Causation speculative after trial; 4404(a) motion granted and $200,000 jury verdict vacated

McDonald v Kohanfars, 2013 NY Slip Op 03821 (2d Dept. 2013)

“In an action to recover damages for personal injuries, the defendants appeal, as limited by their brief, from stated portions of an order of the Supreme Court, Queens County (Lane, J.), dated November 22, 2010, which, inter alia, denied that branch of their motion which was pursuant to CPLR 4404 to set aside a jury verdict on the issue of damages and for judgment as a matter of law on the issue of serious injury, and the plaintiff cross-appeals, as limited by her brief, from so much of the same order as denied her cross motion to set aside, as inadequate, the jury verdict awarding damages for past and future pain and suffering in the sum of $200,000.

“At a trial on the issue of damages, the plaintiff testified that she had previously injured her neck in a work-related accident in 1992 and had fusion surgery in February 1996, followed by six months of physical therapy; after that surgery, a followup MRI taken in 1996 revealed a bulging disc at level C4-5, but she had no further pain or treatment after May 1997. Following the subject automobile accident on January 20, 2005, the plaintiff experienced pain in her neck but did not seek treatment until her neck became stiff a couple of days later. She underwent physical therapy and took pain medication from 2005 through 2007 to treat her stiff neck, pain in her neck, arms, and hands, and numbness in her hands. She further testified that, on May 7, 2008, she had fusion surgery on her neck, after which she wore a neck collar for a couple of months. At the time of trial, she continued to take painkillers, receive medical treatment, and undergo physical therapy.

The plaintiff’s orthopedic surgeon, Dr. Jonathan Lewin, testified that he started treating the plaintiff in December 2007. Dr. Lewin reviewed the operative report for the plaintiff’s 1996 fusion surgery at the C5-6 disc level of her neck, but did not review any of the plaintiff’s treatment records related to her 1992 work-related accident and 1996 surgery; he opined that the plaintiff had been successfully treated in 1996. Dr. Lewin reviewed a CAT scan taken in February 2005, about a month after the subject automobile accident, which showed degeneration at disc levels C4-5 and C6-7.  Dr. Lewin ordered an MRI, which was taken in January 2008 and revealed a herniated disc in the plaintiff’s neck. More than three years after the subject accident, on May 7, 2008, Dr. Lewin performed a discectomy, removing the herniated disc between C-4 and C-5 to take pressure off the nerve roots, and fused the spine. An MRI taken in July 2009 continued to show a bulging disc at the C6-7 level. Dr. Lewin testified that persons with prior fusion surgery had a 5-15% chance of needing a second surgery even without a subsequent accident, but that the plaintiff would not have needed the second fusion surgery if not for the subject accident. He further testified that the plaintiff had diminished motion in her spine which resulted in a consequential limitation in the use of her neck, and that he had performed range-of-motion testing during his examinations of the plaintiff but could not find any mention of such testing in his records.

Here, viewing the evidence in the light most favorable to the plaintiff, no valid line of reasoning and permissible inferences could possibly lead rational persons to conclude that the plaintiff’s alleged serious injury was causally related to the subject automobile accident (see Pommells v Perez, 4 NY3d 566, 574; Kilakos v Mascera, 53 AD3d 527, 528-529; Ekundayo v GHI Auto Leasing Corp., 273 AD2d 346, 347). Given the evidence of the plaintiff’s previous injuries and degenerative condition at the time of the subject accident in 2005, the opinion of the plaintiff’s expert, who first started treating the plaintiff nearly three years after the subject accident, that the plaintiff’s injuries, as observed in 2008, were causally related to the subject accident in 2005, was speculative. Accordingly, the Supreme Court should have granted that branch of the defendants’ motion which was pursuant to CPLR 4404 to set aside the jury verdict on the issue of damages and for judgment as a matter of law on the issue of serious injury

Here is the summary:

(1) Prior accidents in 1992, 1996

(2) C-5,C-6 fusion in 1996

(3) 2005 motor vehicle accident

(4) CT Scan in 2005 shows degeneration at C-5,C-6 – no traumatic findings

(5) C-5, C-6 spinal fusion again in 2008

(6) Doctor testifies that there is a 10-15% chance that those with a prior spinal fusion will need another fusion even if there is no subsequent MVA.  (Good question on cross)

(7) States within a reasonable degree of medical certainty that C-5, C-6  fusion was causally related to the 2005  motor vehicle accident.

Court holds that causation is speculative and reverses the $200,000 damages award.

Would the result of on a no-fault case where the carrier bears the burden to show that the injuries were not causally related have differed from this personal injury case, where the plaintiff has to show prima facie causation?  I do not know the answer.


The no-fault serious injury statute: Permanent Consequential v. Significant Limitation

Estrella v Geico Ins. Co., 2013 NY Slip Op 00173 (2d Dept. 2013)

This was from last month and quite interesting.  It is one of the few times that a Court has discussed the difference between the “permanent consequential” and “significant limitation” categories under the no-fault statute.

In opposition, the plaintiffs submitted the affirmation of Scott Gray, a physician who treated the infant plaintiff for more than one year, commencing approximately a month after the subject accident. Gray set forth quantitative findings from his initial examination and from his latest examination of the infant plaintiff, both of which revealed substantial range-of-motion limitations in the cervical and lumbar regions of the infant plaintiff’s spine. Since the second set of quantitative findings was not from a recent examination of the infant plaintiff, this evidence did not raise a triable issue of fact as to whether the alleged injuries constituted a serious injury under the permanent consequential limitation of use category of Insurance Law § 5102(d) (see Griffiths v Munoz, 98 AD3d 997, 998; Lively v Fernandez, 85 AD3d 981, 982).

However, a ‘significant limitation’ need not be permanent in order to constitute a serious injury”’ (Partlow v Meehan, 155 AD2d 647, 647 [quoting Insurance Law § 5102(d)]). “[A]ny assessment of the significance of a bodily limitation necessarily requires consideration not only of the extent or degree of limitation, but of its duration as well, notwithstanding the fact that Insurance Law § 5102(d) does not expressly set forth any temporal requirement for a ‘significant limitation’ (Griffiths v Munoz, 98 AD3d at 998 [internal quotation marks and citations omitted]; seeLively v Fernandez, 85 AD3d at 982; Partlow v Meehan, 155 AD2d at 648). Here, Gray’s quantitative findings from the two examinations raised a triable issue of fact as to whether, as a result of the subject accident, the infant plaintiff sustained a ‘significant limitation’ on of use in the cervical and lumbar regions of his spine both in the degree of limitation and its duration.”

There is something in that Rochester water.

Monette v Trummer, 2012 NY Slip Op 04854 (4th Dept. 2012)

Does this mean the interest clock does start ticking on an MSJ victory unless Plaintiff  can prove that (1) Defendant was negligent, (2) the negligence was the sole proximate cause and that (3) the no-fault limitation has been breached?

There is something in that Rochester water.  It is a nice to be a Defendant in the 4th Department.   Perhaps, plaintiffs can bring more actions in the Syracuse City Court and Buffalo City Court?

“Plaintiffs moved for, inter alia, partial summary judgment on the issues of “liability” and serious injury. We note at the outset, however, that this Court has determined that the issue of liability “includes the issue of serious injury’ ” (Ruzycki v Baker, 301 AD2d 48, 52). Although Supreme Court in an earlier order, from which no appeal was taken, purported to grant the motion insofar as it sought partial summary judgment on the issue of “liability” with respect to Trummer and Jesse Ball but reserved decision on the issue whether plaintiff sustained a serious injury within the meaning of Insurance Law § 5102 (d), the court actually granted the motion only insofar as it sought partial summary judgment on the issue of negligence rather than liability (see id.).”

Proof of exacerbation insufficient in 5102(d) case to defeat summary judgment motion

Tyson v Nazarian, 2012 NY Slip Op 04459 (4th Dept. 2012)

I think a case like this probably explains on some level the 1% rule in no-fault verses the “exacerbation” rule in the 5102(d) context.  Here is the cased before the Fourth Department:

Defendant’s evidence:

(1) SSD evidence, re: 2002 MVA: “Plaintiff’s medical records demonstrated that she sustained injuries from a March 2002 motor vehicle accident. Plaintiff complained to her medical providers of severe neck and lower back pain after the 2002 accident and, in May 2006, she underwent a spinal fusion. In November 2006 she obtained Social Security disability benefits for a ” severe’ impairment” consisting of “lumbar back problems and status post surgery, with chronic pain.” Plaintiff continued to complain of neck pain and lower back pain until the date of the 2008 accident.”

(2) The films are the same: “The physician opined that “[t]he symptoms that [plaintiff] had before [and after] March . . . 2008 . . . are essentially one in the same,” and that there were no new abnormalities or disc problems attributable to the 2008 accident. Defendant submitted the affirmation of another physician who reviewed plaintiff’s medical records at defendant’s request, and he also concluded that plaintiff’s “imaging studies that were performed [*2]prior to and subsequent to the [2008] accident . . . are essentially the same[, and her] cervical spine and lumbar spine complaints prior to and subsequent to the [2008] motor vehicle accident . . . are virtually the same.” In addition, defendant submitted the affirmation of a third physician who reviewed plaintiff’s diagnostic films, and he too found no evidence of a traumatic injury to the spine attributable to the 2008 accident.”

(3) “Plaintiff submitted the affidavit of her treating physician, who noted “a significant disc herniation broad based with foraminal encroachment at L4-L5” on an MRI performed after the 2008 accident and recommended surgery. In April 2009 he performed “an acute discectomy at L4-5 with posterior lumbar interbody fusion to repair the L4-5,” but plaintiff continued to have back pain after the surgery. Plaintiff’s treating physician opined that the 2008 accident caused the “large lumbar disc herniation at L4-5” and accounted for a persistent worsening of her pain symptoms.

(4) Court’s holding – read this a few times.

  • Although that affirmation was sufficient to raise a triable issue of fact concerning the existence of a new injury, plaintiff failed to raise a triable issue of fact whether she had any new physical symptoms, i.e., worsening of her pain or limitations, that were attributable to the 2008 accident.
  • Once defendant met his initial burden, plaintiff’s treating physician was required “to adequately address plaintiff’s preexisting . . . condition” (Franchini v Palmieri, 1 NY3d 536, 537).
  • In light of the evidence submitted by defendant establishing that plaintiff had no new symptoms or pain complaints after the 2008 accident, plaintiff was required to offer some explanation with respect to how her current limitations were caused by that accident rather than the preexisting condition. In the event that plaintiff’s treating physician was unable to do so by giving a quantitative comparison of plaintiff’s limitations before and after the 2008 accident, he was required to give a qualitative comparison (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 350-351). Here, however, he failed to provide either comparison.
  • His statement that plaintiff had a “persistent worsening” of symptoms was conclusory, and he “failed to refute the opinion of defendant’s expert[s] that plaintiff did not sustain a functional disability or limitation related to the [2008] accident by, for example, comparing plaintiff’s pre- and post-accident range of motion restrictions in her neck or back or assessing her pre- and post-accident qualitative limitations” (Overhoff v Perfetto, 92 AD3d 1255, 1256).

I think the statement that  there was increased pain, etc., would have probably defeated Defendant’s summary judgment motion on the no-fault side, and would have probably resulted in a Plaintiff victory at trial.

(dissent by two judges)

Another liability appeal…

Francavilla v Doyno, 2012 NY Slip Op 04316 (2d Dept. 2012)

Thomas v Independence Carting, Inc., 2012 NY Slip Op 03630 (2d Dept. 2012)

Cascante v Kakay, 2011 NY Slip Op 07488 (1st Dept. 2011)

For whatever the reason, I seem to be writing an increasing amount of personal injury appeals.  I am unsure how this happened, but it has been an interesting change.  Yet, ironically, I seem to  remain in the confines of Article 51 of the Insurance Law.

What I am learning is that the old maxim that “It is well recognized that summary judgment is a drastic remedy and is rarely granted in negligence actions” is but a misnomer.   Zawadzki v Knight, 155 A.D.2d 870 (1979).

Causation speculative – failure to rebut doctor

Boone v. Milano— N.Y.S.2d —-, 2012 WL 2137382 (3d Dept.,2012)

“However, Rosa failed to account for why plaintiff’s preexisting physical maladies were not the source of the injuries and limitations that she now claims were caused by this accident. As such, Rosa’s affirmation does not create a factual issue that required denial of defendants’ motion for summary judgment, and plaintiff’s claims that she suffered a permanent consequential limitation as well as a significant limitation of a body organ, member, function or system were properly dismissed ( see Franchini v. Palmieri, 1 N.Y.3d 536, 537 [2003]; Cirillo v. Swan, 95 A.D.3d 1401, ––––, 2012 N.Y. Slip Op 03493, *2 [2012]; Foley v. Cunzio, 74 A.D.3d 1603, 1604–1605 [2010] ).

10-month initial gap renders causality speculative

Smith v. Reeves, 2012 N.Y. Slip Op. 04856  (4th Dept. 2012)

“Defendants contend that the fact that plaintiff did not seek or receive any medical *2 treatment for 10 months following the accident renders any finding on the issue of causation speculative. We agree (cf. Perl v Meher, 18 NY3d 208, 217-218).”

90/180 claim has serious consequences despite 5102(d) dismissal of permanent consequential and significan limitation

I am putting by Bodily Injury hat on this one.  There are few issues in 5102(d) land that intrigue me as much as the newest prima facie jurisprudence.

For instance, is it logical for an appellate court to knock out the permanent consequential and significant limitation categories, find a triable issue of fact on 90/180 and then state the following:  “We note that if plaintiff ultimately prevails on her 90/180-day claim, she will be ‘entitled to recover damages that justly and fairly [*2]compensate . . . her for all injuries proximately caused by the accident” (Rubin v SMS Taxi Corp., 71 AD3d 548, 549-550 [2010]; see Delgado v Papert Tr., Inc., 93 AD3d 457 [2012]).'”

Think about how ridiculous this sounds.  A court says you have no permanent or significant injuries, yet allows a jury to award damages on all injuries under the non-permanent 90/180 threshold category?  I know I am a defense attorney and I try these cases so perhaps I am biased.  Still, does this make sense?

I think Article 51 of the Insurance Law has spawned a level and degree of insanity that can hardly be explained.

Perl? Where are you? Not over here…

Il Chung Lim v Chrabaszcz, 2012 NY Slip Op 03600 (2d Dept. 2012)

1) 13% loss of ROM not deemed a serious injury

2) The old standard of needing to address the radiologist report is necessary notwithstanding Perl

In opposition, the plaintiff failed to raise a triable issue of fact. The approximate 13% limitation in range of motion of the left knee noted by the plaintiff’s treating physician, Dr. Benjamin Chang, on his most recent examination of the plaintiff on December 3, 2010, was insignificant within the meaning of the no-fault statute (see McLoud v Reyes, 82 AD3d 848, 849). In any event, the plaintiff’s submissions were insufficient to raise a triable issue of fact to rebut the finding of the defendant’s radiologist that the injuries depicted in the magnetic resonance imaging (hereinafter MRI) films of his left knee were degenerative in nature and unrelated to the subject accident. Neither the plaintiff’s radiologist nor Dr. Chang addressed the findings of the defendant’s radiologist pertaining to the degenerative nature of the plaintiff’s left knee injuries, and Dr. Chang’s conclusion that, based upon a review of the uncertified MRI report, the subject injuries were caused by the accident and were not degenerative in nature, was speculative and insufficient to raise a triable issue of fact (see Mensah v Badu, 68 AD3d 945, 946; Ortega v Maldonado, 38 AD3d 388).

Permanent consequential and Significant Limitation non-suited despite Perl

Cirillo v Swan, 2012 NY Slip Op 03493 (3rd Dept. 2012)

“[d]efendant relied upon a sworn report from orthopedic surgeon Robert Hendler, who reviewed plaintiff’s medical records and found no objective evidence of pathology stemming from the accident. Indeed, plaintiff had significant neck and back pain due to injuries predating the accident, was found to have only nonspecific and mild pain after it, and was quickly cleared to return to work. Hendler’s own examination of plaintiff was “completely normal,” and he opined that plaintiff suffered no more than a neck or lower back sprain, or temporary aggravation of a prior condition that had fully resolved.  Defendant thus met her initial burden as to all claimed categories of serious injury….”

Triable issue of fact not raised:

(1) “MRIs of her spine revealed disc bulges and possible herniations, and opined that those conditions arose out of the automobile accident and left plaintiff permanently and significantly disabled. He did not, however, provide any explanation or objective medical basis for his belief that plaintiff’s limitations were unrelated to her several prior complaints for which she had received extensive treatment”

(2) “Gamberg, a spine pain management specialist, found that plaintiff sustained injuries in the accident and also quantified how they significantly limited her range of motion. His affidavit is nonetheless inadequate, however, in that he wholly failed to address plaintiff’s prior back condition and injuries; nor did he sufficiently describe the objective tests used to determine her limitations

If you read Perl, you would have to somewhat struggle to find how what are now deemed fact issues can still be deemed legal issues.  It is not as though I agree with Perl since it put New York somewhat on the same path as New Jersey after the DeProspero case, but the resistance from at least the Third Department is interesting.