New York State Court of Claims

New York State Court of Claims
MCMAHON v. THE STATE OF NEW YORK, # 2019-029-027, Claim No. 124194


After a trial on damages for claimant's injuries from a prison van moving before she was aboard, defendant's motion under CPLR 4401, made at the close of claimant's case and reserved on by the court, was granted and the claim was dismissed. The court found that claimant failed to establish she suffered a serious injury as defined by Insurance Law 5102 (d) and was not entitled to an award of damages under the No-Fault Law (see Insurance Law 5104 [a]).

Case information

UID: 2019-029-027
Claimant(s): DONNA MCMAHON
Claimant short name: MCMAHON
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 124194
Motion number(s):
Cross-motion number(s):
By: Ronald R. Benjamin, Esq.
By: Elizabeth A. Gavin, Assistant Attorney General
Third-party defendant's attorney:
Signature date: April 30, 2019
City: White Plains
Official citation:
Appellate results:
See also (multicaptioned case)


In Judge Scuccimarra's decision following the liability phase of this bifurcated trial, defendant was found liable for the subject accident in which claimant was injured as she was getting on a work van carrying members of the inmate cleaning crew at Beacon Correctional Facility. A correction officer started driving the van and claimant's leg was dragged on the ground. This decision follows the damages trial held on February 5, 2019.(1)

Claimant testified and called Dr. Michael Tirgan as an expert in general medicine and various back injuries. Defendant called Dr. Robert Hendler as an expert in orthopaedic surgery. The parties stipulated to admission of the following exhibits: the CV and IME Report of claimant's expert (Exhs. 1 and 2); claimant's medical records (Exhs. A-E); and the CV, Report and IME Report of defendant's expert (Exhs. F-H). Claimant's medical restriction chart from Taconic Correctional Facility was admitted as defendant's Exhibit I, "as is." The court stated that the document "will speak for what the document speaks for" and did not allow questioning on it (T: 162-163).(2) At the close of claimant's case, defendant moved to dismiss the claim on the ground that claimant failed to meet her burden to prove "a serious bodily injury" under Insurance Law 5102 (d) (known as the "No-Fault Insurance Law") (T: 177). The court reserved on the motion.

On direct, claimant testified that she sustained a back injury in 1993 while she carried supplies up the stairs at the Binghamton Club, where she was working as a Pantry Chef. As a result, she was out of work for approximately one week, took prescription pain relievers for two weeks, then she periodically took over-the-counter pain medications (T: 141-142). After that she worked full-time and engaged in everyday activities until 2006, when she sustained another back injury while working at "Shop Vac" (T: 143). Claimant was lifting and stacking wooden pallets weighing 25 to 30 pounds when she felt a "major pull" in her back. She was taken to the hospital and missed several weeks of work. When claimant returned, she worked sitting down doing light duty, then spent ten months doing quality control. She filed a Workers Compensation claim for her injury and settled the case for $38,000 (T: 143-144, 166).

From 2007 to 2011, claimant worked at Friendly's full-time as a shift supervisor. In 2011 she started working part-time because it hurt her back to be on her feet all the time (T: 144-145). In February 2012, claimant was sent to prison for drug and weapon charges. While she was housed at Beacon Correctional Facility ("Beacon"), she first worked on a crew mowing lawns, weeding and raking. A stress-induced asthma attack forced her to stop. She was next assigned to an inmate cleaning crew. On Thursday, July 19, 2012, after cleaning at a training facility off Beacon's grounds, the crew boarded a van to go clean at a men's prison (T: 131-133, 145-147). The van began to move before claimant was completely on board. With her right leg up on the back platform and her left leg still on the ground, the van moved about four feet then stopped. While claimant held on, her left leg was dragged, causing her to do a "split" (T: 132).

Claimant did not experience pain until the next morning, when her shoulder and groin area began to hurt. A nurse in the Medical Unit advised her to double her regular pain medication, Flexeril and Naproxen, which she was taking for her pre-existing back problems. Claimant was also taking anti-inflammatory medication. She began to experience sciatica two to three days after the incident, and she first saw a doctor the following Wednesday (T: 133-138). Her condition worsened over the next few months. She did physical therapy twice a week, worked light duty on the grounds of Beacon, then worked with computers sitting down. She did not have an MRI done until after her transfer to Taconic Correctional Facility ("Taconic") on December 11, 2012. She was classified as medically unassigned and did not work at Taconic. She was released from prison in November 2013 (T: 139-141). Because of pain resulting from the incident, she cannot work, her right leg goes numb, she stays home most of the time, she pays her sister to clean her house, and she cannot cook her own meals (T: 147-150).

On cross-examination, claimant testified she dislocated her shoulder while working at Friendly's. After claimant denied that she started working part-time at Friendly's because of her shoulder injury, she was asked to read the following passage from an Orthopedic Associates report for the record: "She is presently working 15 to 20 hours a week on a food line at Friendly's. She states more hours hurts too much, which is more aggravated by her left shoulder" (Exh. B, pg. 12). Claimant testified that she worked her first three days at Taconic but was then classified as medically unassigned and did not work. She was asked to read the following entry from her January 20, 2013 ambulatory health records at Taconic: "Reports she works in messhall and this has exacerbated her sciatica" (Exh. A, pg. 91). Claimant did not recall working in the mess hall (T: 156-165). She acknowledged having pains in her legs before 2012, but could not recall having numbness (T: 173-174).

The court accepted Dr. Michael Tirgan as an expert in general medicine with some knowledge of back injuries (T: 19). On direct and redirect examination, Dr. Tirgan testified that the objective evidence he relied on to determine the extent of claimant's injuries was "in the MRI examinations" (T: 26). The 2007, 2011 and 2013 MRIs of claimant, and her personal history, were enough evidence for Dr. Tirgan to formulate his opinion, to a reasonable degree of medical certainty, that the injuries shown in the 2013 MRI "are all related to the injury she sustained on 7/19/2012, and they are permanent, and they are going to get worse" (T: 36-37, 73-74).

The pathologies described in the 2007 MRI Report were "mild loss of disc height" and "broad based mild disc bulge" in the space between claimant's L4 and L5 vertebrae, and at "L4-L5," and "moderate loss of disc height" between her L5 and S1 vertebrae (T: 29).(3) After comparing the 2007 and 2011 MRI reports, he concluded there was no change in the pathology of the spine from 2007, and the pathology was not progressive (T: 30-31). Dr. Tirgan concluded that the report of the January 10, 2013 MRI described two new pathologies. The one at L3-L4 was described as "Right paracentral disc herniation flattens the thecal sac with an extruded fragment" (Exh. A, pgs. 228-229; T: 33). Dr. Tirgan also concluded that the report showed a worsening of the pathology at L4-L5, previously described as "a broad based mild disc bulge" (Exh. E), was described in the 2013 MRI report as "a broad based disc protrusion [that] flattens the thecal sac" (Exh. A, pgs. 228-229; T: 34-35).

Claimant's expert opined that the changes resulted from the July 19, 2012 incident because: there was no evidence of an intervening event between the incident and the MRI; and claimant had not previously been prescribed opioids (T: 23-24).(4)

On cross-examination, Dr. Tirgan acknowledged that he has had no specialized training in orthopedics since his course work in medical school (T: 39).(5) He answered "yes" when asked if he would refer claimant to an orthopedic surgeon to see if surgery would help (T: 80). His medical examination of claimant was limited to listening to her personal history and observing her demeanor and her gait as she walked (T: 46, 49). He did not test claimant's range of motion or otherwise conduct a physical examination of her. He considered it "a waste of time" to test range of motion for a back injury (T: 46-50). Dr. Tirgan acknowledged that "throughout" claimant has been "morbidly obese," and that without trauma, a disc can worsen from causes such as a person's weight, age, or from lifting a heavy object (T: 51, 63-64).

According to the witness, all of claimant's back injuries prior to the 2012 incident resulted from trauma, claimant did not have degenerative disc disease in 2006, which she was too young to have at 43 years old (T: 67-68). He maintained there was no medical way to determine whether a spinal condition progressed due to natural degeneration over time, as opposed to trauma, without dissecting the disc (T: 65-66).

Dr. Tirgan was shown Exhibit B, records from Orthopedic Associates, and read for the record the following excerpts of reports by Laurence U. Schenk, M.D. regarding examinations of claimant in 2007 and 2008: "I do not think that the herniated disc is symptomatic at this time. I think her to [sic] degenerative disc is the biggest problem" (pg. 5 [9/13/2007]); and "Stable low back pain from degenerative disc disease L5-S1" (pg. 6 [7/11/2008]). The witness also acknowledged that the 2011 MRI Report showed claimant's back had worsened since the MRI in 2007. On being shown the 2007 and 2011 MRI Reports from Lourdes Hospital (Exh. E), he agreed the finding at level L4-L5 had changed from "broad based mild disc bulge," to "broad-based disc bulge," and there was a new finding of herniation at level L3-L4 (T: 62-63).(6)

When Dr. Tirgan was asked what records he had reviewed, he stated: "Taconic medical records, [. . .] New York State Department of Corrections health notes, [. . .] New York Department of Correction ambulatory Taconic notes, Lourdes' medical records, client's notes, Beacon Physical Therapy records, Beacon Physical Therapy records set two, Beacon/Taconic miscellaneous medical records, Beacon medical records,12/12 NYS Department of Correction ambulatory records, [. . .] Expert Disclosures [. . .] [and] the notes from a nurse practitioner" (T: 44).

The medical records Dr. Tirgan listed (see Exhs. A, C, D and E) establish the following material facts: throughout her incarceration in Beacon and Taconic, claimant was seen by medical personnel and treated for her back pain; before the 2012 van incident, claimant was suffering from asthma, obesity, swelling in her legs, edema, sleep apnea and other medical issues; in 2007 claimant had back pain radiating to her left leg; in 2010 claimant went to the Emergency Room at Lourdes complaining of worsening back pain and pain radiating down both legs; several months before the van incident she was complaining of pain to her left groin radiating up from her left thigh; and claimant did not complain of back pain to the Beacon clinic until six days after the 2012 van incident (Exh. A, pgs. 114-115, 119, 129; Exh. C; Exh. D, pg. 16; Exh. E, pg. 1).

The court will first discuss defendant's motion to dismiss, which is dispositive. A motion to dismiss for failure to prove a prima facie case is made pursuant to CPLR 4401 at the close of a claimant's case (see Pitt v New York City Tr. Auth., 146 AD3d 826, 827 [2d Dept 2017]). A CPLR 4401 motion is for an award of judgment as a matter of law. As the Second Department explained in Pitt, " 'To be awarded judgment as a matter of law pursuant to CPLR 4401, a defendant must show that, upon viewing the evidence in the light most favorable to the plaintiff, there is no rational process by which the jury could find for the plaintiff against the moving defendant' " (id. at 827, quoting Alicea v Ligouri, 54 AD3d 784, 784-785 [2d Dept 2008]).

" 'The plaintiff's evidence must be accepted as true, and the plaintiff is entitled to every favorable inference which can be reasonably drawn from the evidence' " (Pitt at 827, quoting Alicea at 785).

The court notes preliminarily that the 2012 van incident arose from "the use or operation" of a motor vehicle, thereby implicating the applicability of the No-Fault Law (see Insurance Law 5102 [j], [k] and 5104 [a]; Hill v Metro. Suburban Bus Auth., 157 AD2d 93, 97 [2d Dept 1990] [plaintiff fell exiting bus]). Therefore, under Insurance Law 5104 (a), claimant has "no right of recovery for non-economic loss, except in the case of a serious injury, or for basic economic loss." Insurance Law 5102 (d) defines "serious injury" 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."

In addition to presenting "nonconclusory expert evidence" of a "serious injury," claimant also had to prove "that the injury was causally related to the accident" (Diaz v Anasco, 38 AD3d 295, 296 [1st Dept 2007]; see Franchini v Palmieri, 1 NY3d 536 [2003]). Claimant did not establish that she sustained a "serious injury" arising from the 2012 incident. Claimant failed to lay a sufficient foundation to support the reliability of her expert's opinion that she sustained additional spinal injuries from the incident, and that none of them resulted from degenerative disc disease. To establish a sufficient foundation for the reliability of Dr. Tirgan's opinions, claimant was required to show he was a specialist in the field of spinal injury, or if not a specialist, that he possessed "the requisite skill, training, education, knowledge, or experience from which it can be assumed that the opinion rendered is reliable" (Bongiovanni v Cavagnuolo, 138 AD3d 12, 18-19 [2d Dept 2016]; see Romano v Stanley, 90 NY2d 444, 451-452 [1997]; Noble v Kingsbrook Jewish Med. Ctr., 168 AD3d 1077, 1079-1080 [2d Dept 2019]).

At trial, the court rejected claimant's request to qualify Dr. Tirgan as an expert on injuries to the spine, and qualified him only in the field of general medicine, with some knowledge of lumbar pathology (T: 19). The court made its determination based on Dr. Tirgan's CV (Exh. 1) and his testimony establishing that: he is not an orthopedist or orthopedic surgeon; he is not a specialist in the area of spinal injuries; other than in medical school, which he completed in 1983, he has had no formal training in orthopedics; and his medical practice and research have focused on Hematology and Oncology (see Exh. 1 [CV]). Instead of providing objective evidence to support the reliability of his opinion, Dr. Tirgan's remaining testimony made it increasingly clear that his opinion as to serious injury was purely speculative.

Dr. Tirgan did not conduct a physical examination of claimant because range of motion testing of the spine is a "waste of time," and it was not necessary. Instead, he observed her walk, listened to the history she related, and took her at her word (T: 48-49). This testimony facially undermined the reliability of his resulting opinion.

His testimony was also riddled with material inaccuracies. He stated incorrectly that prior to the 2012 incident, claimant had not been prescribed opioids, and she did not have degenerative disc disease (T: 23-24, 68). The records he claimed to have reviewed show that: claimant was repeatedly prescribed opioids before 2012; after an April 27, 2007 examination (that included physical testing), claimant's doctor wrote in a progress note that she suffered from "lumbar degenerative disc disease"; and the MRI reports contain references to degenerative disc disease (Exhs. B, C and E). Dr. Tirgan also claimed incorrectly that the 2011 MRI did not show a change in claimant's condition since her 2007 MRI, when such a change is plainly stated in the report, which he admitted on cross-examination. Since the MRIs were the only objective evidence Dr. Tirgan relied on, his failure to convey the MRI results accurately is fatal. An expert's opinion "is mere speculation" "[a]bsent an explanation of the basis for concluding that the injury was caused by the accident, as opposed to other possibilities evidenced in the record" (Diaz at 296, quoting Montgomery v Pena, 19 AD3d 288, 290 [1st Dept 2005]; see Franco v Akram, 26 AD3d 461, 462 [2d Dept 2006]).

Claimant's testimony and the medical records show that she suffers from multiple physical problems, back and non-back related, that have severely limited her quality of life. However, claimant did not present prima facie evidence that she sustained a permanent injury as listed in the Insurance Law. Additionally, she failed to establish she sustained a non-permanent "injury or impairment" that prevented her "from performing substantially all of the material acts which constitute[d] [her] 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" (Insurance Law 5102 [d]). Assuming that the 2012 incident aggravated her existing back and shoulder injuries, claimant did not present evidence of her "usual and customary daily activities," and the evidence she did present showed that she returned to work shortly after the July 2012 incident, and worked throughout her remaining five months at Beacon before her transfer to Taconic in December 2012.

Even if the court were to deny the motion and decide the claim on the merits, claimant would not be successful. Defendant's expert, Dr. Robert Hendler, is a board certified orthopedic surgeon who was qualified to render an expert opinion about spinal injuries (see Exh. F [CV]). In his first report, dated July 3, 2017 (Exh. G), Dr. Hendler provided an orthopedic record review regarding claimant, and concluded that her disability was "not at all related to the accident of record, but [was] secondary to prior lower back injuries and her morbid obesity" (Exh. G, pg. 3). The second report, dated October 16, 2017 (Exh. H), concerns his physical examination of claimant on October 11, 2017. Dr. Hendler notes that claimant was granted a Social Security Disability "for degenerative disc disease of the lumbar spine, a rotator cuff injury to the left shoulder, thyroid carcinoma, obesity and chronic obstructive pulmonary disease" (Exh. G, pg. 3). He found that claimant could have suffered a back sprain from the 2012 van incident, but his exam established she had full range of motion of the lumbar spine. He concluded that claimant did not sustain any "significant injury" to either her lower back or her right shoulder at the time of the 2012 van incident, and "no further causally related orthopedic treatment [was] indicated" (Exh. H, pg. 4). The court finds that claimant failed to submit prima facie evidence that she sustained a serious injury resulting from the 2012 incident.

Accordingly, defendant's motion for judgment as a matter of law is granted, and the claim is dismissed. The Clerk of the Court shall enter judgment accordingly.

April 30, 2019

White Plains, New York


Judge of the Court of Claims

1. The claim was transferred to this court's calendar by order filed June 15, 2018.

2. "(T: #)" refers to the relevant page(s) of the trial transcript.

3. Dr. Tirgan explained that "L" refers to the "lumbar spine" and "S" refers to the "sacral spine" (T: 29).

4. This statement is refuted by the medical records showing that claimant was prescribed several opioids prior to the 2012 incident (see Exh. B, pgs. 2, 14, 16 [Norco 10]; and Exh. C, pgs. 1-8 [Vicodin]).

5. According to Dr. Tirgan's CV, he attended medical school from 1976-1983 [CV, Ex. 1].

6. Another change in the findings at level L4-L5 reflected in the 2011 MRI Report is from "[n]o central canal stenosis" to "mild to moderate spinal canal stenosis" (Exh. E).