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.

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:

 Inside Information:

  • 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.