On April 2, 2006, Lari Konfidan was driving in the right northbound lane on Third Avenue approaching 34th Street in New York City when a taxi in the lane next to him struck his car and caused it to spin out of control and smash into a parked car.
Upon impact, Konfidan’s right shoulder hit the steering wheel:
Mr. Konfidan, a 29 year old business consultant, declined medical treatment at the scene of the accident. Within a half hour, though, he went to a hospital emergency room complaining of right shoulder pain and five months later he required surgery.
In the ensuing lawsuit, the other driver was precluded from testifying (because he failed to submit to a pre-trial deposition) so Konfidan obtained a directed verdict in his favor on the issue of liability.
The issue of pain and suffering damages, though, was hotly contested. Plaintiff claimed that the accident caused labral tears in his shoulder that necessitated the surgery and left him with permanent restricted range of motion and pain; whereas the defense claimed that the tears were degenerative and caused by repetitive stress.
Plaintiff’s orthopedic surgeon, Jay Simoncic, M.D., testified that when he arthroscopically examined Konfidan’s shoulder, he saw a SLAP tear – tearing of the super labrum:
On March 23, 2010, a Manhattan jury ruled in plaintiff’s favor and awarded him pain and suffering damages in the sum of $475,000 ($75,000 past – 4 years, $400,000 future – 43 years).
Last week, in Konfidan v. FF Taxi, Inc. (1st Dept. 2012), the appellate court ordered a $150,000 reduction in future damages so that the award now stands at $325,000.
After his surgery, plaintiff was in a sling for six weeks, underwent physical therapy 2-3 times a week for six months and, upon return to his job (he missed four weeks) he was restricted in his typing, carrying his briefcase. Also he could not resume sports such as weightlifting, squash or tennis and he could not without pain lift his arm forward above his head.
The surgery, a type 2 SLAP tear repair, involved drilling holes and the insertion of two permanent metal anchors:
- A pre-surgical MRI indicated Mr. Konfidan had torn his rotator cuff but during surgery it was apparent that the MRI reading was wrong and that that in fact there were labral tears destabilizing the shoulder.
- Konfidan had previously undergone surgery to his left shoulder (as well as his right knee), which the defense brought out in support of its claim that the current injuries were degenerative rather than traumatically induced.
- Plaintiff testified that post-surgical physical therapy restored 70% of the function to his right shoulder.
- The defense had sought a pre-trial dismissal of the entire lawsuit based upon the so-called serious injury threshold under Insurance Law Section 5102. The trial judge denied the motion and the appellate court affirmed the denial.