Cardella v. Henke Machine, Inc.

283 A.D.2d 894, 726 N.Y.S.2d 734, 2001 N.Y. App. Div. LEXIS 5560
CourtAppellate Division of the Supreme Court of the State of New York
DecidedMay 31, 2001
StatusPublished
Cited by6 cases

This text of 283 A.D.2d 894 (Cardella v. Henke Machine, Inc.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cardella v. Henke Machine, Inc., 283 A.D.2d 894, 726 N.Y.S.2d 734, 2001 N.Y. App. Div. LEXIS 5560 (N.Y. Ct. App. 2001).

Opinion

—Lahtinen, J.

Appeal from a judgment of the Supreme Court (Ferradino, J.), entered February 16, 2000 in Saratoga County, upon a decision of the court in favor of plaintiffs.

On April 26, 1987, while in the course of his employment with third-party defendant EBAC Agricultural Equipment Corporation, doing business as Capital Tractor of Greenwich (hereinafter Capital Tractor), plaintiff Francis Cardella, Jr. (hereinafter plaintiff) was struck in the head by the discharge chute of a wood chipping machine, suffering a three-inch scalp laceration1 and contusions and abrasions to his shoulders. Plaintiff and his wife, derivatively, commenced this action against defendant, the manufacturer of the machine, which then commenced a third-party action against, among others, Capital Tractor. A bifurcated trial was held, with the issue of liability being decided in plaintiff’s favor by a unanimous jury verdict in September 1996.2 Thereafter, Capital Tractor assumed the defense of the damage portion of the lawsuit. The damage trial commenced in March 1998 but after jury selection, openings and one witness called by plaintiff, the parties agreed to waive a jury trial and allow Supreme Court to decide the issue of damages upon submission of deposition transcripts, video depositions, medical records, affidavits and other documentary evidence.

The record reveals that immediately after the accident, plaintiff was taken to the emergency room where the laceration was sutured and X rays of his skull were taken. The X rays were read as normal and plaintiff was discharged two hours later with instructions to use ice packs and take Tylenol for pain. Plaintiff saw James Noonan five days later to have his sutures removed at which time he complained of a head[895]*895ache, bilateral shoulder pain, right knee pain and lightheadedness. On examination, his vital signs were normal, bruises were noted on each shoulder and the right medial shoulder blade was tender to palpation. On May 5, 1987, Noonan saw plaintiff again because of persistent headaches, occasional blurred vision and lightheadedness. On examination, his vital signs were normal, his neck and shoulder were “non tender” and his right knee exam revealed a slight tenderness. Because of the incapacitating headaches, plaintiff was referred to Seth Wharton, a neurologist, and Noonan’s care of plaintiff ended.

Wharton’s July 15, 1988 letter to plaintiffs’ attorney notes that he first saw plaintiff on May 11, 1987. At that time plaintiff complained of being labile emotionally, concentration problems, blurry vision, forgetfulness and severe headaches. These complaints persisted and prevented him from returning to work until June 15, 1987. Wharton further noted that a CT scan and EEG did not show a correctable problem, but that he suspected that plaintiff “will continue with * * * these complaints permanently.” Nevertheless, Wharton opined that “[h]e is not disabled, though he is uncomfortable and unhappy.” Approximately one month later, Wharton wrote to plaintiff’s workers’ compensation carrier stating that plaintiff was incapable of working because of “cognitive and emotional deterioration” due to his head trauma of April 26, 1987 and suggested that a referral to a rehabilitation facility dealing in head trauma might be worthwhile. In an August 1992 note, Wharton indicated that he again saw plaintiff because of “some back complaints,” stating that he had treated plaintiff for headaches until February 1990, but did not “recall hearing about any back pain” during that time. Finding no neurophysiological explanation for plaintiff’s complaints of pain in his back and limbs, Wharton concluded that there was nothing he could do for this “unfortunate patient” and made no plans to see him again.

In November 1988, plaintiff saw Robert Sellig, an orthopedic surgeon, complaining of pain in the left side of the neck, some stiffness in his neck, pain in both shoulders and pain in the right knee. Sellig started plaintiff on a course of physical therapy and, by April 1989, the range of motion in plaintiff’s neck was “almost normal” and the doctor indicated that plaintiff “could do light duty work from an orthopedic point of view.” In July 1991, Sellig repaired a torn left medial meniscus sustained by plaintiff when he fell.

In 1989, plaintiffs continuing and increasing medical problems brought him under the care of a new internist, Carol [896]*896Burgess, as well as a group of neuropsychologists, including Maria Lifrak. In 1990, plaintiff began seeing Patricia Lillquist, a psychiatrist. During this period of time, plaintiffs complaints of back pain and spasms, cognitive dysfunction, headaches, emotional problems and his inability to cope with life increased. Although plaintiff attributes all of his problems to the subject accident, the unexpected conception and birth of a child in March 1988 created additional stress in plaintiffs life.

In September 1990, plaintiff enrolled in a vocational technical school geared to clients with head injury. The record indicates that plaintiff was discharged from that program on March 15, 1991, ready to return to work from an emotional and cognitive standpoint. Despite having employment opportunities, however, plaintiff was unable to accept employment because of his back pain and a continuation of his other complaints. Plaintiff has continued his medical care with his internist, orthopedic surgeon and physical therapist and has since been referred to and treated by a rheumatologist, a psychologist, a neurologist and another physical therapist. Diagnoses of, inter alia, fibromyalgia, post blunt head trauma, encephalopathy, torn medial meniscus of the left knee and organic mood disorder and depression, which plaintiff claims stem from this accident, have all surfaced in the medical reports submitted by plaintiff. The record also reveals that plaintiff suffers from epididymitis, carpal tunnel syndrome and heart disease. Other than the presence of muscle spasms located by palpation more than two years after the accident and apparently confirmed by biofeedback treatments given by his psychologist, a myriad of diagnostic medical tests conducted since 1987, including X rays, EMG, EEG, MRI and CAT scans, have revealed no objective indicia of any neurophysological injury related to this accident. Plaintiff, however, had not returned to work at the time of the damages trial.

As of December 1995, plaintiff’s internist indicated that plaintiff was totally disabled because of the April 26, 1987 accident, but was unable to determine if that disability was permanent. Martin Marrizzo, plaintiff’s psychologist since April 1991, opined in April 1998 that all of plaintiff's problems were related to the subject accident and declared him to be totally and permanently disabled. At the time of plaintiffs last deposition in January 1995, he testified that his days were occupied by babysitting his children, operating his ham radio, getting a good workout at a two-hour physical therapy session three times a week and performing a few household chores. Plaintiff was able to and did operate a motor vehicle transporting himself to physical therapy and the grocery store.

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283 A.D.2d 894, 726 N.Y.S.2d 734, 2001 N.Y. App. Div. LEXIS 5560, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cardella-v-henke-machine-inc-nyappdiv-2001.