Opinion
# 2015-041-507 Claim No. 111956
02-13-2015
MATTHEW J. BABCOCK v. THE STATE OF NEW YORK
CONWAY & KIRBY, LLP By: Andrew Kirby, Esq. HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Douglas Kemp, Esq. Assistant Attorney General
Synopsis
Claimant/motorcyclist who sustained transverse tibia/fibula fracture of left leg after being struck by a falling limb on a state highway is awarded $100,000 for past pain and suffering and is awarded $0 for future pain and suffering where claimant had an excellent recovery and trial record contained no medical evidence that causally related any future pain and suffering or life limitations to the injuries sustained by claimant in the subject accident.
Case information
| UID: | 2015-041-507 |
| Claimant(s): | MATTHEW J. BABCOCK |
| Claimant short name: | BABCOCK |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 111956 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | FRANK P. MILANO |
| Claimant's attorney: | CONWAY & KIRBY, LLP By: Andrew Kirby, Esq. |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Douglas Kemp, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | February 13, 2015 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Matthew Babcock (claimant) was injured by a falling tree limb overhanging State Route 144, as he rode a motorcycle on the afternoon of July 19, 2005. Following a trial on liability, this Court, by Decision dated December 13, 2013 and filed January 8, 2014, found defendant 100% liable for the injuries claimant sustained. A trial on damages was conducted July 14, 2014. At the time of his accident claimant was 18 years old, and at the time of trial on damages he was 27 years old.
Claimant, by reason of his accident, endured what is commonly called a "tib-fib fracture" of his left leg. More specifically, he suffered a left leg transverse tibia fracture and a left leg transverse fibula fracture. The tibia and fibula, two bones running side by side between the knee and ankle, are, combined, the weight bearing bones in the leg, with the tibia accounting for 80% of the leg's weight bearing and the fibula 20% of it.
Claimant was treated on an emergent basis at the Albany Medical Center Hospital the evening of July 19, 2005, and was discharged the following day. His tib-fib fracture resulted in only slight displacement of the bones, and they were accordingly treated in a "closed reduction" manner. The bones were aligned, and claimant received a full leg cast to immobilize his left leg. No surgery, that day or after, was utilized to treat the leg fractures.
Claimant also suffered two fractures in his pelvic region, a fracture in the left superior ramus and a fracture in the left inferior ramus, both noted in claimant's medical records as involving "mild displacement." Dr. Marc Fuchs, claimant's treating orthopedic surgeon, and a trial witness, described claimant's type of pelvic fractures as a "stable injury, and we often times will treat them with protective weightbearing [sic] and let it heal up on its own." (Exhibit 49, p 7, lines 16-23). No surgery for the pelvic fractures was undertaken.
There is no dispute that claimant endured a traumatic event on the afternoon of July 19, 2005. While riding his motorcycle on State Route 144, claimant was struck by a portion of a falling tree limb, huge in size, which had overhung the road. He sustained two leg fractures and two pelvic fractures, none of which required surgery. Beyond the trauma of the event, claimant experienced terrible, if not excruciating, pain in the immediate aftermath of the accident, while attended by first responders at the scene, while being transported to Albany Medical Center Hospital and while his bones were aligned and set at the hospital. His left leg was fully casted groin to toes, to immobilize it, and the pelvic fractures were assessed to be capable of healing themselves without surgical intervention. Claimant was discharged from Albany Medical Center Hospital the following day, and he was prescribed pain medication upon discharge.
Claimant thereafter underwent an eleven-month period of convalescence. Initially, and for a period of months, he required his parents' assistance to bathe and to use bathroom facilities. He was confined to a wheelchair and otherwise immobile, and often remained in undergarments, as dressing proved difficult. He required assistance to dress. He was homebound but for medical visits, and, needless to say, uncomfortable and inconvenienced. A recent high school graduate, he was unable to enjoy his summer or take part in graduation parties or gatherings. He did not sleep well. He endured headaches. He continued to have pain associated with his injuries, recuperation and rehabilitation and/or the healing process.
By the fall of 2005, he was out of a series of leg casts, was showering, using crutches and able to employ 50% of his left leg's weight bearing capacity. Over the next few months, he was able to walk unaided, as tolerated, and he began a job performing heavy truck repair in April, 2006.
Dr. Fuchs treated claimant during his convalescence from August 2005 to June 2006. Dr. Fuchs assessed x-rays taken of claimant on July 27, 2005, 8 days following the accident and found his left leg bones in "excellent position" and "anatomically aligned" (Exhibit 49, p 24, lines 2-6). Dr. Fuchs saw claimant in August and September, 2005, noted good healing, and directed claimant to begin weight bearing upon his left leg.
Dr. Fuchs saw claimant on October 11, 2005 and noted additional healing of his left leg and that " [H]e was doing well. He was not tender in his lower leg at that time" (Exhibit 49, p 29, lines 14-18). On November 15, 2005, claimant reported no pain in his tibia to Dr. Fuchs, who then instructed claimant to discontinue his use of crutches.
Next seeing claimant on January 10, 2006, Dr. Fuchs assessed claimant's leg as "probably a good ninety percent healed at this point" (Exhibit 49, p 34, lines 4-9). Dr. Fuchs next saw claimant on June 13, 2006. Dr. Fuchs testified at trial as follows:
"Q: Okay. And when was the next time you saw Matthew?
A. The next time I saw Matt was June 13th of 2006.
Q. And how was he doing at that point?
A. Ah, he was doing well. Ah, he had no pain. Ah, he was walking without a limp. Ah, the x-rays showed the fracture had continued to heal in a very acceptable position and, ah, we told him at that time we would see him back as needed" (Exhibit 49, p 34, lines 10-18). On that date, Dr. Fuchs assessed claimant's lower extremities as "radiographically and clinically healed" (Exhibit 49, p 35, lines 18-19).
Dr. Fuchs, concerning his treatment of claimant, acknowledged the following upon cross-examination:
1. Claimant did not endure a deep vein thrombosis;
2. Claimant did not have a delayed healing or non-union healing of his tibia or fibula;
3. Claimant did not have significant bleeding of his pubic rami;
4. Claimant did not have damage to the viscera (other organs) in the pelvis;
5. Claimant did not have damage to the nerves and blood vessels in the pelvis;
6. Claimant did not have discoloration of his toes;
7. Claimant was never diagnosed with a coccyx fracture;
8. During progressive visits by claimant, Dr. Fuchs was well pleased by claimant's healing;
9. On January 10, 2006, six months post accident, claimant had full range of motion in his leg;
10. On June 13, 2006, claimant reported no pain, walked without a limp and his fractures had healed in excellent position; and,
11. Claimant, having been directed by Dr. Fuchs in June, 2006, to return as needed, returned to Dr. Fuchs one additional time, in August 2011, over five years later.
Based upon all of the foregoing, a review of the trial record and review and consideration of the legal authorities and citations provided by the parties, claimant is awarded $100,000 for past pain and suffering and past diminished enjoyment of life.
Claimant's proof concerning future damages was legally insufficient and factually unsupported. Although he did testify to some aches, pains and stiffness, necessitating over the counter pain relief (specifically, Aleve) as needed, and modest quality of life limitations (no off-road biking and less rigorous walking and hiking) after concluding treatment for his injuries, claimant's testimony was unsupported by medical proof causally relating those circumstances to the injuries he sustained on July 19, 2005. Moreover, claimant has led an active life since his recovery.
At the time of the trial on damages, claimant and his girlfriend had a one year old child. Since cessation of Dr. Fuchs' medical treatment in June 2006, claimant has worked continuously for eight years, 40 hours per week, in heavy truck repair, requiring that he lift objects of between 10 and 80 pounds on a daily basis, move heavy machinery, contort his body into "strange positions," do a lot of bending and to crawl under trucks. He still rides a motorcycle.
In the eight years that elapsed between claimant's visit to Dr. Fuchs in June 2006 and the date of the trial on damages in 2014, claimant visited Dr. Fuchs once, on August 2, 2011, five years post treatment, complaining of lower back pain during that visit. After being referred by Dr. Fuchs to physical therapy, claimant was discharged from physical therapy within months for being non-compliant with treatment.
Dr. Fuchs did not adequately or persuasively opine that claimant's reported pain in August 2011 or his observation that claimant had a "a little bit of degeneration" in his lower back were causally related to claimant's pelvic injuries of July 2005. At page 52, lines 9-14 of Exhibit 49, Dr. Fuchs testifies:
"Q. I take it in this, at no point did you diag- well, let me strike that. In your record of August 2, 2007 - - 11, um, you don't causally relate that L-5, S-1 degeneration to his accident, do you?
A. I don't say that in my thing, but certainly can be. I - - I have no idea."
In fact, reviewing x-rays taken August 2, 2011, Dr. Fuchs testified claimant's superior left pubic rami was "completely healed up," and noted in his medical records of the pelvis, "I do not see any fracture arthritis."
Upon redirect examination, when asked if his observations of August 2011, were "at least caused in part by the initial trauma", Dr. Fuchs insufficiently responds "His symptoms certainly can be consistent" (emphasis added) - - (Exhibit 49, p 55, lines 7-19).
Beyond the foregoing exchanges that discussed pain and suffering as potentially attributable to claimant's pelvic injuries, which the Court found inadequate and unpersuasive, there is no medical evidence of any kind in the record that causally relates any future pain and suffering or life limitations to any of the injuries claimant sustained on July 19, 2005. The symptoms reported by claimant to Dr. Fuchs in August 2011, can as easily be attributed to the rigorousness of claimant's employment as to anything else. As to his leg, claimant described it as healed and not hurting (Trial Transcript, p 121). Accordingly, by reason of all of the foregoing, no award is made for future pain and suffering or future diminished enjoyment of life.
No proof was presented documenting any medical expenses incurred by claimant, nor was any qualitative or quantitative proof presented to establish that claimant suffered lost wages or economic harm, past or future, by reason of his accident. Accordingly, no award is made for those items.
In sum, claimant is awarded $100,000 for past pain and suffering and past diminished enjoyment of life.
All motions not previously decided are hereby denied.
Let judgment be entered accordingly. The Clerk of the Court is directed to enter judgment in favor of the claimant in the amount of $100,000, together with interest from December 13, 2013, and the return of claimant's filing fee.
February 13, 2015
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims