This was an action which involved a male plaintiff department store security guard, age 26 at the time, who contended that he sustained severe shoulder injuries when he was sideswiped by a car that was fleeing after a shoplifting incident and his non-dominant arm was caught on the side view mirror and pulled violently. The issue of liability was stipulated. There was a dispute between the driver’s carrier and the plaintiff’s UM/UIM carrier as to whether the accident was covered under the driver’s policy and a Declaratory Judgment action was scheduled to be tried to a jury. The Court held that the damages would be tried before this Declaratory Judgment action and the jury was only advised that the plaintiff was struck by a car, that his arm was pulled in the incident and that he was not at fault. The jury was not aware of the shoplifting incident prior to rendering the damages verdict. the plaintiff contended that he suffered both a dislocated shoulder and a scapulo-thoracic disassociation involving a tear of the ligaments between the shoulder blade and the rib cage. The plaintiff contended that he will suffer permanent pain and restriction and because of the injuries, will be unable to achieve his dream of becoming a police officer.
The plaintiff contended that he suffered extensive pain in the accident. The plaintiff’s orthopedist related that the plaintiff had, in fact, essentially suffered two separate injuries. The physician related that the first was a shoulder dislocation which was treated with an open procedure in which the torn ligaments were repaired and tightened. The second injury involved the separation of the scapula from the rib cage. The plaintiff’s orthopedist contended, however, the surgery for this scapulo-thoracic disassociation would be high risk and was contraindicated. The expert maintained that because the scapula is very thin and the ribs relatively thin as well, and with such small amounts of bone to work with, the procedure would be very risky in the plaintiff’s case. The physician also contended that the lungs are in close proximity to the area, that there is danger that the hardware needed for such a fusion would puncture the lungs, further rendering it contraindicated. The physician indicated that even if otherwise successful, a fusion would create very extensive limitation of motion.
The plaintiff contended that in order to minimize the risk of recurrent dislocations, which are very painful, the plaintiff will be required to avoid strenuous activity which requires him to elevate the arm above the parallel level of his body and will be so restricted for the remainder of a very lengthy life expectancy. The plaintiff related that during the first 1.5 year period following the incident, he suffered 4-5 such extremely painful dislocation episodes in which re required emergency room care and that because he has been careful to refrain from sudden movements, he has been able to avoid a recurrence over the past several years. The defendants’ physician’s report essentially concurred with the plaintiff’s expert’s conclusions and the plaintiff’s expert testified that he had read the defense expert’s report and partially based his conclusions on it.
The plaintiff contended that he had always been a very physically active individual and enjoyed sports such as racquetball and golf. The plaintiff contended that he has been forced to lead a much more sedentary life and avoids lifting his non-dominant arm to an overhead cupboard because of this risk. The plaintiff also contended that he had aspired to become a police officer. The plaintiff maintained that he can no longer realize this dream because of the injuries. The plaintiff, who made no income claims, contended that the jury should consider this inability to pursue his goal on the issue of loss of enjoyment of life. The plaintiff related that he has obtained a full-time job as an ambulance driver and a part-time job as a police dispatcher 24 hours per week. the plaintiff related that because of special equipment and an EMT who works with him, he has been able to work without being required to exert himself lifting patients or equipment.
The defendants contended that it is clear that the plaintiff is living a full life despite the injuries. The plaintiff countered that in view of the undisputed nature of the injuries, it is clear that the plaintiff’s determination to live as active a life as possible reflected a stoic individual and was not inconsistent with the plaintiff’s contentions that he will suffer pain and extensive limitations for remainder of a lengthy, 51 year life expectancy. The plaintiff was not married at the time of the accident and is currently engaged.
The jury awarded $2,250,000 for pain and suffering, $34,000 for past medical expenses and $17,000 for past wages which are subject to the worker’s comp lien. The defendant driver had a $100,000 policy which was tendered pending the outcome of the declaratory judgment action and the plaintiff had a UM/UIM policy of $300,000. The case settled for $300,000 with the driver paying $75,000 and the UM/UIM carrier paying $225,000 prior to the commencement of the Declaratory Judgment aspect.
REFERENCE: Plaintiff’s orthopedist: Clint Ferencz from Sea Girt.
M.G. vs. Quandt, et al. Docket No.: MON-L-1085-97; Judge Robert Feldman, December 7, 1999.
Attorney for plaintiff: Charles A. Cerussi of Giordano, Halleran & Ciesla in Middletown.
COMMENTARY:The jury assessed a very large damages award notwithstanding the evidence that despite the should injuries, the plaintiff has been able to lead a very active life and works part-time as a police dispatcher in addition to his full-time job as an ambulance driver. The plaintiff argued that since the surgery to treat the scapulo-thoracic dislocation is contraindicated, the plaintiff will be required to live his life in a very restricted manner and refrain from lifting his arm above the shoulder level in that the restriction in the use of the arm is very extensive. It should be noted that the defense examining orthopedist, who was not presented, had essentially concurred with the findings of the plaintiff’s orthopedist and the plaintiff had supplied his orthopedist with the defendant’s expert’s report from which the plaintiff’s expert indicated that he partially relied on, and the plaintiff argued during summation that his contentions that he will suffer such severe restriction for the remainder of a 51 year life expectancy were undisputed. In this regard, the plaintiff argued that jury should consider that the detailed description of restrictions in everyday activities such as simply reaching for a cup or dish in an overhead shelf, or in making any sudden movement with the arm, were so dramatic that impact of the injury was almost the same as an amputation. Additionally, the plaintiff argued that in view of the undisputed nature of the medical evidence, it was clear that the ability of the plaintiff to nonetheless lead an active life reflected an individual who was stoic and would not permit the injuries to have a greater affect on his life than absolutely necessary.Finally, with respect to damages, it should be noted that the trial was on damages only and the jury was not aware that the plaintiff security guard suffered the injury when the defendant driver attempted to flee in his car after allegedly shoplifting at the store at which the plaintiff had worked. Regarding liability, it was undisputed that the incident occurred when the plaintiff’s arm was struck by the side view mirror and pulled as he was attempting to apprehend the driver and liability had been stipulated. The defendant’s carrier had taken the position that the actions were intentional and tat the injury was not, therefore, covered. The plaintiff’s UM/UIM carrier had countered that the defendant’s automobile policy would cover the unintentional consequences of an intentional act and the case settled prior to the scheduled Declaratory Judgment action for the total $300,000 of the UM/UIM coverage, with the defendant’s carrier paying $75,000 of a $100,000 policy.
