The injuries are “not-related” peer review in a 5102(d) case

Eason v Blacker, 2017 NY Slip Op 07674 (3d Dept. 2017)

This is an important case because it really gives the defendant who obtains the correct records ammunition to attack causal relationship claims.

(1) The notion of the peer review as fully and wholeheartedly now been accepted in 5102(d) practice.  Amazing.

“Defendants met their initial burden of establishing that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) by submitting a transcript of plaintiff’s deposition, his medical records and the affirmation of Robert Hendler, an orthopedic surgeon who rendered his opinion based on a review of plaintiff’s medical records without conducting a physical examination of plaintiff (see D’Auria v Kent, 80 AD3d 956, 957-958 [2011]; see also Franchini v Palmieri, 1 NY3d 536, 537 [2003]).”

(2) The ACL injury could not be related to the accident ** Powerful medical rationals**

“Hendler noted that, although an August 14, 2013 MRI depicted a possible partial ACL tear, subsequent arthroscopic surgery established that there was no ligament injury and that the knee was completely stable (see Scott v Aponte, 49 AD3d 1131, 1133 [2008]). Moreover, Hendler opined that, had plaintiff sustained an ACL injury on the date of the accident, he would have immediately experienced significant pain, and the fact that he did not seek treatment for several months after the accident is inconsistent with his claim of having sustained a knee injury

(3) Cannot even win on the spine – pre-existing verses current  condition

Although Episalla also concluded that plaintiff had a preexisting history of cervical and thoracic spine pain and degenerative disc disease, he failed to set forth any “objective medical evidence distinguishing [plaintiff’s] preexisting condition from the injuries claimed to have been caused by this accident”

(4) Diminished range of motion has no objective basis

“Furthermore, although records submitted by defendants document diminished ranges of motion in plaintiff’s cervical and thoracic spine and right knee, plaintiff submitted no objective medical evidence linking such limitations to the accident

An expert who saw plaintiff once may testify


“At the damages trial, the plaintiff testified as to his symptoms and complaints. His expert, Jerry Lubliner, who was board-certified in orthopedic surgery and sports medicine, did not treat the plaintiff, but examined the plaintiff on March 6, 2014, more than two years after the accident. He reviewed the plaintiff’s medical records, magnetic resonance imaging (hereinafter MRI) reports, and actual MRI films. He concluded that the accident was the cause of bulging discs in the cervical and lumbar regions of the plaintiff’s spine, and a meniscal tear in his right knee. He testified that, by the time of his examination, 2½ years after the accident, “you can realistically state that this is going to be a problem for the rest of [the plaintiff’s] life.” He opined that the plaintiff had [*2]suffered a permanent consequential loss of use of the lumbar region of his spine, as well as swelling, weakness, and loss of range of motion of his right knee. The Supreme Court did not allow Lubliner to testify about the plaintiff’s future treatment or prognosis because Lubliner only examined the plaintiff once and did not treat him. The court instructed the jury to consider the plaintiff’s damages from the date of the accident to the date of the verdict, and refused to submit the issue of future pain and suffering to the jury. The jury awarded the plaintiff damages in the principal sum of $80,000 for past pain and suffering.

A treating physician may testify as to the plaintiff’s complaints and how the accident occurred, if the plaintiff’s statements to the physician are related to the diagnosis and treatment of the plaintiff (see People v Gross, 26 NY3d 689, 695-696). That hearsay exception does not apply to a nontreating physician, “to prevent unfair bolstering of a party’s credibility” (Daliendo v Johnson, 147 AD2d 312, 320). However, a nontreating physician is not precluded from testifying as to a relevant medical opinion (see id. at 320). A physician who sees the plaintiff once can testify as to the plaintiff’s future prognosis, even if the witness does not provide treatment (see Singh v Catamount Dev. Corp, 21 AD3d 824, 825). Further, a nontreating physician can testify as to future pain and suffering (see id. at 825; DaSilva v State, 2007 NY Misc LEXIS 8932 [Ct Cl, No. 104938]). Thus, Lubliner was improperly precluded from testifying as to future pain and suffering. The weight to be given his testimony was a consideration for the jury. Further, the issue of damages for future pain and suffering should have been submitted to the jury. Accordingly, the plaintiff is entitled to a new trial on the issue of damages for future pain and suffering.”

This is an interesting case because I recall a verdict that was reversed due to a non-treating doctor testifying based upon conversations (s)he had with the patient during the one time visit.  I am assuming the preclusion motion was based on that case.  The Court clarified that this conversation would be hearsay; however, a review of the medical records will allow the expert to offer an opinion within a reasonable degree of certainty as to the past and future pain and suffering.

The $200,000 bulge

Eastman v Nash, 2017 NY Slip Op 06523 (2d Dept. 2017)

This is any defense attorney’s nigthmare.  Losing on a bulge under the significant limitation and permanent consequential prong of the no-fault law and getting his for $200,000.00

(1)  “In an action to recover damages for personal injuries, (1) the defendant Clifford C. Nash appeals, and the defendants New York Ambulette Transport, Inc., and David Fiorentino separately appeal, from a judgment of the Supreme Court, Kings County (Vaughn, J.), entered December 5, 2014, which, upon a jury verdict finding that the plaintiff sustained a serious injury under the permanent consequential limitation of use and significant limitation of use categories of Insurance Law § 5102(d) and that the plaintiff sustained damages in the principal sums of $150,000 for past pain and suffering and $50,000 for future pain and suffering, is in favor of the plaintiff and against them in the principal sum of $200,000, and (2) the defendant Clifford C. Nash appeals, as limited by his brief, from so much of an order of the same court dated June 17, 2015, as denied his motion pursuant to CPLR 4404(a) to set aside the jury verdict on the issue of damages and for judgment as a matter of law, or, in the alternative, to set aside the verdict as contrary to the weight of the evidence and excessive and for a new trial.”

(2) “ORDERED that the judgment is affirmed; and it is further,”

(3) The plaintiff allegedly was injured when a vehicle in which she was a passenger, driven by the defendant David Fiorentino and owned by the defendant New York Ambulette Transport, Inc. (hereinafter together the Ambulette defendants), collided with a vehicle driven by the defendant Clifford C. Nash. At a trial on the issue of damages, the plaintiff presented the testimony of a neurologist, who testified that he measured the range of motion of the plaintiff’s lumbar spine, and found deficits of up to 50%. The plaintiff’s neurologist also reviewed an MRI film of the [*2]plaintiff’s lumbar spine taken after the accident, and concluded that it showed no major preexisting conditions. He concluded that the accident caused a disc herniation at L4/5.”

(4)  I have to imagine the demand was near $25,000?  GEICO probably put $10,000 on the case.  When that was rejected, GEICO wanted a “control contract.”  Plaintiff probably said not on your life and  a $200,000 came from the jury’s lips to the Gecko’s ears.

Very interesting discussion on Perl

Santos v Traylor-Pagan, 2017 NY Slip Op 05502 (1st Dept. 2017)

“Plaintiff failed to raise a triable issue of fact as to whether his carpal tunnel syndrome was causally related to the accident (Perl v Meher, 18 NY3d 208, 217-218 [2011]). This Court, in Rosa v Mejia (95 AD3d 402, 404 [1st Dept 2012]), opined that the decision in Perl did not abrogate the need for at least a qualitative assessment of injuries soon after an accident. This Court then affirmed the dismissal of a plaintiff’s case where the plaintiff had presented no admissible proof that she saw any medical provider for any evaluation until 5½ months after her accident (id.). Plaintiff here was treated on the date of the accident and released from the emergency room at Westchester Medical Center, where he was diagnosed with a right elbow laceration, which was treated with three sutures. He never had any further medical treatment until he first saw an orthopedist 13½ months after the accident, and then allegedly had a few months of physical therapy, although there are no details of any such therapy in the record. He did not see a neurologist about his carpal tunnel syndrome until almost four years after the accident

I always read Perl for the proposition that issues regarding qualitative evaluation and “causation” following the accident were questions of fact for the jury.  I think the Second Department reads Perl the same way as they have not kicked a case on contemporaneous treatment issues since Perl.  Remember, the crux of this case is that causation is not established without contemporaneous treatment.  In the no-fault world, the same argument could hold since the burden on summary judgment for lack of causation is the same in the 5102(d) and first-party benefit sense.

Mild, minor, slight

Cabrera v Apple Provisions, Inc., 2017 NY Slip Op 05044 (1st Dept. 2017)

As to the cervical spine claim, plaintiff’s treating physician found normal range of motion in February 2013, but some limitations a month later. The physician’s failure to explain the inconsistencies between her findings of deficits before and after the findings of full range of motion, renders her opinion speculative (see Santos v Perez, 107 AD3d 572, 574 [1st Dept 2013]; Colon v Torres, 106 AD3d 458 [1st Dept 2013]). As to the lumbar spine, plaintiff’s treatment records showed that he had normal or near-normal lumbar spine range of motion within two months after the accident, which is insufficient to support a serious injury claim (see Gaddy v Eyler, 79 NY2d 955, 957 [1992]; Eisenberg v Guzman, 101 AD3d 505, 506 [1st Dept 2012]).

Regarding the left knee, plaintiff presented medical evidence of a lateral meniscal tear, which his physician stated was causally related to the subject accident. However, his physician failed to make any measurements of his knee, relying on unaffirmed records of his surgeon, which was impermissible (see Malupa v Oppong, 106 AD3d 538, 539 [1st Dept 2013]). In any event, the last measurement found in the surgeon’s records showed only a five-degree deficit in [*2]range of motion, which, again, was too minor in extent, degree and duration to support a serious left knee injury claim involving significant limitation of use (see Gaddy v Eyler, 79 NY2d at 957; Vasquez v Almanzar, 107 AD3d 538, 539-540 [1st Dept 2013]).”

Interesting issues.  1) Full ROM at or near time of accident spells doom for later diminishment; 2) 5 degree deficiency in ROM not enough to prove serious injury,

Police report and CPLR 4518(a)

Shehab v Powers, 2017 NY Slip Op 03790 (2d Dept. 2017)

“Information in a police accident report is “admissible as a business record so long as the report is made based upon the officer’s personal observations and while carrying out police duties” (Memenza v Cole, 131 AD3d 1020, 1021; see Matter of Chu Man Woo v Qiong Yun Xi, 106 [*2]AD3d 818, 819; Yeargans v Yeargans, 24 AD2d 280, 282). Conversely, information in a police accident report is inadmissible where the information came from witnesses not engaged in the police business in the course of which the memorandum was made, and the information does not qualify under any other hearsay exception (see Matter of Chu Man Woo v Qiong Yun Xi, 106 AD3d at 819; Holliday v Hudson Armored Car & Courier Serv., 301 AD2d 392, 396).

Here, the Supreme Court did not err in redacting certain information from the police report with respect to the location of the accident. There was insufficient evidence at trial to demonstrate that the disputed information was derived from the personal observations of the responding police officer, who did not witness the subject accident (see Wynn v Motor Veh. Acc. Indem. Corp., 137 AD3d 779, 780; Memenza v Cole, 131 AD3d at 1022; Noakees v Rosa, 54 AD3d 317, 318; Gagliano v Vaccaro, 97 AD2d 430). Moreover, the court did not err in precluding the plaintiff from cross-examining his own witness, the responding police officer, with respect to the accident location”

The police report many times is a vital piece of information in PI cases.  The rules regarding their admissibility becomes a hot bed of issues.

SUM jury verdict sustained

Pyong Sun Yun v GEICO Ins. Co., 2016 NY Slip Op 08214 (2d Dept. 2016)

(1) “At the trial, the plaintiff presented the testimony of his treating orthopedic surgeon, who testified that he performed arthroscopic surgery on the plaintiff’s left shoulder less than three months after the accident. The plaintiff’s orthopedic surgeon further testified that he examined the plaintiff’s shoulder again in January 2013. He found that for elevation and abduction, the plaintiff’s shoulder had a range of motion limitation that was “minimal but perceptible,” and for internal rotation, the shoulder’s range of motion was “almost to normal, but not quite.” The defendant presented the testimony of an orthopedic surgeon who examined the plaintiff’s left shoulder in April of 2012, and found that its range of motion was “within normal limits.”

(2) “Here, the jury’s finding that the plaintiff did not sustain a serious injury to his left shoulder under either the permanent consequential limitation of use or significant limitation of use categories of Insurance Law § 5102(d) was based on a fair interpretation of the evidence submitted at trial.”

He said she said.  The gecko won.

Serious injury, causation and the ability to recover

Hojun Hwang v Doe, 2016 NY Slip Op 07610 (1st Dept. 2016)

(1) “Defendant made a prima facie showing that plaintiff did not sustain a serious injury to his right knee, by submitting the report of their orthopedic surgeon who found full range of motion, and opined, upon review of intraoperative photographs, that plaintiff’s knee surgery was not causally related to the accident (see Hernandez v Cespedes, 141 AD3d 483 [1st Dept 2016]; Acosta v Zulu Servs., Inc., 129 AD3d 640 [1st Dept 2015]).

(2) “Plaintiff’s failure to raise an issue of fact as to whether his right knee condition was causally related to the accident means that he cannot recover for any right knee injury, regardless of whether he meets the serious injury threshold with respect to his cervical and lumbar spine claims (see Rubin v SMS Taxi Corp., 71 AD3d 548, 549 [1st Dept 2010]).”

This is an example of the causation defense at its worst.  Plaintiff in his BP/Supp BP appears to have pleaded neck, back and right knee with surgery.  The value of the case would rest with the right knee injury.  The court in the SJ motion dismissed threshold on the right knee injury based upon lack of causation.  The neck and back remain.  The net effect because the Court found lack of causation (as opposed to lack of serious injury) is that the knee injury cannot be considered at all if the neck and back surpass threshold.  The decision makes sense.

The causation piece fits within the more contemporary manner of trying an extremity of surgery where hevay reliance is placed on the operative photos and mininal reliance is palced on the MRI filns.

Causation not proved

Bobbio v Amboy Bus Co. Inc., 2016 NY Slip Op 07101 (1st Dept. 2016)

(1) “[defendant] found no objective neurological disability or permanency and full range of motion (see Birch v 31 N. Blvd., Inc., 139 AD3d 580 [1st Dept 2016]; Mayo v Kim, 135 AD3d 624 [1st Dept 2016]). Their orthopedist’s finding of minor limitations in range of motion does not defeat this showing (see Stephanie N. v Davis, 126 AD3d 502, 502 [1st Dept 2015]). Defendants also relied on plaintiff’s deposition testimony that she had been found to be disabled as a result of a neck condition more than six years before the subject accident, thereby shifting the burden to plaintiff to demonstrate a causal connection between the accident and her claimed cervical injury.”

(2)  “Her orthopedist acknowledged that an MRI of the cervical spine taken four years before the accident showed a preexisting condition, but he provided no objective basis, only the history supplied by plaintiff, for his opinion that the accident exacerbated the preexisting condition (see Campbell v Fischetti, 126 AD3d 472, 473 [1st Dept 2015]). Plaintiff offered no evidence of any injuries different from her preexisting condition, and her orthopedist failed to explain why her preexisting conditions were ruled out as the cause of her current alleged injuries”

On causation (and we are assuming the only issue is cervical injury), a prima facie showing was satisfied through a disability caused because of a neck injury.  The failure to adduce that the injuries were different as a result of the new injury was fatal to plaintiff’s case.

5102(d) baseline under an aggravation and exacervbation

Boroszko v Zylinski, 2016 NY Slip Op 04830 (4th Dept, 2016)

In the realm of a complaint seeking to breach the serious injury threshold where significant limitation permanent consequential is pleaded in the BP, under an exacerbation and aggravation theory, how does a defendant knock out a case (or part of case) on threshold grounds?

Leave it to the upstate Appellate Divisions to divine on these issues, and it is interesting enough for me to share on here:

“The physician and the radiologist opined that plaintiff’s complaints following the second accident were the same as those prior to that accident, that plaintiff’s MRIs and X rays—which showed degenerative changes—were unchanged after the second accident, and that there was no evidence of posttraumatic injuries to plaintiff’s cervical or lumbar spine following the second accident (see Garcia v Feigelson, 130 AD3d 498, 499; Heatter v Dmowski, 115 AD3d 1325, 1326; Pina v Pruyn, 63 AD3d 1639, 1639; Faso v Fallato, 39 AD3d 1234, 1234). Although plaintiffs correctly note that the physician documented limited range of motion in plaintiff’s cervical spine upon his examination of her, the Peca defendants’ submissions also included a December 2010 chiropractic record that the physician reviewed. That chiropractic record showed that plaintiff had essentially the same levels of decreased range of motion just weeks before the January 2011 accident, and thus established that there was no aggravation or exacerbation of plaintiff’s condition as a result of the second accident.”

Since two MVA’s were included in the action, the second one was dismissed and the first one remains.

One last thought.  A lot of insurance carriers take the position that someone with priors will have a difficult time proving their case.  This case shows the perils of aggravation/exacerbation cases when there are priors close in time.  The situation of more remote priors and an injured person worse than their baseline should be remembered.

But one line of defense does not work on an aggravation and exacerbation theory: the biomechanical defense.  This assumes the person could not be injured due to the forces.  An aggravation and exacerbation case assumes prior injury and an eggshell Plaintiff.  This disallows reliance on a biomechanical defense.