least a mild case of arthritis in that joint. Plaintiffs' expert, Dr. Crane, testified both that he found moderate grade arthritis of a permanent nature in the left knee and that the arthritis had resulted from the articular changes brought about by the trauma of the accident. Defendant's expert, Dr. David Weiss, could provide no clinical or otherwise reliable evidence that the foregoing condition is a degenerative one, unrelated to the accident-- the mere observation that degenerative arthritis is "common" among persons of Mr. Battista's age is insufficient to support such a finding in the instant matter, particularly where the Government offered no conclusive evidence that Mr. Battista suffers from degenerative arthritis in his right knee.
The foregoing and other evidence, however, suggests that the ultimate effect on the daily life of Mr. Battista of the injury to his left knee, while significant, is not substantially debilitating. The evidence shows, for example, that Battista has suffered only a minimal loss, if any, in the range of motion of his left leg as a result of his injury. Dr. Hausmann's March 6, 1992 notes indicate that Battista had full range of motion of his leg on that date (PX 17), and Dr. Crane testified that when he examined Battista in 1992, he found only 2 degrees loss of extension and 5 degrees loss of flexion. Tr. 130. Dr. Crane further testified that as of November 18, 1994, Battista had full extension of his left leg and only 10 degrees loss of flexion. Tr. 124. Finally, Dr. Crane testified that a "7-degree difference" in range of motion "is not unusual from examiner to examiner and from day to day. So I don't think it is a major issue." Tr. 130. Dr. Crane's testimony concerning the insignificance of any deficit in the range of motion of Battista's left leg was corroborated by Dr. Weiss. As Dr. Weiss explained, under the American Medical Association's Guides to the Evaluation of Permanent Impairment, an authoritative medical treatise which sets forth percentages of impairment based on objective criteria, Battista has no impairment of his leg by reason of any deficit in his range of motion. Weiss Decl. PP 16-17. Thus, with respect to range of motion, plaintiff has suffered little, if any, damage to the joint.
The record supports, however, the finding that plaintiff suffers significant, though not crippling, pain as a result of the arthritic changes brought about by the injury to his knee. Dr. Crane testified that he believes that the arthritic changes he saw during Battista's arthroscopy was consistent with considerable pain, (Tr. 136-37), and plaintiff indicates that he suffers pain after extensive walking and can no longer ski-- as he once did regularly. Tr. 39-40. Beyond these limitations, however, plaintiff has undeniably shown remarkable progress in regaining nearly full use of his left knee through physical therapy. The medical records show that Battista consistently reported to his physical therapist that he had decreasing pain and increased mobility (PX 23, 10/29/91 note, 10/30/91 note, 11/11/91 note, 12/4/91 note), and that by December of 1991, he was reporting only occasional soreness and aching. GX O (12/6/91 report). His progress continued through the spring of 1992. PX 23 (physical therapy 2/22/92 note) ("Ron Battista offers no additional complaints. Seems to be tolerating progressive exercise without difficulty."). On May 26, 1992, Battista's "major problem" was leg fatigue without pain after walking a half block which resolved with rest. GX M (Dr. Crane's 5/26/92 note). By September 8, 1992, Battista reported to his physical therapist that he could walk two miles without difficulty. PX 23 (9/8/92 note). Battista has not taken any physical therapy since early 1993. Tr. 44. In sum, the evidence establishes that an award of $ 125,000 is sufficient to remunerate Mr. Battista for the noneconomic losses flowing from the injury to his left knee. See, e.g., Linscombe v. Wal-Mart Stores, Inc., 1993 WL 631570 (E.D.Tx 1993) (jury awarded $ 125,500 to plaintiff who suffered a sprain of the medial collateral ligament of the left knee as a result of tripping and falling on a defect in the parking lot of defendant retail store; Cuffee v. Short, 1994 WL 373281 (E.D.Va. 1993) (jury awarded $ 155,000 to plaintiff who suffered 9% permanent disability and arthritis in the knees as a result of an automobile accident); Schwartz v. Gardner, 1992 WL 520862 (E.D.Pa. 1992) (parties reached settlement in the amount of $ 185,000 where plaintiff suffered a tear of the medial collateral ligament, a partial detachment of the left patella, and anxiety disorder allegedly as a result of being struck by defendant's automobile); Keeley v. National Railroad Passenger Corp., 1991 WL 488013 (S.D.N.Y. 1991) (jury awarded $ 74,650 to 30 year old plaintiff who suffered torn anterior cruciate ligament after falling into 10 foot pit created by defendant contractor).
B. Loss of Consortium
22. Plaintiff Arlene Battista seeks recovery for loss of consortium. This claim "embraces such elements as love, companionship, affection, society, sexual relations, solace and more." Millington v. Southeastern Elevator Company, 22 N.Y.2d 498, 293 N.Y.S.2d 305, 308, 239 N.E.2d 897 (1968). The cause of action essentially seeks to compensate the interest of the injured party's spouse in "the continuance of a healthy and happy married life." Id. at 310 Neither Mrs. nor Mr. Battista testified that their love and affection for each other had diminished after the accident. Id., Tr. 44. Furthermore, Mrs. Battista's testimony makes clear that her damages derive solely from caring for her husband in the first four months after his accident. See A. Battista at 2-3. We must also limit any award of damages for Arlene Battista's claim for loss of consortium given that the Battistas did not expend any money to have household chores performed. Id. We find that an appropriate award for loss of consortium is $ 10,000.
For the foregoing reasons, we find the Government liable under a theory of negligence for the following damages suffered by plaintiffs as a result of plaintiff Ronald Battista's injury incurred at the Midtown Post Office on February 13, 1991. plaintiffs are awarded $ 12,593 to compensate for the lost past overtime wages of Ronald Battista; $ 19,638 to compensate for the lost future overtime wages of Ronald Battista; $ 29,033.29 to compensate for the medical expenses of Ronald Battista
; $ 20,876 to compensate for the lost past base wages of Ronald Battista
; $ 125,000 to compensate Ronald Battista for non-economic losses including pain and suffering; and $ 10,000 to compensate Arlene Battista for loss of consortium. The parties are hereby ordered to settle a judgment reflecting the damage awards set forth in this Opinion and Order, and the Clerk of the Court shall enter such judgment.
Dated: New York, New York
May 31, 1995
ALLEN G. SCHWARTZ, U.S.D.J.