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Diane CARONE, Plaintiff, v. ST. GEORGE THEATER RESTORATION, INC., Defendant.
This is the decision on damages following a nonjury trial. The Court had previously found the St. George Theater two-thirds liable for Diane Carone's fall on September 15, 2012: 1 “I was in the seat. I got up, moved to my right. There was a half a step. I slipped on that step. I started to tumble [and fell] one or two steps, three steps” (tr 28): 2
Q. You fell from when you missed the step, you fell onto your back and then you rolled, correct?
Q. And you rolled down a couple of steps, right?
Q. And that was the accident?
A. Yes (tr 84).
Ms. Carone drove herself home; two days later, her husband drove her to the hospital emergency room, where she complained about her back and that her right leg felt numb.
Diane Carone testified that before September of 2012, she went out socially with friends to plays and concerts, visited her daughter in Manhattan, cooked, cleaned, shopped and gardened, went up and down the stairs in the house and walked at least six miles a day. There was “not a thing that I did not do for myself or for my family and friends” (tr 24).
Since the accident, plaintiff said that she does some light cooking, dusts, cannot stand for long periods, drives less, no longer takes extended walks for exercise and tries to limit herself to one trip up and down the stairs in her and her husband's house. “He runs around constantly. I make the list and he does the work;” (tr 47), and does the vacuuming, the food shopping and brings in the dry cleaning. Ms. Carone takes showers, not baths, because it is easier for her to get into and out of the shower.
Carone spoke of feeding her grandson, but being unable to lift him into the high chair. Plaintiff does not want her friends and neighbors to see her struggle on stairs; her daughter testified that if her mother could not park close to where she was going, she would not go.
Ms. Carone said that before her accident she had not had back pain, except for an occasional “twinge” (tr 24). Carone testified that since then, she has lower back pain, and that a day does not go by without some pain, albeit with varying severity.
There is something of a disconnect between plaintiff's description of the effects of her accident and the medical evidence (see below). Moreover, Carone's own testimony is not without inconsistencies. On July 31, 2015, she took a psychological test from a Dr. Stillwell and when asked about her state of mind, answered that she was hopeful, happy, enjoyed life and was rarely depressed. However, at trial said, “I am a lot sadder now because of the handicap” (tr 738). Carone testified that after the accident, she had trouble both getting into her car, which was too low, and her bed, which was too high. Plaintiff bought a sport utility vehicle, with easier access than her sedan had, but did not purchase a new bed and sleeps downstairs in her house.
* * *
At trial, plaintiff called to the stand:
Marina Makarovskaya, M.D., her primary care physician;
Anatoly Shnayder, D.O., a physiatrist who saw Carone about twelve times, beginning on March 1, 2016, succeeding another physiatrist, who initially saw plaintiff on October 28, 2013;
Alexandru Burducea, D.O., who practices pain management and anesthesia and was called as an expert, having examined Carone on August 2, 2016;
Mark McMahon, M.D., an expert orthopedic surgeon, who examined plaintiff on October 19, 2017; and
David Payne, M.D., an expert radiologist.
Igor Rubenstein, M.D., as an expert orthopedic surgeon, who examined plaintiff on August 22, 2014; and
David Fisher, M.D., an expert radiologist.
With Dr. McMahon, who testified about Ms. Carone's back and knees and indicated that back problems can strain the knees, the following exchange occurred:
Q. Had Mrs. Carone come to your office as a patient for treatment and presented exactly the way she presented but not articulated to you that she had a fall ․
A. No. I would have thought it was just from natural process. You know, just age and weight.” (Tr 535–36).
As of September of 2012, Mrs. Carone was 63 years old and had a number of pre-existing conditions, including: uncontrolled type–2 diabetes; overweight at 230 pounds; high blood pressure; high cholesterol; trace edema; gallstones; bilateral foraminal stenosis; facet joint hypertrophy at multiple levels; peripheral neuropathy and axonal peripheral polyneuropathy.
Given that Ms. Carone did not go for treatment for her knee until 13 months after the accident, that she stated she fell on her right side, and the medical evidence pointed to bilateral knee problems (she did have chronic osteoartritis of the left knee), this trier of fact finds that the only damages attributable to the fall in the theater relate to her back. Dr. McMahon explained that numbness and tingling in the legs are symptoms of diabetes.3
With respect to the back, radiologist David Fisher testified that reviewing Carone's November 27, 2012 MRI, he found no evidence of acute trauma to the lumbar spine, but rather a “a chronic, long-standing degeneration of the spine involving all levels․ manifested by a narrowing or a flattening of the discs ․ dehydration and an overgrowth of the bones or what we call spondylosis” (tr 782). According to Dr. Fisher, an MRI taken five years later, June 23, 2017, showed no change from the 2012 MRI or from one taken May 6, 2015 (although radiologist David Payne did find progression between the 2012 and 2015 MRIs).
Dr. McMahon, who saw Carone late in 2017, found spinal degeneration at multiple levels: “In regard to her lumbar spine, she had T12–L1 disk bulge with superimposed central disk protrusion with mild canal stenosis. L1–2 mild disk bulge with small central disk protrusion. L2–3, L3–4, L4–5 and L5–S1 disk bulges. Mild right lower L5–S1 radiculopathy” (tr 503).
The theory advanced on behalf of Diane Carone is that she was asymptomatic before going to the theater, and her fall at the St. George triggered or precipitated the conditions she complains of. This trier of fact finds that it was an exacerbation.
Dr. David Payne gave a strained etiology to support plaintiff's theory:
Q. Doctor, can you please explain to all of us why it is that it's your opinion that the progression to 2017 of your findings on that MRI, is more in your opinion, probably a function of trauma than in a normal aging process? ․
A. We started out in 2012 before the trauma with a spine that had—we all acknowledge had certain degenerative findings in it. And after the trauma, there is a rapid onset of pain and the MRI shows a number of levels of herniations there, and it is certainly conceivable that some of that would have been there the day before the accident, and some was caused by the accident, such as the edematous herniation at L3–4. A study done two and a half years later, which was done because the patient's symptoms had not abated, showed that while many levels of herniation have increased in size, there are some new ones. (Tr 304–05).
Dr. David Fisher was more credible; his testimony went over every image, precisely explaining that the November 27, 2012 images showed multiple degeneration in the levels of the lumbar spine, which was so desiccated that there was no room for change in the 2015 and 2017 MRIs.
The conditions complained of here are, by and large, subjectively reported. Some ups and downs may be expected, but at some point, such can call into question plaintiff's narrative. On the last day of trial, when called back to the stand to complete her testimony, Ms. Carone said that she has “pain every minute of the day․ the degree of pain varies but it's there” (tr 743). But on October 4, 2012, she told Dr. Makarovskaya that her “back pain [was] greatly improved” (tr 119), and on May 30, 2014 told the doctor that such pain was “on and off” (tr 131).
Finally, Dr. Shnayder testified that Ms. Carone told him she was able to perform the activities of daily living independently and could walk “functional distances” [tr 261] in the community. She did say she had problems with stairs, on which the following exchange occurred:
Q. Someone who is obese and has advanced degenerative conditions in both knees bilaterally, it is not unusual for them to have problems navigating stairs, right?
A. It's not unusual. (Tr 261–62).
* * *
In view of the foregoing, the Court concludes that Diane Carone's fall in the St. George Theater aggravated her degenerative lumbar spine and did not cause injury to her knee or knees. Ms. Carone was born in April of 1949, and according to the Pattern Jury Instructions, has a life expectancy of 16 years (app A, table 2). Plaintiff's life care planner, using a table from the Centers for Disease Control, had it at 18 years. The PJI table is from 1997; the CDC figure of 18 years will be used.
The Court finds that plaintiff is entitled to $100,000 for past pain and suffering and $175,000 for future pain and suffering. With respect to special damages, we heard from life care planner Kimberly Kushner, R.N. Ms. Kushner was most professional and knowledgeable, but, of course, the specifics of a case are foremost.
The medical testimony was fairly unanimous that surgery was not recommended because of plaintiff's diabetes and, in any event, Carone testified that she did not wish to undergo surgery. Plaintiff does not use a wheelchair, cane or walker; nor has she and her husband hired someone to help out around the house or indicated they have plans to do so. That could change down the road, but at this point, it is speculative to attach a dollar figure to it. Carone had not used—and had not expressed interest in—physical therapy or some form of counseling, which were items that Ms. Kushner also testified about.4
The two modalities that will be part of damages are “interventional pain management” and “medical care/diagnostics.” The former will cover lumbar injections, but not injections for the knees (viscosupplementation). The lumbar injections are given three times a year, totaling $3,360 annually. Not all of this is a result of her fall at the St. George; I find one-third to be attributable, or $1,120 a year, times the 18–year life expectancy, which equals $20,160.
For medical care/diagnostics, Ms. Kushner lists 12 consults a year with a pain management specialist, twice a year to an orthopedist/neurosurgeon and once for diagnostics. There is no evidentiary basis for the neurosurgeon, but otherwise the cost estimates supplied by Kushner amount to $2,784 plus $232 plus $300, or an annual unreduced total of $3,316. Multiply that figure times 18 years, times the one-third attributable to the subject accident, which equals $19,896.
Therefore, the amount of damages is $275,000 for pain and suffering, plus $20,160 for interventional pain management and $19,896 for medical care/diagnostics, or the sum of $315,056. Having been found one-third comparatively negligent, IT IS ORDERED that Diane Carone is awarded $210,037.
1. 56 Misc 3d 1206 (A).
2. All page references are to the transcript of the damages trial. To the extent that plaintiff needs to conform its pleadings to the evidence, such application is granted; no prejudice to defendant has been demonstrated. Both parties submitted post-trial submissions; see part J of plaintiff's for the request pursuant to CPLR 3025(c).
3. At trial, Ms. Carone said she had been limping the last two years, but her treating physiatrist, Dr. Shnayder, reported a normal gait on July 26, 2016; however, he indicated that plaintiff would have an antalgic gait if she did not receive injections in both knees. Dr. Rubenstein testified that most patients with back pain do not have gait problems.
4. Ms. Kushner's testimony is summarized in the tables that are plaintiff's exhibit 13.
Alan C. Marin, J.
Response sent, thank you
Docket No: 100263/2013
Decided: February 21, 2018
Court: Supreme Court, Richmond County, New York.
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