Claimant failed to prove by a preponderance of the credible evidence that his claimed injuries were proximately caused by defendant's negligence. Accordingly, no award of damages is made.
|Claimant(s):||JESSIE DAVIS, JR.|
|Claimant short name:||DAVIS|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||JUDITH A. HARD|
|Claimant's attorney:||The Dratch Law Firm, P.C.
By: Brian Dratch, Esq.
|Defendant's attorney:||Hon. Letitia James, Attorney General
By: Thomas Trace, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||June 23, 2021|
|See also (multicaptioned case)|
Claimant commenced the instant action on December 10, 2014, alleging injuries sustained when the table he was directed to sit on collapsed. The accident occurred on November 6, 2012 as claimant was being processed following his transfer from Marcy Correctional Facility (Marcy) to Mid-State Correctional Facility (Mid-State), sustaining injuries to his lower back causing the exacerbation of preexisting injury to his left knee (Verified Claim ¶ 2). By Decision dated November 8, 2018, this Court found defendant liable for negligence (Davis v State of New York, UID No. 2018-032-014 [Ct Cl, Hard, J., Nov. 8, 2018]).(1) A virtual trial on damages was conducted on November 10, 2020 and December 15, 2020.(2)After a thorough review of the documentary evidence and observing the testimony of all witnesses at trial, the Court finds that the alleged injuries of claimant were chronic and degenerative in nature, and were not proximately caused by the collapse of the table on November 6, 2012.
Claimant has been incarcerated several times. On February 7, 2001, when claimant was serving time in Oneida Correctional Facility, claimant's top bunk bed collapsed on to the lower bunk bed. According to a claim served upon the New York State Attorney General on February 11, 2003, claimant "struck his back, hip and sholders [sic] on the metal rail of the lower bunk" (Exhibit A, ¶ 3).(3) The Bill of Particulars associated with the 2003 claim alleges that the injury damaged several spinal discs, that his mental and physical pain is constant, and that he can longer lift weights from the floor (Exhibit B, ¶¶ 10f; 13a; 15a). However, an x-ray performed on claimant on February 14, 2001 showed a normal lumbar spine and hip (Exhibit C, p. 2).
Claimant reported to sick call with lower back pain complaints several times in 2002 (Exhibit D, pp.7-8). However, a CT scan taken on April 19, 2002 showed no acute injury of the lumbar spine (id. at 1). In July of 2002, an EMG was performed on claimant to diagnose his complaints of numbness and tingling down the back of his thighs to his knee on both sides. The physician interpreting the results of the EMG stated that "[t]he abnormal sensory and motor latencies in the left lower limb suggest either mild sciatic or lower lumbosacral plexopathy on the left" but no "evidence for lumbosacral radiculopathies" (id. at 5). An MRI of claimant's lumbar spine taken on December 16, 2002 showed mild disc degeneration at L5-S1 with mild bulging annulus with small central disc protrusion and mild facet joint degeneration but no significant encroachment upon the neural structures (id. at 2). From 2003 to 2004, claimant received 12 steroid injections to treat his back pain (Exhibits E, F). Another MRI was performed on claimant in April 2005 that showed no change from the December 2002 MRI (Exhibit G, p. 3).
Claimant failed to reveal his preexisting back injury in his Bill of Particulars for this claim, but testified during his deposition that he "tweaked" his back in a car accident in 2006 (11/10/20, T:35-36). When confronted during cross examination about his failure to disclose his preexisting back injury and treatment, claimant testified that he had simply forgotten the information.(4) Claimant also failed to disclose his preexisting back injury and treatment to Dr. DiChristina, who performed an independent medical examination (IME) of claimant on April 17, 2019 (Exhibit L, p. 12).
Claimant was released from prison in 2005 and took jobs working in construction and loading pallets in a warehouse. Claimant testified that he was in an automobile accident in 2007 and received an injection in his hip for injuries sustained during the accident.
In September 2007, while claimant was incarcerated at Willard Drug Treatment Campus (Willard), he visited the infirmary complaining of knee, leg and ankle pain although he was ambulatory and his gait was within normal limits (Exhibit 6, p.1). He told the nurse that he was supposed to have back surgery in May 2007 (id.). On September 24, 2007, he stated at sick call that he had a torn L1-S5 (id. at 2). On November 23, 2007, claimant refused a Flexeril prescription, stating that it does nothing for his back pain (id. at 3). At trial, claimant denied ever complaining about back pain while at Willard (12/15/20, T:10). Claimant testified that while incarcerated in 2008, he worked unloading trucks for the commissary (11/10/20, T:14).
On November 6, 2012, when the table upon which he was directed to sit collapsed, he claims to have fallen awkwardly and "hurt [his] knee and [his] back crunched" (11/10/20, T:18). However, a correction officer who witnessed claimant's fall testified at the liability trial that claimant said he was not in distress after the fall (Davis v State of New York, UID No. 2018-032-014 [Ct Cl, Hard, J., Nov. 8, 2018]). Nurse Noti, who examined him immediately after the collapse, observed no bruising, swelling, or redness in his left leg and noted that his range of motion was good (id.; Exhibit H, p. 1).
Claimant was released from prison two months after his accident and sought medical treatment from Dr. Richard Distefano in July and September of 2013. On July 18, 2013, claimant was examined by Dr. Distefano for dysfunction and pain in the lumbar spine (Exhibit I, p. 1). He did not mention his previous back injuries to Dr. Distefano. In September 2013, an EMG study suggested mild chronic left L5 or S1 radiculopathy (Exhibit J, p. 1). That same month, an MRI showed an L5-S1 disc bulge with a central to right central herniated disc along with inferior disc migration in the central to left central region along with an inferior disc migration that touches the S1 nerve (Exhibit J, p. 3). The MRI also showed narrowing of the L5 neural foramina which at least touches the dorsal root ganglia bilaterally (id.).
In October 2013, claimant started to treat with Dr. Eng, a spinal surgeon. Dr. Eng testified as an expert witness at trial.(5) Dr. Eng examined claimant for the first time on October 3, 2013. At that time, claimant complained of severe back and leg pain and explained that the pain was the result of his fall off the table at Mid-State. He denied "ever having these symptoms before or having any other issues" (Exhibit J, p. 6). Following tests, Dr. Eng diagnosed claimant with disc herniation on the left side, at L5-S1 and explained that such an injury can cause back pain and leg pain (11/10/20, T:55-56). Dr. Eng opined that the fall from the table was the proximate cause of claimant's back problems. During cross-examination, however, he admitted that he was informed just one week before trial about claimant's 2001 back injury and the twelve spinal injections he received from 2003-2004 to treat said injury (11/10/20, T:63). In 2014, after conservative treatment failed to alleviate claimant's symptoms, Dr. Eng performed surgery on claimant's back. The surgery was unsuccessful at eliminating claimant's pain. Claimant is currently under the care of a pain management physician.
As for his knee injury, claimant stepped into a hole at Collins Correctional Facility and tore the posterior horn of the medial meniscus in his left knee in 2011. He had surgery to fix the injury in August 2012, performed by Dr. R. Mitchell Rubinovich (Exhibit K, pp. 2, 5). Claimant testified that the surgery was successful and he went back to work in the correctional facility.
After the collapse of the table in November 2012, claimant complained of left knee swelling and pain and lower back pain throughout the remainder of 2012 (Exhibit H). However, upon examination by a physician in the correctional facility on December 4, 2012, claimant had no swelling or tenderness and had full range of motion of the left knee (Exhibit H, p. 3). Claimant underwent corrective surgery again on July 31, 2013 for multiple loose bodies and a torn medial meniscus of the left knee (Exhibit K, pp.11-12). The surgery was performed by Dr. C. Perry Cooke.
Dr. Lawson Ryan Smart, a colleague of now-retired Dr. Cooke, testified for claimant as an expert in orthopedic surgery.(6) In June of 2013, claimant informed Dr. Cooke that he hurt his knee when a table upon which he was standing collapsed (11/10/20, T:72-73). Claimant underwent nonoperative treatment, but in July 2013, Dr. Cooke performed a knee arthroscopy to repair the recurrent meniscus tear and remove some loose bodies from the left knee (Exhibit 4). During the July 31, 2013 surgery, Dr. Cooke also found significant arthritic damage to the articular cartilage just under the kneecap (11/10/20, T:76). Dr. Smart explained that there were no significant differences between the findings of Dr. Rubinovich and Dr. Cooke in regard to claimant's meniscus tear. The only discrepancy was that Dr. Rubinovich found that the articular surfaces of the cartilage of the knee were normal, while Dr. Cooke found significant arthritic damage to claimant's knee cartilage. He acknowledged that he could not observe whether Dr. Rubinovich corrected the meniscus tear in 2012, and stated that sometimes loose bodies are left after a surgery (id. at 86-87). Claimant developed RSD, a complex regional pain syndrome, after the surgery which he believed caused claimant's present swelling in his left leg. He opined that the cause of claimant's current left knee problem was the fall from the table in 2012.
Defendant's expert witness was Dr. Daniel G. DiChristina, an orthopedic surgeon.(7) He performed an IME of claimant and prepared a report (Exhibit L). He opined that there was no clinical or radiographic evidence that claimant sustained an injury to the lumbosacral spine on November 6, 2012. In his opinion, there was no difference between the MRIs of claimant's spine taken in December 2002--10 years prior to the accident--and September 2013. Further, the EMG taken in July 2002 showed mild sciatica (Exhibit D), which is equivalent to the findings of an L5 or S1 radiculopathy found in the September 2013 EMG (Exhibit J).
The December 2002 MRI showed a bulging disc which led to disc problems, including pushing on the nerve. Dr. DiChristina testified that "[t]he disc itself is degenerative, and the disc itself . . . become[s] worse, which is really what I think happened over the course of the 13, 14 years" (11/10/20, T:93). Degeneration of the disc can cause radiculopathy and pain shooting down the legs. The December 2002 MRI also showed arthritis in claimant's facet joints in his low back.
Dr. DiChristina opined that claimant's disc problem from 2001 simply became degenerative over the years. He disagreed with Dr. Eng's characterization of claimant's December 2002 MRI as "unimpressive" (11/10/20, T:61). Dr. DiChristina found that the December 2002 MRI showed disease (id. at 94). He noted that the surgery performed by Dr. Eng was necessitated by a degenerative process, not as a result of claimant's fall, as Dr. Eng's operative report does not mention nerves or discs (see Exhibit 3, p. 2). Dr. DiChristina also noted that claimant failed to inform him about his prior back injuries, from the fall off the top bunk bed and his car accident in 2006, during the IME examination.
As for claimant's knee, Dr. DiChristina testified that it was very unlikely that the collapse of the table would cause a tear to the medial meniscus or injury to the patellofemoral joint. He testified that claimant purposely restricted his range of motion of the left knee when he examined him and did not show any symptoms of RSD. He opined that the surgery performed by Dr. Cooke alleviated a chronic problem, specifically grinding of the kneecap, for which claimant complained of since an examination by Dr. Joseph Tan in 2011 (Exhibit K, p. 3). Dr. DiChristina also explained that the loose bodies that were removed by Dr. Cooke could have been unintentionally left during the surgery performed by Dr. Rubinovich or from the grinding of the kneecap.
LAW AND DISCUSSION
"A trial on damages generally includes questions of causation" (Olmsted v Pizza Hut of Am., Inc., 81 AD3d 1223, 1224 [3d Dept. 2011]). The New York Pattern Jury Instructions, Civil (PJI 2:70) describes proximate cause as follows:
"An act or omission is regarded as a cause of an injury if it was a substantial factor in bringing about the injury, that is, if it had such an effect in producing the injury that reasonable people would regard it as a cause of the injury. There may be more than one cause of an injury, but to be substantial, it cannot be slight or trivial. You may, however, decide that a cause is substantial even if you assign a relatively small percentage to it."
Thus, the Court must determine whether defendant's negligent act--forcing claimant to sit on a table that collapsed --was a substantial factor in bringing about his claimed injuries to his back and left knee.
Claimant was not a credible witness. During the liability trial of this claim, claimant testified that he had no prior back injuries other than those sustained in a 2006 car accident. When confronted during the trial on damages regarding his 2001 fall from his top bunk, claimant blamed his failure to remember this injury on unexplained brain surgery. Claimant was also untruthful regarding his prior complaints of back pain while incarcerated, as evidenced by his health records. Despite documentary evidence from Willard showing that claimant refused a Flexeril prescription in November 2007, claimant testified that he never complained about back pain at Willard. This claim is flatly contradicted by the refusal form, which indicates that claimant stated that Flexeril does not alleviate his back pain (Exhibit 6, p. 3). Claimant also failed to inform Dr. Eng of the prior injury to his back and subsequent treatment for that injury, which included 12 spinal injections. Finally, claimant also denied any prior back injury during his IME with Dr. DiChristina. Moreover, Dr. DiChristina observed claimant intentionally limiting his range of motion during the IME. Claimant's clear lack of candor with both the Court and his examining physicians compels the conclusion that his testimony is not credible (Olmsted v Pizza Hut of Am., Inc., 81 AD3d at 1224 [finding that "serious doubt was cast upon plaintiff's credibility by her failure to reveal her preexisting injuries to her treating and examining physicians, as well as her lack of candor during her deposition with respect to her prior complaints and current limitations"]).
As to claimant's back injury, the Court credits the testimony of Dr. DiChristina that claimant's complaints regarding back pain and pain radiating down his legs was the result of a degenerative condition, not an acute injury. Dr. Eng opined that claimant's 2002 MRI was unimpressive, despite that claimant had sustained an injury to his back in 2001 that resulted in 12 spinal injections and several notations in claimant's health records showing that he complained of lower back pain, radiating down his legs. Additionally, a 2005 MRI showed mild disc degeneration at L5-S1 (Exhibit G, p. 3), which is the same area upon which Dr. Eng operated in 2014. The Court finds that Dr. DiChristina's testimony was more persuasive than Dr. Eng's insofar as Dr. DiChristina opined that the 2002 MRI showed disease and both the MRIs and EMGs taken before and after his fall were largely the same. Thus, when comparing the imaging of claimant's back from 2002 with 2013, the condition of claimant's back remained unchanged after the November 2012 accident. Dr. DiChristina also explained that recent MRIs of claimant's lumbar back showed degenerative changes to his facet joints and acquired spondylolisthesis, and neither condition is caused by an acute injury (12/15/20, T:46-50). However, both degenerative changes to the facet joints and spondylolisthesis can cause radiculopathy, or pain shooting down the legs. For these reasons, the Court finds that claimant failed to prove by a preponderance of the credible evidence that his alleged back injury was proximately caused by defendant's negligence.
As to claimant's knee injury, claimant failed to causally connect the fall in 2012 with knee damage. The Court credits Dr. DiChristina's testimony that the knee surgery performed in 2013 by Dr. Cooke was necessitated by degenerative changes to claimant's knee. Dr. Cooke's surgery was performed in the same area that Dr. Rubinovich performed surgery on claimant's left knee in August 2012, prior to the accident. Dr. DiChristina explained that claimant's explanation of the manner in which he fell--with his feet stretching out--would not have caused a torn medial meniscus or injury to the patellofemoral joint in the left knee (11/10/20, T:102). During Dr. Cooke's surgery, Dr. Cooke found arthritis in the cartilage underneath claimant's knee and loose bodies, which Dr. Smart admitted could have been left there by Dr. Rubinovich (11/10/20, T:74, 87). Additionally, Dr. Smart testified that he did not observe the August 2012 surgery performed by Dr. Rubinovich and therefore could not determine if Dr. Rubinovich successfully repaired claimant's meniscus tear (id. at 86). The Court also credits Dr. DiChristina's opinion that claimant did not suffer from RSD, as claimant exhibited no signs of RSD when Dr. DiChristina examined him, nor when Dr. Smart examined him in 2019 (11/10/20, T:105; Exhibit 2, p.2).
Based upon the foregoing, the Court finds that the claimant failed to prove by a preponderance of the credible evidence that defendant's negligence was the proximate cause of his injuries. Accordingly, no award for damages is made and claim number 125370 is DISMISSED.
Let judgment be entered accordingly.
June 23, 2021
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims
1. Unpublished decisions and selected orders of the Court of Claims are available at http://www.nyscourtofclaims.state.ny.us.
2.References to the 11/10/20 trial transcript are indicated here as (11/10/20, T: ). References to the 12/15/20 trial transcript are indicated here as (12/15/20, T: ).
3. He testified that he recuperated and did not pursue this claim to trial or settlement (11/10/20, T:47).
4. At trial, claimant blamed his loss of memory on brain surgery, but offered no explanation as to the details of when and for what reason he underwent the surgery or how and why this brain surgery caused memory loss.
5. Dr. Eng attended Johns Hopkins University and then completed a neurosurgery residency at Upstate Medical Center (11/10/20, T:52). He then completed a fellowship specializing in tumors of the spine and brain (id. at 53).
6. Dr. Smart graduated from the medical school at the University of Michigan, completed his residency at Yale University, and completed a fellowship in sports medicine orthopedics at New England Baptist Hospital in Boston, Massachusetts (11/10/20, T:70).
7. Dr. DiChristina is a practicing, board-certified orthopedic surgeon who is licensed in the State of New York. He graduated from medical school at the SUNY Health Science Center at Syracuse and completed his internship and orthopedic surgery residency at Hamot Medical Center in Erie, Pennsylvania. He also completed fellowships in sports medicine and orthopedic trauma. He has authored several articles and given several presentations on orthopedic surgery topics.