Cody v State of New York

[*1] Cody v State of New York 2017 NY Slip Op 27446 Decided on December 13, 2017 Court Of Claims McCarthy, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on December 13, 2017
Court of Claims

Chad D. Cody, Claimant, The State of New York, Defendant.



120112



Claimant's attorney:LUIBRAND LAW FIRM, PLLC

By: Kevin A. Luibrand, Esq.

Defendant's attorney:ERIC T. SCHNEIDERMAN

Attorney General of the State of New York

By: Douglas R. Kemp, Esq., AAG
Christopher J. McCarthy, J.

This Claim arose on April 1, 2010, when Claimant, Chad D. Cody, sustained an injury to his right eye while working as part of an inmate work crew from Moriah Shock Incarceration Correctional Facility (hereinafter, "Moriah"). A bifurcated trial, addressing liability issues only, was held on June 3-4, 2014, at the Court of Claims in Albany, New York. In its written Decision, this Court determined that Claimant established, by a preponderance of the credible evidence, that Defendant was 70% responsible for Mr. Cody's injury because the State failed to maintain a safe workplace in that it did not provide Claimant with safety glasses/goggles. The Court also concluded, by a preponderance of the credible evidence, that Claimant was 30% responsible for his injury on account of his failure to exercise ordinary care by asking the correction officer in charge of his work crew if safety glasses/goggles were available (see Cody v State of New York, UID No. 2015-040-009 [Ct Cl, McCarthy, J., Feb. 25, 2015]).

A trial limited to the issue of Claimant's damages was held on March 21-22, 2017 at the Court of Claims in Albany, New York. There were three witnesses: Claimant; Dr. Steven Solomon, Claimant's expert, and Dr. Robert Sax, Defendant's expert. Thereafter, the parties [*2]requested and were granted additional time to order a transcript and submit post-trial memoranda. The Court finds that Claimant suffered damages of $450,000 for his past and future pain and suffering, and awards Mr. Cody $315,000, as described below, after applying his comparative fault to the total damages. For the reasons discussed below, the Court makes no award for medical expenses or lost wages and benefits.

FACTS

Injury and Initial Treatment

The parties do not dispute the material facts of Claimant's injury and subsequent course of treatment. On April 1, 2010, Mr. Cody sustained an injury when a piece of metal entered his right eye. He testified that "[w]hen the metal entered the eye, [there] was a burning, hot, irritating sensation [, he] could feel scratching on the eyelid every time [he] blinked," and he could not see out of the eye (Tr., pp. 104, 106). When he returned to Moriah several hours later, the eye still was "painful, irritated," vision in his right eye was like a "white haze," "kind of foggy, almost like looking through a frosted piece of glass," with "no clarity" or ability even to see silhouettes (id., p. 107). Dr. Sax agreed that Mr. Cody's description of his vision was consistent with the injuries he sustained (id., p. 197). Mr. Cody was examined by Moriah's medical staff, but they could not see anything in Claimant's eye.

Later on the afternoon of April 1, 2010, he was sent to Moses-Ludington Hospital (hereinafter, "MLH"). Claimant testified that he still was experiencing "dragging" and "scratching" on the underside of his eyelid, along with a "burning sensation" (Tr., p. 110). Upon an examination of Claimant's right eye, MLH staff noted that it was "watering slightly," but "[n]o foreign body [was] visible," and they determined that the matter was resolved (Ex. 2, p. 3 [MLH Emergency Department Report]). Claimant returned to Moriah, but passed a fitful night, was unable to sleep much, and continued to have "a lot of pain," with the eye swollen and watering (Tr., p. 110; see p. 111; Ex. 2, p. 3).

Claimant testified that the next day, April 2, 2010, his right eye remained irritated and painful, with the scratching sensation on the inside of the eyelid. He said that he had to keep the eye closed and tried not to move it in order to minimize the discomfort. Later that day, Claimant was sent to Albany Medical Center (hereinafter, "AMC") for further evaluation.

First Surgery

In AMC's emergency room (hereinafter, "ER"), Claimant presented with complaints that there was something in his right eye, "blurry vision" and "throbbing" pain, which was reported as a constant 9 on a scale of 1 to 10 (Ex. 3, p. 26 [AMC ER Report]). AMC medical staff found a "penetrating injury" (id., p. 28 [Ophthalmology Consultation Sheet]) with "a metallic foreign body imbedded in the lens of [Mr. Cody's] right eye," along with a "self-sealing corneal laceration" (Ex. 3, p. 44 [Report of Operation]). Photosensitivity and "some clear discharge" from the eye also were noted, with visual acuity restricted to "counting fingers" (Ex. 3, pp. 26-28). Claimant said that he was advised of his options, which were either to have surgery to remove the foreign object, or to do nothing and risk infection that could lead to the loss of the eye (Tr., p. 114; see Ex. 3, p. 44). Dr. Sax agreed that those were the available options (Tr., p. 190). Mr. Cody elected to have the operation.

During Claimant's first surgery on April 2, 2010, a large, metallic, 3-4 mm foreign body was removed from his right eye which was located between the cornea and the lens. No gross [*3]intraocular hemorrhage was identified (see Ex. 3, p. 60 [Final Operation Report]). "There was no evidence of other injury to the eye" (Ex. 3, p. 44). The lens was noted to be clear, with "[m]inimal cortical material [appearing to be] prolapsing through the rent in the anterior capsule," so that the lens was left in place (id.).

At trial, Dr. Solomon explained some of the anatomy of the eye. The cornea is the clear, protective, outer layer of the eye. It covers the anterior chamber, the space between the cornea and the iris. The iris, in turn, is the colored, sphincter-like, muscle that regulates the amount of light admitted into the eye. Behind the iris is the intraocular lens which naturally can change shape so that a person can focus on things both up close, as well as, at a distance. Dr. Solomon noted that the lens must be perfectly intact in order for it to function properly (Tr., pp. 18-20). The doctor further testified that, in this case, the piece of metal entered the northeast quadrant of Mr. Cody's right eye with sufficient force to do some damage to the anterior lens capsule, a sort of clear, bag-like, membrane that covers the front of the lens, holds it in place, and which he likened to plastic cling wrap (id., pp. 22, 46-47). It caused a little tear in the front of the capsule so that the material inside began to leak out and become inflamed (id., p. 24).

Claimant was released from AMC on April 3, 2010 and sent to Great Meadow Correctional Facility (hereinafter, "GMCF") to convalesce. He reported that, right after the surgery, the "dragging" sensation under the eyelid was gone, but that the "hot burning sensation" persisted, with his eyesight "still cloudy," improved insofar as he now could see silhouettes, but still there was "no clarity" (Tr., pp. 114-115). Mr. Cody said that, over time, the pain did "subside a little," and "progressively got better," but that the eye continued to water and remained irritated and painful (id., p. 116). Dr. Solomon testified that Claimant's vision was "significantly diminished" after the first surgery (id., p. 36).

Second Surgery

On April 19, 2010, Claimant returned to AMC for a follow-up appointment at which it was determined that he had developed a "[t]raumatic cataract" in his right eye (Ex. 1, p. 25 [Surgeon's Report]). The surgeon noted "a large rent in the anterior lens capsule with a large amount of cortical material prolapsing through the rent" (id.). Dr. Solomon said that cataracts quickly begin to form whenever the anterior capsule is compromised (Tr., p. 23). AMC proposed "phacoemulsification"[FN1] with the placement of an artificial intraocular lens in Mr. Cody's right eye (Ex. 1, p. 25). Two types of artificial lenses were available, one designed to improve his distance vision, or one that was meant to help him read and do close work. Mr. Cody chose the lens that would optimize his distance vision (Tr., pp. 116-117).

During Claimant's second surgery on his right eye, performed later that same day, the damaged cortical material was removed, the rent in the anterior lens capsule was repaired, and an artificial lens implanted in the eye and positioned within the lens capsule (Ex. 1, p. 25). Dr. Sax agreed that there was no option to this second surgery if Claimant wanted to save the vision in his right eye (Tr., p. 191).

Claimant again was sent back to GMCF to recover for a couple of weeks. Claimant [*4]declared that, after the second surgery on April 19, 2010, his distance visual acuity (hereinafter, "DVA") was "phenomenal," with 100% clarity in his distance vision, although he still could not read and his near visual acuity (hereinafter, "NVA") remained "blurry" and unfocused (Tr., pp. 118-119).

Dr. Solomon first examined Mr. Cody in 2011 and Dr. Sax saw him in 2016. The two experts agreed in their assessment of the second surgery. It was a success (Ex. 5, p. 1 [" a very good result" (Dr. Solomon)]; Tr., p. 168 ["an excellent outcome" (Dr. Sax)]). An artificial intraocular lens designed to optimize DVA, like the one that was implanted in Mr. Cody's right eye, is most commonly used in cataract surgery (Tr., p. 48 [Dr. Solomon, who declared it to be the default choice in 99% of cases]; Ex. 7, p. 2; Tr., p. 170 [Dr. Sax]). The corneal scar had healed well and was positioned where it did not significantly affect Claimant's vision (Ex. 5, p. 1; Tr. p. 78 [Dr. Solomon]; Ex. 7, p. 2 [Dr. Sax]). The artificial lens was stable and placed properly (Ex. 5, p. 1 [Dr. Solomon]; Ex. 7, p. 4; Tr., p. 170 [Dr. Sax]). In fact, Dr. Solomon concluded that Mr. Cody's "result is actually excellent from the surgery itself and if he was of the age to need cataract surgery, this would actually be considered an excellent result" (Ex. 5, p. 2). Given his young age, however, Dr. Solomon believed that the loss of the natural ability of the eye to focus for both distance and near vision "would be considered a deficit," although one that was difficult to quantify (id.).

Shortly after his release from Moriah in August 2010, Claimant treated with a Dr. Ryan Winters (see Ex. 4). At that time, Mr. Cody complained of seeing dark shadows at the outer periphery of his vision from his right eye, with double vision at the bottom of his range of sight, and a sandy, itchy feeling, all of which began after his surgery (id., p. 3). Dr. Winters prescribed glasses for Mr. Cody, however, Claimant did not get them (id., pp. 3-4; Tr., p. 145).

Examinations by the Experts

Mr. Cody's visual acuity, as found by Dr. Solomon in 2011 and 2017, and Dr. Sax in 2016 is presented below in tabular form for ease of comparison.

2011 (Ex. 5, p. 1 [Dr. Solomon])

2016 (Ex. 7, p. 3 [Dr. Sax])

2017 (Ex. 5, p. 4 [Dr. Solomon])

Right eye uncorrected DVA

20/80 +1 [FN2]

20/70

20/40 -2

Right eye corrected DVA

20/25

20/30 -1

20/25 -2 [FN3]

[*5]Right eye uncorrected NVA

20/400

20/400

"Unable" (see below)

Right eye corrected NVA

(see below)

20/50

J1 (see below)

Left eye uncorrected DVA

20/40 -1

20/25 -1

20/40

Left eye corrected DVA

20/20

20/20

20/20 -2

Left eye uncorrected NVA

20/20

20/30

J1 (see below)

2011

When Dr. Solomon saw Claimant in 2011, the doctor suspected that, with new glasses, he "would likely get [Mr. Cody's corrected DVA in his right eye] close to 20/20," (Ex.5, p. 1; see Tr., p. 50 [at Trial, Dr. Solomon said Claimant's DVA "was correctable to near perfect vision at the time"]). He further advised Mr. Cody that "he certainly would see very well if he had a pair of glasses which he likely needed prior to the injury," and that "he likely should pursue that" (Ex.5, p. 1). At trial, Dr. Solomon provided some context, observing that a person needs to have corrected DVA of at least 20/40 in order to obtain an unrestricted driver license. For that reason, cataract surgery often is considered when DVA deteriorates to less than 20/40 (Tr., pp. 37-38). Dr. Solomon knew of no reason why Mr. Cody's corrected DVA would preclude him from obtaining a driver license (id., p. 87).

Because the artificial lens implanted in Mr. Cody's right eye was a "monofocal intraocular lens" with a "single point of focus," however, his NVA was "very poor" in that eye (20/400) (Ex. 5, p. 1). Dr. Solomon also noted though, that "a bifocal prescription in his right eye likely would significantly manage the problem for him" (id., p. 2). The doctor also did say there can be some visual distortion off to the sides when using bifocals. Claimant's situation was exacerbated further because he needed magnification only in one (his right) eye. The distortion might be reduced or eliminated if dedicated reading glasses are worn, but that would require, of course, that they be put on and taken off each time they are used (Tr., pp. 91-92, 94). Dr. Solomon knew of no medical reason why Claimant could not wear contact lenses (id., pp. 85, 86).

Mr. Cody did not follow Dr. Solomon's advice, however, and never obtained eyeglasses from the time of his injury in 2010 until the date of the trial. In fact, he never was examined again, other than for his visits with Dr. Sax in 2016 and Dr. Solomon in February 2017 (see below) (Tr., pp. 144-145).

2016

At trial, Dr. Sax pointed out that, while he used a hand-held refraction simply to "get an idea" of Mr. Cody's NVA, Dr. Solomon obtained a better "J1" result in 2017 using a more precise, auto-refraction for glasses (Tr., p. 209; see Ex. 7, p. 3; Ex. 5, p. 4). Dr. Sax said that the use of reading glasses following cataract surgery in which an artificial lens is implanted to assist [*6]DVA is both "routine and expected" (Ex. 7, p. 2; Tr., p. 170). He also thought that the glasses that previously had been prescribed for Mr. Cody "would have provided him with good close focus in the right eye to work in conjunction with the left eye, but these glasses were apparently never obtained by Mr. Cody" (Ex. 7, p. 2). In the doctor's experience, patients who require bifocal lenses for one eye only usually adapt to them within a few weeks (Tr., pp. 177-178). Dr. Sax has treated patients who are welders and who wear reading glasses for close work (Tr., p. 178). He further said that bifocal glasses would cost between $400 and $500 (Tr., p. 177).

2017

Dr. Solomon noted Claimant's uncorrected NVA as "UNABLE," but "J1" after correction. Dr. Solomon and Dr. Sax each explained at trial that those findings indicate that Mr. Cody was unable to read the largest figures on the reading chart without correction (Dr. Solomon likened it to 20/400 vision). Dr. Sax also noted that, after correction, Claimant's NVA was "J1," the equivalent of 20/20 vision (Tr., pp. 42-43, 179-181).

Opacification

During their respective examinations of Mr. Cody's right eye, each of the experts, in addition to making their observations as to Claimant's visual acuity, also detected evidence of opacification in the eye, this time on the posterior lens capsule, or the back portion of the clear, bag-like membrane that surrounds the lens. In 2011, Dr. Solomon observed "some trace fibrotic material" (Ex. 5, p. 1), which he described, at trial as a "sort of a hazy scar tissue that can develop within the capsule or that bag" (Tr., p. 51), but it was not interfering with Mr. Cody's vision at that time (Ex. 5, p. 1). Claimant testified, however, that, since he returned to work as a fabricator in 2012 (discussed below), the vision in his right eye has "slowly, progressively gotten worse," with the clarity "minimized" (Tr., pp. 136-137). He said that his peripheral vision has become "more cloudy, less noticeably visible" (id., p. 137). He complained of sometimes experiencing double vision and seeing a "haze or an orb from lights" at night (id., pp. 137-138). He said that he memorized the vision chart in case he could not read it, and agreed that he was prepared to lie to the Department of Motor Vehicles in order to obtain a driver license (id., p. 148).

Indeed, by the time Dr. Sax saw Mr. Cody in 2016, he pronounced the posterior capsule to be "quite cloudy," and reckoned that the condition probably had developed over the preceding year or so "and now interfere[d] with the previous[ly] good vision in the right eye" (Ex. 7, p. 5; see Tr., pp. 192, 200).[FN4] Likewise, when Dr. Solomon saw Claimant again in 2017, he observed "significant haze behind the [artificial] lens" of the right eye (Ex. 5, p. 5). The doctors agreed that the hazing noted in 2016-2017 was sited on the nasal side of the lens in Mr. Cody's right eye, but overlapped into the central axis/zone which, Dr. Solomon noted, is the point at which such hazing becomes "visually significant for most patients" (Tr., p. 55 [Dr. Solomon]; see Ex. 6 [Dr. Sax's sketch of Claimant's eye, showing areas of opacification]; Ex. 7, p. 4; Tr., p. 196 [Dr. Sax]).

The doctors further agreed that such hazing in the posterior lens capsule was a natural [*7]consequence of the second, cataract surgery (Tr., p. 55 [Dr. Solomon]; Ex. 7, p. 5 [Dr. Sax]). Dr. Sax likened the process to stretch cling wrap gradually turning into waxed paper (Tr., pp. 172, 196). Dr. Solomon said that the significant increase in hazing in the eye between 2011 and 2017 was attributable simply to the passage of time (id., p. 54). In fact, Claimant indicated to Dr. Sax that the uncorrected DVA in his right eye had been good, but deteriorated during the six to twelve months prior to the 2016 examination (Ex. 7, p. 3). The doctors disagreed, however, about how often such opacification occurs, with Dr. Sax stating that almost every cataract patient eventually develops such hazing (Tr., p. 172), while Dr. Solomon thought it occurred less frequently, only in about half of such cases (id., p. 51).

Moreover, the doctors also agreed that a number of Mr. Cody's new complaints in 2016-2017 could be explained by the ongoing opacification process (Tr., p. 57, 79-80; Ex. 5, p. 3 [Dr. Solomon ("decreased" peripheral vision, "lost clarity," visual "aura," blurred tail and headlights, "irritation and intermittent pain," inability to focus right eye as quickly as the left one, especially in a dark room when lights come on suddenly, frequent need to squint his right eye to read tape measures, difficulty looking through his welding mask, and to close his right eye, or turn his head, so that he could look only out of his left eye while welding)]; Ex. 7, pp. 3-6 [Dr. Sax ("increased blurriness," vision that "was significantly degraded by bright lights [glare testing]," "dull and shadowy vision," "some double vision with downgaze, especially at near")]). Dr. Solomon also agreed that complaints about peripheral vision are somewhat "vague," and "not usually picked up on a formal visual field test," but, in any event, he believed that laser surgery was likely to resolve them (Tr., pp. 83-84).

A Third Surgery Is Needed

The doctors agreed that, if left untreated, the hazing in Claimant's eye will get worse and his vision will continue to deteriorate (Tr., p. 61 [Dr. Solomon]; Ex. 7, p. 5; Tr., p. 196 [Dr. Sax]). Dr. Sax agreed that both his NVA and the opacification process already would hinder Mr. Cody's ability to do close work, at least until he has further surgery (Tr., p. 201). Dr. Solomon testified that there are three surgical options to address Claimant's hazing/opacification problem: laser surgery; lens replacement; and implantation of a second, additional lens.

Laser Surgery

Both doctors stated that the most common option is laser capsulotomy surgery (Tr., p. 61 [Dr. Solomon]; id., p. 172 [Dr. Sax]).In fact, Dr. Solomon recommended the procedure to Claimant in 2017, but Mr. Cody declined to follow that advice and elected, instead, to wait until after the conclusion of this litigation, after which he might wish to also consider the second option discussed below (Ex. 5, p. 5 [Dr. Solomon]; Tr., pp. 138-139, 145 [Claimant]). Dr. Solomon explained that, in such surgery, a laser polishes away the scar tissue behind the lens capsule (Tr., p. 61). The doctors agreed that laser surgery is safe, simple, brief, and painless (Tr., pp. 51, 61-62 [Dr. Solomon]; Ex. 7, p. 5 [Dr. Sax]). Each of them thought that laser surgery would restore Mr. Cody's DVA to at or near where it was right after his second, cataract surgery (Tr., p. 62 ["almost instantaneous" recovery (Dr. Solomon)]; Ex. 7, p. 5 [it "should significantly improve clarity" (Dr. Sax)]). Dr. Sax testified that a patient should only have to have laser surgery once because the opacification typically does not redevelop (Tr., p. 173). Dr. Solomon thought that laser surgery costs between $1,500 and $2,000 (id., p. 69), but Dr. Sax believed it was about $400 for a patient without any kind of insurance coverage (id., p. 174).

Dr. Solomon noted that the decision to have laser surgery would make it "virtually impossible" to have the second, lens replacement procedure done in the future (Tr., pp. 64-65). Dr. Sax also agreed that laser surgery would not improve Claimant's uncorrected NVA, which would remain 20/400 for the rest of his life (id., p. 203).

Lens Replacement

Dr. Solomon said that a second, but "very complicated," option would be to replace Mr. Cody's existing artificial monocular lens with a new, premium, artificial multi-focal lens to provide an extended range of vision, both DVA and NVA. Such a lens would more closely approximate the focusing ability of a natural lens. Dr. Solomon cautioned, however, that it is both expensive and risky, so that not all doctors perform that surgery (Tr., pp. 62-63, 68). The risk is that the posterior capsule could tear while the existing artificial lens is removed. Dr. Sax deemed this option to be "very high risk" surgery "and not recommended" (id., p. 203).

Implant a Second, Additional Lens

Dr. Solomon also described a still experimental procedure, currently available in Europe, but not the US, in which a new lens is implanted without removing the existing artificial lens. It might be possible to have this surgery even after laser surgery. Dr. Solomon said there are complications with the third surgery, however, that actually could make Claimant's vision worse (Tr., pp. 65-68).

Experts' Opinions

The doctors were in broad agreement that Mr. Cody's various complaints about and problems with his vision in his right eye, including the two surgeries, almost all are a consequence of the accident (Tr., pp. 60-61 [Dr. Solomon]; pp. 213-214 [Dr. Sax]). The only exception Dr. Solomon noted was that Claimant also needs distance glasses for his left eye, although not as strong a prescription as for the right eye, and none for reading and close work. The doctor did not see records to document the vision in Mr. Cody's right eye prior to the accident, but he said that, if one were to assume that Claimant's two eyes began with similar visual acuity, then Mr. Cody might have needed distance glasses anyway (id., pp. 60-61; Ex. 5, p. 1).

Claimant's Post-Accident Work Experience

For the first couple of years after he was released from Moriah, Claimant said that he did miscellaneous construction and masonry work "just to make ends meet" (Tr., p. 122). In September 2012, he returned to millwork as a fabricator, which he had done prior to his incarceration, going to work for Matrix Power Services (hereinafter, "Matrix").[FN5] Claimant said that his job requires him to travel all over the East Coast. During such assignments, he works 12 hour days, seven days a week. Individual projects can last anywhere from a few weeks to three months or more. Mr. Cody said that he was hired at a rate of $18 per hour and, at the time of the [*8]trial, was earning $24 per hour (id., p. 125). He agreed that the work typically is busiest during the period from September to May or June (id., p. 141). Mr. Cody also agreed that he did not work for a few months in 2014 after an accident involving a four-wheel drive vehicle, and only worked on a couple of jobs in July 2015 because business was slow (id., p. 143).

Claimant distinguished the work of fabricators at Matrix, who remove old broken parts of machinery, clean the surfaces, fit in new pieces of steel, and secure them in place by making several small tack welds to keep the pieces flush, from that of welders, who follow behind the fabricators and finish the job by making a continuous weld to join the pieces completely together. Mr. Cody further said that fabricators/welders wear full-face respirators and use metal flip masks to protect them while welding.

Claimant said that he had 20/20 DVA in his right eye when he began working at Matrix, but had to close that eye and rely exclusively on the NVA from his left eye for any kind of fine, detail work, such as reading a tape measure, or welding (Tr., pp. 130-131). Mr. Cody said that he aspired to become a welder, but is unable to pass the test because he can only weld for three or four inches before he begins "veering off" from the line that needs to be welded "due to, I guess, the visibility aspect of it" (id., p. 133, 136). He said welders' positions became available during his tenure at Matrix, and he saw other fabricators advance to become welders within two years, including some whom he believed began working with less knowledge than he possessed (id., pp. 129, 132). He also agreed, however, that he is not the person at Matrix to decide who becomes a welder, and that many factors are considered in making those decisions (id., pp. 142-143).

During his time at Matrix, Claimant believes that welders earned between $35 to $40 per hour and worked similar schedules to his own (Tr., pp. 129-130, 135). He also said, however, that Matrix has over 400 employees, and agreed that he does not know every welder there and hasn't seen their pay stubs or tax records, observing that employees typically do not discuss their pay grades with each other (id., pp. 142-143).

LAW

"[A]n award of damages to a person injured by the negligence of another is to compensate the victim, not to punish the wrongdoer" with the goal being "to restore the injured party, to the extent possible, to the position that would have been occupied had the wrong not occurred" (McDougald v Garber, 73 NY2d, 246, 253-254 [1989]).

With respect to pain and suffering, any award for such injuries "is inherently a subjective inquiry, not subject to precise quantification, and generally presents a question of fact" (Leto v Amrex Chem. Co., Inc., 85 AD3d 1509, 1511 [3d Dept 2011], quoting Petrilli v Federated Dept. Stores, Inc., 40 AD3d 1339, 1343 [3d Dept 2007]). "[F]actors to be considered in evaluating such awards 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," including the effect on the capacity to enjoy life, engage in daily tasks and/or activities that once brought pleasure, as well as any loss of self-esteem (Nolan v Union Coll. Trust of Schenectady, NY, 51 AD3d 1253, 1256 [3d Dept 2008], lv denied 11 NY3d 705 [2008]; see McDougald v Garber, supra at 255-256; Ciuffo v Mowery Constr., Inc., 107 AD3d 1195, 1197 [3d Dept 2013]; Garrison v Lapine, 72 AD3d 1441, 1443 [3d Dept 2010]). In awarding damages for Claimant's past and future pain and suffering, it is proper for the Court to take judicial notice of the life expectancy tables set forth in Appendix A to the Pattern Jury Instructions (see Giambrone v Israel Am. Line, 26 Misc 2d 593, 600 [Sup Ct, [*9]NY County, 1960]; Hancock v Hull Realty Corp., 1994 WL 16459400 [Sup Ct, Bronx County 1994]; PJI 2:281).

An award also may include an amount for a claimant's economic damages. "The basic rule is that loss of earnings must be established [by claimant] with reasonable certainty, focusing, in part, on [claimant's] earning capacity both before and after the accident" (Johnston v Colvin, 145 AD2d 846, 848 [3d Dept 1988]; see Shubbuck v Conners, 15 NY3d 871 [2010]; Balmaceda v Perez, 182 AD2d 983, 984 [3d Dept 1992], appeal denied 80 NY2d 755 [1992]).

Finally a "person who has been injured is not permitted to recover for damages that could have been avoided by using means which a reasonably prudent person would have used to (cure the injury, alleviate the pain)" (PJI 2:325; see Wilmot v State of New York, 32 NY2d 164, 168-169 [1973]; Mayes Co. v State of New York, 18 NY2d 549, 554 [1966]; Bell v Shopwell, Inc., 119 AD2d 715, 716 [2d Dept 1986]). Defendant has the burden of establishing that Claimant failed to mitigate damages (Mayes Co. v State of New York, id.; Cornell v T.V. Dev. Corp., 17 NY2d 69, 74 [1966]; Hawkins v City of New York, 99 AD2d 481, 481 [2d Dept 1984]).

MITIGATION OF DAMAGES

As a preliminary matter, Claimant argues that Defendant's failure to plead mitigation of damages precludes it from asserting that Mr. Cody failed to do so. The Court disagrees. The CPLR explicitly provides that culpable conduct claimed in diminution of damages must be pleaded and proved as an affirmative defense by the party asserting such defense (see CPLR, §§ 1412, 3018[b]). The list enumerated under CPLR 3018 is not exhaustive, however, and other matters, including a failure to minimize or mitigate damages, also must be pleaded affirmatively (see Wooten v State of New York, 302 AD2d 70, 74 [4th Dept 2002], lv denied 1 NY3d 501 [2003]; 5 Weinstein-Korn-Miller, NY Civ Prac ¶¶ 3018.16, 3018.17). Here, Defendant did plead, as its first affirmative defense, that the "negligence or culpable conduct of the [C]laimant caused or contributed to cause the injuries and/or damages alleged in the [C]laim, and [C]laimant['s] award, if any, should be reduced in the proportion which the negligence or culpable conduct of the [C]laimant bears to any negligence or culpable conduct which caused said injuries and/or damages (Answer, ¶ 4 [emphasis supplied]).

The Court concludes that the State's culpable conduct affirmative defense is capacious enough to include Claimant's failure to take steps to mitigate the damages he sustained (see Dombrowski v Moore, 299 AD2d 949, 951 [4th Dept 2002]["The alleged culpable conduct. . . [may] be considered in mitigation of damages"]). As highlighted above, the affirmative defense pleaded by the State here consists of two parts. First, the State pleaded that Claimant's culpable conduct was a factor in causing the injury itself (e.g., alleging that Mr. Cody bore at least some liability for the accident). That issue was resolved by this Court's earlier decision as to liability only, which determined that Claimant, in fact, was 30% responsible for his injury (see Cody v State of New York, supra). Second, the State pleaded that Claimant's culpable conduct contributed to the damages he sustained as a result of that accident, a factor which is relevant to the instant trial. To the Court's mind, Defendant's pleading was more than sufficient to apprise Claimant that the State was asserting, not only that his conduct contributed to causing the accident itself, but also that it "caused or failed to minimize the damages arising from the accident" (Fernandez v Vukosa, 108 Misc 2d 48, 51 [Civ Ct, NY County 1980]; see Karczmit v State of New York, 155 Misc 2d 486, 494, 500 [Ct Cl 1992]; but see Costanza v City of New York, 147 Misc 2d 94 [Civ Ct Queens County 1990][recognizing that [*10]Fernandez decision, though well reasoned, was superceded by statute requiring that failure to wear seatbelt be pleaded as affirmative defense]). Indeed, the term culpable conduct includes "conduct which, for whatever reason, the law deems blameworthy" in fixing the comparative causation attributable to each party (Arbegast v Board of Educ. of S. New Berlin Cent. School, 65 NY2d 161, 168; Karczmit v State of New York, supra at 498).

Claimant's efforts to exclude the concept of mitigation of damages from the term culpable conduct pleaded by the State is unpersuasive, as is the gloss he puts upon the several cases cited in his post-trial reply memorandum. Arbegast v Board of Educ. of S. New Berlin Cent. School is cited for the proposition that mitigation must be pleaded. In that case, however, only a culpable conduct defense was pleaded (supra at 166; see CPLR §1411). Thus, the decision simply supports the unremarkable conclusion that the culpable conduct affirmative defense must be pleaded, just as the CPLR explicitly commands, and just as was done in the case sub judice. Gordon v Nationwide Mut. Ins. Co. concerns an express covenant and an implied obligation of good faith in a liability insurance policy (30 NY2d 427 [1972]). There, the dissent simply noted that the insurer never pleaded, by way of an affirmative defense, that the insured failed to mitigate damages (id., at 452). In Marsala v Weinraub, the Court determined that the liability-limiting provisions of CPLR Article 16 do not have to be pleaded as an affirmative defense (208 AD2d 689 [2d Dept 1994]). Finally, in Loomis v City of Binghamton, an action alleging false arrest, the Court determined that "justification in mitigation of damages" is an affirmative defense that must be pleaded (43 AD2d 764, 765 [3d Dept 1973], appeal dismissed 34 NY2d 537 [1974]). Legal justification is a different affirmative defense than failure to mitigate, however, one in which the defendant offers probable cause as a defense to justify an arrest that was made without legal process or color of legal authority, such as where there was no valid warrant (see Broughton v State of New York, 37 NY2d 451, 458 [1975], affd sub nom. Schanbarger v Kellogg, 423 US 929 [1975]; McIntyre v State of New York, 142 AD2d 856, 857-858 [3d Dept 1988]; Gill v Montgomery Ward & Co., Inc., 284 App Div 36, 39-40 [3d Dept 1954]).

None of the cases cited by Claimant hold, or even suggest, that mitigation of damages is an affirmative defense that must be pleaded separately from culpable conduct, or that the affirmative defense of culpable conduct, which Defendant did plead in this case, is insufficient to cover a claimant's failure to mitigate his or her damages. The Court could not identify any other cases to support such a proposition. Thus, the Court concludes that Claimant's contention that Defendant failed to plead mitigation of damages is without merit because it is part of the State's first affirmative defense which plainly states that Mr. Cody's culpable conduct contributed to the damages he sustained.

DISCUSSION

Each witness provided generally sincere and forthright testimony, although the credit-worthiness of Claimant's testimony was undermined somewhat by his admission that he was prepared to cheat on the eye exam for his driver license by memorizing the chart. Moreover and more importantly, as discussed below, the Court found the portions of Claimant's testimony concerning his alleged economic damages to be self-serving and lacking in specificity and, therefore, unpersuasive.

Pain and suffering

The Court concludes, based upon a preponderance of the credible evidence, that Claimant is entitled to an award of non-economic damages to justly and fairly compensate him for the injuries [*11]he sustained as a result of his eye injury in 2010. The Court finds that, from the time of his injury on April 1, 2010 until the second surgery on April 19, 2010, Mr. Cody experienced significant pain/discomfort, along with greatly diminished visual acuity, in his right eye.[FN6] During that period, he also was obliged to submit to two surgical procedures in order to salvage vision in his right eye. After a very successful second surgery to remove the traumatic cataract, his DVA improved phenomenally, the pain abated, and, thereafter, he suffered only intermittent discomfort, such as scratchy and/or watery eyes.

It is difficult to assess the impact of the accident on Claimant's uncorrected DVA because no evidence was presented to establish Mr. Cody's visual acuity before the accident. Nevertheless, Dr. Sax agreed that there was some degradation in his visual acuity (Tr., p. 199), and the Court so finds, although it also is notable that Dr. Solomon determined in 2017 that Claimant's uncorrected DVA essentially was the same in each eye (20/40 -2 [Right], and 20/40 [Left]). Moreover, Mr. Cody's corrected DVA was fairly consistent in each of the 2011, 2016, and 2017 examinations, in the 20/25 to 20/30 range in his right eye, and nearly perfect in the left eye (at or close to 20/20).

The decision to implant a monofocal intraocular lens in Claimant's right eye during the second surgery, both then and now the standard procedure in such cases, did mean, however, that the NVA in Mr. Cody's right eye was and remains no better than 20/400. The Court concludes that Claimant's NVA is a permanent condition because Mr. Cody will need further surgery to address the opacification of the posterior lens capsule, and the safest and recommended procedure, laser surgery, would preclude any chance to improve his NVA.

Claimant does not assert that the diminished NVA in his right eye adversely affected or now affects his ability to enjoy life and engage in daily tasks and activities outside of work. He does say that the impairment to his NVA has compromised, and continues to impair, his ability to do close work at his job involving, notably, reading a tape measure and making straight welds.

The Court concludes, however, that the adverse effects of Mr. Cody's poor NVA have been exacerbated by his failure to take steps to mitigate the condition. All three of the doctors who examined Claimant recommended that he obtain glasses. For reasons that were left unexplained at trial, however, Mr. Cody declined to follow that advice and did not seek or obtain either distance or reading glasses, or contact lenses, and agreed that it is fair to say that he has not consulted any vision professional to find out if there is any way to correct his vision so that he could do the things he wants to at his job (Tr., pp. 145-146). In 2011, Dr. Solomon thought that a bifocal prescription would "significantly manage" Claimant's deficient NVA. He further offered that, if Mr. Cody encountered any distortion because only the NVA in the right eye needed to be magnified, use of dedicated reading glasses, though perhaps awkward, might reduce or eliminate the problem. Dr. Sax concurred that the prescription would have afforded Mr. Cody with good NVA in his right eye, adding that patients usually adjust to bifocal lenses for one eye only within a few weeks. Dr. Sax also has treated welders who wear reading glasses for close work. In fact, in 2017 Claimant's corrected NVA in his right eye essentially was the equivalent of 20/20.

Mr. Cody did say that he has tried "cheaters," a solid magnifying bar that is placed inside a welding shield. The cheaters act like reading glasses to improve vision for close work. Mr. Cody said, however, that the cheaters actually made matters worse. Because they go across the whole [*12]welding flip, they affect vision in both eyes, and, thus, distorted the NVA in his good, left eye (Tr., pp. 147, 149-150). Claimant failed to explore, however, if there are any other options to help him with his welding (id., p. 148). In fact, Dr. Sax said that better glasses to suit that purpose are available (id., p. 206). Thus, the Court finds that Claimant could have mitigated some portion of the ill effects of his poor NVA if he simply had obtained the glasses that were prescribed for him.

Claimant also has experienced increasing diminution of vision, as well as some intermittent discomfort, during the past several years as a result of the opacification of the posterior lens capsule of his right eye. Dr. Solomon and Dr. Sax agreed that the condition is an inevitable result, and progressive process, following the implant of an artificial lens. Thus, it was not possible for Claimant to mitigate this aspect of his vision problems. In 2011, Dr. Solomon noted some early indications that the process had begun, but it was not interfering with Mr. Cody's vision at that time. By 2016-2017, the doctors observed marked hazing that was beginning to encroach upon, and degrade visual acuity in, the center of the eye which, Dr. Sax reckoned, had been developing for some time, and in earnest for about a year or so before he examined Mr. Cody. The doctors further agreed that a third surgery is needed in order to eliminate the hazing and glare Claimant now experiences. While three surgical options were noted at trial, the most common, recommended, safest, and most practical one is laser surgery, which the doctors anticipate will restore Claimant's vision to at or near where it was after the second surgery in 2011. The opacification should not recur and no further surgery likely will be needed to address that condition. On the other hand, as noted above, it also will mean that Mr. Cody's poor NVA will be permanent.

In assessing damages for Claimant's past and future pain and suffering, the Court notes that no evidence was proffered to suggest that Mr. Cody suffers from any condition that is likely to result in a significant diminution in the average remaining life expectancy for a 35 year-old male, which is approximately 42 years.[FN7]

Economic Damages

With respect to Claimant's alleged economic damages, the Court finds Mr. Cody's testimony to be self-serving, speculative, and entirely inadequate to establish any losses. His description of his hours worked and wages earned, to the Court's mind, amounted to little more than a crude, back of the envelope sort of reckoning. He did not state the total number of hours he worked, or his annual income, for any of the years since he returned to fabrication work in 2012. He said that he received annual raises (see Tr., pp. 135-136), but did not indicate the size of each annual increment as his salary increased from $18 to $24 per hour during the period from 2012 to 2017. He did not testify that he was paid overtime, or how much the overtime rate would have been, or the conditions under which he would have received extra pay. He proffered nothing in the way of W-2 forms, pay stubs, tax returns, an employment contract, or other documentary evidence to substantiate his income.

Likewise, Claimant failed to establish, to the Court's satisfaction, his contention that, but for his accident, he now would be earning a higher wage as a welder. Prior to his incarceration, Mr. Cody did fabrication work, including tack welding. He never asserted that he had achieved the rank of welder before his accident. No third-party assessment of his skills after his accident was offered from a supervisor at Matrix, or even a colleague. The Court is left with nothing more than the offer [*13]of Claimant's own high opinion of his proficiency and skill to support the proposition that there was any future probability he would have advanced to a welder's position. Moreover, he provided even less information to substantiate the wages he might earn as a welder, than he did with respect to his work as a fabricator. He asserted that welders earned $35-$40 per hour, but offered no evidence to show how he knew what they earned. To the contrary, Mr. Cody agreed that he does not know all the welders at Matrix, does not compare salaries with those he does know, and is not involved in the promotion process. Again, he did not testify about overtime wages for welders. In short, Claimant failed utterly to establish with reasonable certainty that he suffered any loss of earnings as a result of his accident. No evidence was proffered that Claimant incurred any unpaid medical expenses.

CONCLUSION

Based on all the foregoing, as well as a review of prior judicial decisions addressing similar injuries, including the cases cited by each of the litigants, the Court finds that Claimant suffered damages in the total amount of $450,000, comprised of $300,000 for past pain and suffering and $150,000 for future pain and suffering. The Court finds that sum constitutes fair and reasonable compensation for Mr. Cody's injuries. No evidence was presented to substantiate any medical expenses or lost wages and benefits incurred, or to be incurred, in the future, by Claimant. Accordingly, no damages are awarded for either of those items. The total damages must be reduced by the percentage of Claimant's comparative fault as found in the Court's prior Decision on liability. After applying Claimant's 30% comparative fault to the total damages determined herein, the Court awards Mr. Cody the sum of $315,000, together with interest from February 25, 2015, the date of the Decision establishing liability (see Dingle v Prudential Prop. & Cas. Ins. Co., 85 NY2d 657 [1995]; Love v State of New York, 78 NY2d 540 [1991]; CPLR § 5002).

In addition, the Court awards Claimant the actual amount of any fee paid to file the Claim, as a taxable disbursement pursuant to Court of Claims Act § 11-a(2).

All motions upon which the Court reserved decision at trial are hereby denied.

All objections upon which the Court reserved determination at trial are now overruled.

The Chief Clerk is directed to enter judgment accordingly.

Footnotes

Footnote 1:At trial, Dr. Solomon explained that phacoemulsification is the use of high frequency sound waves, together with irrigation and aspiration, to carve the lens into small pieces so that it can be removed (Tr., p. 47).

Footnote 2:At trial, Dr. Solomon noted that his letter inadvertently omitted the word uncorrected (Tr., pp. 50, 89-90).

Footnote 3:At trial, Dr. Solomon explained that 20/25 -2 meant that Claimant was only able to read some of the 20/25 line of the eye chart, having missed two of the five characters (Tr., p. 41). Dr. Sax agreed (id., p. 187).

Footnote 4:In fact, Dr. Sax thought that the opacification he detected in Mr. Cody's lens was sufficiently significant that it would affect adversely the results of the visual acuity testing he conducted (Tr., pp. 176, 212).

Footnote 5:Mr. Cody said millwork involved the repair, reconstruction, and rebuilding of machinery used in resource and recovery facilities, or paper plants/mills, including both mechanical work (repairing broken hardware/machinery) and fabrication (building new, replacement parts for machinery that is too twisted or bent to be repaired). Just prior to incarceration, he had been engaged in small fabrication, prepping and grinding metal pieces so that they fit, and then tack welding one-half to one inch long lines, or beads, to join them together (Tr., pp. 98-100).

Footnote 6:Dr. Sax agreed that Mr. Cody's visual acuity was at its worst during that period (Tr., p. 199).

Footnote 7:Claimant was born on May 30, 1982 (Tr., p. 160; Ex. 1, p. 1; PJI, App. A).