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Proof that the injury was pre-existing was not refutedOctober 20, 2013

Russell v Cornell Univ., 2013 NY Slip Op 06771 (3d Dept 2013)

“Defendants satisfied their initial burden of establishing that plaintiff did not suffer a causally related serious injury through submission of plaintiff’s medical records and deposition testimony reflecting that plaintiff had a significant history of cervical injury and was receiving ongoing treatment for such injury at the time of the subject accident (see Putnam v Sysco Corp., 101 AD3d 1571, 1572 [2012]; Anderson v Capital Dist. Transp. Auth., 74 AD3d 1616, 1616-1617 [2010], lv denied 15 NY3d 709 [2010]; Foley v Cunzio, 74 AD3d 1603, 1604 [2010]). Moreover, plaintiff’s complaints of neck injury prior to and after the 2007 accident were identical and MRI images showed no change in the condition of plaintiff’s herniated disc at C6-7 from before the 2007 accident to the time of her surgery in 2009. Defendants also submitted the report of an independent medical examination that detailed plaintiff’s medical treatment from 2005 to 2009 and opined that there was no causal relationship between her cervical injury and the 2007 accident.

Faced with such competent evidence that plaintiff’s claimed injury was related to a preexisting condition, plaintiff then had the burden to come forward with objective medical evidence distinguishing her preexisting condition from the injury claimed to have been caused by this accident (see Pommells v Perez, 4 NY3d 566, 580 [2005]; Putnam v Sysco Corp., 101 AD3d at 1572-1573; Falkner v Hand, 61 AD3d 1153, 1154 [2009]). This, plaintiff failed to do. Plaintiff submitted the reports of two physicians indicating that her preexisting condition was exacerbated by the 2007 accident. However, these physicians apparently based their conclusions upon plaintiff’s representations that her symptoms worsened following the 2007 accident, but their reports did not offer objective evidence differentiating plaintiff’s condition prior to the 2007 accident from her condition after the 2007 accident or distinguishing the injury allegedly sustained in that accident from the preexisting injuries (see Foley v Cunzio, 74 AD3d at 1605; Falkner v Hand, 61 AD3d at 1154-1155). Accordingly, plaintiff failed to raise an issue of fact sufficient to survive summary judgment and the complaint should be dismissed.”

A very interesting discussion on how causation is analyzed.

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