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Lack of causal relationship motion denied based upon evidence that the injured person was “asymptomatic” prior to the motor vehicle accidentOctober 12, 2010

Interesting discussion on what is probably the only way to beat a threshold motion when representing a member of the “accident of the month” club.

The EBT goes like this:

(Q) Sir, were you involved in a prior accident 6 months ago when you injured every conceivable part of your body?

(A) Yes.

(Q) What pains did you have a result of the prior accident?

(A) I had pains everywhere…..(etc).

(Q) What activities couldn’t you do or do as well?

(A) (laundry list)

(Q) Immediately prior to the accident that we are here about today, how did you feel?

(A) I felt great.  I was completely healed from the medically necessary aquatherapy and selective applications of the TENS unit and heat lamp that I was either given or applied myself.

(Q) What pains did you feel after the accident?

(A) (See answer to question #2)

Come up with an affidavit from someone who will dispute the degenerative findings, and you have this case:

Feaster v Boulabat, 2010 NY Slip Op 07230 (1st Dept. 2010)

“Their examining orthopedist found limitations in range of motion in plaintiff’s cervical and lumbar spines and both knees, and opined that these were attributable to degenerative changes. However, plaintiff testified that she had been asymptomatic before her car accident, and her orthopedic surgeon opined in a report submitted by defendants that plaintiff’s injuries were causally related to the accident. Moreover, defendants’ orthopedist’s opinion that, while plaintiff may have sustained injuries to her cervical and lumbar spines and left knee in the accident, these injuries had resolved, is belied by the limitations in range of motion that he found in those areas”

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