Triable issue of fact found as to the issue of whether an injury was causally related to a motor vehicle accidentAugust 19, 2010
Stephen Fealy, M.D., P.C. v State Farm Mut. Auto Ins. Co., 2010 NY Slip Op 51442(U)(App. Term 2d Dept. 2010)
I was involved in this case. The matter involved a knee surgery that the carrier alleged was not causally related to the motor vehicle accident. The main piece of proof that was presented was a detailed radiological review. It demonstrated that the knee injury was degenerative, pre-existing and in part the result of the assignor’s body habitus. I thought it was one of the better radiological reviews I ever saw. It was obviously sufficient to demonstrate a prima facie entitlement to summary judgment.
In the original opposition, and the only one the Appellate Term considered, the plaintiff treating doctor made a conclusory allegation that the injury was related to the accident. What was important to discern to was that in the original answering papers, the actual MRI films were never reviewed, and there was no evidence presented to rebut the radiologist’s report and affirmation. Following my reply that pointed out the glaring holes in Plaintiff’s proof, Plaintiff filed a sur-reply, a tacit admission that more needed to be placed in their answering papers to defeat the summary judgment motion. I will give Plaintiff’s counsel credit for doing this – it definitely showed a gumption I do not see too much of in this field of law. Nonetheless, the sur-reply should not have been considered, which Civil Court considered anyway. In any event, the sur-reply had gaps in proof, similar to that in the initial answering affirmation. Civil Court found an issue of fact.
Based on the foregoing, I felt compelled to appeal – not because I am “appeal happy”- but because I earnestly felt Civil Court totally got this one wrong.
The Appellate Term at least kicked the sur-reply. This is ironic because this court reached the opposite conclusion when presented with this exact procedural scenario in Cornell Medical v. Mercury. Plaintiff, in its brief, even cited to Cornell Medical v. Mercury for the proposition that the sur-reply should be considered. Yet, the situation in Cornell was more egregious than that found in this case, because my former firm received the sur-reply in Cornell the day before the final motion return date. I think the sur-reply in this case was received a few weeks before the final return date, but I am not sure.
In any event, the Appellate Term found an issue of fact because “[t]he affirmation in opposition, written by Dr. Fealy, the surgeon who actually performed the procedure on the assignor, read in conjunction with the other medical and hospital reports indicating that the assignor had complained of left knee pain within days of the accident, is sufficient to raise an issue of fact that must be resolved at trial.”
This is a dangerous precedent.
Remember, on a motion for summary judgment, the proponent of the motion must demonstrate its defense prima facie, or demonstrate that an element of plaintiff’s case lacks merit. People do not realize that on a motion for summary judgment, there is no difference between casting something as an element of a defense as opposed to casting something as an element of a party’s prima facie case. You must always prove a negative. Thus, the issue of causation is born by the defendant on a summary judgment motion, regardless of who bears this burden at trial. This is an important point.
As we also know, in the non no-fault context, a party who wishes to defeat a prima facie showing of lack of causation based upon a radiological review must submit evidence demonstrating that a qualified doctor read the films and disagreed in detail with the findings of the defendant’s radiologist’s review. The proof required to rebut a finding of lack of causation, based upon a radiological review, is the same in all contexts.
In this case, the Plaintiff failed to meet his burden based upon settled law. I think Plaintiff was aware of this – hence the sur-reply. As such, the Appellate Term should have reversed the order of the Civil Court.
One more thing. What is the proper no-fault rate for the procedure in this case? I think it is a little less than $25,000? I am not sure.