An interesting dissent on a 5102(d) case

Vale v Floyd, 2014 NY Slip Op 51241(U)(App. Term 2d Dept. 2014)

This was a 325(d) personal injury case in Civil Queens.  These are perhaps the only cases that get tried in that court nowadays.  The dissent is interesting because it pretty much discusses were the Plaintiff attorney went wrong in his direct examination of the expert, i.e., failing to compare normal rom with observed rom.  It also states why the dissenting justice (and I believe she is correct) would have tossed the 90/180 claim.  I am curious if the Appellate Division will take it up.  Assuming the dissenting Justice’s review of the record is correct, then I have to imagine this case should go up.

“I agree with defendant’s contention that, based upon the evidence presented at trial, there was no valid line of reasoning and permissible inferences which could possibly have led the jury to rationally conclude that plaintiff had sustained a serious injury under the significant limitation of use or 90/180-day categories of Insurance Law § 5102 (d) as a result of the accident in question. In order to establish that she had suffered a “significant limitation of use of a body function or system, plaintiff was required to provide objective evidence of the extent or degree of the limitation and its duration (see Laruffa v Yui Ming Lau, 32 AD3d 996 [2006]). Plaintiff’s trial evidence was insufficient to establish, prima facie, that, after the accident, the limitation of the use of her spine and left shoulder was significant in degree (see DiCariano v County of Rockland, 111 AD3d 879 [2013]). While plaintiff’s doctor testified that his testing revealed specified limitations in plaintiff’s range of motion in her spine and left shoulder, he was unable to establish what are considered normal ranges of motion with which to compare his measurements, thus leaving the jury, as finders of fact, to speculate as to the meaning of the doctor’s physical findings (see Djetoumani v Transit, Inc., 50 AD3d 944 [2008]).

Plaintiff also failed to present evidence showing that her injuries had curtailed her from performing her usual and customary activities to a great extent for the requisite period (see Parise v New York City Tr. Auth., 94 AD3d 839 [2012]). Rather, the testimony at trial established only that it had been harder for plaintiff to do certain activities with her family on the weekends and that she had experienced pain when making certain movements (see Lanzarone v Goldman, 80 AD3d 667 [2011]).”

Needless to say I have been trying a few of these soft tissue cases lately so it is something that I have some interest in – JT

Surgery was done so well that plaintiff lost his day in court

Acosta v Vidal, 2014 NY Slip Op 05025 (1st Dept. 2014)

“[h]e failed to address the conflicting findings made by plaintiff’s physical therapist of normal range of motion in all parts one week after the accident (see Thomas v City of New York, 99 AD3d 580 [1st Dept 2012], lv denied 22 NY3d 857 [2013]; Jno-Baptiste v Buckley, 82 AD3d 578 [1st Dept 2011]). The physical therapy records showed that plaintiff’s neck and back continued to have full range of motion at two subsequent appointments, while the left shoulder had limitations attributable to the surgical procedure, which improved within a month. Minor limitations are insufficient to support a serious injury claim (see Rickert v Diaz, 112 AD3d 451 [1st Dept 2013]).

In addition, the surgeon’s report of a post-surgical examination found that plaintiff had a negative impingement sign, indicating the condition had been repaired.”

The surgery was so successful that the plaintiff did not sustain a permanent consequential injury injury or a significant limitation of a body system.  This is rough.

Peer report is sufficient to prima facie prove lack of serious injury (Ins Law Sec. 5102[d])

Fisher v Hill, 2014 NY Slip Op 00830 (4th Dept. 2014)

It is infrequent that I post on the serious injury threshold.  But a Plaintiff on a PI case that I am handling rejected a 3101(d) based upon the fact that our expert will be the classic peer reviewer.  He will look at the EBT testimony, medical records, Bill of Particulars and testify that Plaintiff did not sustain a “serious injury”  since the injuries were not causally related to the loss.

“In support of their motion, defendants submitted medical records and the affirmed report of a neuroradiologist who examined plaintiff’s medical records at defendants’ request.  The neuroradiologist concluded that the objective medical findings related only to a preexisting condition in plaintiff’s spine. “[W]ith persuasive evidence that plaintiff’s alleged pain and injuries were related to a preexisting condition, plaintiff[s] had the burden to come forward with evidence addressing defendant[s’] claimed lack of causation” and, here, plaintiffs failed to meet that burden”

Cessation of treatment and its interplay with no-fault fraud?

Ramkumar v Grand Style Transp. Enters. Inc., 2013 NY Slip Op 06638 (2013)

“The Appellate Division’s requirement that plaintiff either offer documentary evidence to support his sworn statement that his no-fault benefits were cut off, or indicate that he could not afford to pay for his own treatment, is an unwarranted expansion of Pommells. Plaintiff testified at his deposition that “they” (which a reasonable juror could take to mean his no-fault insurer) cut him off, and that he did not have medical insurance at the time of the accident. While it would have been preferable for plaintiff to submit an affidavit in opposition to summary judgment explaining why the no-fault insurer terminated his benefits and that he did not have medical insurance to pay for further treatment, plaintiff has come forward with the bare minimum required to raise an issue regarding “some reasonable explanation” for the cessation of physical therapy.”

This is interesting because the Appellate Division in the 5102(d) context held that the failure to present an NF-10 stating that benefits were cut off or to affirmatively state that Claimant did not have insurance other that no-fault would non-suit the plaintiff on a threshold motion.

The Court I think is now holding that an insurance carrier has to affirmatively state as part of its motion for summary judgment that the Claimant had medical insurance other that no-fault in order to defeat this contention..  Alternatively, and this is interesting, the issue of reasonableness of cessation of treatment now goes to the jury.  This is a radical change because cessation of treatment has never been an issue for a jury and, in fact, there is no PJI for this issue.

As to the pure first-party no fault issue, the dissent says it all:

“[T]he legislative intent underlying the No-Fault Law was to weed out frivolous claims and limit recovery to significant injuries” (Dufel v Green, 84 NY2d 795, 798 [1995]). Since the statute was enacted, false claims of “serious injury” have done much to undermine the legislative goal. A number of courts, including ours, have pointed out that the no-fault system is riddled with abuse (see Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854, 861 [*3][2003] [“Between 1992 and 2001, reports of suspected automobile insurance fraud increased by 275%, the bulk of the increase occurring in no-fault insurance fraud”]; Pommells v Perez, 4 NY3d 566, 571 [2005] [“Abuse . . . abounds”]; Perl v Meher, 18 NY3d 208, 214 [2011] [“No-fault abuse still abounds today”]; Fair Price Med. Supply Corp. v Travelers Indem. Co., 9 Misc 3d 76, 78 [App Term, 2d Dept 2005] [“the steep increase in fraudulent no-fault benefits claims”], aff’d 42 AD3d 277 [2d Dept 2007], aff’d 10 NY3d 556 [2008]; id., 9 Misc 3d at 83 [Golia, J., dissenting] [“fraudulent claims are an ever increasing issue”]; Metroscan Imaging P.C. v GEICO Ins. Co., 8 Misc 3d 829, 831-832 [NYC Civil Ct 2005] [“unfortunately well documented . . . deluge of fraudulent claims”]).”

Inconsistency between chiropractor report and MRI reports spells the end of personal injury plaintiff’s claim

Komina v Gil, 2013 NY Slip Op 04744 (1st Dept. 2013)

“Furthermore, plaintiff’s chiropractor made no attempt to explain the conflicting findings of the tests he performed during plaintiff’s physical examination and the MRI reports of plaintiff’s radiologist, which found normal lumbar and cervical spine images with no evidence of disc bulging or herniation, and defendants are thus entitled to summary judgment on this basis”

Do not kid yourself – there is cross over between 5102(d) and 5106 litigation.

Range of motion measurements do not require an instrument

Frias v Son Tien Liu, 2013 NY Slip Op 04736 (1st Dept. 2013)

From the world of 5102(d) land:

Defendants made a prima facie showing of their entitlement to judgment as a matter of law by submitting the affirmed reports of an orthopedic surgeon who examined the alleged injured body parts, listed the tests he performed and recorded range of motion measurements, expressed in numerical degrees and the corresponding normal values, and found no limitations (see Singer v Gae Limo Corp., 91 AD3d 526, 527 [1st Dept 2012]). The surgeon’s examination was sufficient, even though he did not use an instrument to measure the ranges of motion.

A Prima facie showing of lack of serious injury does not require a review of plaintiff’s records

Brand v Evangelista, 103 AD3d 539 (1st Dept. 2013)

“[d]efendant’s physicians required to review plaintiff’s medical records, since they detailed the specific tests they used in their personal examination of plaintiff, which revealed full range of motion (see Fuentes v Sanchez, 91 AD3d 418, 419 [1st Dept 2012]; Zhijian Yang v Alston, 73 AD3d 562 [1st Dept 2010]).

…[H]is physicians did not tender any recent quantified range-of-motion measurements to demonstrate any limitations he may have had from his herniated discs, or following his second back surgery.

Point of this case is that the line: “well you did not look at the MRI’s or EMG’s” should not be fatal to an insurance carrier’s expert who opines on the lack of medical necessity, lack of causal relationship or non existence of a statutory serious injury.


Defense expert states that injury aggravated pre-existing condition – yet jury verdict dismissing claim affirmed

Doran v McNulty, 2013 NY Slip Op 04572 (2d Dept. 2013)

“At the damages trial the plaintiff testified that she had experienced, and been treated for, pain in her lower back since she was 16 years old, but the pain had become more intense and constant after the accident.”


[EXPERT #1] The plaintiff’s expert testified that the fall had aggravated the plaintiff’s preexisting condition.

[EXPERT #2] For the defense, a radiologist who reviewed the MRI films of the plaintiff’s back taken after the accident testified that the plaintiff’s condition could not have been caused by an acute event such as a fall, and was instead the result of the plaintiff’s preexisting degenerative disc disease.

[EXPERT #3] An orthopedic surgeon called by the defendants testified that the accident aggravated the preexisting degenerative changes in the plaintiff’s back, but that the plaintiff had “no radicular symptoms” as a result of the accident. The jury awarded the plaintiff no damages.”

Here, a fair interpretation of the evidence supported the jury’s determination (see Verizon N.Y., Inc. v Orange & Rockland Utils., Inc., 100 AD3d 983Piazza v Corporate Bldrs. Group, Inc., 73 AD3d at 1006-1007; Salony v Mastellone, 72 AD3d at 1061). While the plaintiff correctly notes that the orthopedic surgeon called by the defendants testified that the subject accident aggravated the preexisting degenerative changes in the plaintiff’s back, in light of the conflicting expert testimony at trial, the jury could accept or reject the testimony of a particular expert”

Does this make sense?  My vote is no.  Furthermore, this is not a threshold case.   Plaintiff should be awarded something.

The jury could not find under a reasonable view of the evidence that plaintiff failed to sustain a serious injury under 5102(d)

DiBenedetto v Abreu, 2013 NY Slip Op 04570 (2d Dept. 2013)

There have been so many weird bodily injury cases lately that I feel the need to discuss them.  This one and the next one I am going to post is about as weird as it gets in this industry.

“After a trial on the issue of damages, the jury found, inter alia, that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident. The Supreme Court granted that branch of the plaintiff’s motion which was pursuant to CPLR 4404(a) to set aside so much of the verdict as found that he did not sustain a serious injury, for judgment as a matter of law on that issue, and for a new trial on the issue of damages only.”

“The plaintiff’s evidence demonstrated, inter alia, that he sustained a rotator cuff tear and left biceps tendon tear, that these injuries were acute, and that they were the proximate result of the accident. The plaintiff also presented evidence of a quantified and significant decrease in range [*2]of motion in his left shoulder, both contemporaneously with the accident, and at the time of the most recent examination of his shoulder (cf. Estrella v GEICO, 102 AD3d 730, 731-732). The evidence presented by the defendant did not rebut the plaintiff’s proof.”

So if the defendant doctor testifies poorly and the jury is not impressed with the plaintiff’s medical proof, then the court can set aside the jury verdict because it feels like it?   Not sure what happened here.


Deterioration in the 5102(d) setting must be explained

Rivera v Gonzalez, 2013 NY Slip Op 04431 (1st Dept. 2013)

Plaintiff makes marked improvements and the deteriorates.  Court in the 5102(d) setting requires an explanation.

“The affirmed reports of Dr. Shahid Mian, an orthopedist who examined plaintiff nearly two years after the accident, in March 2009, and again in 2011, are insufficient to raise an issue of fact because he failed to compare his measurements to normal ranges of motion (Toure v Avis Rent A Car Sys., 98 NY2d 345, 350 [2002]; Soho v Konate, 85 AD3d 522, 523 [1st Dept 2011]). Nor did he provide any explanation for any decrease in mobility following plaintiff’s improvement in 2007 (see e.g. Jno-Baptiste v Buckley, 82 AD3d 578 [1st Dept 2011]).”