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New York Prisoner Awarded $195,000 for Hand, Knee Injury

On October 6, 2004, a court of claims in White Plains, New York, awarded $195,000 to a state prisoner who fell in the shower, injuring her hand, and knee.

While imprisoned at the Taconic Correctional Facility, prisoner Juliann Gibson slipped and fell in a shower area on August 25, 2000, cutting her right hand and injuring her right knee. The hand injury required nerve-graft surgery, which entailed removing a nerve from her wrist and implanting it in her palm. Following the surgery, Gibson suffered residual weakness in her hand which she claimed prevented her from performing certain duties required in her job as a blood-donor specialist. She also bears residual scars.

It was also later determined that Gibson had torn the meniscus in her knee, necessitating the temporary use of a cane and inhibiting her ability to play with her son.

Gibson sued the state of New York alleging they were negligent in maintaining the tiles in the shower area. At trial, Gibson's orthopedics expert, Dr. Edward Wang of Stony Book, New York, testified that she has reduced strength in her right hand and pinkie, a limited range of motion, and diminished sensation. Wang further testified that Gibson is unlikely to recover and that she is predisposed to additional hand injuries.
In May 2001, Gibson injured her knee in an auto accident, prompting the parties to stipulate that her knee-injury claim covered the period between August 25, 2000, and May 2001.

Judge Terry Jane Ruderman found for Gibson and awarded her a total of $195,000: $45,000 for her knee injury (past pain and suffering) and $150,000 for her hand injury ($85,000 past pain and suffering, $65,000 future pain and suffering). However, because Gibson was found to be 25% comparatively negligent at the earlier liability trial (this trial was for damages only), the judgment was reduced accordingly for a net award of $146,250. Judge Ruderman also held that Gibson was entitled to interest dating back to March 26, 2004, the date of the liability verdict.
Gibson was represented by Alfred L. Odom of The Jacob D. Fuchsberg Law Firm in New York City. See: Gibson v. State of New York, Court of Claims, White Plains, Case No. 104428.

Source: VerdictSearcb New York

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Related legal cases

Gibson v. State of New York

GIBSON v. THE STATE OF NEW YORK, #2004-010-011, Claim No. 104428

Synopsis

Case Information
UID:

2004-010-011
Claimant(s):

JULIANN GIBSON
Claimant short name:

GIBSON
Footnote (claimant name) :

Defendant(s):

THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

104428
Motion number(s):

Cross-motion number(s):

Judge:

Terry Jane Ruderman
Claimant's attorney:

THE JACOB D. FUCHSBERG LAW FIRMBy: Danielle George, Esq.
Defendant's attorney:

HON. ELIOT SPITZER
Attorney General for the State of New YorkBy: Dian Kerr McCullough, Assistant Attorney General
Third-party defendant's attorney:

Signature date:

March 26, 2004
City:

White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
Claimant seeks damages for injuries she sustained during her incarceration at Taconic Correctional Facility (Taconic). Specifically, claimant alleges that on August 25, 2000 at approximately 7:00 p.m., she slipped and fell as she exited a shower stall in the B gallery east. Claimant alleges that as she slipped, she attempted to grab the shower stall wall and her hand was lacerated on broken and missing tiles as she continued to fall. Claimant contends that defendant was negligent in its maintenance of the area in failing to address the recurring wetness problem of the tiled floor outside the shower stalls and in failing to repair or replace the tiles of the shower stall. The trial of this claim was bifurcated and this Decision pertains solely to the issue of liability.
Claimant testified that on the day of her accident she was wearing shower slippers and the water was draining normally in the stall (T:130, 132).[1] She recounted that the accident occurred as follows:

"Well, I exited the shower. I stepped over the lip with my right foot first. As I stepped over into the waiting area my foot slipped out from under me, and I kind of gripped to hold onto the wall to not fall, and I slid down the wall and sliced my hand open. My leg was bent behind me"


(T:119). Claimant testified that she sliced her hand on the broken and missing tiles as depicted by photographs in evidence (T:120). According to claimant, she observed that the tiles had been in that condition for at least the month that she had been at Taconic and during that time she notified Correction Officer Shawn Leo of the condition (T:121).
Claimant attributed her fall to a recurring problem of water overflowing from the shower stalls, over a two and one half to three inch saddle, and onto the tiled floor outside the stalls. The shower stalls, which claimant described as "a good four feet deep", each had a drain, but the tiled floor outside the stalls did not (T:117). Claimant also testified that water would splash out from under the shower curtain and that this is how the floor became wet on the day of her accident (T:135-36). The floor did not have any mats or nonskid strips.
When questioned at trial about the amount of water on the floor at the time of her fall,
claimant responded:

"It looked like somebody tried to mop, but it was a wet mop. It was wet. It was significantly wet. I don't know the measurement wise, but it was wet"


(T:132). Claimant conceded that she could have mopped the floor before she had showered, when she noticed that the floor was wet, but she proceeded into the shower without first drying the floor (T:134-35).
Claimant
maintained that she had previously complained about the wetness problem to Correction Officers Leo and Kemp and she was aware that other inmates had fallen in that area (T:121-22). Claimant explained that inmates were supposed to dry the floor with a mop which was stored approximately 15 yards from the shower area. However, the problem of inmates failing to mop up after themselves was discussed almost daily at inmate "network" meetings where a correction officer addressed inmate issues and general announcements were made (T:122).
Correction Officer Shawn Leo testified that on August 25, 2000, he supervised housing galleries B and
C at Taconic. The galleries were divided into east and west sections. Each gallery had a slop sink in the center and showers at the end of the gallery. A mop was stored in the slop sink located approximately 45 feet from the showers. After the inmates had showered, they were expected to mop the floor outside the stalls. According to Leo, the mop was not kept closer to the showers because an inmate might grab a mop in the heat of an argument and use it as a weapon. Inmates, however, were permitted to go unsupervised to the slop sink and retrieve the mop. Leo conducted daily network meetings for B gallery inmates where he made announcements and inmates reported general problems. Leo's announcements included reminding inmates to mop up after themselves. He stated that compliance was inconsistent and those inmates who did the mopping complained about the inmates who did not.
Prior to
claimant's accident, Leo had observed water pooling on the floor outside the shower stalls a couple of times a month (T:110). He never saw water flow from the stalls onto the floor (T:109). When asked at trial if the shower drain clogged, could water collect on the floor outside the stalls, Leo responded, "[t]hat's a far distance. I couldn't honestly answer that" (T:33). He explained why water would collect on the floor:

"[m]ostly because the inmates once finished showering would step out in that common area and dry off, rather than *** in the stall itself"


(T:33). Leo characterized this as a "common" "recurring" problem that was addressed at network meetings prior to claimant's accident (T:34). Leo further stated:

"they were supposed to mop up that area that they step out into. They were supposed to mop it up if they left water all over the place.

Some wouldn't do it, some would. So, the ones that did would, more or less, complain to me to address the ones that didn't"


(T:35). The following ensued on Leo's direct examination:
"Q: Okay. Do you remember, Officer, whether you made any entries in the maintenance log book with respect to the recurring water condition on the floor of the common area of the east side B-gallery showers prior to Ms. Gibson's accident?

A: No.
Q: And do you know why that is?

A: We just basically had the regular like mopping it up, water. If they mop the water up when they came out. The water is coming from them, not from like a ceiling.

When they come out they are actually dripping and causing the water to go all over. So, they are expected, as adults, to clean up that water that they are basically doing.
Now, if it was something coming out of the ceiling, dripping all over the place, yes, a maintenance form would be filled out on that"


(T:63-64). He recalled that claimant had complained on occasion about a slippery condition in the shower area (T:108-09). If an inmate sustained an injury during a slip and fall, the incident would be recorded in the logbook.[2]
Leo responded to
claimant's accident and he observed that she had fallen right outside the shower stall (T:23). He testified that he "wasn't really paying attention to the floor" when he arrived on the scene, so he could not state the condition of the floor at that time (T:109). Referring to the photographs introduced into evidence, Leo described the tiles around the bottom right corner of the stall as missing (Exs. 24-25, 27). Leo also noted that they had been in that condition for the three years he had been assigned to B and C galleries (T:25). He further testified that he remembered reading in a logbook in August 1999 that a Maintenance Request Form had been submitted to repair the condition (T:26). Leo also referred to several maintenance work requests from 1999 and 2000 for the B gallery east side showers (Exs. 4-6, 8-18). On these numerous occasions, maintenance personnel passed the broken tiles and walked in the shower area, yet they never addressed the broken tiles. There was no indication that the tiles were ever fixed or replaced (T:91).
Sergeant John Busse testified that he responded to
claimant's accident and observed some jagged tiles on the corner of the shower and prepared a memorandum in which he noted, "[t]he wall is missing tiles and this surface is what caused the cut to her right hand" (Ex. 35). When asked about the condition of the floor, he stated, "[j]ust damp floor, nothing accumulated or backed up" (T:141).
Brian Kelly testified that he has been a Maintenance Supervisor III at Taconic since 1998. As part of this duties, he is responsible for overseeing the daily activities of the maintenance department and processing work orders. Kelly confirmed that there were no drains, no nonstick surfaces and no mats in the area outside the shower stalls. He testified that he never processed any work orders for the missing tiles (T:187). Kelly stated that four missing tiles would not be considered a safety hazard; however, if the tiles were so jagged that they could lacerate a person, then it could be considered a dangerous condition (T:190). When shown the
photographs taken at the time of the accident (Exs. 24-28), Kelly conceded that he would consider it a condition that needed repair (T:194).
It is well established that "[t]he State - just as any other party *** is responsible, in the operation and management of its schools, hospitals and other institutions, only for hazards reasonably to be foreseen, only for risks reasonably to be perceived" (
Flaherty v State of New York, 296 NY 342, 346) and with respect to the safety of persons on its property, the duty of the State is one of reasonable care under the circumstances (see Miller v State of New York, 62 NY2d 506, 513; Preston v State of New York, 59 NY2d 997, 998; Basso v Miller, 40 NY2d 233, 241). The State, however, is not an insurer of the safety of its premises and negligence cannot be inferred solely from the happening of an accident (see Killeen v State of New York, 66 NY2d 850, 851; Condon v State of New York, 193 AD2d 874). Indeed:
"[w]here the facts proven show that there are several possible causes of an injury, for one or more of which the defendant was not responsible, and it is just as reasonable and probable that the injury was the result of one cause as the other, plaintiff cannot have a recovery, since he has failed to prove that the negligence of the defendant caused the injury."


(Ingersoll v Liberty Bank of Buffalo, 278 NY 1, 7; see also Bernstein v City of New York, 69 NY2d 1020; Marchetto v State of New York, 179 AD2d 947).
Upon consideration of all the evidence, including listening to the witnesses testify and observing their demeanor as they did so, the Court finds that
there is a lack of credible evidence to establish that defendant was negligent in its maintenance of the tiled floor outside the shower stalls and that claimant's fall was due to a recurrent dangerous condition of pooling water. The Court finds that the condition of the floor at the time of claimant's accident was not inherently dangerous; rather it was damp and typical of what would customarily be found in a shower area (see Mansueto v Worster, 1 AD3d 412 [plaintiff tripped and fell on an unsecured carpet remnant placed on top of carpeted floor for use as a doormat; defendant not liable, not an inherently dangerous condition]; Stanton v Town of Oyster Bay, 2 AD3d 835 [slippery condition of ramp leading from a sidewalk to a body of water was inherent in nature of the property and could be reasonably anticipated by users of property]).
Notably, claimant described the condition of the floor at the time of her fall as:

"It looked like somebody tried to mop, but it was a wet mop. It was wet. It was significantly wet. I don't know the measurement wise, but it was wet"

(T:132). The Court finds claimant to be disingenuous in her testimony that the amount of wetness was "significant" since she proceeded to shower without either alerting a correction officer of the allegedly dangerous condition or attempting to address the condition herself with a mop. Additionally, Sergeant Busse, who responded to the scene, described the floor as "[j]ust damp floor, nothing accumulated or backed up" (T:141). Also, Correction Officer Leo testified that he "never" saw water flow from the shower stalls onto the floor; rather he explained that the wetness on the floor was due to inmates exiting the shower stall before drying themselves, "dripping [wet] and causing the water to go all over" (T:64). Indeed, claimant herself may have added to the amount of wetness on the floor. In any event, claimant did not establish that there was a pooling water condition at the time of her fall; nor did claimant establish that the floor was significantly wet beyond the degree which should ordinarily be expected in a shower area.
Moreover, merely because
defendant may have had a general awareness that the floor became wet after inmates showered does not relieve claimant from her burden of establishing that defendant had actual or constructive notice of the particular condition which allegedly caused claimant's fall (see Gloria v MGM Emerald Enterprises, Inc., 298 AD2d 355 [defendant's general awareness that patrons of bar might spill drinks on the dance floor does not obviate the plaintiff's obligation to establish that defendant had actual or constructive notice of the particular condition which caused plaintiff to fall]; Kershner v Pathmark Stores, 280 AD2d 583 [proof that defendant was aware that floor became wet during rainy weather was not sufficient to establish constructive notice of particular condition that caused plaintiff's fall]). "Because a ?general awareness' that a dangerous condition may be present is legally insufficient to constitute notice of the particular condition that caused plaintiff's fall *** liability could be predicated only on failure of defendants to remedy the danger presented by the liquid after actual or constructive notice of the condition" (Piacquadio v Recine Realty Corp., 84 NY2d 967, 969 [citations omitted]). Based upon claimant's own testimony and that of Sergeant Busse, the Court finds that the condition of the floor at the time of claimant's fall was damp and did not amount to pooling water. Thus, the Court rejects claimant's argument that her slip and fall was due to a recurrent dangerous condition of pooling water (see Galietta v New York Sports Club, ___ AD3d ___, 771 NYS2d 695; Matthews v County of Orange, 292 AD2d 513; Puryear v New York City Hous. Auth., 255 AD2d 138, 139). Accordingly, claimant failed to establish that defendant had notice of the wetness and was negligent in its maintenance of the area.
Claimant
admittedly knew that the floor was wet prior to her shower and conceded that she could have dried the floor with a mop (Jang Hee Lee v Sung Whun Oh, 3 AD3d 473 ["cement pond upon which the plaintiff Jang Hee Lee tripped and fell was not, as a matter of law, an inherently dangerous condition and was readily observable by the reasonable use of one's senses"]). She was bound to see that which was there to be seen and had a duty to conduct herself according to the readily observable condition (see Luksch v Blum-Rohl Fishing Corp., 3 AD3d 475, 771 NYS2d 136, 137 [if alleged condition described by plaintiff as "very wet with standing water pooling in spots" was open and obvious, then it is a factor to be considered in assessing plaintiff's comparative negligence in failing to avoid the condition]). Thus, the Court finds that claimant's own negligence was the cause of her fall.
Nonetheless, defendant is not without fault. While defendant was not negligent in its maintenance of the floor, the Court finds that defendant was negligent in its maintenance of the tiles of the shower stall and that condition was a proximate cause of claimant's injuries to her hand. Notably, Correction Officer Leo testified that the tiles, as depicted by the photographs in evidence, had been in such condition for the three years that he had been assigned to B gallery and Kelly, the Maintenance Supervisor III, conceded that the photographs depicted a condition in need of repair. Even without proof of receipt of a maintenance requisition form, maintenance personnel had necessarily passed the tiles when addressing other repairs in the vicinity. Thus, defendant had notice of the dangerous condition of the tiles and failed to address it in a timely manner.
Accordingly, the Court apportions liability 75 percent to
defendant and 25 percent to claimant with respect to the injuries caused by the condition of the tiles. A trial on the issue of damages will be scheduled as soon as practicable.
LET INTERLOCUTORY JUDGMENT BE ENTERED ACCORDINGLY.

March 26, 2004
White Plains, New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims




[1]References to the trial transcript are preceded by the letter "T."
[2]The logbook entries, however, did not distinguish between B and C gallery and, therefore, could not establish prior similar accidents at the location in issue.

Gibson v. State of New York

GIBSON v. THE STATE OF NEW YORK, #2004-010-027, Claim No. 104428

Synopsis

Damages to hand and knee awarded $195,000 of which claimant received $146,250 (75 percent liability).

Case Information
UID:

2004-010-027
Claimant(s):

JULIANN GIBSON
Claimant short name:

GIBSON
Footnote (claimant name) :

Defendant(s):

THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

104428
Motion number(s):

Cross-motion number(s):

Judge:

Terry Jane Ruderman
Claimant's attorney:

THE JACOB D. FUCHSBERG LAW FIRMBy: Alfred L. Odom, Esq.
Defendant's attorney:

HON. ELIOT SPITZER
Attorney General for the State of New YorkBy: Dian Kerr McCullough, Assistant Attorney General
Third-party defendant's attorney:

Signature date:

October 6, 2004
City:

White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
In a decision dated March 26, 2004 and filed April 19, 2004, this Court apportioned liability 75 percent to defendant and 25 percent to claimant with respect to the injuries claimant sustained when she slipped and fell on August 25, 2000 in the shower area at Taconic Correctional Facility (Taconic). This Decision pertains to the issue of damages.

Claimant seeks damages for pain and suffering related to a laceration in her right hand and a torn meniscus of her right knee.[1] There is no claim for lost earnings.
Claimant testified that when she fell, her legs bent behind her body and her hand was lacerated on broken tile. She observed blood and felt pain in her right hand and right knee. Claimant was transported to St. Agnes Hospital where her hand was sutured and wrapped. For the following two weeks,
claimant's hand was rebandaged daily. The stitches were thereafter removed. Claimant stated that she advised medical personnel at Taconic that she had no feeling in her hand and experienced pain in her knee. Claimant testified that she had tingling and numbness in her hand and it was unusable even when not wrapped.
In November, 2000, claimant was referred to Dr. Magill, a hand surgeon. Magill recommended nerve graft surgery, which he performed at St. Agnes Hospital on February 5, 2001. The surgery involved grafting a nerve from claimant's wrist and implanting it into the palm side of her hand. Claimant has a scar on her wrist and hand. Following the surgery, claimant wore a cast.

Shortly after the surgery, claimant was released from Taconic and the cast was replaced with a brace. She moved back with her parents, who had been caring for
claimant's eight year-old son during claimant's five year incarceration. When claimant first arrived home, she required assistance with daily activities such as dressing, brushing her teeth, washing and cooking. She was not physically able to care for her son.
In June, 2001, claimant visited an orthopedic surgeon and occupational therapy was recommended. From February, 2002 to June, 2004, claimant was employed as a Donor Specialist at the New York Blood Center. Her responsibilities included taking blood pressure and drawing blood.
Claimant's physical limitations necessitated a modification of her technique in performing these tasks. She used her right thumb and pointer finger, rather than the rest of her hand. She never told her employer that she was in pain or had any restrictions.
Claimant maintains that since her fall, she has no strength in her right hand. She cannot close her hand completely and cannot turn things or open bottles. She also contends that her knee injury prevents her from running, playing ball and wrestling with her son as she had done previously.

Correction Officer Shawn Leo testified that he responded to the scene of claimant's accident. He observed claimant on the floor in pain. Leo recalled seeing claimant's hand bleeding and knew that she needed assistance to go to the facility emergency room.

Julia Gibson, claimant's mother, testified that claimant lives in an apartment in Gibson's house. They see each other daily. Gibson observed that when claimant returned from Taconic, she had pain in her right hand and knee.
Claimant's right hand was in a sling, she had no power in it, and she used a cane. Gibson did the cooking and took care of her grandson. Gibson maintains that her daughter is still in pain and often rubs her hand.
Dr. Edward Wang, a Yale Medical School graduate, who is a Board Certified orthopedic surgeon with a certificate in hand surgery, testified on behalf of claimant. He is an assistant professor of orthopedic surgery at the State University Medical School at Stonybrook and devotes approximately 60 percent of his practice to hand surgery. Wang was claimant's treating physician beginning July 31, 2001. At the initial visit,
claimant complained that she was unable to bend her small finger and had abnormal sensation and weakness in her right hand. Wang found that claimant's active range of motion, hand strength and sensation were all reduced. After taking claimant's medical history and performing a physical examination, Wang concluded that claimant had a right hand flexor tendon adhesion and a lacerated radial digital nerve to the right small finger[2]
. Wang determined that there had been an incomplete recovery of the radial digit ulnar repair and he recommended hand therapy for two months to decrease tendon adhesion.
Wang explained that when a nerve is cut, there is loss of feeling from the laceration to the tip of the finger. There may also be, as happened here, a loss of sensation from the formation of a neuroma. These are raw nerve endings at the level of a cut which become a hypersensitive spot characterized by sharp, stabbing pains that cannot sustain normal pressure.

Wang reviewed claimant's medical records from the New York State Department of Correctional Services (DOCS) (Ex. 15). A Request and Report of Consultation dated September 18, 2000 noted that
claimant had a nerve and tendon laceration on her right hand with loss of sensation to the digital nerve (Ex. 15, p B6). Although the injury was worse on September 26, 2000, this report was largely consistent with Wang's findings. The February 5, 2001 operative report of the surgery performed by Dr. Richard Magill described the procedure as a "RIGHT SMALL RADIAL DIGITAL NERVE EXCISION OF NEUROMA AND REPAIR OF DIGITAL NERVE WITH A POSTERIOR INTEROSSEOUS NERVE GRAFT" (Ex. 17).
According to Wang, the limitation of motion in claimant's small finger results in a weakened grip and causes difficulty in picking up items like a broom or a mug. Wang explained that the thumb, second, and third fingers are usually used for precise activities, while the ring and fifth fingers are used to grasp items.

Claimant visited Wang again on February 28, 2003. Wang examined claimant's right hand and noted that the range of motion was still abnormal, motor strength showed residual weakness and sensation was decreased. She had a 3 cm scar on the palm of her hand and a 4.5 cm scar on the dorsal midline of the right wrist (Ex. 19). In Wang's opinion, the laceration of the nerve and tendon was a direct cause of her condition. Considering that it had been two years since the surgery, Wang opined that the status of claimant's finger was unlikely to change. It was apparent to Wang that the nerve repair was unsuccessful. He did not, however, recommend any further surgery. Wang also testified that claimant's small finger was prone to reinjury because it cannot flex inward.

Wang also reviewed claimant's medical records regarding her knee. The records received into evidence documented complaints and findings dating back to the time of the accident (Ex. 15). Claimant complained about right knee pain when she fell and was given permission to use a cane (Ex. 15, pp3, 15). X-rays and an MRI were taken (Ex. 15, pp 25, 27). These tests evidenced joint effusion (fluid on the knee) and "an intersubstance tear and/or myxoid degeneration involving the posterior horn of the medial meniscus" (Ex. 15, p 27). A January 16, 2001 record noted knee effusion, ligament instability and a positive McMurray sign (Ex. 15, p 33).[3]

Dr. Jay Winokur, a graduate of New York University Medical School and a Board Certified Orthopedic Surgeon, testified on behalf of Defendant. Winokur, who is now retired, had been in private practice for 36 years. He has testified in court over 100 times.

On the basis of an examination of claimant on April 29, 2002, the St. Agnes Medical Records and the MRI report of December 6, 2000, Winokur prepared a report dated May 9, 2002. Winokur concluded in his report that
claimant had a right medial meniscal tear related to her fall on August 25, 2000 and aggravated by a motor vehicle accident on May 8, 2001. He also found claimant to have sustained lacerations and tendon injury to her right fifth finger. He opined that claimant had permanent loss of sensation in the right fifth finger and on the ulnar border of the right ring finger, and a permanent restriction of motion (Ex. B).
Winokur subsequently reviewed claimant's knee x-rays, the operative report of the February 5, 2001 hand surgery and Wang's reports of his visits with
claimant. Contrary to his 2002 written report, Winokur testified at trial that the knee problem was more likely degenerative and that there was no tendon injury to claimant's finger.
Winokur conceded that he had not read all of the DOCS records (Ex. 15). These records included the post surgery status report dated February 14, 2001, which noted that
claimant had surgery for a right small digit nerve repair and excision of the FDS tendon tendolysis (stripping adhesions from a tendon) (Ex. 15, p 29); a December 11, 2000 report which evidenced that patient sustained a tendon and nerve laceration in the prison (Ex. 15, p 34); and a September 18, 2000 consult which found a tendon laceration (Ex. 15, p 36). Winokur testified that his revised opinion was based upon his review of the February 5, 2001 operative report that did not reference tendon damage. In Winokur's view, the laceration of the digital nerve of the radial side of the right fifth finger was claimant's major injury.
Dr. Winokur's trial testimony was not persuasive in light of the medical records in evidence, Dr. Wang's testimony and Winokur's own written report. Indeed, Winokur's changed position at trial appeared to be disingenuous and unfounded. Accordingly, the Court credited the testimony of
claimant's expert and rejected the testimony of defendant's expert (see Vona v Wank, 302 AD2d 516; Newman v Shipper, 198 AD2d 129 [trier of fact may accept one expert's opinion and reject another expert's opinion]).
Upon consideration of all the evidence, including listening to the witnesses testify and observing their demeanor as they did so, the Court finds $45,000 to be reasonable compensation for
claimant's past pain and suffering related to her knee injury from August 25, 2000 through May 8, 2001.[4] The Court also finds that claimant is entitled to compensation for $85,000 for past pain suffering and $65,000 for future pain and suffering regarding the injury, limited mobility and resulting scar to claimant's hand.
This Court, in its Decision dated March 26, 2004, determined liability to be apportioned 75 percent to defendant and 25 percent to claimant. Accordingly,
claimant is entitled to recover the sum of $33,750 for the knee injury and $112,500 for the injury to her hand with interest from March 26, 2004, the date of the determination of liability.
It is further ordered that, to the extent that
claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act §11-a(2).
LET JUDGMENT BE ENTERED ACCORDINGLY.

October 6, 2004
White Plains, New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims


[1] The parties stipulated that the claim related to the knee injury is limited to the date of the fall until May 8, 2001, when claimant was in a car accident.

[2]Wang explained that the flexor tendon is the structure that allows a person to bend a finger. Each finger has two tendons and two nerves. The radial nerve runs along the thumb side of the finger.

[3]A McMurray sign is a clinical test for a torn meniscus. A positive sign indicates a possible tear that is usually confirmed by an MRI.
[4] Notably, the Court rejects defendant's argument that claimant cannot recover for her knee injury. Had the tile been properly maintained, claimant would have been able to brace herself from falling and injuring her knee.

 

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