Mr. Ortega, why did you lie to us?

Ortega v Healthcare Servs. Group, Inc., 2018 NY Slip Op 07568 (4th Dept. 2018)

(1) “Plaintiffs commenced this action seeking damages for injuries Rose Ortega (plaintiff) allegedly sustained as a result of a slip and fall that occurred at a facility, which was maintained by defendant. Following the damages phase of a bifurcated trial, the jury awarded plaintiff $4,200 for past pain and suffering, $3,300 for past lost wages, and $2,500 for past medical expenses. Plaintiffs moved to set aside the verdict as against the weight of the evidence on the issue of damages, and for a new trial thereon (see CPLR 4404 [a]).”

(2) “Defendant appeals from an order that, inter alia, granted the motion and ordered a new trial on damages unless defendant stipulated to increase the award for past pain and suffering to $300,000”

(3) “Here, the central issue at the damages trial was whether plaintiff’s claimed shoulder and cervical spine injuries were causally related to the subject fall, or if they resulted from unrelated prior motor vehicle accidents or other unrelated incidents or conditions. Given the conflicting evidence on that issue, plaintiff’s selective and incomplete disclosure of her health history to her healthcare providers and the examining physicians, and her inability to recall prior accidents and injuries during cross-examination, we conclude that the verdict on damages is not against the weight of the evidence because a fair interpretation of the evidence supports the jury’s determination that plaintiff’s shoulder and cervical spine injuries were unrelated to the subject fall and that the only injury sustained by plaintiff in the fall was a knee sprain.”

Another must read in the battle involving “significant limitation” and “permanent consequential”

Tejada v LKQ Hunts Point Parts, 2018 NY Slip Op 07663 (1st Dept. 2018)

In opposition, plaintiff raised a triable issue of fact as to the existence of an injury involving a “significant” limitation of use of his lumbar spine, but not as to a “permanent consequential” limitation of use injury (see Kang v Almanzar, 116 AD3d 540 [1st Dept 2014]; Kone v Rodriguez, 107 AD3d 537 [1st Dept 2013]). Plaintiff’s orthopedic surgeon, who performed a discectomy procedure in May 2014, sufficiently addressed the findings of degeneration by opining that the MRI films did not show degeneration and that plaintiff’s acute onset lumbar condition was causally related to the accident (see Rabb v Mohammed, 132 AD3d at 528; Young Kyu Kim v Gomez, 105 AD3d at 415). Plaintiff also demonstrated the existence of significant limitations in his lumbar spine range of motion, both shortly after the accident and nine months later, through the reports of his orthopedic surgeon and his post-accident treatment records (see Castillo v Abreu, 132 AD3d 520, 521 [1st Dept 2015]). Since the medical records were submitted by defendants and were properly before the court, plaintiff was entitled to rely on them (see Wenegieme v Harriott, 157 AD3d 412 [1st Dept 2018]).

However, plaintiff failed to provide a reasonable explanation for his complete cessation of treatment for his lumbar spine conditions after the May 2014 procedure. Plaintiff’s claim that he ceased treatment because of an inability to pay due to a lack of no-fault insurance, is unpersuasive in light of his testimony that he had other insurance (see Alverio v Martinez, 160 AD3d 454 [1st Dept 2018]; Vila v Foxglove Taxi Corp., 159 AD3d 431 [1st Dept 2018]). The cessation of treatment renders the opinion of a nontreating physician, based on an examination of plaintiff in December 2016, speculative concerning the permanence and causation of plaintiff’s condition at that time (id. at 432; see Merrick v Lopez-Garcia, 100 AD3d 456 [1st Dept 2012]).

Check out the disunion of the “significant limitation” and “permanent consequential”  branches of the 5102(d) serious injury statute.  Also, has this order now disallowed the Plaintiff from proving a permanent injury?  I would say no, but I am unsure.

The recent examination

Fiorucci-Melosevich v Harris, 2018 NY Slip Op 07410 (2d Dept. 2018)

“In opposition, the plaintiff submitted, inter alia, the affirmation of a physician who stated that he measured the range of motion of the cervical and lumbar regions of the plaintiff’s spine at a recent examination and found significant restrictions. The plaintiff’s physician did not specify the objective test he used to measure the plaintiff’s range of motion.”

Always comes down to the objective tests that were performed, the listing and quantification of the same,


20% deficit is a serious injury

Kholdarov v Hyman, 2018 NY Slip Op 07111 (2d Dept. 2018)

“In opposition, the plaintiff submitted the affirmed report of a neurologist who examined the plaintiff on March 16, 2016. The neurologist measured the range of motion of the cervical region of the plaintiff’s spine and compared his results to what would be considered normal range of motion. The neurologist found a 20 percent deficit in the flexion of the plaintiff’s cervical spine, but otherwise found the results to be normal”

Court of Appeals upholds dismissal of a 5102(d) case (4-3)

Rosa v Delacruz, 2018 NY Slip Op 07040 (2018)

“The order of the Appellate Division should be affirmed, with costs.

In support of their motions for summary judgment, defendants relied on independent physician reports finding that plaintiff had a normal range of motion six months following the accident, with no permanent effects, and on the results of a shoulder MRI performed six weeks after the accident by plaintiff’s radiologist, who reported that plaintiff’s rotator cuff tendons were intact and there was no MRI evidence of a tear. Plaintiff’s responding medical submissions were inadequate to raise a triable issue of fact because they failed to acknowledge, much less explain or contradict, the radiologist’s finding. Instead, plaintiff relied on the purely conclusory assertion of his orthopedist that there was a causal relationship between the accident and anterior labrum/rotator cuff tears that he observed (and repaired) during surgery nearly two years after the accident. ”

This case involves Ins Law 5102(d) on the issue of causation.  Defendant relied on a normal no-fault IME and the Plaintiff’s own radiologist averring that it is a normal and anything wrong was degenerative in nature.  Plaintiff opposed with an affidavit from a surgeon that  performed the surgery and saw tears that were traumatic in origin and related to the accident.  The surgeon also diagnosed Plaintiff with a tear early on during the treatment.

I am assuming the affirmance is based upon the reasons that the Appellate Division laid out – the failure of the treating orthopedist to rule out degeneration.


Causation on a degeneration

Goodwin v Walter, 2018 NY Slip Op 06643 (4th Dept. 2018)

“We further conclude, however, that defendant submitted evidence establishing that plaintiff’s injuries were caused by a preexisting condition, i.e., ankylosing spondylitis, a genetic condition. Thus, “plaintiff had the burden to come forward with evidence addressing defendant’s claimed lack of causation” (Pommells v Perez, 4 NY3d 566, 580 [2005]). Plaintiff raised a question of fact by submitting the affidavit of her treating chiropractor and the affirmation of her primary care physician. Plaintiff’s primary care physician asserted that plaintiff’s preexisting condition was “asymptomatic” prior to the accident, and both the primary care physician and the treating chiropractor asserted that, after the accident, plaintiff had a quantified limited range of motion in, inter alia, her neck (see Terwilliger v Knickerbocker, 81 AD3d 1350, 1351 [4th Dept 2011]).”


Second Department once again now recognizes a gap in treatment as a basis to non-suit Plaintiffs

Chiu Yuan Hu v Frenzel, 2018 NY Slip Op 05445 (1st Dept. 2018)

“In opposition to the defendant’s prima facie showing, the plaintiff raised triable issues of fact as to whether she sustained serious injuries to the cervical and thoracolumbar regions of her spine (see Perl v Meher, 18 NY3d 208, 215-218). Further, contrary to the determination of the Supreme Court, we find that the plaintiff adequately explained the gap in her treatment by submitting an affirmed medical report of her treating physician (see Pommells v Perez, 4 NY3d 566, 577; Jean-Baptiste v Tobias, 88 AD3d 962; Park v He Jung Lee, 84 AD3d 904, 905).”

It got harder as a Plaintiff to  make a living on soft tissue cases today in the Second Department.  I was waiting for the Second Department to follow the First Department.  It has somewhat happened.  Gap in treatment is back.

Second Department recognizes degeneration as a basis to move for summary judgment

Cavitolo v Broser, 2018 NY Slip Op 05442 (2d Dept. 2018)

“In opposition, the plaintiff failed to raise a triable issue of fact. The affirmation of the plaintiff’s expert failed to address the findings of the defendant’s examining radiologist that the magnetic resonance imaging of the plaintiff’s left shoulder, taken shortly after the accident, revealed only pre-existing degenerative conditions (see Franklin v Gareyua, 136 AD3d 464, 465-466, affd 29 NY3d 925, 926; Chery v Jones,62 AD3d 742, 742-743; Ciordia v Luchian, 54 AD3d 708, 708-709).”

Franklin is a First Department case.  Chery and Ciordia are Second Department  Pre-Pehrl cases from 2008 and 2009.  I sense the “affd” is what caused the Second Department to rejoin the other three departments in requiring an affidavit to meaningfully refer or rebut the  degeneration defense.

1.5 million dollar scope and post-concussive injury

Castillo v MTA Bus Co., 2018 NY Slip Op 05134 (2d Dept. 2018)

“The plaintiff further testified: “[The bus driver] just slammed me to the back . . . of the bus . . . . She drove away at a fast pace and that’s when I landed all the way to the back of the bus in a seated down position with my left leg under me.” According to the plaintiff, her fall was of sufficient force that she lost consciousness.”

“During the damages trial, the plaintiff submitted evidence that she sustained disc bulges in almost the entirety of her cervical spine—C2-3 through C7-T1—resulting in diminished range of motion. She also submitted evidence that she sustained lumbar disc bulges at L3-4 and L5-S1, resulting in left S1 radiculopathy, meaning that a loss of function in the S1 nerve caused weakness and loss of sensation in the plaintiff’s left leg. Further, the plaintiff presented testimony that she sustained torn lateral and medial menisci in her left knee, requiring arthroscopic surgery, and that she may need a knee replacement in the future. Moreover, according to the trial testimony, the plaintiff developed postconcussive syndrome following the accident, and she will experience the effects of postconcussive syndrome for the rest of her life.”

“The jury found that the plaintiff sustained a serious injury within the meaning of Insurance Law § 5102(d), and awarded her the sum of $500,000 for past pain and suffering and the sum of $1,000,000 for future pain and suffering over 10 years. On November 2, 2015, the Supreme Court entered a judgment in favor of the plaintiff and against the defendant in the principal sum of $1,500,000. The defendant appeals.”

“The award of damages for past and future pain and suffering did not deviate materially from what would be reasonable compensation”

Just let this one sink in for a little bit.

Significant limitaiton prong of Ins Law 5102(d)

Schaubroeck v Moriarty, 2018 NY Slip Op 04453 (4th Dept. 2018)

It is an obsession of mine.  When someone gets into an accident where the threshold applies, has made a complete recovery and can still recover under a non 90-180 basis.  I observed intermittently on here (this is a no fault and not a PI blog) the decoupling years ago of the permanent consequential and significant limitation prong of Ins Law 5102(d).  It is an issue that we do not see too much but it is interesting when we see it.

(1)  The report of defendant’s expert physician “does not establish that plaintiff’s condition is the result of a preexisting degenerative [condition] inasmuch as it fails to account for evidence that plaintiff had no complaints of pain prior to the accident’ ” (id. at 1842; see Thomas v Huh, 115 AD3d 1225, 1226 [4th Dept 2014]). Inasmuch as defendant failed to meet his initial burden on the motion with respect to causation, there is no need to consider the sufficiency of plaintiff’s opposing papers on that issue (see Sobieraj v Summers, 137 AD3d 1738, 1739 [4th Dept 2016]). (First observation on causation)

(2) “Contrary to defendant’s further contention, we conclude that the court properly denied that part of the motion with respect to the significant limitation of use category. Even assuming, arguendo, that defendant made a “prima facie showing that plaintiff’s alleged injuries did not satisfy [the] serious injury threshold” with respect to that category (Pommells v Perez, 4 NY3d 566, 574 [2005]), we conclude that plaintiff’s submissions in opposition to the motion raised an issue of fact. Those submissions included the affirmation of plaintiff’s treating physician, who, after reviewing plaintiff’s medical records and imaging studies, opined within a reasonable degree of medical certainty that plaintiff sustained a folded flap tear at the junction of the mid-body and posterior horn of the meniscus of his right knee, and lateral and medial meniscus tears of both knees that required surgery and were causally related to the accident. He further opined that, consistent with what he observed on the MRI and his observations during plaintiff’s surgery, the meniscus tears limited plaintiff’s ability to walk, sit for long periods, turn, twist, drive for long periods, climb stairs, and walk on uneven surfaces (see Lopez v Senatore, 65 NY2d 1017, 1020 [1985]; LoGrasso v City of Tonawanda, 87 AD3d 1390, 1391 [4th Dept 2011]).”