New York State Court of Claims

New York State Court of Claims
HARRIGER v. THE STATE OF NEW YORK, # 2020-031-504, Claim No. 126681

Synopsis

Claimant awarded $2,000,000.00 for life altering injuries sustained in brutal assault.

Case information

UID: 2020-031-504
Claimant(s): ROY HARRIGER
Claimant short name: HARRIGER
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 126681
Motion number(s):
Cross-motion number(s):
Judge: RENÉE FORGENSI MINARIK
Claimant's attorney: SIVIN, MILLER & ROCHE LLP
BY: EDWARD SIVIN, ESQ. and
GLENN MILLER, ESQ.
Defendant's attorney: HON. LETITIA JAMES
New York State Attorney General
BY: TAMARA B. CHRISTIE, ESQ.
Assistant Attorney General
Third-party defendant's attorney:
Signature date: November 24, 2020
City: Rochester
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

In a liability-only decision dated November 28, 2018, I found the State 100% liable for the injuries suffered by Claimant Roy Harriger at the hands of an unknown correction officer on May 13, 2015 at Attica Correctional Facility (Attica). I tried the damages portion of this case, virtually, on September 22 through 25, 2020 and September 29 and 30, 2020.

FACTS

Claimant testified that, prior to May 13, 2015, the date of the assault, he never experienced seizures, headaches or suicidal thoughts. He described himself as active. He rode bicycles, motorcycles, played baseball and had no difficulty meeting the needs of his congregants. He also was able to take care of the tasks of daily living without assistance. His only routine medication was a daily aspirin.

Claimant has resided in the Regional Medical Unit at Wende Correctional Facility (RMU) since he was discharged from the hospital after the 2015 assault. He was almost 72 years old at the time of the assault. He was 77 years old at the time of this trial. He will be eligible for parole in 2027. When Claimant was first incarcerated, and until the day of the assault, he resided at Attica. He was walking with a cane on the day of the assault, as he had recently undergone surgery on his left hip and his right hip was bothering him as well. He believes that there were people at Attica who wished him ill. He had received items such as razors and cords and thought he was meant to use them to kill himself.

The events leading up to the assault were revisited at the damages trial to illustrate that his fear and foreboding were justified because he had suffered physical and verbal abuse at the hands of at least one correction officer. The assault occurred after Claimant accepted protective custody. The first blow caused him to fall forward hitting the right side of his face against the bars(1) and he passed out. He was hit on the back of the head a second time when he became conscious. Claimant testified he felt a foot on his neck when he became conscious a third time and tried to get up. This time the unknown officer "stomped" on his lower back.

Claimant stated he was unable to get off the ground on his own and recalls the unknown officer lifting him by the back of his shirt and being assisted by an inmate who the officer had ordered to walk Claimant to the shower. The inmate placed Claimant on a bench, whereupon Claimant believes he "blacked out." Claimant next recalls gaining consciousness, hearing someone yell "don't stroke out on me," then does not recall anything else until he arrived at the Attica infirmary.

At this point, he had been only "semi-conscious," but he knew he was hurt as he felt "horrible pain" in his hip, his back and his head. He testified that "every part of my body ached." He was in a wheelchair and unable to walk. He stated he was fearful and believed he was going to die. Claimant described his treatment by the infirmary nurse as cruel and that the correction officer posted at the infirmary was abusive as well. Claimant felt his treatment by Attica staff did not improve until a correction lieutenant arrived in the infirmary. Claimant testified he understood he was in the infirmary for three to four hours.

Claimant's next recollection was waking up at Buffalo General Hospital (General). Claimant continued to move in and out of consciousness, never leaving his bed the whole time he was at General, May 13-27, 2015. Claimant lost control of his kidneys so he required a catheter. He also required the use of a bedpan. He recalls correction officers' constant presence in his hospital room and felt threatened and abused. Claimant testified he would pass out, but does not recall sleeping. He was still in constant pain, his left hand hurt, as well as his head, and he lost feeling on the right side of his body.

Claimant does not recall his discharge from General, but he knew he was sent next to the RMU, and has resided there since. Claimant recalled arriving on a gurney, unable to sit up, remaining bedridden for three to four weeks until he was finally able to sit in a wheelchair. Claimant continued to experience headaches - he felt constant pain on the top of his head and severe pain five to six times a week, typically brought on by anxiety or nervousness. These periods of severe pain lasted approximately one half hour and included nausea, making him unable to hold his head up during those episodes.

Claimant testified he has also experienced double vision since the assault. He testified that this goes away if he closes his right eye. The right side of his mouth has also been impacted as he has no feeling, resulting in him often biting his tongue. Claimant stated he has lost his senses of smell and taste.

Claimant testified that he wore a neck cast for a month when he first arrived at the RMU. At that time, he was experiencing constant pain and had no range of motion. He then moved to a neck brace, which he wore all the time until his neck surgery approximately three months following the assault. He stated that while the surgery reduced the pain and helped him gain some range of motion, he is not in the same physical condition as he was before the assault. He has since learned how to hold his neck and head to experience less pain.

Regarding his right hand, Claimant stated he wears a glove and sometimes a full arm brace. He is unable to straighten his fingers and his hand contracts into a claw-like position to such an extent that his fingers cause his palm to bleed. A device, similar in appearance to brass knuckles, keeps his fingers from contracting too far and injuring the palm of his hand. He described his left hand as functional but dislocated. Since he wears shoes fastened with velcro, he can put them on and take them off on his own despite the infirmities in his hands. He stated that he has no use of his right arm and uses his left hand and left arm to move and place his right arm and hand where needed. He demonstrated for the Court how he would arrange himself to move from his wheelchair to his bed.

Claimant also described his right leg as useless. He is unable to independently lift it or walk on it. When he sets himself up to change positions, he uses his left arm and left leg to place his right leg where needed. He can stand on his left leg long enough to transfer back and forth from his wheelchair to his bed. Prior to the assault, he had no problems moving his right hand, his right arm or his right leg.

Claimant stated he presently can take care of most activities of daily living, relying on his left hand, but he needs help putting on and taking off his socks. He also needs to use a chair in the shower for bathing and relies upon adult diapers at night, or when his stomach is upset, to avoid accidents because of the time it takes to get situated to move to the toilet. Claimant stated he is naturally right handed, but has trained himself to use his left hand.

Claimant testified he has reoccurring nightmares where he envisions himself walking down the hallway at Attica, hearing his name yelled out, reliving the assault and the verbal abuse. He dreams about the Attica infirmary where he hears voices and experiences night sweats. He also experiences flashbacks when awake where he sees faces and recalls the walk. He described the one time he was required to return to the Attica infirmary for an x-ray and he became fearful the RMU staff were going to leave him there. He was eventually convinced he would be returning to the RMU and the x-ray was completed.

Approximately three months after the assault, Claimant stated he treated with a Dr. Bennett for the problems he was experiencing with his neck. Claimant felt he had no choice but to undergo surgery as recommended. He believes he was in the Erie County Medical Center (ECMC) from August 27, 2015 until September 8, 2015, when he was discharged back to the RMU. He described the time after surgery where the staff accomplished all daily activities of living for him. He felt useless and hopeless. He saw his wife every day. He believed he would never get out of bed again. He continued to experience pain in his neck, ringing in his right ear and a hissing sound in his left ear. He believed he was close to death and felt no one cared.

He was given physical therapy at the RMU. Physical therapists focused on his right hand in an effort to extend his fingers and keep them from curling inward toward his palm, but concluded that they were unable to achieve that result. Claimant demonstrated the exercises he learned from physical therapy where he used his working left side to move his right arm, right leg and open his right hand enough to allow him to grasp bars or other supports. He testified his physical limitations remain the same today, although he successfully worked with an RMU nurse who showed him how he could transfer himself from his wheelchair to his bed and to the shower.

Claimant's daughter, Joy Fanale, testified that prior to his incarceration, Claimant mowed grass, cut down trees, carried wood and enjoyed his hobbies, particularly music. She stated her father played piano, guitar and banjo and often wrote and performed his own music. She never heard him complain about numbness or headaches or "about anything." In the year prior to his incarceration, Ms. Fanale would visit Claimant and her mother, Claimant's wife, at least once a day, sometimes two or three times a day.

On the day of the assault, Ms. Fanale traveled to General, where she first observed Claimant in the emergency room. She testified he appeared to be dead as he was not moving and he looked swollen. Claimant's arms and shoulders were visible and she noticed marks around Claimant's face, neck and shoulder area. She stated the marks appeared as small, connected crosses or Xs and resembled to her the design you would see on the bottom of a boot. Once Claimant gained consciousness and could communicate, Ms. Fanale was sure the marks were made by a boot.

Ms. Fanale described Claimant as going in and out of consciousness, appearing "startled," and rolling his head from side to side. She also noted his eyes kept rolling back up into his head. She attempted to converse with him, trying to determine what had happened, but he kept shaking his head "no." This is when Ms. Fanale first observed a single correction officer in Claimant's immediate area. A second officer appeared. When Claimant attempted to communicate with his daughter, the officers told her to leave. Ms. Fanale testified she slept all night in the hospital because she felt Claimant could die during the night.

The next day, Ms. Fanale was unable to visit Claimant until the afternoon when the hospital had regular visiting hours. She testified Claimant appeared more alert. He wore handcuffs and his ankles were chained to the bed. The two correction officers posted in his room allowed Ms. Fanale and her mother to approach Claimant and hug him, but were instructed to stand back after the hug. Ms. Fanale observed Claimant's face was swollen and when she touched Claimant's hand, Claimant winced. Claimant would not speak to her about what happened. She described Claimant as "shaken." She noted he was lying on his back, as he was in the emergency room the night before, now surrounded by pillows and was wearing compression equipment on his legs. He was not moving and could not turn his head to kiss her and her mother goodbye.

Ms. Fanale stated she visited Claimant every day over the two weeks he was in General. During that time, she never saw him sit up, get out of bed or otherwise move. Nurses cut up his food and fed him. She never saw Claimant lift his arms and if anyone tried to raise the head of the bed to put Claimant in a sitting position, Claimant told them to stop. Claimant was not transported for imaging that Ms. Fanale observed. Medical personnel were in and out of his room the whole time.

The first time Ms. Fanale visited Claimant at the RMU, Claimant looked like "he aged 20 years." His hands were wrapped, he was in a wheelchair and to her, he looked "rough." She visited Claimant at the RMU once or twice each month over the last five years and has never seen him out of his wheelchair or observed him use his right hand or right arm. She described his legs as "skinny," his voice as soft, no longer booming and his mood as sad.

Robert E. Todd, M.D. is a Board Certified Neurologist, licensed in the State of New York. He was retained by Claimant's attorneys to evaluate Claimant's medical condition, his medical records, trial and deposition testimony and evidence, as well as the Independent Medical Examinations (IME) of Dr. Gerard Philip Varlotta (Exhibit 8) and Dr. Robert S. Knapp (Exhibit C). Based upon his review of these materials, he rendered an opinion to a reasonable degree of neurological certainty that Claimant's physical condition was directly caused by the assault on May 13, 2015. I found Dr. Todd's testimony helpful and credible. The parties have stipulated that Dr. Todd is an expert in the field of neurology.

Dr. Todd concluded, within a reasonable degree of neurological certainty, that Claimant suffered the following permanent injuries as a result of the May 13, 2015 assault: Traumatic Brain Injury (TBI) as evidenced by Right Hemiplegia/Right Central Facial Palsy, Mild Cognitive Impairment, Right 4th Nerve Palsy and Convergence Insufficiency; and Cervical Spondylosis with Myelopathy as evidenced by Occipital Neuralgia, Migraine Variant and Chronic Daily Headache. He also found Post-Traumatic Stress Disorder (PTSD) and Ligamental Injury of the Left Thumb (Exhibit 6, p. 30). Dr. Todd ruled out several of the injuries, or sequelae of injuries, alleged in Claimant's Amended Verified Bill of Particulars, dated November 20, 2019, as having been caused by the assault.

Dr. Todd performed a thorough review of Claimant's medical records and listed the documents he relied upon to support his opinions. Dr. Todd went to great lengths to follow what was reported and when, as well as to whom, regarding how Claimant was injured. Claimant's May 13, 2015 entry in the Department of Corrections and Community Supervision's (DOCCS) Ambulatory Health Record (AHR) by Nurse Terpstra noted the two bumps on the back of Claimant's head, with a physical description as well as an illustration (Exhibit 6, p. 5). Dr. Todd opined that the location of the bump at the base of the skull was close to where the brain and the spinal cord are joined. Monroe Ambulance then transported Claimant from Attica to Wyoming County Community Hospital (Wyoming). The ambulance crew recorded that Attica reported Claimant said he had an unwitnessed fall in the shower. They noted a "hematoma" to the back of Claimant's head and observed "tremors to his chest and eyes which I felt was seizure activity . . ." and administered the drug Versed. After Claimant received the Versed, the tremors stopped (Exhibit 2, p. 26).

Medical staff at Wyoming noted that both DOCCS and Monroe Ambulance reported Claimant sustained an unwitnessed fall in the shower. Upon examination, Claimant had a "lump back of head" and winced when it was touched. They also noted a right facial droop and flaccid right arm (Exhibit 2, pp. 5-6). Wyoming classified Claimant as a head injury patient and performed a Head CT without contrast, which ruled out any pathology related to the brain (Exhibit 2, pp. 14, 15). According to Dr. Todd, Claimant was then airlifted to General by Mercy Flight Western New York, indicating that Claimant's case was medically complicated and he needed treatment at a larger facility.

Again, the patient history reported to Mercy Flight was that Claimant fell in the shower, noted a hematoma on the back of Claimant's head and stated Claimant "ambulated" to the Attica infirmary where he became unresponsive. Mercy Flight also noted a right facial droop when grimacing and some hand tremors, as related to them by the Wyoming emergency department doctor. Claimant was given written orders for Versed for seizure as well as Zofran for nausea. The flight was uneventful (Exhibit 3, p. 78).

Claimant arrived at the Emergency Department (ED) of General in the late afternoon on the day of the assault. The triage nurse's notes indicated Claimant had an unwitnessed fall in the shower, causing him to hit the back of his head, but notes there are conflicting stories as to exactly what happened to him at Attica and, at this point in time, Claimant was unable to answer any questions about what happened to him (Exhibit 3, p. 62). The supervising physician made a differential diagnosis of stroke, intracranial hemorrhage, seizure, postictal state, Todd's Paralysis and noted possible malingering and suicidal ideation (Exhibit 3, p. 63; Exhibit 6, p. 7). Claimant's physical examination in the ED noted Claimant could lift his right arm off the bed and hold for five seconds. He was given the drug Keppra (Exhibit 6, p. 7), which Dr. Todd stated was an anti-epileptic drug.

Also, on the day of the assault, while in the ED, several imaging tests were ordered (Exhibit 3, p. 65). The CT scan revealed a "possible small lacunar infarct" (Exhibit 3, p. 66, 271; Exhibit 6, p. 7), which Dr. Todd described as a small stroke. He stated the results of this scan were important for what it did not show - a brain bleed or tumor. If this had been a major stroke, it would have been too soon to see evidence on the imaging. Dr. Todd also testified that the CT angiogram of the head and neck revealed moderate to severe disc disease at C5-C6, but noted Claimant had no prior medical history involving neck pain.

General admitted Claimant for additional diagnostic work-ups to determine why Claimant was presenting an altered mental state (Exhibit 3, p. 48). Upon his review of the admitting doctor's notes, Dr. Todd concluded Claimant was presenting with right facial droop and problems with his right eye and although "rousable to loud verbal stimuli," he was not speaking, only intermittently obeyed commands and had a poor response to pain (Exhibit 6, p. 7).

Dr. Todd described the first neurology consultation as confirming right facial droop and that Claimant's lower face, right eye, right arm and right leg were not moving. The record also notes that Claimant's right toe moved upward when painful stimulation was applied - the normal response would have been a downward movement. Claimant scored in the middle of the National Institute of Health's Stroke Scale at an 18. An electroencephalogram (EEG) was ordered, as well as an MRI. The Attending Neurologist considered Todd's Paralysis, but notes "a significant functional component to the right sided weakness and lack of verbal communication" (Exhibit 3, p. 52), which Dr. Todd testified meant the doctor did not believe what he was seeing, that Claimant was capable of doing more and Claimant was faking.

Dr. Todd noted that medical personnel remained unaware of how Claimant was actually injured, still noting an alleged unwitnessed fall and that the neurologists never noted the bumps on the back of Claimant's head.

Soon after the initial neurology consultation, while Claimant was still in the ED, a stroke page was called and Claimant was measured at 12/15 on the Glasgow Coma Scale. The neurologist who answered the call noted that the right facial droop was still present and observed no drift in the left arm or left leg. Claimant made no movement on his right side, even when stimulated. Although Claimant appeared more alert and was making noises, the neurologist noted no words were spoken. Also, Claimant's right toe was still making the upward instead of downward movement (Exhibit 3, pp. 53-54). An MRI showed no evidence of stroke, although age related deterioration was present on the image (Exhibit 3, p. 273).

An EEG was performed on May 14, 2015 at 2:30 p.m. The patient history noted a "big bump on back of head" as well as hemiparesis. The reading showed several sharp waves indicating epileptic activity at the left frontal region of the brain. Claimant was sleepy throughout the test (Exhibit 3, p. 229). Dr. Todd testified that seizures do not always manifest in an obvious way (for example, shaking, tremors, convulsions) and in fact, because Claimant was administered Keppra, an anti-seizure medication, the day before the EEG, those outward signs were most likely suppressed. Claimant was administered Keppra throughout his stay at General (Exhibit 6, pp. 8-11).

After admission, Dr. Hojnacki, the Supervising Attending Physician, examined Claimant. He disagreed with the EEG reading and independently concluded that the EEG was essentially normal, discounting the reported five sharp waves (Exhibit 3, p. 99). Thus, as in his opinion, no seizures were evident, the Keppra should be discontinued and Claimant "should be discharged back to the facility in which he came from" (Exhibit 3, p. 101). While Claimant's physical condition essentially remained unchanged throughout the remainder of his stay at General, orthopedic medical staff treated Claimant's left hand and noted a left thumb dislocation, along with age-related arthritis (Exhibit 6, p. 10).

The Neurology Attending Physician followed up on May 25, 2015, shortly before General discharged Claimant. This time, the doctor noted a persistent right lower facial weakness and loss of sensation. When the doctor lifted Claimant's right arm above his head and let go, his arm fell and hit his forehead. The two MRI scans were negative for stroke and Claimant continued to show right side weakness. The examining doctor determined Claimant might be faking his symptoms because she could find nothing in the scans or other objective tests that show a possible cause for the hemiparesis. She referred Claimant to a psychiatric consult for possible conversion disorder (Exhibit 6, p. 11).

The psychiatric examination was conducted on May 26, 2015 by Dr. Paula A. Delregno. Dr. Delregno followed up on notations in Claimant's medical records at General regarding an alleged suicidal ideation by calling Attica which confirmed that Claimant was not a mental hygiene patient and that his Attica records contained no concerns about suicidal thoughts. By this point in his treatment at General, Claimant was communicating more clearly and was able to tell Dr. Delregno what happened. Claimant expressed concern about confidentiality as he feared for his life and, while she was unable to guarantee confidentiality, Claimant chose to cooperate in her evaluation (Exhibit 3, p. 57). For the first time since the day of the assault, Claimant stated he had been hit on the back of the head by an Attica employee. Claimant stated his physical symptoms are directly related to the hit on the head (Exhibit 3, p. 58). Dr. Delregno recommended observing Claimant when he was asleep to verify the right side hemiparesis and stated it was difficult to determine if any psychological factors could be contributing to Claimant's physical symptoms. While she felt Claimant did not appear to be depressed, she acknowledged that being incarcerated might play a role if Claimant believed being injured or sick would give him greater protection or better treatment at Attica (Exhibit 3, pp. 59, 60).

General discharged Claimant to the RMU at Wende on May 27, 2015. His diagnoses were: Altered Mental Status (resolved); Bradycardia; Conversion Disorder; Cerebral Vascular Accident; Malingering; Mitral Valve Prolapse; Right Hemiparesis; Seizure with Todd's Paralysis. The doctors stopped Keppra and thought Claimant was faking the hemiparesis because Claimant's EEG results were normal (Exhibit 6, p. 12).

Upon arrival at the RMU, Dr. Stanley Bukowski evaluated Claimant and noted a 2cm lump at the base of Claimant's head. Claimant's left eye followed a light while the right eye did not. Claimant had a right foot drop and no grip with his right hand. Claimant continued to see specialists and have imaging services, as well as physical therapy and occupational therapy. MRI scans of Claimant's cervical and thoracic spine in June 2015 noted diffuse spondylosis, disc degeneration and spinal canal and foraminal encroachment (Exhibit 6, pp. 12-13). Claimant was admitted to Erie County Medical Center (ECMC) August 27, 2015 for surgery to the cervical spine "due to severe spinal stenosis and spinal cord compression" (Exhibit 6, p. 14). A fusion was performed from C3 through C7. The record indicated no right side movement. It is also evident at this time that Claimant suffers from atrial fibrillation. ECMC discharged Claimant on September 8, 2015. In the months following the surgery, Claimant's hemiparesis remained unimproved, although the neck pain diminished (Exhibit 6, pp. 14-15).

On July 7, 2016, Rural/Metro Ambulance transported Claimant from the RMU to General after RMU staff found Claimant in his bed, unresponsive with a facial droop. Ambulance medics found Claimant responsive to painful stimuli only, with a right side facial droop and left arm weakness. Claimant was nonverbal (Exhibit 3, pp. 1178-1182). The consulting neurologist at General noted in Claimant's history that Claimant's imaging from May 2015 were negative for stroke and seizure (Exhibit 3, p. 1141). The doctor believed Claimant was distractible, meaning that at times the droop or weakness appeared to dissipate and that perhaps Claimant was faking symptoms. Followup with cardiology was recommended and Claimant was sent back to the RMU (Exhibit 6, p. 15). In Dr. Todd's opinion, Claimant most likely suffered a small stroke, also known as Transient Ischemic Attack (TIA).

Claimant returned to ECMC on June 6, 2017 when the RMU staff believed Claimant may have been experiencing heart failure. Claimant was at ECMC until June 23, 2017 where Claimant received a cardiac workup and a neurology consultation. The discharge summary from ECMC listed the diagnoses as aphasia (resolved); TIA or panic attack; atrial fibrillation and chronic arterial/venous stasis dermatitis. The right sided hemiparesis was noted (Exhibit 6, p. 19).

Dr. Gerard P. Varlotta is Board Certified in Physical Medicine and Rehabilitation and is stipulated by the parties to be an expert in this area. He reviewed Claimant's medical records and performed a physical examination on August 6, 2019 at the RMU. Dr. Varlotta testified he understood that both neurological experts agreed Claimant did not suffer a stroke, but wondered whether Claimant experienced a stroke in his brain stem that the imaging could not show. He opined it was a possible explanation for the hemiparesis.

Dr. Varlotta diagnosed six major conditions that, in his opinion to a reasonable degree of medical certainty in the area of physiology, Claimant experiences now as a direct result of the assault on May 13, 2015. They are: Flaccid Right Paraparesis due to a brainstem or lacunar infarct; Cervical Spondylosis with Stenosis; Cervical Myelomalacia (spinal cord damage); C3-C7 Anterior Cervical Decompression & Fusion; C7-T1 Grade 1 Spondylolisthesis (slipped vertebrae) and Left Carpometacarpal Osteoarthritis with Subluxation and Contracture (left hand injury) (Exhibit 8, p. 6).

The following five conditions are ones Dr. Varlotta described as secondary, or conditions arising from the six major conditions listed above: Left Hip Osteoarthritis; Right Shoulder Subluxation; Left Shoulder Osteoarthritis; Lumbar Disc Degeneration with Kyphosis (curved posture at lower back) and Atrial Fibrillation with Life-long Anticoagulation (Exhibit 8, p. 6). Dr. Varlotta testified Claimant would experience problems with his hip, shoulders and back due to overcompensating for the flaccid right paraparesis. Claimant experiences limited activity and mobility in his daily living activities. He transfers and showers in a particular way, he needs adaptive equipment and will use a wheelchair for long distance ambulating. His condition is expected to deteriorate over time.

As far as the various therapies offered, for example physical therapy or occupational therapy, Dr. Varlotta believes Claimant is at his maximum function. These conditions are permanent in his opinion, will not improve and, indeed, will become worse over time.

Dr. Robert S. Knapp is a neurologist in private practice in Canandaigua, New York since 1986. He is Board Certified in Psychiatry and Neurology (Exhibit B). The parties stipulate that Dr. Knapp is an expert in neurology. The State hired Dr. Knapp to perform an IME of Claimant for this trial. Dr. Knapp stated he reviewed Claimant's medical records, as well as deposition transcripts and the liability trial decision. He performed Claimant's physical examination on February 3, 2020. His opinion, to a reasonable degree of neurological certainty, was that Claimant was either malingering or suffered from conversion disorder and any allegation that Claimant suffered a brain injury as a result of an assault was in error (Exhibit C).

Dr. Knapp provided a two page synopsis of what he determined to be pertinent information from Claimant's medical record he relied upon in making his opinion. He testified he found the imaging studies devoid of evidence of stroke or brain hemorrhage, supporting his opinion that there was no TBI. He also discounted the existence of seizure activity because the doctors at General discontinued the use of Keppra, administered for seizure prevention, at discharge. Dr. Knapp admitted there was evidence of injury to Claimant's spine, but the problems were related to Claimant's age and normal degeneration, not the assault. In addition, Dr. Knapp opined that a spinal injury would not cause weakness on only one side of the body, but would impact both sides, further proof in his estimation, that Claimant was either malingering or suffering from conversion disorder. The only objective sign of injury he found was the right sided Babinski sign (the upward pointing right toe), but he discounted that fact as related to anything other than age and opined the vascular changes appearing in Claimant's imaging likely caused Claimant's right toe to move upward rather than downward when stimulated (Exhibit C, p. 5).

At trial, Dr. Knapp explained he tested Claimant's complaints of loss of feeling and right side weakness during the physical examination. Specifically, Dr. Knapp, using a pin and tuning fork to test pain and vibration, applied both to the right side of the face and skull whereupon Claimant stated he felt nothing. When Dr. Knapp moved the pin and tuning fork to the midline of the skull and sternum, Claimant stated he still felt nothing. Dr. Knapp testified that this particular test finding did not make sense from a neurological point of view, in other words, it was an inorganic finding, because nerve endings from each side of the body cross the midline. Accordingly, Claimant should have experienced a pinprick or vibration on the midline or even slightly to the right side of the midline. Dr. Knapp also took issue with Claimant's droopy right eye, testifying that sometimes it did not appear to be drooping and the fact that its appearance varied, made it an inorganic finding.

Dr. Knapp also tested the vision in Claimant's right eye and determined Claimant had a constricted right visual field, meaning his vision was confined to a smaller field than normal, indicating a problem with his retina. Had Claimant possessed a TBI, the field of vision in his right eye would be constricted, but constricted in a linear manner where he possessed a complete field of vision only to one side.

Organic findings of restricted blood flow of small blood vessels in Claimant's brain were evident in Claimant's MRI (Exhibit A, p. 938) (see also Exhibit A11 at p. 33). To the extent Claimant experienced cognitive impairment, like memory loss, it was age appropriate and related to the restricted blood flow of small vessels in Claimant's brain. Dr. Knapp also testified that some of the right sided facial weakness and the Babinski sign could be related to this condition as well.

Dr. Knapp agreed with Dr. Todd that Claimant did not suffer a stroke in May 2015, but Dr. Knapp testified Claimant could have suffered a TIA where blood flow is restricted, then the problem resolves, however, he testified he could neither confirm nor refute if this occurred, even though some of Claimant's symptoms might suggest that it had.

When counsel questioned Dr. Knapp about Claimant having experienced a TBI, Dr. Knapp immediately ruled it out as Claimant would have to have been unconscious for up to 30 minutes and experienced amnesia for up to 24 hours for just a mild TBI. Further, Dr. Knapp would have expected a full recovery from a mild TBI. Dr. Knapp felt certain of his opinion as he saw only one medical record that mentioned a TBI and that particular instance happened to be in the patient history portion of a record from 2017 (Exhibit 4, p. 129). There was never a diagnosis of a TBI.

Dr. Knapp also testified that Claimant's claim he experienced right side weakness or paralysis does not make sense because there was not evidence of a cerebral vascular event in the part of Claimant's brain that would impact his right side in that manner. Thus, he opined Claimant does not have right side weakness or paralysis.

Dr. Knapp further opined Claimant does not experience seizures now. Again, there was no indication from the imaging studies that a cerebral vascular event severe enough to cause seizures occurred, however, he believes given the evidence of the age appropriate vascular degeneration seen in these studies Claimant could have experienced a seizure on May 13, 2015 while in the shower, causing him to fall and hit his head.

Dr. Knapp testified he also determined Claimant did not suffer any cognitive impairment other than normally experienced by a person Claimant's age with the vascular degeneration shown on his imaging studies. He notes that no treating physician in Claimant's medical record ordered any neurological-psychiatric tests that would have ruled out malingering or conversion disorder. On cross-examination, counsel reminded Dr. Knapp that both Dr. Todd and Dr. Varlotta found Claimant tested in the normal range at the IME on the Montreal-Cognitive Assessment (MoCA test) and Mini-Mental State Exam (MMSE), respectively.

Finally, Dr. Knapp discussed the evidence of damage to Claimant's cervical spine stating the stenosis and the compression were related to Claimant's age and not the assault. He opined that had imaging of Claimant's cervical spine been performed prior to the assault, the same evidence would appear. In other words, Claimant needed the spinal surgery - he just didn't know it until after he was assaulted.

Nowhere in Dr. Knapp's report is there an accession that Claimant was struck, twice, on the back of his head, with a baton. Indeed, in his testimony at trial, Dr. Knapp states there was conflicting evidence in the record regarding how Claimant was injured, even surmising at one point on direct examination that the evidence of vascular disease, appropriate for his age, and evident on the imaging studies, could have produced a seizure or faint that caused Claimant to experience an unwitnessed fall in the shower which caused him to present to Nurse Terpstra in the manner in which he did on May 13, 2015. On cross-examination, Dr. Knapp stated that the mechanism of Claimant's injury was irrelevant to his analysis of Claimant's case. While Dr. Knapp may believe the assault upon Claimant is irrelevant to his analysis, it is central to mine. Dr. Knapp may be knowledgeable, but his refusal to opine within the context of an assault with a baton rendered his opinion less than helpful to these deliberations.

The story of how Claimant hurt himself as told by Attica was a fabrication. That fabrication followed Claimant to Wyoming and then to General and was not refuted until Claimant gained some semblance of consciousness and was able to tell a psychologist what had happened to him. He was labeled a malingerer as soon as he hit the floor at General, an inmate unable to speak for himself.

Dr. Todd performed a thorough physical examination of Claimant on July 1, 2020 at the RMU which he described in detail in Exhibit 6 and testified to at length at trial. Dr. Todd's diagnoses, based on his review of Claimant's medical records, the liability trial transcript, Claimant's deposition and confirmed by his findings from his physical examination are reasonable, credible and supported. The issue is, were these injuries and/or conditions caused by the assault? Dr. Todd directly addressed that issue and I believe Claimant has proven that they were causally related to the assault and I adopt Dr. Todd's opinion as expressed in his IME (Exhibit 6, pp. 31-36).(2)

The fact that Claimant is over 70 years of age with age related degeneration in his head and spine is a fact all three experts agree upon. Prior to the assault, Claimant was experiencing pain related to his hips, but other than that, he was walking, holding his head and neck up without assistance and independently taking care of the activities of daily living, in other words, he was asymptomatic before the baton struck his skull (Exhibit A, p. 2). How long would he have remained that way, no one can tell, but what is clear is that his physical condition deteriorated rapidly after the assault. As Dr. Varlotta testified to on cross-examination, a person can have age related degeneration, but it may not be symptomatic until an injury or trauma.

DAMAGES

I must determine reasonable compensation for Claimant for conscious pain and suffering he has suffered from the date of the assault May 13, 2015, through and including the date of the conclusion of the trial on damages, September 30, 2020, as well as future pain and suffering. I find the following:

Past pain and suffering: $1,750,000.00

Future pain and suffering: $ 250,000.00

Medical expenses are not awarded, as no evidence of past or future medical expenses were presented at the damages trial.

Claimant's total award is $2,000,000.00, together with appropriate interest from the date of the finding of liability, November 28, 2018.

All motions not heretofore ruled upon are now denied.

To the extent Claimant has paid a filing fee, it is recoverable pursuant to Court of Claims Act 11-a (2).

LET JUDGMENT BE ENTERED ACCORDINGLY.

November 24, 2020

Rochester, New York

RENÉE FORGENSI MINARIK

Judge of the Court of Claims


1. Claimant testified that it was a wall at the liability trial.

2. I note that page 32 stands corrected on the trial record in that the June 18, 2015 finding of an inferior displacement of the cerebellar tonsils is actually 4mm, not the 6.4mm stated in the report, and agree with the doctor that, while it is not the 5 mm or more traditional Chiari Malformation, it is very close, and in conjunction with the other impairments, still sufficiently supports a diagnosis of TBI.