New York State Court of Claims

New York State Court of Claims
QUICK v. STATE OF NEW YORK, # 2020-053-009, Claim No. 122817

Synopsis

Following a trial on the issue of damages, the Court determined that claimant did not establish by a preponderance of the evidence that he suffered disc herniations in his lumbar spine and in his middle back and neck related to a fall from an upper bunk while incarcerated. The Court determined that claimant had degenerative changes and arthritis in his lumbar spine that were unrelated to the fall. The Court finds no permanent injury and awards claimant $12,000 for past pain and suffering as a direct result of the fall.

Case information

UID: 2020-053-009
Claimant(s): ZACHARY QUICK
Claimant short name: QUICK
Footnote (claimant name) :
Defendant(s): STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 122817
Motion number(s):
Cross-motion number(s):
Judge: J. DAVID SAMPSON
Claimant's attorney: LAW OFFICES OF BRIAN CHAPIN YORK
BY: Brian Chapin York, Esq.
Defendant's attorney: HON. LETITIA JAMES
New York State Attorney General
BY: Thomas G. Ramsay, Esq.
Assistant Attorney General
Third-party defendant's attorney:
Signature date: July 31, 2020
City: Buffalo
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

The claimant, Zachary Quick, alleged that on February 8, 2012 he sustained personal injuries after falling from an upper bunk bed assigned to him while he was incarcerated at the Groveland Correctional Facility (Groveland). A notice of intention to file a claim was served on or about March 26, 2012 and a claim was filed on June 5, 2013. The trial addressing the issue of liability only was held in Buffalo on June 29, 2017. In a Decision filed September 20, 2017, the Court ruled that the State was 100% liable with no finding of comparative negligence assessed to claimant. A trial on the issue of damages was conducted on February 6 and 7, 2020. During this trial, testimony was received from: claimant; claimant's mother, Nancy Lynn Quick; his brother, Alexander Quick; and economist Ronald Reiber, Ph.D. Portions of the trial testimony transcript of claimant's treating chiropractor, William Uhl, D.C., DAAMLP were also received into evidence. The defendant offered the testimony of medical expert, Robert Knapp, M.D. Upon completion of the trial, the parties were provided additional time to submit post-trial memoranda and this time period was extended to May 15, 2020 due to the COVID-19 shutdown.

MOTION IN LIMINE

Prior to commencement of the trial, the Court heard claimant's motion in limine (M-95237) and the defendant's cross-motion in limine (CM-95238). For the reasons stated below, the Court denied claimant's motion in limine and granted defendant's cross-motion in limine.

Upon review of the motion papers submitted by the parties, the claimant's proposed supplemental bill of particulars and oral argument of the parties' positions, the Court, relying upon CPLR Rules 3042 (b) and 3043 (b), CPLR 3126 and the decisions in Calabrese Bakeries, Inc. v Rockland Bakery, Inc., 139 AD3d 1192, 1194 (3d Dept 2016) and Ramulic v State of New York, 179 AD3d 1494 (4th Dept 2020), ruled that paragraph 1 of the claimant's proposed supplemental bill of particulars was deficient and that claimant would not be permitted to serve the State with the supplemental bill of particulars at commencement of the trial. The basis for this ruling was that claimant failed to respond to the particulars sought in paragraph 7 of the State's demand for bill of particulars and at no time up to and including the date for the commencement of this trial ever provided all of the underlying documentation upon which their expert economist, Dr. Ronald Reiber calculated claimant's past and future lost earnings as stated in claimant's original expert disclosure. As a result, the Court ruled that Dr. Reiber would only be permitted to testify to and base his opinions on the economic data that had been provided to the State prior to trial, namely the W-2 statements from Titan Maintenance (Titan) and Tradesman International (Tradesman), as well as the Tradesman weekly payroll records. Claimant was precluded from utilizing and seeking testimony concerning the Titan weekly payroll records that were not provided to the State prior to trial. After review of the claimant's post-trial memoranda on this issue and due deliberation thereon, the Court denies claimant's request to reverse or vacate this ruling.

With respect to paragraph 2 of claimant's proposed supplemental bill of particulars, claimant alleged special damages including past medical expenses in excess of $18,940 and future medical expenses of at least $659.23 monthly. During oral argument, Mr. York stated that this information was largely provided to him by claimant without statements, invoices or receipts and that none of this information had been provided to Mr. Ramsay prior to trial. As a result, the Court ruled that claimant would be precluded from submitting evidence of past medical expenses that were not provided to the State prior to filing of the note of issue and certificate of readiness. With respect to future medical expenses, the Court ruled that claimant would be permitted to offer only those invoices of future medical expenses that were provided to the State prior to filing of the note of issue. However, the Court would permit claimant's medical expert, William Uhl, D.C. to testify to the anticipated future expense of the claimant's chiropractic care. The claimant's post-trial memoranda does not address this ruling and as such, the Court deems any objection abandoned and to the extent that it was not, the Court denies claimant's request to reverse or vacate this ruling.

The Court then heard the State's cross-motion in limine which first sought to preclude portions of Dr. Uhl's testimony taken prior to trial on January 28, 2020 in which Dr. Uhl offered opinion testimony on his interpretation of MRI imaging performed on January 3, 2020; to office visits with claimant on January 10, 2020 and January 27, 2020; and to quantifying claimant's alleged disability. Mr. Ramsay objected to this testimony during its videotaping for trial and in oral argument objected on the basis that this testimony and the underlying MRI imaging and office visits in January 2020 were beyond the scope of the expert disclosure for Dr. Uhl and claimant's bill of particulars.

During oral argument, Mr. York did not dispute that Dr. Uhl had not previously treated claimant outside of the one examination on December 10, 2018 and that Mr. Ramsay had not been provided with records of the January 2020 MRI or the two office visits prior to trial. As such, the Court ruled that claimant would be precluded from offering testimony by Dr. Uhl concerning the January 3, 2020 MRI imaging and interpretation of it, as well as his office visits with claimant on January 10 and 27, 2020. Following the completion of proof and after both parties had rested in the trial, claimant's counsel requested and was provided the opportunity to bring a post-trial motion, at which time claimant requested that the Court reconsider the earlier ruling on the cross-motion in limine with respect to preclusion of the January 2020 MRI, Dr. Uhl's testimony interpreting the January 2020 MRI, and his testimony comparing it with the February 7, 2014 MRI images. Upon hearing oral argument and after due consideration of the parties positions, the Court denied claimant's post-trial motion. The Court has again considered claimant's argument and denies claimant's request to reverse or vacate this ruling.

The next issue that was addressed in the cross-motion in limine regarded Dr. Uhl's trial testimony concerning his interpretation of the February 7, 2014 MRI imaging. On March 18, 2019, the State was first advised that Dr. Uhl had examined claimant when claimant's counsel forwarded a letter attaching Dr. Uhl's January 28, 2019 report Claimant's Post Trial Memorandum, Exhibit A), in which he states that "I have personally reviewed Mr. Quick's lumbar MRI including all images and have rendered the following conclusions" (Cross-Motion in Limine, Exhibit L). The State noticed a defense independent medical examination (IME) for October 9, 2019, which notice required claimant to produce, among other records, all films (x-ray, CT scan and MRI images) generated during the course of claimant's treatment, including the 2014 MRI images reviewed and interpreted by Dr. Uhl (Cross-Motion in Limine, Exhibit F). At no time after service of the notice for physical examination did claimant's counsel object to the requirement that claimant be required to bring the 2014 MRI images to the defense IME or did he file a motion seeking a protective order pursuant to CPLR 3103 that this requirement was beyond the scope of CPLR 3121. On the date of the examination, claimant failed to appear and thereafter it was agreed by the parties that the defense IME would be rescheduled. Claimant's failure to appear on October 9, 2019 also resulted in delaying the trial which had been scheduled to commence on November 21, 2019. As a result, the trial was also rescheduled to commence on February 6, 2020.

The State then served a notice of rescheduled physical examination upon claimant's counsel which again required claimant to bring with him all radiology records, including the 2014 MRI images (Cross-Motion in Limine, Exhibit G). Once again, claimant's counsel did not object to this requirement or file a motion seeking a protective order pursuant to CPLR 3103. The defense IME went forward on November 7, 2019, however, claimant did not bring with him any of the documents or the 2014 MRI images required by the notice. Mr. York then filed the note of issue and certificate of readiness on December 6, 2019 in which he attested that all discovery proceedings known to be necessary had been completed and that there were no outstanding requests for discovery even though he had not provided AAG Ramsay with the 2014 MRI images (Cross-Motion in Limine, Exhibit I). On January 6, 2020, Mr. York served claimant's expert disclosure in which he identified Dr. Uhl as claimant's sole medical expert for trial and attached to that expert disclosure Dr. Uhl's report of January 28, 2019 in which he states that he personally reviewed the 2014 MRI images and offered an interpretation of those images that was starkly different from that of the radiologist who prepared the MRI report. During oral argument of the cross-motion, AAG Ramsay stated that prior to the scheduled defense IME he had been advised by Mr. York that his client had a copy of the 2014 MRI images that he would ask him to bring but that claimant failed to do so for the physical examination. At no time during oral argument did Mr. York contest Mr. Ramsay's statement that claimant was in possession of a copy of the 2014 MRI images. In addition, Mr. York never objected to the underlying notice for a physical examination requiring his client to produce the 2014 MRI images at the time of the examination.

Upon consideration of the motion papers and the parties' positions as stated during oral argument, the Court's authority pursuant to CPLR 3126 and Uniform Rules for the Court of Claims 206.14(e), and the earlier cited decisions in Calabrese Bakeries, Inc. v Rockland Bakery, Inc., supra. and Ramulic v State of New York, supra., the Court ruled that claimant was precluded from offering Dr. Uhl's trial testimony interpreting the 2014 MRI images and any opinions and conclusions based upon that interpretation due to claimant's failure to provide the State with a copy of the 2014 MRI images for their medical expert to review either at the time of the defense IME, prior to filing the note of issue or at any time prior to the trial.

During the trial and Mr. York's cross-examination of Dr. Robert Knapp, he was asked by Mr. York whether he had personally reviewed the 2014 MRI images that claimant had failed to produce during pretrial discovery, to which Dr. Knapp obviously replied "No". Dr. Knapp was then asked by Mr. York what was the extent of his training interpreting MRIs, to which he responded that in his practice he reviews MRIs with his radiologist colleagues to interpret the results but does not independently write MRI reports. Mr. York then asked if he would have reviewed the 2014 MRI images had he received them and he responded that he would have relied upon the 2014 MRI report and would not have interpreted the 2014 MRI images. Mr. York then renewed his objection to the Court's ruling on the cross-motion in limine asking that I reconsider my decision based on Dr. Knapp's answer. In opposition, AAG Ramsay stated that he would have asked Dr. Knapp to review the 2014 MRI images if he had known that Dr. Uhl was going to offer his own interpretation during the course of his trial testimony and as such, the State was still prejudiced at the time of trial. The Court then denied Mr. York's request to reverse or vacate my ruling on the cross-motion in limine.

The claimant now requests in his post-trial memorandum that the Court vacate the preclusion ruling in the cross-motion in limine with respect to trial testimony by Dr. Uhl interpreting the 2014 MRI images and his conclusions and opinions of claimant's ability/disability to work. Claimant now contends for the first time that neither CPLR 3121 (a) nor Uniform Rules for the Court of Claims 206.14(e) authorize imposing the requirement on a party to produce radiology films/images at or before a defense medical examination, only reports or authorizations to obtain copies of films/images. However, as previously addressed, Mr. York never objected to AAG Ramsay of the scope of disclosure sought in the notice or the rescheduled notice for a physical examination, never filed a motion seeking a protective order pursuant to CPLR 3101, and in fact, told AAG Ramsay that his client had a copy of the 2014 MRI images and would have him bring it with him to the defense IME.

The Court agrees with Mr. York to the extent that CPLR 3121 (a) does not require the production of radiology films, only reports, however, he never objected to the scope of records required by the State's notice or rescheduled notice for physical examination, but rather told AAG Ramsay that his client had a copy of the 2014 MRI images and led AAG Ramsay to believe that he would instruct claimant to bring them to the defense IME. Mr. York is incorrect in his interpretation of Uniform Rules for the Court of Claims 206.14(e) as under the facts presented, the Court was precluding claimant at trial for failing to provide the 2014 MRI images requested by the State that claimant did not object to and had promised to provide.

The claimant's alternative argument set forth in his post-trial memorandum at paragraphs 11through 13 now alleges for the first time that the 2014 MRI images were not in claimant's or his possession when the notice of the defense IME was issued and before the date of the defense IME. However, this allegation is contrary to what was earlier stated on the record during oral argument of the cross-motion in limine by AAG Ramsay, which Mr. York did not object to or correct. Furthermore, it is clear from the testimony of Dr. Uhl that claimant was referred to him by Mr. York and that Dr. Uhl was requested to examine claimant as a medical expert and prepare a report to Mr. York, which he did dated January 28, 2019. Dr. Uhl was a medical expert retained by Mr. York for claimant and even if the 2014 MRI images were in Dr. Uhl's possession and not with his client, they were within claimant's control and Mr. York should have produced them as he had agreed to do. It is a spurious argument to now allege that the 2014 MRI images were not in his possession and that he should not be compelled to produce that which he does not possess.

The full disclosure and production of all matter material and necessary during pretrial discovery that is required by CPLR 3101 is not limited to only that which is in "the possession" of the claimant or his attorney. All matter that is in the possession or control of the party, his attorney, treating physicians, experts, employers or anyone else under their control that is material and necessary is to be produced in accordance with the provisions of Article 31. As such, I find that the claimant's failure to produce the 2014 MRI images prior to trial prejudiced the State in its ability to dispute Dr. Uhl's interpretation and as such, the Court will not vacate its earlier ruling (See Eremina v Scparta, 120 AD3d 616 [2d Dept 2014]).

TESTIMONY OF NANCY LYNN QUICK

Nancy Lynn Quick is the mother of claimant Zachary Quick and testified that prior to his incarceration, he lived on the family's 112 acre farm. She testified that claimant bailed hay, drove a tractor and did other routine farming activities. Mrs. Quick described him as an active person who lifted weights and participated in several recreational activities, including four-wheel dirt bikes. She identified several photographs of claimant prior to his incarceration (Exhibit 18, photos 1-14).

Mrs. Quick testified that following his incarceration, his physical activities became very limited. She stated that he now lives in a trailer on the farm and she sees him on a daily basis. Mrs. Quick testified that she now performs most tasks of daily living for claimant, including purchasing groceries. She stated that he no longer performs work on the farm, does not participate in the recreational activities that he previously participated in and no longer goes out socially. Mrs. Quick testified that prior to his incarceration he did not have any injury to his spine and acknowledged that when he was younger he was involved in an ATV accident in which he broke his collarbone. She then described her son as previously being very outgoing and involved in a lot of physical activities and now he is not.

On cross-examination, Mrs. Quick testified that claimant has lived on the farm his entire life except for his time in the Marines. She testified that she would visit him in prison every three months. When she visited him she testified that she noticed that he was moving differently. Mrs. Quick stated that there was no change or improvement in the movement that she observed up to the time that he was released. Since his release, she stated that he tries to pay rent but that Social Services makes it difficult for him to obtain payment for rent and his electric utility bill and she indicated that she supports him when Social Services does not. Mrs. Quick testified that he does not do much at all during the day other than spending time on the telephone.

TESTIMONY OF ALEXANDER QUICK

Alexander Quick is the younger brother of the claimant and testified that he too lives on the family farm. He testified how he and claimant performed many physical farming activities, including bailing hay, maintaining the fencing on the property and wood splitting. He testified that prior to his incarceration, claimant exhibited no limitation performing any activities on the farm. Mr. Quick testified that after his release from prison, claimant was not physically active and there was not much that he could physically do. He stated that claimant also became reclusive and no longer participated in social activities.

Mr. Quick described his employment with claimant at Titan. He testified that Titan was involved in industrial work and the job required them to monitor computer screens to adjust the pH level of water in tanks at a plant. Mr. Quick testified that it was not initially a physical job and then the work changed and became very physical. He testified how they were required to pump, moving pipe over 100 feet in length that was made up of twenty foot sections that each weighed 200 lbs. Mr. Quick testified that he did the physical tasks as claimant was not physically able to perform them and as the pain in his back would increase the more he became physically inactive. On cross-examination, Mr. Quick testified that the job at Titan primarily involved watching computer screens and claimant was capable of doing these tasks. He agreed that the job position changed and that when it did, claimant continued to watch the computer monitor screens and he was brought on to the job so as to perform those physical tasks.

TESTIMONY OF ZACHARY QUICK

Claimant Zachary Quick testified that prior to his incarceration, he was very physically active and was involved in many outdoor activities, including hunting, fishing, skeet shooting and four-wheel riding. He testified that he was also very physically active on the farm bailing hay, mending fencing and performing other physical activities on the farm in order to care and feed the cattle, pigs, turkeys and chickens. He identified several photo exhibits in which he was performing various activities prior to his back injury, including photos of him bailing hay (Exhibit 18-1); on a dirt bike (Exhibit 18-7); snowboarding (Exhibits 18-4 and 5); and on a motorcycle (Exhibit 18-6). He identified photo exhibits of him with his girlfriend prior to his incarceration (Exhibits 18-12, 13 and 14) and testified that he has not had a girlfriend since he injured his back. He identified a photo exhibit that accurately depicted his physical condition in 2010 prior to his incarceration as he exercised and lifted weights (Exhibit 18-2). He can no longer lift weights and exercise as he would experience too much back pain and is not worth attempting.

Claimant testified that while he was incarcerated but prior to his back injury he was involved in handball, racquetball and lifting weights, basketball and jogging almost every day. He testified that he is not able to do any of these after the accident as it would hurt for days after he would try and cause him significant pain. Claimant also testified that he participated in vocational training while incarcerated, including training for welding, masonry, small engines and any other trades that were made available. He testified that prior to the back injury that there was nothing he could not do.

Prior to the back injury claimant did not recall ever going to the prison infirmary and he testified that he never previously complained of back pain. Claimant also testified that he never previously injured his back. He identified a New York State Department of Corrections and Community Supervision (DOCCS) Training Achievement & Potential Employability Report for him dated November 2, 2017 (Exhibit 6). He testified that it listed the various welding skills he had been approved on prior to his injury, but that he is no longer capable of performing these tasks as he can no longer sit or stand for long periods of time.

Claimant testified that he injured his back after falling from the top bunk bed. He stated that his first memory was seeing other inmates pulling him onto a stretcher. Claimant testified that he was in a lot of pain and that the pain continued after his fall. He stated that he could barely walk the first week and that it remained painful for him to walk for two months following the fall. Claimant testified that he submitted a sick call slip daily so that he could go to the prison infirmary and that he was transported there during the first week but then had to walk on his own, which was very difficult and painful. He stated that he was bedridden for a time and that his condition got better over time and he would then regress, describing it as experiencing peaks and valleys as his condition worsened. Claimant testified that he then began to experience bladder problems and erectile dysfunction. He testified that an MRI was performed two years later and that he understood that it indicated he had stenosis and bulging discs. Claimant testified that following the injury, the pain continued and he was unable to resume any of the physical activities that he previously performed.

Claimant testified that after his release on parole, he was first employed by Titan Maintenance, a company owned by his older brother. He stated that he worked for Titan at an industrial water treatment facility. Claimant testified that initially the job involved monitoring the water treatment program, which was digitally controlled. He stated that as long as he was not required to lift any significant weight, he was able to perform the job. Claimant testified that the job tasks changed when the company hired to remove the slurry from the tanks stopped doing it, so they were then required to back the slurry out of the tanks three times per week. He testified that he would work from the truck and was able to unhook and drop the hose from the truck but he was not physically able to connect the hoses or do any heavy lifting. Claimant stated that this job ended for him when his brother decided that he could only afford to pay one person to perform both jobs. He testified that his brother let him go because he was not physically able to perform this job.

Claimant then testified that he was told by his parole officer that as he was now unemployed, it was a condition of his parole that he seek and maintain employment and failing to do so would be considered a parole violation. He stated that as a result, he then put in an application with Tradesman as a heavy equipment operator and did not list any of his physical limitations. Claimant testified that he got the job and operated a fork lift but that he physically had difficulty working a five day workweek because of the pain experienced in his back. He stated that he was let go from the job as he needed days off during the week because of his back.

Claimant testified that he was offered overtime work while employed by Tradesman and that he would still be working there if he had not injured his back. He identified his job application with Tradesman (Exhibit 5) and admitted that he did not tell them about his physical limitations. He also did not honestly answer his job abilities and alleged that he did this so as to not violate parole. He also identified records of his weekly pay while employed by Tradesman and affirmed that in his first full week he worked 40 hours and was paid at the rate of $20 per hour. Claimant also identified entries for overtime and several weeks when he worked less than 40 hours because of back pain.

Claimant testified that he treated with Dr. Fuhrman for back pain and that he prescribed Gabapentin. Claimant stated that he next went for treatment with a chiropractor, Dr. Uhl. Claimant also testified that he goes to Pinnacle Behavioral Health to see a therapist for drug addiction counseling (as he had been addicted to heroin and used marijuana and other drugs) and a counselor for depression and anxiety. Claimant testified that he went to Dr. Lawrence for a surgical evaluation but that Dr. Lawrence told him that he first wanted claimant to do physical therapy and pain management before he would consider surgery. Claimant testified that he was rejected for physical therapy because they would not accept payment through his health insurance carrier and Medicaid. He stated that he then went online to find physical therapy exercises and stretches, which he did regularly but received very little relief. Claimant testified that he continues to experience intense pain in his lower back if he stands or sits too long and wears a back brace that helps a little bit.

Claimant testified about an incident in prison when he hit his head on a door that occurred while he was working on small engines. He stated that he was working with a chain saw and when he attempted to pull the cord to start it, he experienced an intense pain in his back which caused him to fall forward into the door and he was knocked unconscious. Claimant testified that he suffered a concussion and that a CT scan taken indicated that he had suffered no permanent damage.

Claimant testified that upon reviewing his medical records, he prepared a report that was sent to his parole officer. He stated that he was then referred to the Center for Employment Opportunity (Exhibit 7). Claimant also testified about the independent medical examination performed by Dr. Knapp and stated that the examination by Dr. Knapp lasted only five to ten minutes. He stated that he tested his range of motion and asked him a few questions. Claimant testified that had he not been injured he would have worked as long as he could and believes if healthy that he would have worked until age 67 or longer if he could.

On cross-examination, claimant testified that he was incarcerated from 2006 to 2010 for a burglary conviction arising out of an arrest for stealing firearms. He admitted that he was dishonorably discharged from the Marines, which he stated was for an unauthorized absence. Claimant also agreed that he previously had a drug abuse problem with cocaine. He also admitted that after he was released from prison, he did not pursue jobs in the vocations that he had received training on while in prison. Claimant testified that after his release from prison, he returned to his previous job as a landscaper.

Claimant admitted that he went to prison a second time for another burglary conviction, this time for stealing bicycles. He testified that the longest time period that he held one job prior to going to prison was one year and that this was with a company owned by his stepfather. Claimant confirmed that when he was released from prison the second time, he worked for Titan, a company owned by his brother. Claimant testified that Tradesman was a temporary agency. He stated that while working for Tradesman that he was injured when the fork on the forklift fell on his foot, but that he did not reinjure his back. He admitted that after seeing Dr. Uhl, he has not returned to work in any capacity. Finally, claimant agreed that he was in a number of fights with other inmates over the 11 years that he was in prison.

On redirect examination, claimant testified that he was in the Marines before he went to prison and that before his discharge he successfully completed boot camp and infantry training. Claimant also testified that when he worked for his brother at Titan Maintenance, he was able to work a lot of overtime.

TESTIMONY OF WILLIAM UHL, D.C.

William Uhl, D.C. is a licensed chiropractor in the State of New York who was retained by claimant as a medical expert. Dr. Uhl examined claimant on December 10, 2018, which he memorialized in a report dated January 28, 2019.(1) A copy of his curriculum vitae was received into evidence (Exhibit 15). Dr. Uhl testified that he first saw claimant on January 28, 2019, which conflicted with his report that states he examined claimant on December 10, 2018. He stated that he was provided with the prison medical records for claimant (Exhibit 1) and that his review indicated that there were 25 medical notes where claimant complained of back pain and then radiculopathy. Dr. Uhl testified that the first notation of radiculopathy was on March 12, 2012. He also stated that the records indicated two instances where claimant experienced an exacerbation of the pain, the first from a lifting incident in May 2012 and the second while trying to lift a chain saw in November 2012. Dr. Uhl testified that claimant's complaints of radiculopathy began a little over a month following the fall from his bunk and stated that this could be an indication that the injury was worsening. He testified that the type of injury he found with claimant was consistent with the incidents described on May 25, 2012 and November 27, 2012.

Dr. Uhl testified that claimant's subjective complaints were low back pain that shoots into his legs and that is greater on his right side. He stated that claimant reported that the level of pain he experienced was a ten on a scale of zero to ten with ten being the worst. He also testified that claimant complained of neck pain and upper and middle back pain for which he rated the level of pain as an eight. Dr. Uhl testified that claimant described multiple symptoms that were consistent with postconcussion syndrome relating to the November 2012 incident with the chain saw. Dr. Uhl testified that claimant reported having frequent, severe headaches for which he rated his level of pain as a nine. He testified that claimant also complained of urinary incontinence and erectile dysfunction.

Dr. Uhl testified that his physical examination of claimant found spinal fixations on his lumbar spine at L4-L5 and the sacrum. In his cervical spine, Dr. Uhl found occiput bilaterally at C1 on the right and at C6 and C7. He stated that he also found tight lumbar paraspinal muscles that were greater on the right between L4 and S1. Dr. Uhl testified that he found overly hypertonic muscles in the throacic paraspinals bilaterally between T7 and T9. Finally, he testified that when he palpated claimant at L4-L5 and the sacrum that claimant experienced severe pain on the right side and moderate pain on the left side of those levels.

Dr. Uhl testified that he also performed a two-point range of motion test following the American Medical Association (AMA) guidelines for impairment. He stated that this test indicated that with flexion claimant had a 33 percent deficit that invoked a moderate amount of pain; with lumbar extension a 60 percent deficit with severe pain; with right lateral bending a 40 percent deficit with moderate pain; and with left lateral bending claimant had no restriction. Dr. Uhl testified that according to the AMA guidelines, all of these together amount to a 33 percent loss of motion in the lumbar spine. He testified that he also performed a neurologic exam that was grossly intact with no muscle weakness, reflexes were equal and that he graded normal. Dr. Uhl also performed several orthopedic tests that were positive and indicated right side lumbosacral radiculopathy and gluteal pain which he opined as evidence of lumbar nerve root compression.

Dr. Uhl took an x-ray of claimant's lumbar spine on December 10, 2018, which he testified showed disc space narrowing at L5-S1 and retrolisthesis or a backwards shifting of the L5 vertebrae. He also testified that the x-ray showed significant degenerative disc findings at L5-S1 that were not present on the 2014 lumbar MRI. He opined that the degenerative pathology he found was consistent with the damage caused to the claimant's spine in the 2012 incident. Dr. Uhl testified that disc space narrowing is part of the degenerative process when a disc degenerates, that it increases the likelihood of nerves being compressed and is consistent with the presence of a disc herniation. Dr. Uhl testified that it was his opinion that claimant's injuries are permanent. He also opined that claimant's symptoms and his findings from the physical examination clinically correlate and are causally related to the 2012 incident.

Dr. Uhl opined that the injuries to claimant's spine caused significant consequential impairment in his daily functioning and that the subsequent pain in his middle back and neck are related to the February 8, 2012 incident. He testified that claimant reported to him that he was unable to sit or stand for more than ten minutes without substantially increasing his pain and that physical activities such as lifting, bending and pushing increase his low back pain and radiculopathy. Dr. Uhl opined that what claimant reported to him was consistent with and caused by the 2012 incident.

On cross-examination, Dr. Uhl testified that about 40% of his practice relates to patients who have pending legal actions. Dr. Uhl stated that Mr. York referred claimant to him and that he gets quite a few client referrals from attorneys. He corrected his earlier testimony stating that he saw claimant on December 10, 2018. Dr. Uhl testified that when he met with claimant that he had not reviewed any of claimant's prior medical records and did not do so until after his examination. Dr. Uhl testified that claimant's medical records were sent to him by Mr. York following his examination. He stated that when he met with claimant it was probably for 30 to 45 minutes. Dr. Uhl agreed that he did not have any baseline x-ray or MRI of claimant's spine to show the condition of his lumbar spine before the subject incident and aside from the claimant's medical records that he later reviewed, he did not examine any other records. He also agreed that he did not review any of claimant's medical records prior to the 2012 incident.

Dr. Uhl agreed that in the claimant's medical records maintained during his incarceration with DOCCS (Exhibit 1) that there was a radiology report of February 10, 2012 that he would have reviewed and considered. This radiology report (Exhibit 14A-Exhibit A) was taken one day following claimant's fall from the bunk and included a complete series of x-rays of his lumbar spine. This report stated that the vertebral bodies and intervertebral disks were well preserved, pedicles intact and there were no fractures or subluxations. The physician remarks also indicated that the lumbosacral spine was within normal limits. Dr. Uhl also agreed that there was a radiology report of December 18, 2012 contained in these medical records that he would have reviewed and considered. This radiology report (Exhibit 14A- Exhibit B) was taken about 10 months after the subject incident and included five views of claimant's lumbar and sacral spine and its findings were that mild degenerative changes were present, alignment was satisfactory and there were no fractures. Finally, Dr. Uhl was asked and testified that a lumbar spine MRI of February 7, 2014 was contained in the prison medical records and that he would have reviewed and considered it. This MRI report (Exhibit 14A-Exhibit C) stated that there were small central disc protrusions and disc degeneration at L4-L5 and L5-S1 and indicated findings of bilateral facet arthrosis at both levels.

Dr. Uhl testified that on March 15, 2019, he referred claimant to James Lawrence, M.D. for a neurosurgical consultation (Exhibit 14A-Exhibit D). He identified the April 30, 2019 report of Dr. Lawrence that he was copied on (Exhibit 14A - Exhibit E). Dr. Lawrence's physical examination indicated that on neurologic testing claimant did have some degree of weakness but it was difficult for him to ascertain if it was a neurologic impairment or that it was based on the amount of claimant's effort in that he could not reproduce any weakness on the right, claimant's sensation was stable and his pulses were equal and symmetric. Importantly, Dr. Lawrence also reviewed the radiological imaging and made similar findings of disk degeneration at L4-5 and L5-S1 as a result of degenerative facet arthritis and that the MRI similarly showed disk degeneration at L4-5 and L5-S1with borderline stenosis at both levels. In his assessment, Dr. Lawrence concluded that claimant had not had any significant directed conservative care and would refer him for parin management and that surgery was not then an option nor was permanency an issue as he had not yet had any concerted efforts at conservative care.

TESTIMONY OF RONALD REIBER, PH.D.

Claimant retained economist Ronald Reiber, Ph.D. (Exhibit 16) to provide an economic analysis of claimant's past and future lost wages. Dr. Reiber testified that he was provided with the employment records of Tradesman International, Inc. (Exhibit 5). He testified that when claimant left their employ, he was earning $20 per hour. Dr. Reiber testified that he made an estimated calculation of what claimant could have earned had the injury not occurred. He stated that he worked at Tradesman for four months and would have earned $20 per hour and based his calculation of economic loss on him continuing to work 40 hours per week and a 50 week work year with an opportunity for overtime. Dr. Reiber prepared a general data sheet for claimant utilizing a 2.2% inflation rate and calculated his past and future lost wages without consideration for any promotion or advancement during claimant's work life history (Exhibit 20).

On cross-examination, Dr. Reiber stated that he based his calculations on the economic data for claimant's job with Tradesman International. He was not provided with any work history prior to his incarceration and did not believe it to be an indicator of what he could earn the rest of his life. Dr. Reiber did not do any calculations based upon claimant's work as a landscaper or as a farmer. He testified that he is aware that recidivism is an issue with someone who has been previously incarcerated. Dr. Reiber stated that he did not make any adjustment for any potential prison experience or for his prior history of drug abuse. He agreed that claimant's job with Tradesman was not until six years following the incident where he injured his back. Dr. Reiber also did not consider seasonality of his employment with Tradesman or that his calculations accounted for any period of unemployment. He stated that he kept claimant at the same type of job for the rest of his life. He testified that he was not aware how long claimant had held his longest job and it was not considered when calculating his past or future lost wages. On redirect examination, Dr. Reiber reiterated his belief that claimant's preinjury work history was not relevant to the economic data he utilized in making the calculations of claimant's past and future lost income. He testified that the most recent job is better to determine relevant wage information and he believes is reasonable for calculation of claimant's lost income.

TESTIMONY OF ROBERT KNAPP, M.D.

Dr. Robert Knapp was retained by the defendant and testified that he performed an independent medical evaluation of claimant on November 7, 2019. He stated that he is in private practice and is board certified in neurology. Dr. Knapp testified that his medical record review included claimant's prison medical records with the film studies of his lumbar spine (Exhibit 1), the records of his drug addiction therapy with Pinnacle Behavioral Health (Exhibit 2), his treatment records following his release with his primary physician, Dr. Michael Fuhrman, D.O. (Exhibit 3), and with James Lawrence, M.D., an orthopedist at the Bone and Joint Center (Exhibit 9). He stated that the claimant's medical records indicated that he was not a candidate for surgery and was to be followed up with pain management.

Dr. Knapp testified that he performed a neurologic examination of claimant and that he found claimant to be normal, with reflexes intact and symmetric and he had full strength with no evidence of cervical or lumbar radiculopathy or traumatic brain injury. His report states that the absence of a finding of a disc herniation was not consistent with there being any serious injury sustained in the February 8, 2012 accident (Exhibit B). Dr. Knapp's report also states that the MRI findings demonstrate degenerative changes only that are unrelated to the subject accident. He also states that the disc bulges noted in the MRI are considered to be normal findings. It was Dr. Knapp's opinion that claimant's allegations of urinary difficulties and erectile dysfunction were unrelated to the subject accident and not supported by the MRI findings. He also opined that there was no evidence of any objective findings that would explain claimant's pain and that neither the x-rays or the MRI provided any findings that would explain his pain. Dr. Knapp opined that claimant did not sustain a traumatic brain injury or postconcussive syndrome and that the brain imaging by a CT scan did not show findings typical of traumatic brain injury. Lastly, he opined that claimant's headaches were subjective and not consistent with postconcussive syndrome.

On cross-examination, Dr. Knapp agreed that claimant denied any pre-accident back pain. He agreed that there were repeated reports in his prison medical records of back pain subsequent to the accident. He agreed that claimant reported radiculopathy and urinary difficulties that were contained in the prison medical records. Dr. Knapp testified that claimant was diagnosed with a concussion on November 27, 2012 following the chain saw incident. He stated that the MRI of February 7, 2014 indicated bilateral foraminal stenosis, which he testified as a narrowing and agreed that it could be an indication of a compression of the nerves. However, Dr. Knapp testified that in claimant's case, there was no objective evidence of compression that would account for any radiculopathy. Dr. Knapp did not agree that a finding of a disc bulge means that there was damage to a disc, testifying that about 70% of normal people will have disc bulges with no back pain and about 33% will have disc protrusions with no back pain and more than half the people without back pain have disc bulges. Dr. Knapp stated that his findings of range of motion in claimant's physical examination were all subjective as they were based upon the extent to which claimant performed them after he was instructed not to go beyond where he felt uncomfortable or that would cause him pain. As such, Dr. Knapp testified that the results of the range of motion test are based upon claimant's willingness to demonstrate his mobility. Finally, Dr. Knapp reiterated the basis for his opinion that claimant did not have postconcussive syndrome.

On redirect examination, Dr. Knapp testified that with respect to claimant's allegation of bladder dysfunction or erectile dysfunction, there was no objective evidence of a disc herniation that would have caused it. He also testified that claimant's medical history did not indicate that he suffered amnesia and a concussion for the required time period to have categorized this incident as a traumatic brain injury. He stated that claimant exhibited symptoms that were consistent with a pre-existing psychiatric disorder. Dr. Knapp reiterated that Dr. Lawrence's report stated that his review of the February 2014 MRI report confirmed only the existence of arthritis. Finally, he stated that a finding of disc bulges or disc protrusion did not have significance in this case because a high percentage of normal people without back pain also have these findings.

LAW AND ANALYSIS

An award of damages to a person injured by the negligence of another is to compensate the victim and restore him, to the extent possible, to the position he would have occupied had the incident not occurred (McDougald v Garber, 73 NY2d 246, 253-254 [1989]). The claimant has the burden to establish that the State's negligence as previously determined by this Court is causally connected to the injuries and damages now alleged (Gayle v City of New York, 92 NY2d 936, 937 [1998]). The determination of pain and suffering is 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]). In order to establish lost wages, the claimant must establish the loss with reasonable certainty, which typically requires more than unsubstantiated testimony (Shubbuck v Conners, 15 NY3d 871 [2010]). In determining the amount of an award for future damages, the Court takes judicial notice of the Pattern Jury Instructions Life Expectancy Tables. I find that claimant was 30 years old at the time of the 2012 incident and 38 years old at the time of the trial. As such, I find that claimant has a future life expectancy of about 38 years to age 76 (PJI 3d Edition [2020],Vol. 1B, Appendix A, Table 1).

In order to establish causality and the extent of claimant's injuries, the only health care provider produced at trial was their expert witness, Dr. Uhl. Dr. Uhl testified that he examined claimant for 30 to 45 minutes on December 10, 2018, over six and one-half years after the subject incident and then reviewed medical records forwarded to him by Mr. York before preparing his January 28, 2019 report. Dr. Uhl's testimony was taken prior to trial and was not videotaped, so the Court was not able to observe him during his testimony and assess his demeanor while testifying. In Dr. Uhl's report, he states that the x-rays taken during the claimant's examination on December 10, 2018 indicated significant disc degeneration at L5-S1 that he did not find present on the 2014 lumbar MRI images and that he personally reviewed claimant's 2014 lumbar MRI images and from that concluded that there were disc herniations present at L4-5 and L5-S1, moderate stenosis and displacement of the left S1 nerve root and annular tearing on the sagittal T2. From this Dr. Uhl concluded that the disc herniations he identified on the 2014 MRI images were causally related to claimant's fall from his bunk on February 8, 2012 and were a significant causative factor of his subsequent pain and dysfunction. In his testimony, Dr. Uhl opined that the degenerative changes found to exist in imaging studies in claimant's lumbar spine at L5-S1 were causally related to the 2012 incident. He stated that this opinion was based upon his evaluation of the two 2012 radiological studies, the 2014 MRI and his physical examination of claimant.

Dr. Uhl is the only health care provider who concluded that herniations existed in claimant's lumbar spine and who causally related these injuries to the 2012 fall from his bunk. None of claimant's treating physicians and radiologists made a similar finding from the time he was first treated in 2012 until his last known treatment when he was examined by Dr. Lawrence in April 2019. In order to agree with and find Dr. Uhl's opinion testimony credible, the Court would have to ignore and reject the opinions and conclusions of claimant's treating physicians and radiologists throughout his entire treatment history.

In offering this opinion, Dr. Uhl's report does not reconcile why his opinions differ from the findings of the two radiological reports in 2012 that detailed degenerative changes only or from the findings of the 2014 MRI report that disclosed only small central disc protrusions at L4-5 and L5-S1 and disc degeneration with bilateral facet arthrosis. Although Dr. Uhl testified that his neurologic examination found claimant basically normal, he opined that claimant's symptom of right side radiculopathy was evidence of lumbar nerve root compression based upon the results of two subjective orthopedic tests during claimant's physical examination. However, Dr. Lawrence stated in his report that in his neurologic examination of claimant taken after Dr. Uhl's examination, he could not reproduce any weakness on the right. Dr. Uhl further opined that the injuries to claimant's spine caused pain in his middle back and neck that are causally related to the 2012 incident. However, Dr. Uhl did not base his opinions relating to claimant's middle back and neck on the imaging studies or any objective findings, instead relying upon claimant's subjective complaints and the results of subjective testing during his examination.

Dr. Uhl's testimony and opinions were not only inconsistent with claimant's treating physicians and radiologists but they were also inconsistent with Dr. Lawrence, the physician he referred claimant to for a surgical consultation. Dr. Lawrence, who was not called by claimant to testify at trial, reviewed the same imaging studies and agreed with his prior treating physicians and radiologists (as well as the opinion of the defense expert, Dr. Knapp) that there were only degenerative changes at L4-5 and L5-S1 and that the degenerative changes were the result of arthritis, not trauma. Dr. Lawrence did not agree with Dr. Uhl that claimant was a candidate for surgery. He also provided no diagnosis or opinion causally relating claimant's allegations of bladder dysfunction or erectile dysfunction. Dr. Lawrence's report also implies his belief that claimant's effort during testing was less than cooperative, implying that claimant was being less than truthful during the course of his examination. As a result, for all of the reasons stated above I do not find the opinions of Dr. Uhl to be credible or persuasive.

The State's expert medical witness, Dr. Knapp, whose testimony I found to be instructive and credible, testified that claimant's neurologic examination also found claimant's reflexes intact and symmetric, that he had full strength and no evidence of cervical or lumbar radiculopathy or traumatic brain injury. Although he did not have an opportunity to independently review the 2014 MRI images, from his review of the MRI report he opined and agreed with claimant's treating physicians and radiologists that the 2014 MRI findings showed only degenerative changes that were unrelated to the February 2012 accident. He further opined that the presence of disc bulges as noted in the 2014 MRI were not indicative of any traumatic injury and considered them to be normal findings. Dr. Knapp further testified that claimant's allegation of bladder dysfunction or erectile dysfunction was unrelated to the subject accident as there was no objective evidence of a disc herniation to have caused either. He also testified that claimant's medical history did not establish that the February 2012 accident or the subsequent incident in November 2012 involving the chain saw caused a traumatic brain injury.

The claimant's bill of particulars dated August 13, 2019 alleges that the injuries resulting from the February 2012 accident to his lumbar spine included traumatic rupture/herniations of the lumbar intervertebral discs at L4-5 and L5-S1 with annular tearing, moderate to severe stenosis of the neural foramen and facet hypertrophy; intervertebral disc damages with nerve compression and radiculopathy at L5-S1; and damage with displacement of the left S-1 nerve root. I find that claimant failed to establish these injuries by a preponderance of the evidence. I find that the proof at trial established by a preponderance of the evidence that claimant had degenerative changes at L4-5 and L5-S1 that preexisted the subject incident and were likely caused by degenerative arthrosis or arthritis and as such, unrelated to the fall from the upper bunk. I also find that claimant failed to establish by a preponderance of the evidence that his allegations of chronic middle back pain, incontinence and other bladder dysfunction and erectile dysfunction are causally related to the subject incident.

With respect to his cervical spine, claimant's bill of particulars alleges that there was damage bilaterally at C-1 on the right on rotation, as well as for lateral flexion at C6 and C7 with related chronic neck pain and migraine headaches. Claimant's medical records indicate that after his fall on February 8, 2012, he was treated in the prison infirmary for symptoms of low back pain with no mention of or complaint regarding a head injury or experiencing pain in his neck. On November 15, 2012, he went to the prison infirmary after the incident involving the chain saw and was alert, oriented and denied a headache. Claimant then returned to the infirmary on November 27, 2012 and was diagnosed with a concussion and back pain but refused ibuprofen and indicated the following day that he was feeling good. I do not find the claimant's testimony credible that the incident involving the chain saw was a direct result of pain in his back caused by the February 2012 accident. I do not otherwise find that claimant has established by a preponderance of the evidence that he sustained an injury to his cervical spine causally related to the February 2012 accident or that his claims of chronic neck pain, migraine headaches, traumatic brain injury or postconcussive syndrome are causally related.(2) Finally, I find that claimant failed to establish by a preponderance of the evidence that he has a permanent scar as a result of a facial laceration causally related to the February 2012 accident.

I find that claimant fell from his upper bunk on February 8, 2012 and that he experienced pain and suffering in his lower back for a limited period of time as a direct result of this fall. After consideration of all of the testimony and other evidence presented at trial, I do not find that the preponderance of the evidence established a causal connection between the injuries alleged by claimant in the bill of particulars and the duration and severity of the injuries and pain that was actually attributable to this fall. I also do not find that claimant suffered any permanent injury to his back, neck or any other part of his body that is causally related to the February 2012 accident. Nevertheless, I do find that claimant did experience pain and suffering after his fall and the Court awards $12,000 for past pain and suffering. Claimant is also entitled to interest on this award from August 17, 2017, the date of the Court's decision establishing liability. In addition, to the extent that claimant has paid a filing fee, claimant is entitled to reimbursement of the amount paid.

As to any objections upon which this Court reserved decision during the course of the trial and as to any motions that were made at trial upon which the Court previously reserved or which remain undecided, all are hereby denied. For the reasons stated herein, claimant's motion (M-95237) is denied and defendant's cross-motion (CM-95238 is granted.

The Chief Clerk is directed to enter judgment accordingly.

July 31, 2020

Buffalo, New York

J. DAVID SAMPSON

Judge of the Court of Claims


1. Dr. Uhl's trial testimony was taken on January 28, 2020 prior to the trial(Exhibit 14). A copy of the transcript with redacted testimony was prepared consistent with the Court's rulings on all objections and consistent with the Court's trial ruling on the State's cross-motion in limine.

2. The State also contends at footnote 4 in its post trial memorandum that the incident involving the chain saw was not included in the claim, which was filed and served June 5, 2013, and as such is not properly before the Court. See Court of Claims Act Section 11 (b), which requires that the claim shall state the time when and place where such claim arose, the nature of same, and the items of damage or injuries claimed to have been sustained. Claimant testified that he felt a sharp pain in his back while working with the chain saw, which caused him to strike his head on the door. The claimant alleged that the sharp pain came from the area of his back injured in the February 2012 incident. However, claimant never filed a claim regarding this incident, so any injuries directly caused by the November 2012 incident that are distinct and separate from injuries alleged from the February 2012 incident may not be considered as the Court would not have subject matter jurisdiction.