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Shoulder Injury Awards Modified

Posted in Shoulder Injuries

On June 22, 2010, John Bermingham was working as a union concrete laborer in a shaft at the bottom level of the World Trade Center construction site when he was struck on the right shoulder by the lid of a vacuum cleaner that fell from a level about 30 feet above him.

In his ensuing lawsuit, Bermingham claimed that the owner, general contractor and a subcontractor were negligent and liable under the Labor Law in failing to provide safety devices and otherwise maintaining an unsafe work site. A Manhattan jury agreed and apportioned liability among the three defendants.

The jury also awarded pain and suffering damages to the 28 year old plaintiff in the sum of $300,000 ($100,000 past – 4 1/2 years, $200,000 future – 40 years).

In Bermingham v. Atlantic Concrete Cutting (1st Dept. 2018), after the the trial judge reduced the award to $150,000 ($50,000 past, $100,000 future), the appellate court determined that reasonable compensation for plaintiff’s pain and suffering is $200,000 ($100,000 past, $100,000 future).

The appellate court decision does not mention plaintiff’s injury – he sustained a SLAP tear (a superior labral tear from anterior to posterior) of his right shoulder.

Here are additional injury details:

  • date of accident emergency room treatment with discharge in sling and prescription for pain medicine
  • steroid injection
  • physical therapy
  • arthroscopic surgery on 3/10/11 including three procedures:  placement of anchor in bone to hold the labrum in place; tightening of loose ligaments; and, removal of bursa
  • restricted range of motion, continuing daily pain and limitations as to lifting heavy objects and returning to athletic pursuits such as rock climbing or whitewater paddling

Defendants argued that the surgery was successful and plaintiff returned to lighter work in construction as well as other jobs including one at a ski resort that involved lifting, cleaning and raking. Furthermore, they pointed out, plaintiff admitted he can ride a mountain bike for an hour.

The jury also awarded plaintiff damages for loss of earnings in the sum of $1,525,000 ($225,000 past, $1,300,000 future – 26 years). Defendants argued that this award (a) did not account for customary work interruptions over plaintiff’s expected work life and  (b) assumed without basis that plaintiff could not work as a concrete laborer again. The defense economist opined that with additional education, plaintiff’s loss of earnings would be no more than $595,000.

The trial judge apparently agreed with the defendants’ economist and ordered a reduction of the loss of earnings award to $595,000. The appellate court, without explanation, adjusted the loss of earnings award to $700,000 for both past and future loss of earnings.

Inside Information:

  • As indicated in the appellate court decision, the defendants’ main argument on appeal was that the jury verdict should be set aside in its entirety (liability and damages) because of several instances of misconduct by plaintiff’s trial attorney. While the ultimate relief sought by defendants was not granted, the judges agreed that there was misconduct that could not be condoned. Among other things, defense counsel alleged that “plaintiff’s counsel tried to incite the jury by bringing up outrageous prejudicial events with no relevance to the case” – namely questioning a defense witness about the alleged prior history of one of the defendants, general contractor Bovis Lend Lease LMB, Inc. Also, they alleged, that plaintiff’s counsel improperly suggested to the jury that defendants intentionally harmed the plaintiff and other construction workers in an effort to protect their wealth.