Knoch v. City of N.Y.
| Decision Date | 20 May 2013 |
| Docket Number | Index No. 43944/07 |
| Citation | 2013 NY Slip Op 34083 (U) |
| Parties | MARY LOU KNOCH, Plaintiff, v. THE CITY OF NEW YORK, Defendant. |
| Court | New York Supreme Court |
HON. DEBRA SILBER, A.J.S.C.:
Recitation as required by CPLR 2219(a), of the papers considered in the review of Plaintiff's motion to set aside a jury verdict on damages, or for additur.
| Papers |
| Numbered |
| Notice of Motion, Affirmations and Exhibits Annexed |
| 1-5 |
| Affirmation in Opposition |
| 6 |
| Reply and Exhibits Annexed |
| 7-9 |
Upon the foregoing cited papers, the decision/order on this motion is as follows: Plaintiff moves to set aside the jury verdict rendered on December 14, 2012, or in the alternative, for additur. Defendant City of New York opposes the motion. For the reasons cited herein, the motion is denied in its entirety.
The court notes that immediately post-trial, plaintiff moved orally to set aside the jury's $50,000 award for future pain and suffering as inadequate, as well as for being inconsistent with the jury's $31,000 award for future medical expenses. The court granted plaintiff an extension of the statutory time to make a written motion, until February 7, 2013, and the plaintiff timely did so.
Plaintiff was injured in a trip and fall accident which occurred on May 2, 2007 in the roadway in front of 625 Fulton Street in Kings County. As a result of the accident, plaintiff sustained several injuries, including a minimally displaced fracture of her left humerus.
A unified trial was held from December 7, 2012 to December 14, 2012. On December 14, the jury found both the defendant and plaintiff negligent, and found defendant 60% responsible and plaintiff 40%. The jury awarded plaintiff $150,000 for past pain and suffering; $50,000 for future pain and suffering over 20 years and $31,000 for future medical expenses over one year. Plaintiff did not ask for past medical expenses.
Plaintiff now challenges the adequacy of the award for plaintiff's future pain and suffering. In support of the motion, she cites the testimony of her expert, Dr. Laith Jazrawi. Dr. Jazrawi testified that plaintiff sustained a displaced fracture of the greater tuberosity of her dominant left arm, a partial rotator cuff tear, and other injuries, which were caused by the accident.
Dr. Jazwari testified that a minimally displaced tuberosity fracture such as plaintiff sustained is normally placed in a sling for approximately two to three weeks to allow for healing, and then is followed with a gradually increasing physical therapy program in an attempt to regain motion. However, sometimes a patient does not reach their milestones and can develop adhesive capsulitis or other complications. This is what occurred with the plaintiff, he averred. When a patient, such as the plaintiff, does not improve after three or four months, further intervention is necessary. Trial Transcript Page 27. He testified that adhesive capsulitis, also known as "frozen shoulder," is a clinical diagnosis and cannot be seen on an MRI.
The medical evidence demonstrated that plaintiff's treating orthopedist recommended arthroscopic shoulder surgery. Her doctor requested approval for the surgery because the plaintiff was not improving. He requested approval for a procedure known as "arthroscopic manipulation under anesthesia with lysis of adhesions," which is a combination of releasing the scar tissue, debriding the rotator cuff, doing an acromioplasty and a bursectomy (removing the inflamed tissue).
Dr. Jazwari stated that plaintiff should have had the surgery right away, and because she did not have the surgery, she developed adhesive capsulitis, known as "frozen shoulder," which was secondary to the fracture she sustained. Dr. Jazwari said that with the condition known as adhesive capsulitis, the tissue gets inflamed and contracts, so the sac covering the ball and socket isn't loose as it should be, and thus constricts the movement of the shoulder and "sticks" the ball and socket joint together. Dr. Jazwari said the fracture had healed, but the sequellae of the fracture included the scarring of the tissue, causing frozen shoulder syndrome. He put the MRI films on the light box and showed the jury the findings, including the indications of a tear in plaintiff's labrum (part of the rotator cuff) Transcript Page 25. Dr. Jazwari concluded that plaintiff had a permanent disability which constituted a 75% loss of use of her dominant arm. (Transcript Page 40). He described it as permanent, because it was not improving, and would not improve without surgery.
Dr. Jazwari stated that surgery was the only hope for plaintiff's chance of increasing the motion in her shoulder and for potential pain relief (Transcript, p 43, I 14-16). He said that while physical therapy would be required after the surgery, and the eventual outcome was unclear, as there are sometimes still some restrictions of motiondespite surgery, and some patients have some residual pain, the overall results are better than what can be accomplished with non-surgical treatment (Transcript, p 40, I 20-24).
Dr. Jazwari testified that the cost of the surgery would be a maximum of $18,000. He estimated post-surgery physical therapy at $10,000 and medications at $3,000. This is almost exactly the amount the jury awarded plaintiff for future medical expenses. He also opined that the fracture to her humerus had healed, and that it was the capsular contracture (adhesive capsulitis) which was causing her current symptoms. Dr. Jazrawi further testified that the surgery would, if successful, put an end to her shoulder problems.
Plaintiff testified that after the accident, her left arm and shoulder were in pain and painkillers did not work for her. She missed six weeks of work, then still could not drive and worked only four hours a day from home for six weeks.
Eventually, plaintiff was able to work for six hours a day from home and later returned to work full time. She could not drive for six months. She was sent for physical therapy and went for some number of months. In 2008, she made 10 to 11 visits to the doctor for her condition and in 2009, she went every couple of months. She testified she had constant and excruciating pain and could not sleep. If she touched her arm, she would wake up. She could not even use a computer mouse without pain. She testified that she missed the entire boating season in 2007, including fishing, because she could not use her arm to cast a rod. She still cannot go fishing.
Plaintiff testified that her doctor recommended surgery in 2007, but that her employer, the federal government, (which she colloquially referred to as Worker'sCompensation) would not approve the surgery. In 2008, she claims she asked the doctor for the surgery again, but her employer again denied it. Plaintiff testified she had one injection for the pain in her shoulder, but it did not help, so she did not have another.
Plaintiff testified that she is still in pain and cannot go off the anti-inflammatory medication. She has tried and "everything is painful." She takes Ibuprofen in the morning with the anti-inflammatory. She testified that if she could have the surgery now she would. She also said her health insurance would not pay for it because the accident was while she was working. She had no documentary evidence for the alleged denials by either her employer or her insurance company. She "was assured her doctor's office sent the paperwork."
Upon cross-examination, and having her memory refreshed with her deposition testimony, some of the details concerning plaintiff's treatment were further illuminated. She began physical therapy in July of 2007, and ceased treatments in November or December of that year. When she began, she had therapy three or four times a week, but then went less frequently after she resumed work. During the period she went to therapy her shoulder improved and her range of motion increased. She admitted her doctor never told her to stop going to therapy. She admitted that she stopped going to physical therapy because it would have required her to come home from work later than she desired, or to take off time from work, which would have reduced her hours for the calculation of her pension. She subsequently retired.
Asked about her reasons for not having the surgery recommended by her doctor, plaintiff stated that she did not have the surgery because it would have meant a temporary loss of use of her arm, having to work from home, not being able to drive,missing work, and starting all over with her physical therapy. She also said she was "a little nervous about it."
Defendant's expert orthopedist, Dr. Alan Zimmerman, testified that he had reviewed plaintiff's treating doctor's records, and his notes indicate he chose conservative treatment. The fracture healed within six weeks. He stated that this kind of fracture heals well, but gets stiff quickly, so it is important to start physical therapy quickly. Dr. Zimmerman stated that he does not believe that plaintiff has adhesive capsulitis. He said her expert witness had misused the term. However, it must be noted that his exam of plaintiff was four years prior to the trial.
Dr. Zimmerman said the independent medical examination he conducted on November 18, 2008 showed no evidence of a rotator cuff tear, and any indication of such on the MRI must be degenerative. He himself did not view the MRIs.
Dr. Zimmerman said that plaintiff could expect improvement over time, but would never be "perfect"; however he would expect that she would continue to improve, and that if he were to examine plaintiff again, the exam would show further improvement since his first exam. He stated that it was most unlikely that plaintiff requires surgery, and that she will regain her normal range of motion without treatment. He estimated that she suffered a post-accident reduction in the range of motion of her arm of about 25%. He does...
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