up.
Between August 18, 2004 and the day of the follow-up ultrasound on September 8, 2004 Ms. Olsen had no additional pain, cramping or blood flow.
Sadly, the September 8, 2004 ultrasound revealed that there was now no cardiac activity, and the impression was an "embryonic demise." The report said:
"The gestational sac is rounded. The crown-rump length measurement is 1.7 cm, resulting in an estimated gestational age of [8 weeks, 1 day] . . ."
Ms. Olsen saw Dr. Mortman that same day. After some discussion, a dilation and curettage (D & C) procedure was scheduled for September 10, 2004. Dr. Mortman's notes indicate that there was discussion of the risks of the procedure, including infection, hemorrhage and uterine perforation, versus waiting for a spontaneous abortion to occur. He also wrote that the limitations of having a chromosome evaluation were discussed, without specifying what those limitations were.
The D & C procedure never occurred, because after experiencing an increased flow and cramping Ms. Olsen suffered a spontaneous abortion of the gestational sac and embryo overnight from September 9, 2004 to September 10, 2004.
She saw Dr. Mortman the morning of September 10, 2004, bringing with her the expelled material. After he examined her, he confirmed that a complete spontaneous abortion had occurred. The report of a pelvic ultrasound taken that date states:
"[a] midline uterus was visualized with a relatively endometrium of 1.19 cm without focal abnormality, and certainly no evidence of intrauterine gestational sac or tissue. The uterus was without obvious anomalies. The right ovary measured 2.15 x 1.88 cm without obvious anomaly, and the left measured 2.65 x 2.0 cm without obvious anomaly. There was no free fluid in the col-de-sac."
Dr. Mortman sent out the embryonic material for chromosomal analysis. Ms. Olsen was advised to return in four weeks to review any chromosome testing, and to take into consideration her six years of infertility predating this pregnancy. If she experienced any fever, pain or heavy bleeding, she was told to come earlier. Significantly, Dr. Mortman also wrote:
"In terms of understanding the cause for this miscarriage, certainly, the differential includes something abnormal about the pregnancy from the beginning, including chromosomes, poor implantation, versus her car accident that she apparently had versus other factors."
The September 29, 2004 chromosome test found that "no chromosome anomaly was apparent and the karotype was 46.XX, female, based on the analysis of 5 primary fibroblast cultures recovered from chorionic villi."
When both Mr. and Ms. Olsen came in to see Dr. Mortman on October 12, 2004, they discussed this result. Dr. Mortman noted that he explained that the chromosomal test was not definitive, since the material tested could represent maternal tissue. He wrote "[a]t this point hopefully that miscarriage was unrelated but there is a small possibility that there is a relationship."
Dr. Mortman thereafter proceeded with a series of laboratory tests for conditions that might impair Ms. Olsen's future fertility, in the absence of any conclusive information as to any genetic problem with the pregnancy.
Ms. Olsen's own chromosomes were analyzed, and found to be a normal 46.XX (although the report contains an odd error in that it purports to analyze the chorionic villi - which are structures of embryonic cells - when it was a blood sample from Ms. Olsen that was actually analyzed).
A procedure to determine whether the fallopian tubes were open - a hysterosalpingogram - was performed on November 12, 2004. This procedure indicated that although there was some blockage in both tubes, they remained open enough to permit passage of an egg for normal conception and uterine implantation and gestation to occur.
At a December 10, 2004 visit with Dr. Mortman, it was determined that Ms. Olsen would begin a trial of the drug Clomid, which stimulates ovulation, and intrauterine insemination [IUI]. The doctor also noted that the
A procedure that involves placing sperm inside a woman's uterus to facilitate fertilization, giving the sperm a head start in reaching the fallopian tubes and thus increasing the chance of fertilization.
"slight dilatation of both tubes but bilateral spill . . . could be some familial disease and past infection could be a big contributor to infertility and certainly theoretically could increase her risk of ectopic should she conceive."
Dr. Mortman's notes from April 15, 2005, when Ms. Olsen came in for her annual exam, indicate that he proposed a diagnostic laparoscopy, "which might also turn out to be therapeutic," to see if there were pelvic adhesions or endometriosis. After several cycles of the trial of Clomid and IUI did not bring about a pregnancy, Ms.Olsen elected to undergo the suggested laparoscopy.
In his report of the laparoscopy procedure performed on May 23, 2005, Dr. Mortman noted a history of cervical polyp removal at the age of 16, found evidence of old pelvic inflammatory disease and found extensive adhesions in the pelvic cavity which bilaterally impacted her reproductive organs. The right fallopian tube was "kinked and twisted and there was a very slight spill only noted with a great deal of pressure." He said that he was able to lyse the adhesions on the right side, eliminating the kink, so that the tube "looked normal" and there appeared to be free flow to facilitate an intrauterine pregnancy. Because he feared a risk of injury on the left side, he did not proceed with any extensive dissection. He wrote that a laparotomy - a more invasive surgical procedure involving a surgical opening of the pelvic cavity - would be necessary to try to correct the "severe adhesions intimately connecting the left fallopian tube with the ovary and the fimbria [which] were completely blunted and nonvisible." [p. 436].
Small, finger like projections at the end of the fallopian tubes, connected to the ovary. The egg is transported to the uterus in a fluid produced by the fimbriae on the edge of the fallopian tube's opening.
Notably, no mention is made in his records of any signs of an acute injury to the reproductive organs, or that any pelvic adhesions were fresh or due to some more recent occurrence. When Dr. Mortman again recited Ms. Olsen's history in his operative notes prefatory to the laparoscopy, in terms of the presenting principal diagnosis of "infertility" and "pelvic adhesions," he wrote:
"[t]he patient is a 27 year old gravida 1, para 0 with long standing primary infertility. She presented to me with this complaint back in January 2004 . . . This patient ultimately did conceive spontaneously and then got in a MVA and ended up with a first trimester miscarriage."
When Ms. Olsen saw Dr. Mortman on June 2, 2005, following the laparoscopy, it was determined to proceed with a maximum of 6 cycles of the Clomid and IUI trial. Dr. Mortman noted, however, that "given her history of tubal disease if she does conceive . . . it was important to rule out ectopic [pregnancy] expediently." After this continued trial was unsuccessful, the Olsens were able to enter an in vitro fertilization [IVF] program at Montefiore Hospital, which also proved unsuccessful.
During two intervals between cycles of IVF, the Olsens did conceive naturally, however both pregnancies proved to be the non-viable ectopic pregnancies Dr. Mortman had warned them about.
After confirming that the first pregnancy was an ectopic one in the right fallopian tube, Dr. Mortman performed a salpingectomy removing the entire tube on March 9, 2006.
The next ectopic pregnancy was aborted chemically, a procedure creating its own hazards with regard to successful pregnancy. Indeed, claimants' expert, Dr. Hurst, noted that by the use of the chemical Methotrexate in this case "you're gonna end up with more scarring . . . or a complete blockage of that tube." [T-366-367].
Ultimately, Ms. Olsen stopped her efforts to conceive and give birth to a child of her own. Ms. Olsen acknowledged that no doctor who treated her had ever told her that the accident caused her miscarriage in September 2004, or that the accident caused any injury to any of her reproductive organs. She also testified that in addition to the polyp removal as a teenager, she was diagnosed with Chlamydia and treated for it when she was 17, and was aware that any STD may cause fertility issues.
At the time of the accident, Ms. Olsen had been working at Chadwell Insurance Agency in an administrative capacity. She testified that she "lost a few days from work" after the accident. [T-95].
Both Mr. and Ms. Olsen testified that the strain of trying to conceive a child, and the associated frustration, helped to put an end to their marriage. They separated in December 2010. At the time of the damages trial, divorce papers were pending.
Dr. Fred S. Hurst, who testified as claimants' expert, spent approximately 37 years as a member of a group obstetrical/gynecological practice in Poughkeepsie, New York. He said that he practiced both obstetrics and gynecology until 1985, but thereafter did not practice obstetrics, but rather specialized in infertility. He has been board certified in obstetrics and gynecology since 1972, and currently works in Florida with Planned Parenthood and as a gynecologist with a group called Fort Lauderdale Women's Clinic. He testified that he has extensive experience in caring for patients with infertility, however he also indicated that he stopped "doing infertility" in 2008. [T-257].
In preparing for his testimony, Dr. Hurst reviewed Kasey Olsen's medical records, a typed statement by Kasey Olsen, and the photographs taken of Ms. Olsen 11 days after the accident. [Exhibits 7A-7E]. Nonetheless, throughout his testimony he did not seem to have a consistent grasp of the actual facts of the case, as recorded in the medical records. He speculated that there was blood in the abdominal cavity when discussing the ultrasound taken on August 11, 2004, when the actual interpreter of the report noted a fluid that "may" be blood, based his assessment of the degree of trauma to the abdominal area on the photographs taken 11 days after the accident, and further opined that the trauma caused scarring (ignoring Dr. Mortman's notes concerning pelvic inflammatory disease and a history of polyp removal). Although he recognized a limit to what a hyterosalpingogram test would reveal, namely, its purpose would be to show whether the fallopian tubes were open (and would not show scarring), he nonetheless later used such result to say that the scarring must have been from the auto accident since the hysterosalpingogram performed in November 2004 did not show scarring, while a laparoscopy performed in May 2005 did.
Dr. Hurst ultimately opined with a reasonable degree of medical certainty, that the "automobile accident was the direct cause of her miscarriage." [T-321]. Asked for the basis for his opinion, Dr. Hurst stated:
"I think the trauma to the uterus was . . . shown by the fact that there was blood in the uterus on the initial ultrasound examination, and that the . . . chromosome studies were normal . . . all of these point to something else being the cause, and the only other thing that we have as being the cause was the automobile accident." [T-321].
Although Dr. Hurst acknowledged that there can be cross-contamination of maternal and fetal tissue when chromosome studies are done, he proclaimed that there was no evidence of that occurring in this case. He discounted poor implantation as a cause of miscarriage, but suggested poor implantation "may" have resulted from the automobile accident trauma.
Moving on from the opinions concerning the initial miscarriage, Dr. Hurst then opined that the automobile accident "could cause . . . injury to both the ovaries and fallopian tubes" [T-339], and that the "rubbing of the internal organs, the fallopian tubes, the uterus, the ovary . . . from this trauma, is enough to cause scarring." [T-341]. He opined that:
"the adhesions were related to the automobile accident, and probably . . . and with a degree of medical certainty, the tubal damage was caused by the . . . automobile accident, so she ended up with a miscarriage and then two ectopics, all related to the automobile accident." [T-372].
Asked whether Ms. Olsen's "current condition of her poor chances of achieving fertility, naturally" was "caused directly by this automobile accident of July 17, 2004," Dr. Hurst said "yes." [T-372].
On cross-examination, Dr. Hurst acknowledged that the causes of miscarriage cannot always be determined. He also acknowledged that many early first trimester miscarriages may occur with no medical involvement at all, with the woman never even aware that she may have miscarried, but found nothing significant in a history of unprotected sexual intercourse for a period of over 5 years not resulting in pregnancy. He also admitted that the fluid noted in the ultrasound of August 11, 2004 was not identified as blood (although he explained that you cannot tell with certainty on ultrasound what the fluid is). Reminded that no fluid was noted in the follow-up ultrasound in September, he said "it may have been absorbed . . . whether it be blood or fluid." [T-378]. He agreed that there are conditions in early pregnancy that involve bleeding in the uterus that do not always result in miscarriage, nor are they the result of trauma. These situations might include bleeding resulting from implantation of the embryo, and bleeding from the growth of the placenta into the uterine wall.
He also acknowledged that all pregnant females who suffer seat belt burns and injuries do not have miscarriages, but said he did not really know what seat belt burns looked like, when asked if the photographs he had been shown of Ms. Olsen's abdomen 11 days after the accident [Exhibits 7A-7E] showed seat belt burns. Shown the St. Francis Hospital records and the notations concerning abrasions across the hips and lower abdomen, he still would not say that the photographs showed the result of seat belt use, saying "to the best of my knowledge, the . . . pattern of the injuries as shown in the picture, would be greater than those just by a seat belt because they go much higher than a seat belt would go." [T-386].
Dr. Hurst conceded that although a sonogram could have determined whether there was a separation of the endometrial lining, which would have provided evidence that there was "trauma to the uterus caus[ing] the decrease in maternal blood supply" [T-403], those ultrasounds that were performed and the doctors who read them found no abnormalities in the lining.
He acknowledged that he did not "know . . . for certain" [T-427] that the adhesions seen by Dr. Mortman when he conducted the laparoscopy were caused by the impact of July 17, 2004, rather than a prior pelvic inflammatory disease as noted by Dr. Mortman (who actually visualized the area). Indeed, on redirect examination Dr. Hurst took exception to the use of the term pelvic inflammatory disease as a catch all type term that encompasses too many things (implying he did not know what Dr. Mortman meant by using the term).
Ultimately, Dr. Hurst said that there are causes of this miscarriage that are not documented as having been eliminated in the treatment records, and acknowledged that he arrived at his opinion that the miscarriage was caused by trauma based upon elimination of all other causes (even though the elimination of such causes is not documented).
Dr. Hurst also acknowledged that a pregnancy does not occur until the embryo has implanted, and that such implantation occurs within 5 to 7 days of conception. On this point, both Dr. Hurst, and Dr. Eddleman, defendant's expert, agreed.
Dr. Keith Eddleman, defendant's expert in the fields of obstetrics, gynecology and embryology, practices maternal-fetal medicine, which he described as a sub-specialty of obstetrics and gynecology, and is currently the Director of Obstetrics at Mount Sinai Medical Center. [Exhibit A]. He has practiced in this sub-speciality for over 21 years, and currently treats patients and teaches medical students in the field of embryology. Embryology, he said, is the study of human development "from the formation of egg and sperm to the birth of a child." [T-468].
Dr. Eddleman testified that as of July 17, 2004, although it was "possible" that Ms. Olsen was pregnant, in medicine, in order for a pregnancy to occur the embryo needs to implant in the mother. [T-470]. Before implantation, there is no assurance that a pregnancy will occur. Indeed, "more than 50% of the time" an egg may be fertilized by a sperm without a pregnancy resulting. [T-471]. The blood test for pregnancy given at St. Francis Hospital on July 17, 2004 was negative. Even assuming that conception occurred as Ms. Olsen believed, three days before the accident, Ms. Olsen was not pregnant on July 17, 2004 based upon any scientific assessment of such status, nor could medical science have made such a determination, in Dr. Eddleman's view.
More importantly, Dr. Eddleman opined that it could not be determined to a reasonable degree of medical certainty what was the cause of Ms. Olsen's miscarriage in September 2004, based upon the medical records.
By August 11, 2004, there was evidence of pregnancy as shown in the ultrasound. Dr. Mortman noted that in an updated ultrasound - perhaps he received such information by telephone since it is not recorded in the ultrasound report for that day - the "fetal pole was five millimeters, and that's consistent with six weeks plus two days." [T-479].
Dr. Eddleman said that miscarriage is a common occurrence at the gestational age estimated on the September 8, 2004 follow-up ultrasound, and indicated that "approximately 20 to 25 percent of all pregnancies miscarry." [T-480]. Of that percentage, he said, the most common cause of miscarriage is chromosomal abnormalities, between "50 to 60 percent, depending upon which literature you read." [T-481]. Other possibilities include an abnormality in the embryo itself, and a "very long" list of infections, among other things. He thought that the investigation of the cause for the miscarriage was not conclusive, ultimately saying that it is "impossible to completely rule out every other cause." [T-517].
Dr. Eddleman said that when chromosome analysis shows a normal female karyotype it is not considered definitive as to whether the embryo contained genetic abnormalities. [T-482]. He explained that the material cultured for chromosomal testing - the chorionic villi of the embryo - are fine, finger-like structures that intermesh with complementary structures developing in the endometrial lining of the mother's uterus to form the attachment between the embryo and the uterus. He said that when the specimen is retrieved, "both maternal and fetal cells come out in the tissue" and although attempts are made to separate them, "[i]t's impossible to . . . completely do it." [T-484-485].
Dr. Eddleman ultimately opined that he did not think that the automobile accident of July 17, 2004 caused the miscarriage, based upon the documentation in the St. Francis Hospital records, and the records of Ms. Olsen's treating physicians, Dr. Mortman and Dr. Parikh. He said that early on in a pregnancy the uterus is "well protected by the bones of the pelvis" which acts "sort of like a bucket." [T-488]. The uterus "doesn't actually rise out of the pelvis until about 12 weeks gestation," he said, "so the uterus could not have been big enough at that point, to have been out of the pelvis to have been even approached by a seat belt, or anything, any blunt, external trauma." [T-488-489]. Additionally, he pointed out that if there had been any traumatic disruption of the uterus, or its lining, the records should have shown vaginal bleeding, and pain in the area of the uterus and cervix, none of which was present from July 17, 2004 until the August 18, 2004 report of mild spotting by Ms. Olsen to Dr. Mortman.
Shown the photographs taken of Ms. Olsen's abdomen, Dr. Eddleman pointed out that the area of bruising or ecchymosis depicted is "well above" where the uterus and fallopian tubes are located. [Exhibits 7A-7E]. Indeed, on cross-examination, Dr. Eddleman confirmed that Dr. Parikh's description of a 10 cm hematoma in the pubic area would appear to be a misstatement - "if this is the ecchymosis that she's describing" - since the photographs were clearly of the "super pubic area." [T-604].
With regard to infertility issues, Dr. Eddleman thought Ms. Olsen's treatment records showed that fertility problems existed prior to the accident of July 17, 2004. Noting Ms. Olsen's history of a Chlamydia infection, Dr. Eddleman said that such an infection may cause scarring between the fallopian tubes, on the ovaries, and within the uterus. Such scarring interferes with the progress of the fertilized egg getting from the fallopian tubes to the uterus, and increases the likelihood of an ectopic pregnancy. The conditions Dr. Mortman saw during the course of the video laparoscopy of May 23, 2005, "the scar tissue, the kinking of the tube, the lack of spillage, the blockage of the tubes . . . are classic findings for . . . old pelvic inflammatory disease." [T-499]. Dr. Eddleman opined to a reasonable degree of medical certainty that the conditions of Ms. Olsen's fallopian tubes and ovaries did not have anything to do with the car accident. He additionally opined that the accident had nothing to do with her subsequent infertility.
On cross-examination, Dr. Eddleman confirmed that in his view and experience "some people can have an accident and not have any trauma at all . . . to their bodies." [T-513]. He stated that although he has taken care of pregnant women who were in car accidents, and then subsequently had miscarriages, he found that there is "no definitive cause and effect that you can determine." [T-516]. He explained that for every miscarriage a physician tries to find out what the cause was, in order to counsel the patient. The "list is so long" for what may cause a miscarriage, however, and there are some causes for which no testing exists, making it "impossible to rule out every other cause" to a reasonable degree of medical certainty, particularly in the first trimester. [T-516-517].
While Dr. Eddleman thought that an automobile accident involving a penetrating trauma to the abdomen - such as a shard of metal going through the uterine wall - followed by a miscarriage, would provide a
"high likelihood that there was an association between the automobile accident and the miscarriage, [i]n a situation where you have . . . some blunt abdominal trauma in . . . an early gestational age, where the uterus is far away from the area where the trauma was, I think that it's very unlikely that that has anything to do with the miscarriage." [T-550].
Using an article from the July 2013 issue of the American Journal of Obstetrics and Gynecology, counsel for claimants attempted to impeach Dr. Eddleman's testimony with regard to any correlation between blunt, non-penetrating trauma during pregnancy and miscarriage, specifically a section of the article regarding automobile accidents. [Exhibit 14]. Such questioning lacked a sufficient foundation, however, as claimants did not establish that the witness viewed every article published in such journal as authoritative, since the methodology for articles printed therein - particularly with regard to the level of research and peer review - varied. Indeed, the witness had not read the article, and indicated that it was his practice to check the research and references in a given article in any event.
Although an expert may be cross-examined by using a passage from a treatise, book, or article which contradicts the opinion given, the expert witness must accept the book, treatise, or article as authoritative and, further, the content of the expert's direct testimony and the treatise should be truly contradictory. See Reilly v Ninia, 81 AD3d 913, 917( 2d Dept 2011); People v Rose, 41 AD3d 742 (2d Dept 2007); Watkins v Labiak, 6 AD3d 426 (2d Dept 2004); Labate v Plotkin, 195 AD2d 444 (2d Dept 1993). Notably, claimants' expert, Dr. Hurst, did not rely on the article in forming his opinion, but rather saw it as after-the-fact confirmation of what he thought was true. It is also noted that an article or treatise must be excluded as hearsay if it is offered as proof of the facts asserted therein, and may only be admitted for impeachment purposes on cross-examination if the challenged expert concedes the authoritativeness of the treatise. See Lipschitz v Stein, 10 AD3d 634 (2d Dept 2004); see also Winiarski v Harris, 78 AD3d 1556 (4th Dept 2010); Lenzini v Kessler, 48 AD3d 220 (1st Dept 2008); Kirker v Nicolla, 256 AD2d 865 (3d Dept 1998).
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Again shown the photographs of Ms. Olsen's abdomen taken after the accident [Exhibit 7A], Dr. Eddleman reiterated that the bruising shown is "above the level of the pelvic brim, which would be above the level of the uterus . . ." [T-601]. He said "the seat belt couldn't get to the uterus unless she broke her pelvis, you'd have to break the iliac crest and wings too, for the seat belt to get to the pelvis at that point." [T-601]. He said "the uterus couldn't fold over the seat belt because it was way above the level of where the uterus was located." [T-598].
Additionally, when pressed about whether a glove compartment door pressed into Ms. Olsen's body could have caused intrauterine separation or abruption, Dr. Eddleman repeated that "no," because "an abruption is a separation of the placenta from the uterine wall, and it hasn't even implanted yet . . ." [T-599]. Finally, he stated that without some clinical evidence that the uterine cavity had been compromised, such as bleeding, he could not say that the blunt force of the accident more likely than not caused a miscarriage two months later.
No other witnesses testified, including, significantly, Dr. Mortman, whose information regarding Ms. Olsen's clinical picture as her treating obstetrician/gynecologist before and after the accident would have been particularly useful in explaining any ambiguities in his notes. See e.g. Wilson v Bodian, 130 AD2d 221 (2d Dept 1987); Chandler v Flynn, 111 AD2d 300 (2d Dept 1985). Defendant seeks a missing witness inference - and indicated its intention to seek same as early as a pre-trial marking conference held a few months before the actual trial - arguing that Dr. Mortman is a witness under claimants' control, whose testimony would be expected to support the facts asserted by claimants at trial, and who would offer relevant, material, medical non-cumulative evidence pressingly pertinent to the primary issue of causation presented at this trial.
Claimants do not argue particularly strenuously that Dr. Mortman was unavailable because he practices across the border in the State of Connecticut, but rather focus on what they urge would be the cumulative nature of his testimony, saying that submission of his records sufficed as same were used by both experts.
While it is true that both experts used the records maintained by Dr. Mortman, it was Dr. Mortman who could have best explained claimant's clinical picture based upon actual physical examinations of Ms. Olsen, her history, as well as the notations concerning "old pelvic inflammatory disease" he made in his records which were interpreted with some fluidity by claimants' expert obstetrician/gynecologist. He could also have provided information about the update to the ultrasound from August 11, 2004, which he refers to in his notes, which apparently included additional information about gestational age, and expanded upon what was visualized upon the various diagnostic tests he performed. He could also have provided information as to the chromosome test of September 29, 2004, which he seemed to find might have a relationship to the miscarriage according to the notes he made on October 12, 2004. While it would not necessarily be expected that Dr. Mortman would have testified as to causation himself, his testimony would have clarified the foundation upon which claimants' expert based his testimony.
Absent the inference, nonetheless, and upon review of all the evidence, including listening to the witnesses testify and observing their demeanor as they did so, the Court finds that claimants have met their burden of establishing that William Olsen suffered a serious injury by a preponderance of the evidence as required, but have failed to establish by a preponderance of the credible evidence that claimant Kasey Olsen suffered a serious injury within the meaning of Insurance Law §5102(d) under either category advanced.
With regard to Kasey Olsen, while the Court is sympathetic to the drastic changes in her life that seem to have followed the happening of this accident, and which she clearly believes are the result of this accident, sympathy alone does not play a part in determining whether an individual has suffered a serious injury under the limited categories provided by Insurance Law §5102(d).
The Court finds that Dr. Hurst, while clearly a sympathetic and "patient oriented" individual, did not base his opinions on the facts of this case, depending instead on a generalized view that the motor vehicle accident must have some correlation to a miscarriage suffered two months after the event. He ignored the absence of evidence of injury to the uterus on the day of the accident, including the contemporaneous negative CT scan of Ms. Olsen's abdomen, the lack of any internal or vaginal bleeding in the weeks that followed the accident, the lack of any observation of a defect in the uterus in the two ultrasounds, and the failure of Dr. Mortman to note any uterine abnormalities on his examinations, including the speculum examination of the uterus following the spontaneous abortion, and the subsequent tests made. The additional opinions given concerning fertility issues are similarly flawed, as they are not based upon the medical records.
In contrast, Dr. Eddleman noted that as an initial matter, the claimant was not pregnant on the day of the accident, which even Dr. Hurst acknowledged to be true given the medical fact that pregnancy does not occur until implantation. Additionally, Dr. Eddleman testified forthrightly that it could not be said to a reasonable degree of medical certainty that after a pregnancy was diagnosed in August, that the motor vehicle accident of July 17, 2004 was more likely than not the cause of a miscarriage suffered on September 9, 2004, particularly because none of the various factors considered as possible causes of miscarriage were actually eliminated. Reviewing the medical records provided, he found no corroborating evidence - such as contemporaneous vaginal bleeding, or evidence of other disruption shown in the ultrasounds or upon physical examination - that the accident was a proximate cause of the sad event of September 9, 2004.
Similarly, based upon the medical records rather than conjecture, he found no evidence that Ms. Olsen's infertility was linked to the accident, particularly given a long standing history of infertility, and the records from her treating physician showing a history of prior pelvic inflammatory disease, and subsequent procedures that may have further impacted her ability to conceive.
With regard to William Olsen, claimants established through the credible expert testimony of Dr. Gary Fink that Mr. Olsen suffered two fractures, and also sustained a significant limitation of use and function of his left shoulder, diagnosed as impingement syndrome, which is chronic and permanent, and likely to continue to plague Mr. Olsen for his remaining life. Accordingly, for his past pain and suffering, Mr. Olsen is awarded damages in the amount of $100,000.00, and is additionally awarded $200,000.00 for future pain and suffering (premised upon Mr. Olsen's remaining statistical life expectancy of 36 years; 1B NY PJI3d, Appendix A, Table 1, at 985 [2014]). There is no basis in the record for any lost income award, or award for past and future medical expenses, that would not be speculative.
Kasey Olsen is entitled to recover for the loss of the aid, society and services of her husband, for the period within which he was unable to assist in the household and the diminution of their sexual relationship associated with his injuries. The reasonable value of such loss of consortium is in the amount of $40,000.00.
Finally, claimants are entitled to recover $1,000.00 for the property damage to the vehicle, based upon Ms. Olsen's uncontradicted testimony as to such expense.
Accordingly, claimants are entitled to recover total damages in the amount of $341,000.00, representing Mr. Olsen's past and future pain and suffering, Ms. Olsen's loss of consortium, and property damage. With regard to Mr. Olsen's pain and suffering and Ms. Olsen's loss of consortium claims, the Clerk of the Court is directed to enter judgment in such amounts together with appropriate interest from March 28, 2012 (the date the liability decision in this matter was signed). With regard to the property damage award, appropriate interest from the date of accrual of July 17, 2004 shall be calculated. To the extent claimants paid a filing fee, it may be recovered pursuant to Court of Claims Act §11-a(2). Any motions on which the Court may have previously reserved decision are hereby denied.
Let Judgment be entered accordingly.
July 15, 2014
White Plains, New York
THOMAS H. SCUCCIMARRA
Judge of the Court of Claims