Opinion
# 2020-053-004 Claim No. 119498
05-29-2020
FRANCIS DESTINO v. STATE OF NEW YORK
LIPSITZ GREEN SCIME CAMBRIA, LLP BY: Gregory P. Krull, Esq. HON. LETITIA JAMES New York State Attorney General BY: Michael T. Feeley, Esq. Assistant Attorney General
Synopsis
Following a trial on the issue of damages, the Court determined that claimant suffered a serious injury and sustained a significant limitation of the use of his right shoulder as a result of the motor vehicle accident within the meaning of Insurance Law 5102 (d). The Court awarded claimant $300,000 for past pain and suffering and $250,000 for future pain and suffering, both of which are to be reduced by 25% for the claimant's comparative negligence in accordance with the Court's prior decision.
Case information
| UID: | 2020-053-004 |
| Claimant(s): | FRANCIS DESTINO |
| Claimant short name: | DESTINO |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 119498 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | J. DAVID SAMPSON |
| Claimant's attorney: | LIPSITZ GREEN SCIME CAMBRIA, LLP BY: Gregory P. Krull, Esq. |
| Defendant's attorney: | HON. LETITIA JAMES New York State Attorney General BY: Michael T. Feeley, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | May 29, 2020 |
| City: | Buffalo |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant Francis Destino was injured in a motor vehicle accident involving a New York State Police vehicle operated by New York State Trooper Brian M. Pazderski on November 13, 2010. A claim was filed on February 14, 2011 and the answer was filed by defendant on May 17, 2011. A bifurcated trial on the issue of liability was held in Buffalo on May 21 and 30, 2018 and a decision of the Court was filed on October 12, 2018, which held that the State was liable as Trooper Pazderski acted with reckless disregard for the safety of others and his actions were a proximate cause of the subject accident and the ensuing injuries to claimant. The Court also determined that liability should be apportioned between the parties with 75% liability against the State and 25% liability against claimant for his comparative negligence.
A trial on the issue of damages was held before this Court in Buffalo on September 16, 17 and 18, 2019. At this trial, testimony was provided by claimant, his daughter, Jamah Destino, and his treating physician, Joseph Bax, M.D. The defendant did not call any witnesses and did not produce the physician who conducted the independent medical examination, Frank Luzi, M.D. Following the trial, the parties requested and were granted until December 23, 2019 to obtain and review the trial transcript and submit post-trial memoranda. TESTIMONY OF CLAIMANT
The claimant testified that he is presently 56 years old. He is not married and has two adult daughters and seven grandchildren. Claimant testified that prior to the accident he was very active with his grandchildren and after the accident, the injury to his shoulder impacted his ability to participate with them in recreational activities. He testified that he is now unable to participate in activities that he previously enjoyed with his grandchildren, including football, baseball, and riding four-wheel recreational off-road vehicles. Claimant testified that he suffered an injury to his right shoulder as a result of the subject motor vehicle accident. He testified that he presently experiences a constant soreness in his right shoulder, which increases when he attempts to utilize it and is limited in how far he can lift his right arm up and that it is painful to hold his arm out extended. Claimant testified that the pain level he experiences in his right shoulder now when at rest is between a 4 to 5 out of 10 and increases to an 8 out of 10 when active. He estimated that the strength in his right shoulder is 20% to 30% less than his left shoulder (TT:12-18). Claimant testified that in March 2009 and prior to the subject accident, he had rotator cuff surgery on his right shoulder. The surgery was performed by Dr. Mieth and he testified that two months following this surgery, he had full use of his right shoulder and it was in "great shape." Claimant testified that he saw Dr. Mieth two times following surgery and then there was no further need to return to him (TT: 19-22).
All references to the trial transcript are by page number and will be designated in the format (TT: 1-2).
Claimant testified that he was the owner of a restaurant that opened in 2004 in Youngstown, New York known as Destino's Pizza and Pasta. He testified that prior to the subject accident, he was involved in all aspects of the business. Prior to the accident, he worked seven days per week and had five employees, including his daughter, Jamah Destino. (TT: 22-24). Claimant testified that he was unable to work for six to eight months following the surgery resulting from the subject accident. He testified that he sold the business in 2015 for $50,000 as he was no longer able to work in the pizzeria due to the pain he experienced in his right shoulder (TT: 30-35).
Claimant testified that immediately following the November 13, 2010 accident, he was not experiencing pain but later that evening he began to experience pain while lifting his right arm and then felt a sharp pain in his right shoulder down his arm to his two small fingers. He had previously experienced similar symptoms prior to the March 2009 rotator cuff surgery and testified that he did not experience these symptoms again following that surgery until after the subject accident. Claimant testified that he went to the Mount St. Mary's Hospital emergency room the following day with symptoms of pain in his right shoulder and arm and stiffness in his neck. He testified that the pain in his right shoulder was a 10 out of 10 and the pain in his neck was an 8 to 10 (TT: 38-43). Claimant identified photo exhibits 7, 8 and 10 as depicting his vehicle and that they indicated the extensive damage to his vehicle caused by the impact from the NYS Trooper's vehicle. Claimant's next medical visit was on November 30, 2010 with his family physician, Dr. Molly Eaton (Exhibit 12), where he stated that he now was experiencing migraine headaches, left side neck pain radiating to his shoulders with pain at a 4 out of 10, and right shoulder pain extending down his arm (TT: 50-56). Dr. Eaton recommended that he return to his orthopedist, Dr. Mieth. Claimant testified that he attempted to see Dr. Mieth but he did not accept no-fault insurance and was then referred to Dr. Bax.
Claimant's first appointment with Dr. Bax was on January 3, 2011 (Exhibits 13 and 14). As a result of this visit, Dr. Bax scheduled an MRI, which was taken two days later. Claimant testified that he understood that the MRI showed a possible tear in the rotator cuff. He stated that Dr. Bax discussed treatment options and he agreed to go forward with an arthroscopy (TT: 59-67). This surgery took place on February 10, 2011 at Mount St. Mary's Hospital. Following surgery, claimant was instructed to perform no lifting, keep his arm in a sling and use the Cryo-Cuff. Claimant testified that the surgical pain lasted for a few weeks and he slept in a recliner for two to three months. When claimant returned to Dr. Bax on February 23, 2011, he continued to restrict his activities, stating no lifting, pushing or pulling with his right arm (TT: 68-77). He returned to Dr. Bax on March 10, 2011 for a follow-up visit and related that he slipped and fell on ice in his driveway. Claimant testified that he fell on his left side so that right arm and shoulder were not impacted. In a May 2011 office visit note, Dr. Bax indicated that claimant had returned to work. Claimant testified that he was ordering supplies and handling scheduling and payroll at work but not performing physical activities. Claimant confirmed the June 24, 2011 record of Dr. Bax that he was experiencing clicking of the AC joint in his right shoulder and that it was very tender. A July 2011 office visit note of Dr. Bax indicated that claimant was continuing to experience right shoulder pain. Claimant testified that every time he tried to use it, he would experience a sharp pain down his arm into his two small fingers. Claimant also confirmed that he received several cortisone shots from Dr. Bax to treat what was suspected to be arthritic changes in the AC joint. He stated that he stopped receiving these shots as they did not reduce his pain (TT: 77-83).
Claimant confirmed a November 7, 2011 office visit note from Dr. Bax that he was still experiencing pain in his right shoulder and was unable to reach up. He also confirmed Dr. Bax's office record of February 13, 2012 that he had developed a ganglion cyst in his right shoulder about one year following surgery. Claimant testified that Dr. Bax drained this cyst three or four times and it popped on its own about 20 times. Claimant identified photo exhibits 16, 17 and 18 as depicting the ganglion cyst. He testified that the cysts caused pressure and restricted the use of his right shoulder (TT: 84-89). Claimant testified that a further MRI was performed on February 15, 2012, which indicated no evidence of a re-tear of his right rotator cuff and noted the presence of a cyst in his AC joint. The next occasion that claimant saw Dr. Bax was on September 18, 2013, at which time he again drained a cyst. Claimant testified that he was seen again by Dr. Bax to drain a cyst on October 17, 2013 and in the next appointment on November 14, 2013, advised Dr. Bax that he had slipped on stairs and fallen. During the fall, he testified that he felt a pop in his right shoulder but the pain was no different following the fall. (TT: 89-96). On June 18, 2014, claimant went to Dr. Bax and again had a cyst in his shoulder drained. Claimant did not see Dr. Bax again until February 13, 2017 and at that time indicated that he was still experiencing right shoulder pain that he graded as a 4 out of 10 at rest to an 8 out of 10 when active. Claimant testified that Dr. Bax ordered another MRI and told him that it indicated that there was no rotator cuff tear and only moderate degenerative changes. He saw Dr. Bax on one more occasion in March 2017 about a cyst in his right shoulder. Claimant testified that since that last office visit, there has been no change in the condition of his right shoulder or in the level of pain he experiences. He testified that he presently takes ibuprofen for the pain now and then (TT: 98-104).
On cross-examination, claimant admitted that he told Dr. Mieth, as stated in his office record of February 7, 2009, that he had pain in his right shoulder that started 15 years ago with off and on pain that he described as a 5 out of 10 (Exhibit A at page 00074). He also confirmed that he told a nurse that he had injured his right shoulder while moving equipment at work (Exhibit A at page 00077). Claimant stated that this occurred while working at Destino's Pizza. Before his discharge, an x-ray was taken, which he brought with him to Dr. Mieth on February 11, 2009 and he subsequently had surgery performed by Dr. Mieth on March 17, 2009 (TT: 108-112). Claimant testified that on March 17, 2009, Dr. Mieth performed rotator cuff surgery on his right shoulder. He stated that he felt better after the surgery and only saw Dr. Mieth once post-operatively (TT: 112-115). Claimant admitted that he was treating during this time period with Dr. Domenico, a psychologist (Exhibit C). Dr. Domenico's records describe claimant as displaying moderate symptoms of depression relating to a divorce and a failing business. Claimant admitted to the entries in Dr. Domenico's office notes for November 5, 2009 and January 7, 2010, indicating that claimant had financial worries relating to a failing business and was experiencing chronic pain syndrome in his back and legs. He also admitted that in three subsequent office visits with Dr. Domenico between January 28, 2010 and March 10, 2010, claimant again stated that he was having financial problems. Finally, claimant admitted consistent with Dr. Domenico's June 2010 office notes that he had experienced shoulder pain for 15 years (TT: 119-130).
On redirect examination, claimant was asked about his testimony that he had experienced shoulder pain for 15 years and he described it as "soreness . . . just always had a little pain there, aches." He also testified that the shoulder pain never prevented him from participating in activities such as being a drummer, riding a motorcycle and operating his pizza store. Claimant also testified that the pain he had experienced for 15 years went away after Dr. Mieth's March 2009 shoulder surgery (TT: 145-146). Claimant confirmed that he had his first office visit with Dr. Eaton in September 2010, prior to the subject auto accident and that she took a complete history from him, including his current symptoms. He testified that her records were accurate in that he did not state that he was experiencing any shoulder pain and had not been experiencing shoulder pain (TT: 146-149). With respect to his testimony concerning Dr. Domenico and claimant's statements of a failing business, he testified that it "wasn't so much the business is failing as I was afraid because I was falling behind. I had to buy a new mixer for $3,600." He further testified that his business did not fail or close down and that he was eventually able to sell it (TT: 149-150).
Following the completion of witness testimony, claimant's counsel stated that he intended to recall claimant to testify that he had attended the defense IME with Dr. Luzi, since the State did not produce him to testify at trial. Counsel stipulated on the record that claimant was present for the IME, he complied with all the requests of Dr. Luzi, and answered all questions (TT: 304-305). TESTIMONY OF JAMAH DESTINO
Jamah Destino testified that she is claimant's daughter and has three children ages 20, 18 and 12. Destino testified that she grew up working in her father's pizza business for 12 years and began operating her own pizzeria in 2016. She testified that her father's business had 6 to 12 employees and that claimant worked 7 days per week. When food deliveries arrived, she testified that her father would put things away without difficulty with containers weighing from 10 to 50 pounds. Destino testified that she observed her father having problems with his right arm during the time period of 2004 to 2009. She described that he had a hard time holding his arm up and doing back and forth motions with the ovens, but that he was still able to do his job (TT: 159-163).
Destino testified that her father was unable to work for six to seven weeks following Dr. Mieth's March 2009 surgery. She testified that claimant was like a new person following this surgery and had no complaints. Destino testified that claimant was able to return to work full-time and was working 90 % of their operating hours. She also disagreed with the characterization of the pizza business as a failing business (TT: 164-169).
Destino testified that she first became aware of the subject auto accident when she went to the Mount St. Mary's emergency room to visit her father. She stated that following this accident, she increased her time at the pizza business as claimant was having a hard time doing his job with the pain he was experiencing. Destino testified that she observed him to be in constant pain in his right shoulder and was not able to lift anything. She testified that he was off from work following the second shoulder surgery in February 2011 for two to three months. Following this surgery, Destino testified that claimant appeared to be struggling and wasn't healing as he had following the first surgery. She testified that when he returned to work, he was only able to do small prep work and that although he tried to come to work each day, he was only able to work a few hours. Destino testified that he continued to work this same pattern throughout 2011 and 2012, that claimant did not improve, and was only able to perform 50% of the work he had previously performed (TT: 170-176).
Destino testified that claimant was unable to participate in recreational activities that he previously enjoyed, including playing the drums and fishing with his grandchildren. Destino stated that claimant sold the pizzeria in August 2015 as it had been struggling in the previous two years. When Destino opened her pizzeria in 2016, she hired her father for 1 ½ years and that he performed light prep and ordering. She stated that claimant was not able to do food preparation work for the pizza or subs. Destino testified that she has not noticed any difference over time in claimant's ability to use his right arm (TT: 177-182).
On cross-examination, Destino testified that she recalled her father having arthroscopic surgery on his knees in 2012. She also confirmed that following a motor vehicle accident in November 2012, he had rotator cuff surgery on his left shoulder (TT: 184-185). On redirect examination, Destino stated that the rotator cuff surgery to his left shoulder appeared to heal like Dr. Mieth's right shoulder surgery. TESTIMONY OF JOSEPH A. BAX, M.D.
Dr. Joseph A. Bax testified that he is an orthopedic surgeon and has been a licensed physician in New York since 1984. Dr. Bax confirmed that the initial page of his office records indicate that claimant stated to him that he attributed the injury to his right shoulder to the subject accident. He testified that claimant also related to him that he had been doing well following Dr. Mieth's surgery on his right shoulder and was now experiencing a similar type of pain and limited range of motion as he had prior to Dr. Mieth's surgery (TT: 188-198). Dr. Bax testified that during his physical examination of claimant, abduction was 115 and forward flexing was 120(with the normal range being 180).
His office records relating to his surgery with claimant was received as Exhibit 13. --------
Dr. Bax testified that during surgery, he found and repaired a tear in the labrum of his right shoulder. Dr. Bax testified that he was also able to examine the rotator cuff repair previously performed by Dr. Mieth and stated that it looked fine (TT: 199-218). Dr. Bax testified that based upon claimant's history, which included the motor vehicle accident, his subsequent complaints of pain and limitation of motion in his right shoulder, the surgery he performed, and his examination of the rotator cuff tear repair performed by Dr. Mieth, it was his opinion that the tear to the labrum in claimant's right shoulder was caused by the subject motor vehicle accident (TT: 221-222). Dr. Bax testified that following surgery, claimant was directed to wear a sling and a Cryo-cuff ice pack and provided resistance exercises for hand, wrist and forearm, together with prescribed pain medications. Dr. Bax also directed claimant not to work or perform heavy physical activities for a minimum of three months. He testified that claimant was directed to place his right arm in a sling for a minimum of six weeks (TT: 222-224).
Dr. Bax testified that he examined claimant on May 20, 2011 and that he still had localized pain in the biceps of his right arm and a good range of motion, signifying that he was getting better following surgery. He also testified that he noted for the first time that claimant exhibited grinding or crepitus in the right shoulder. Dr. Bax testified that claimant's next office visit was on June 24, 2011 and that claimant was still experiencing grinding and clicking in the acromioclavicular or AC joint with tenderness to palpation which he attributed to an arthritic condition. Dr. Bax indicated that he administered a steroid shot into claimant's AC joint for this condition. He testified that claimant returned for another appointment on July 18, 2011 with similar complaints and concluded that the steroid shot had no beneficial effect. As a result, Dr. Bax testified that he discussed with claimant the possibility of another surgical procedure, but none was performed (TT: 229-233).
Dr. Bax's next appointment with claimant was on November 7, 2011, at which time he testified that claimant was still having pain in his shoulder, especially when reaching up, which he found very significant as it would negatively impact his ability to work at the pizzeria. Dr. Bax testified that this was the first occasion that he saw the development of a ganglion cyst and swelling over the AC joint. He described it as a cystic mass filled with fluid which is seen on some occasions coming off a joint. Dr. Bax indicated that he recommended that the cyst be trimmed. He stated that it was his opinion that claimant had developed arthritis at the AC joint that was causally related to the subject motor vehicle accident as arthritis can be caused by trauma (TT: 234-236). Dr. Bax was also of the opinion that the recurring ganglion cysts in his right shoulder were caused by arthritis in the AC joint. He testified that ganglion cysts are subject to regrowth and he would stick a needle in claimant's shoulder and drain the fluid from the cyst. Dr. Bax testified that he had two successive office visits on September 18, 2013 and October 17, 2013 where the cyst regrew quickly and returned after he had drained it. Dr. Bax testified that he saw claimant again in November 2013 after he had fallen and felt a pop in his shoulder. His examination of claimant concluded that he had a possible long head biceps tear. Dr. Bax testified that there was an MRI taken of the right shoulder on February 20, 2017, which indicated that the rotator cuff was still intact, there was fluid representing another ganglion cyst, there was no tear of the labrum, and there was a partial tear of the biceps tendon. Dr. Bax testified that he next saw claimant on December 11, 2013 and he had developed another ganglion cyst and exhibited an impingement due to the AC joint arthritis. The next appointment with Dr. Bax was in June 2014 and he stated that claimant again had developed another ganglion cyst (TT: 241-246).
Dr. Bax testified that his next appointment with claimant was about three years later in Feburary 2017 and at that time claimant stated that he was still experiencing right shoulder pain with a pain level of 4 out of 10, as well as tenderness in the AC joint. Dr. Bax testified that he performed a physical examination and range of motion test finding a significant reduction in range of motion and an x-ray indicated space narrowing of the AC joint. Claimant's last visit with Dr. Bax was on March 6, 2017. He testified that claimant's range of motion testing was about the same as in his February 2017 office visit. Dr. Bax testified that it was his opinion that claimant's range of motion limitations are permanent, significant and consequential. It was also Dr. Bax's opinion that the source of claimant's pain in his right shoulder is AC joint arthritis and impingement. Finally, it was his opinion that the subject motor vehicle accident was a contributing factor to the development of the AC joint arthritis and impingement (TT: 247- 252).
On cross-examination, Dr. Bax testified that the MRI report of February 16, 2009 indicated a finding of AC joint arthritis. He then stated his opinion that if this was proven to exist and that claimant had preexisting AC arthritis, then it was asymptomatic as claimant exhibited no symptoms prior to the subject motor vehicle accident (TT: 255-258). In reviewing Dr. Mieth's operative report, Dr. Bax agreed that Dr. Mieth recorded that he removed extensive adhesions and synovitis, excised a degnerative labral tear and performed a rotator cuff repair (TT: 263- 264). Dr. Bax agreed that the first page of Dr. Mieth's operative report indicated that claimant had a right shoulder impingement and that Dr. Bax's operative report of February 10, 2011, also indicates right shoulder impingement syndrome pre and post-operatively (TT: 269-270). Dr. Bax also agreed that the MRI findings of February 2009 also indicated an AC joint arthritic condition (TT: 274). He also agreed that claimant was involved in two falls and an automobile accident subsequent to the surgery that he performed (TT: 282- 283). Dr. Bax opined that the labrum repair performed by him on claimant relieved his pain and that some of the pain claimant is now experiencing is related to areas of his body unrelated to the surgery. He also testified that the subject accident was a contributing factor to claimant's present condition and that there were other contributing factors (TT: 285- 286).
On redirect examination, Dr. Bax testified that you can have AC joint arthritis with mild hypertrophy and spurring which does not cause any clinical symptoms. He also testified that the presence of spurring and some AC joint arthritis does not mean that the patient is symptomatic at the AC joint, adding his opinion that the patient can have these findings and still be asymptomatic. Dr. Bax agreed that Dr. Mieth found a four day history of problems with claimant's right shoulder and then scheduled and performed surgery to repair a rotator cuff tear and that he shaved an unspecified amount of a degenerative tear in the labrum (TT: 290-293). Dr. Bax testified that you cannot determine from the operative report what bony impingement structures were removed during the course of surgery. He stated that the purpose would be to remove sufficient bone to release the impingement (TT: 293-294). Dr. Bax also confirmed that the MRIs of claimant indicated that there were no re-tears of the labrum or rotator cuff as a result of the two falls claimant experienced following the surgery performed by Dr. Bax (TT: 297-299). Dr. Bax then testified that it was his opinion that the source of the pain experienced by claimant was from AC joint arthritis, AC joint grinding and crepitus and possibly his biceps. It was also his opinion that the subject motor vehicle accident was a contributing factor to the development of the AC joint arthritis (TT: 299-300).
LAW AND ANALYSIS
In order for claimant to recover for non-economic loss resulting from the subject motor vehicle accident, Insurance Law § 5102 (d) requires that claimant first establish that he sustained a "serious injury". A serious injury is defined by Insurance Law § 5102(d) as:
"a personal injury which results in death; dismemberment; significant disfigurement; 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; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment."
The claimant contends that he has established a serious injury under three separate categories, namely, a significant limitation of use of a body function or system; permanent consequential limitation of use of a body organ or member; and a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than 90 days during the 180 days immediately following the occurrence of the injury or impairment. In order to determine whether claimant has met the serious injury threshold, I considered the testimony of claimant, claimant's daughter, Dr. Bax and the relevant exhibits referred to during the course of their testimony. Upon evaluating their demeanor while testifying, I found the testimony of claimant and these two witnesses to be sincere and credible.
The defendant contends that claimant failed to establish a serious injury under any of these three criteria. The defendant retained Frank Luzi, M.D., to conduct an independent medical examination (IME) of claimant but did not offer his testimony at trial or offer any explanation why he did not appear and testify. Claimant requested during the trial and in his post-trial memorandum that the Court apply an unfavorable or adverse inference against defendant in accordance with PJI 1:75. The Court finds that claimant timely sought the missing witness inference and that the preconditions for this inference have been established, namely, that (1) the witnesses knowledge is material to the trial; (2) the witness is expected to give non-cumulative testimony; (3) the witness is under the "control" of the party against whom the inference is sought; and (4) the witness is available to that party (Matter of Estate of Lewis, 158 AD3d 1247, 1250 [4th Dept 2018]). Accordingly, the Court will infer that the testimony of Dr. Luzi would not have supported the defendant's position concerning claimant's injuries; that claimant did not sustain a serious injury under any of the three categories proposed by claimant; and that these injuries were preexisting and not causally related to the subject motor vehicle accident. As such, the Court will infer that Dr. Luzi's testimony would not contradict the testimony of Dr. Bax.
The Court finds that claimant has established that he sustained a significant limitation of use of his right shoulder as a result of the subject motor vehicle accident. I also find that the range of motion limitations in claimant's right shoulder establish that he has experienced a permanent consequential limitation of use of his right shoulder that also qualifies as a serious injury within the meaning of the Insurance Law. The testimony of Dr. Bax established that on January 3, 2011, less than two months following the subject accident, objective tests performed by him during the physical examination of claimant determined that he had experienced a 36% restriction in abduction; a 33% restriction in forward flexion; and a 28.5% to 37.5% restriction in external rotation of his right shoulder. On March 6, 2017, Dr. Bax's physical examination of claimant determined that these restrictions had worsened, finding a 47% limitation in abduction; a 37% limitation in forward flexion; and a 51% to 57% limitation in external rotation of his right shoulder. Finally, I also find that the testimony of Dr. Bax, claimant and his daughter provided proof establishing that claimant also qualifies under the provision that he was not able to perform substantially all of his usual and customary daily activities for 90 out of 180 days following the subject accident.
The Court concludes based upon a preponderance of the credible evidence that claimant has established a serious injury within the meaning of Insurance Law § 5102 (d) and is entitled to an award of non-economic loss to justly and fairly compensate him for the injuries he sustained as a result of the subject motor vehicle accident. When deciding on an award of damages to a person injured by the negligence of another, the objective is to compensate the victim, not to punish the wrongdoer and "restore the injured party. to the extent possible, to the position that would have been occupied had the wrong not occurred" (McDougald v Garber, 73 NY2d 246, 253-254 [1989]). The Court finds that claimant suffered damages comprised of past and future pain and suffering. Awards for pain and suffering are not subject to a precise calculation and the "factors to be considered . . . include the nature, extent and permanency of the injuries, the extent of past, present and future pain and the long-term effects of the injury" (Nolan v Union Coll. Trust of Schenectady, N.Y., 51 AD3d 1253, 1256 [3d Dept 2008], lv denied 11 NY3d 705 [2008]).
The Court finds the testimony of Dr. Bax credible that he found and repaired a tear in the labrum of claimant's right shoulder. I also find Dr. Bax's opinion credible that the tear to the labrum was caused by the subject motor vehicle accident. I also find as credible Dr. Bax's opinion that claimant developed arthritis at the AC joint that was causally related to the subject motor vehicle accident and that the ganglion cysts that repeatedly developed in claimant's right shoulder were caused by arthritis in the AC joint. I find Dr. Bax's opinion credible that the limitations in the range of motion in claimant's right shoulder and arm are permanent, significant and consequential and that the source of his pain is the result of the AC joint arthritis. With respect to the issue of any pre-existing arthritis, I find that claimant had an excellent result from the earlier rotator cuff surgery performed by Dr. Mieth and that if any arthritis existed, claimant was asymptomatic and able to utilize his right shoulder and arm without limitation at work and for recreational activities. Finally, I find Dr. Bax's opinion credible that the subject motor vehicle accident was a contributing factor to the development of the AC joint arthritis in his right shoulder.
Upon consideration of the testimony provided at trial, I find that claimant is entitled to an award of $300,000 for past pain and suffering. The PJI life expectancy tables indicate that it is anticipated that a 56 year old male will have a future life expectancy of approximately 23 years. Accordingly, I find that claimant is entitled to an award of $250,000 for future pain and suffering (see Burnett v City of New York, 104 AD3d 437 [1st Dept 2013]; Rubio v New York City Tr. Auth., 99 AD3d 532 [1st Dept 2012]). Claimant did not submit proof seeking an award for past or future medical expenses or for past or future economic loss and none is awarded. The amounts awarded by the Court for past and future pain and suffering are to be reduced 25% for the claimant's comparative negligence in accordance with this Court's prior decision following a bifurcated trial on the issue of liability only (Destino v State of New York, UID No. 2018-053-009 [Ct Cl, Sampson, J., Sept. 10, 2018]).
Accordingly, the damages awarded to claimant after the 25% reduction for his comparative negligence are $225,000 for past pain and suffering and $187,500, for future pain and suffering, a total award of $412,500. In that the issue of serious injury was just determined in this Court's recent decision and in light of the Fourth Department's decision in Ruzychi v Baker, 301 AD2d 48 (4th Dept 2002), I hereby direct the Clerk of the Court of Claims to calculate interest from January 27, 2020, the date of the original damages decision when liability, including the serious injury issue, was determined. In addition, to the extent that claimant has paid a filing fee, this too may be recovered in accordance with Court of Claims Act § 11-a (2).
As to any objections upon which this Court reserved decision during the course of the trial and as to any motions made at trial upon which the Court previously reserved or which remain undecided, all are hereby denied.
Let judgment be entered accordingly.
May 29, 2020
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims