Richards v. Fairfield

Appeal from an order of the Supreme Court (Krogmann, J.), entered June 24, 2013 in Washington County, which denied plaintiffs motion to set aside a verdict in favor of defendants.

Plaintiff commenced this action to recover for injuries she allegedly sustained when her vehicle was struck from the rear by a tractor trailer driven by defendant Daniel Fairfield. Following joinder of issue and discovery, defendants conceded liability and the matter proceeded to a jury trial on the issue of whether plaintiff sustained a serious injury under the significant limitation of use category (see Insurance Law § 5102 [d]). The jury concluded that plaintiff did sustain a serious injury and, as relevant here, awarded her $15,000 for past pain and suffering and no damages for future pain and suffering.

Supreme Court denied plaintiffs motion to set aside the jury verdict as inadequate and plaintiff appeals.

Here, plaintiff complained of pain in her nondominant shoulder immediately after the accident, missed three days of work and was prescribed physical therapy. After little or no improvement in the shoulder, she was referred to an orthopedic surgeon, who eventually recommended surgery to address her complaints. Upon performing arthroscopic surgery, the surgeon discovered and repaired what he considered a traumatically induced tear of the labrum and also repaired an underlying genetic laxity of plaintiffs shoulder. Plaintiff missed three weeks of work after the surgery and experienced complications from internal scar tissue that resolved after continued physical therapy. She was thereafter able to continue her employment as a dental hygienist and substitute teacher and engage in her normal activities, including cleaning her house, gardening, camping, canoeing and playing softball and basketball. Plaintiff testified, however, that she could not sleep on her left side without pain and that, although she was able to participate in her normal activities, they still caused her shoulder pain. The orthopedist who conducted an independent medical evaluation of plaintiff on defendants’ behalf (hereinafter the IME orthopedist) did not dispute her complaints of pain.

A physical therapist who conducted a functional capacity

We agree with plaintiff, however, that the objective evidence of some — albeit limited — permanency renders the award of no future damages inadequate (see Vincent v Landi, 123 AD3d at 1188 ; Vogel v Cichy, 53 AD3d at 880 ; Scott v Yurkewecz, 234 AD2d 673 , 675 [1996]). The IME orthopedist did not unequivocally refute the findings of plaintiffs treating orthopedist with respect to her ongoing, permanent restrictions. Rather, he opined that the labrum tear was not traumatically induced, and qualified his opinion on the condition of plaintiffs shoulder by concluding that it was “essentially” normal. Given plaintiffs unrefuted evidence of some permanence, the award of no damages for future pain and suffering “could not have been reached on any fair interpretation of the evidence” (Vogel v Cichy, 53 AD3d at 880 ; see Marshall v Lomedico, 292 AD2d 669 , 671 [2002]; Baker v Shepard, 276 AD2d 873 , 875-876 [2000]). Based on the record evidence, and plaintiffs estimated life span of 53.4 years, we conclude that an award of $25,000 for future pain and suffering is reasonable here.

Lahtinen, J.P., Garry and Devine, JJ., concur.

Ordered that the order is modified, on the facts, without costs, by reversing so much thereof as awarded plaintiff $0 for future pain and suffering; new trial ordered on the issue of future pain and suffering unless, within 20 days after service of a copy of the order herein, defendants stipulate to increase the award for future pain and suffering to $25,000, in which event said order, as so modified, is affirmed.