Non-disclosed pre-existing injury non-suits Plaintiff

Hoffner v Nelson, 2019 NY Slip Op 0078 (4th Dept. 2019)

” It is well established that a defendant may overcome an allegation of serious injury by demonstrating that the plaintiff’s injury was preexisting (see generally Pommells v Perez, 4 NY3d 566, 572 [2005]). Although the two expert witnesses who testified on behalf of plaintiff each opined that plaintiff’s leg pain and weakness were causally related to the accident, the jury was not required to accept their opinions to the exclusion of facts disclosed during cross-examination (see Cooper v Nestoros, 159 AD3d 1365, 1366 [4th Dept 2018]; Quigg v Murphy, 37 AD3d 1191, 1193 [4th Dept 2007]). ” Indeed, a jury is at liberty to reject an expert’s opinion if it finds the facts to be different from those which formed the basis for the opinion or if, after careful consideration of all the evidence in the case, it disagrees with the opinion’ ” (Quigg, 37 AD3d at 1193; see Cooper, 159 AD3d at 1366). Here, plaintiff’s surgeon testified on cross-examination that plaintiff failed to disclose her history of leg pain related to her preexisting back problems and that such information would have been important. Furthermore, the examining physician called by plaintiff as a witness repeatedly testified that he based his opinion in part on the conclusions reached by the surgeon. Based upon the evidence presented, we conclude that there is a rational process by which the jury could have found in favor of defendant (see Bolin v Goodman, 160 AD3d 1350, 1351 [4th Dept 2018]; cf. Szczerbiak v Pilat, 90 NY2d 553, 556 [1997]) :

Junk science?

Imran v R. Barany Monuments, Inc., 2018 NY Slip Op 08921 (2d Dept. 2018)

(1) “On June 5, 2015, the matter proceeded to a jury trial on the issue of damages against the defendants. During that trial, the defendants presented the testimony of a biomechanical engineering expert, Joseph McGowan. McGowan testified regarding delta-v, which is the change in velocity of a vehicle during a collision. Relying on certain photographs of the vehicle occupied by the plaintiff, a Honda CR-V, and the second front-most vehicle, a Ford Focus, which struck the Honda CR-V, damage repair estimates for both vehicles, and a crash test involving a Honda CR-V, McGowan concluded that the delta-v for the collision between the two vehicles was 5.7 miles per hour. He then utilized different crash tests to determine what happens to occupants in crashes with a similar delta-v. He concluded that the impact from the second front-most vehicle to the vehicle occupied by the plaintiff would not have caused the plaintiff’s alleged injuries to the lumbar region of her spine or her knees.

(2) Thereafter, the jury returned a verdict in favor of the defendants on the issue of damages, finding that the plaintiff did not sustain a serious injury under either the permanent consequential limitation of use or significant limitation of use categories of Insurance Law § 5102(d) [*2]as a result of the accident. Subsequently, the plaintiff moved pursuant to CPLR 4404(a) to set aside the jury verdict on the issue of damages in the interest of justice and for a new trial, arguing, inter alia, that McGowan’s testimony on causation should have been precluded. The Supreme Court granted the motion, and the defendants appeal.

(3) Under the circumstances of this case, we agree with the Supreme Court’s determination to grant the plaintiff’s motion pursuant to CPLR 4404(a) to set aside the jury verdict on the issue of damages (see Dovberg v Lauback, 154 AD3d 810). “An expert’s opinion must be based on facts in the record or personally known to the witness'” (Pascocello v Jibone, 161 AD3d 516, 516, quoting Hambsch v New York City Tr. Auth., 63 NY2d 723, 725). Here, a proper foundation was lacking for the admission of McGowan’s opinion (see Parker v Mobil Oil Corp., 7 NY3d 434, 447). Among other things, McGowan failed to calculate the force exerted by all four vehicles, the crash test he utilized to determine the delta-v differed in several significant respects from the instant accident, and he reviewed simulations in which the weight of the dummies was not similar to that of the plaintiff.

Biomechanical engineers are dangerous because, as seen above, they can use alternative facts to come to conclusions that spell disaster on causation claims. I have to give the trial judge credit for reflecting after the proverbial “**** storm” hit and setting aside the verdict. It was a brave move on his part. Not a good case to appeal for the carrier, and definitely the first real push back we have seem from the Appellate Division in a long time on this issue.

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]).”


There was no accident

Pavlova v Allstate Ins. Co., 2018 NY Slip Op 51061(U)(App. Term 2d Dept. 2018)

“In support of its motion, defendant submitted the transcript of the examination under oath (EUO) of its insured in which she testified that she had been parking her vehicle at the time of the alleged accident, that no accident had occurred and that plaintiff’s assignor, a pedestrian, had not been struck by her vehicle. In a supporting affidavit, the insured attested to the same facts. The EUO testimony and the affidavit are sufficient to demonstrate, prima facie, that “the alleged injury [did] not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]; see Andromeda Med. Care, P.C. v NY Cent. Mut. Fire Ins. Co., 26 Misc 3d 126[A], 2009 NY Slip Op 52601[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]; Midwood Med. Equip. & Supply, Inc. v USAA Cas. Ins. Co., 25 Misc 3d 139[A], 2009 NY Slip Op 52379[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]”

I just had a discussion with someone regarding 65-.14, which stands for the proposition that contact is not necessary for no-fault eligibility purposes.  The case law has construed that, and properly, to require a discernible nexus between the instrumentality and the injury.  (1) Car must it person.; (2) Person in car that stop shorts; (3) Car hits power line that falls on someone.  But a pedestrian without contacting a vehicle, or a pedestrian that did not contact an object due to a car’s contact with something will continue to require no-fault ineligibility.

Proof of causation

Hernandez v Marcano, 2018 NY Slip Op 03816 (1st Dept. 2018)

However, in any event, defendants Marcano and Crescent Cab Corp.’s expert found full range of motion and absence of injury to the left shoulder, and defendants Alvarado and Cook submitted plaintiff’s hospital records showing that plaintiff sought no treatment for her shoulder after the accident, indicating that any shoulder condition was not causally related to the accident (see Lee v Rodriguez, 150 AD3d 481 [1st Dept 2017]).

In opposition, plaintiff raised an issue of fact as to her cervical and lumbar spine through her physician’s affirmed report, which found continuing range of motion limitations, positive results on objective tests for cervical and lumbar injury, and causally related these injuries to the accident (Moreira v Mahabir, 158 AD3d 518, 518-519 [1st Dept 2018]; Encarnacion v Castillo, 146 AD3d 600 [1st Dept 2017]; Santana v Tic-Tak Limo Corp., 106 AD3d 572 [1st Dept 2013]). Plaintiff also submitted affirmed reports of MRIs of her spine performed shortly after the accident.

To the extent plaintiff asserts a left shoulder injury, as noted, it was not pleaded in her bill of particulars, and, in any event, she submitted no evidence of contemporaneous treatment of the shoulder in the period following the accident, indicating a lack of any causal connection (see Rosa v Mejia, 95 AD3d 402 [1st Dept 2012]).

The bolded was my argument over 10 years ago in Stephen Fealy v. State Farm.  Well, I knew I was right then and I am correct now,


Out of scope – out of mind

Galluccio v Grossman, 2018 NY Slip Op 03664 (2d Dept. 2018)

“In opposition, the affirmation of the plaintiffs’ expert failed to raise a triable issue of fact. “While it is true that a medical expert need not be a specialist in a particular field in order to testify regarding accepted practices in that field, the witness nonetheless should be possessed of the requisite skill, training, education, knowledge or experience from which it can be assumed that the opinion rendered is reliable” (Postlethwaite v United Health Servs. Hosps., 5 AD3d 892, 895 [internal quotation marks and citations omitted]). “Thus, where a physician opines outside his or her area of specialization, a foundation must be laid tending to support the reliability of the opinion rendered” (Mustello v Berg, 44 AD3d 1018, 1019; see Behar v Coren, 21 AD3d 1045, 1046-1047). Here, the plaintiffs’ expert, who was board-certified in internal medicine and infectious disease, did not indicate in his affirmation that he had training in emergency medicine, or what, if anything, he did to familiarize himself with the standard of care for this specialty. The affirmation, therefore, lacked probative value, and failed to raise a triable issue of fact (see Lavi v NYU Hosps. Ctr., 133 AD3d 830, 831). Accordingly, the Supreme Court should have granted the motion of Friedman and Island Medical for summary judgment dismissing the complaint and all cross claims insofar as asserted against them.”

Degeneration from the App Div

Campbell v Drammeh,  2018 NY Slip Op 03643 (1st Dept. 2018)

In opposition, plaintiff failed to raise an issue of fact as to his claimed spinal injuries, since he submitted no opinion about whether those injuries were caused by the accident, rather than degeneration (see Walker, 132 AD3d at 478—79), and no evidence of treatment (see Pommells, 4 NY3d at 572). As for his right shoulder claim, plaintiff’s orthopedic surgeon opined before performing surgery that any injuries were causally related to the accident. However, he failed to address or explain either the findings in plaintiff’s own MRI of hypertrophic changes and of no acute fracture or dislocation. He also did not address his own operative finding of bursitis (see Franklin v Gareyua, 136 AD3d at 465-466; Walker, 132 AD3d at 478—479). Moreover, plaintiff provided no explanation for his complete cessation of treatment after the surgery (see Pommells, 4 NY3d at 574; Baez v Rahamatali, 24 AD3d 256 [1st Dept 2005], affd 6 NY3d 868 [2006]; Frias v Son Tien Liu, 107 AD3d 589, 590 [1st Dept 2013]).

Causation properly went to the jury

Cooper v Nestoros, 2018 NY Slip Op 01716 (4th Dept. 2018)

“Plaintiff’s chiropractor testified that, based on that history, he did not believe that plaintiff had suffered a neck injury before the date of the accident, and he further testified that he would have to reevaluate his conclusion if he had been given inaccurate information. Plaintiff’s orthopedic surgeon testified that he initially believed that plaintiff’s shoulder pain was caused by an injury to her neck but ultimately concluded that it was caused by an injury to her shoulder. Although plaintiff maintained on direct examination that she did not suffer a neck injury prior to the date of the accident, that testimony was directly contradicted by her medical records, which indicated that she had complained of chronic neck pain five months before the accident. Thus, we conclude that there is a rational process by which the jury could have found that the accident was not a substantial factor in causing plaintiff’s injuries “

Cessation of treatment/Pre-existing injuries/Commentary


Latus v Ishtarq, 2018 NY Slip Op 01417 (1st Dept. 2018)

(1) “Plaintiff’s medical records demonstrated prima facie that plaintiff ceased treatment five months after the accident, after his doctor found that he had full range of motion and that his diagnosed conditions had resolved, and that plaintiff had preexisting conditions that may have contributed to his conditions, including corrected spina bifida and osteoarthritis. Defendants thus shifted the burden to plaintiff to explain his cessation of treatment and to address why his preexisting conditions were not the cause of his current reported symptoms (see Pommells v Perez, 4 NY3d 566, 574-575 [2005]; Alvarez v NYLL Mgt. Ltd., 120 AD3d 1043 [1st Dept 2014], affd 24 NY3d 1191 [2015]).”

(2) “In opposition, plaintiff submitted his own affidavit and the affirmation of his orthopedist. The scrivener’s error concerning the date of the accident was minor and did not warrant rejecting plaintiff’s submissions entirely. Nevertheless, when reviewed on the merits, plaintiff’s evidence was insufficient to raise an issue of fact.

(a) Plaintiff’s physician provided only a conclusory opinion that plaintiff’s injuries were caused by the accident, without addressing the preexisting conditions documented in his own MRI, or explaining why plaintiff’s current reported symptoms were not related to the preexisting conditions (see Nakamura v Montalvo, 137 AD3d 695, 696 [1st Dept 2016]; Farmer v Ventkate Inc., 117 AD3d 562, 562 [1st Dept 2014]).

(b) Further, plaintiff’s claim that he ceased treatment after no-fault benefits were discontinued is unpersuasive since he acknowledged that he had private insurance through his union (see Green v Domino’s Pizza, LLC, 140 AD3d 546, 547 [1st Dept 2016]; Merrick v Lopez-Garcia, 100 AD3d 456, 457 [1st Dept 2012]).


Vila v Foxglove Taxi Corp., 2018 NY Slip Op 01415 (1st Dept. 2018)

(a) “At his deposition, plaintiff testified that he terminated treatment after about six months because he didn’t “like doctors,” and, at the time of the accident, he had private insurance through his employment, and was covered by Medicaid thereafter.”

(b) In his affidavit, however, plaintiff averred that he ceased treatment after three months because no-fault benefits were discontinued, and he could no longer afford to pay on his own. He further stated that an unnamed physician informed him that any further treatments would only be “palliative in nature.”

Rule of law: “A party’s affidavit that contradicts his prior sworn testimony “creates only a feigned issue of fact, and is insufficient to defeat a properly supported motion for summary judgment” (Harty v Lenci, 294 AD2d 296, 298 [1st Dept 2002]; see Cruz v Martinez, 106 AD3d 482, 483 [1st Dept 2013]).”

(c) Moreover, plaintiff’s excuse of inability to pay due to lack of no-fault insurance “makes no sense” in this case, since he testified that he had other insurance (see Cruz v Martinez, at 483; Merrick v Lopez-Garcia, 100 AD3d 456, 457 [1st Dept 2012]). The unexplained four-year period of time in which plaintiff failed to seek treatment for any accident-related injuries, also renders the opinion of his medical expert, who provided a report in opposition to the motion, speculative as to the permanency, significance, and causation of the claimed injuries ”

Here is some context to this post.  Putting aside the fact that I try plaintiff and defense personal injury cases, I got a phone call today on a no-fault matter.  Injured person is cut off and has his benefits paid for by major medical.  Major medical asserts a lien (the validity is questionable although carrier says it is a self-funded Erisa plan.  Colloquially, I call BS.  Legally, I say you cannot prove this).  Side note: I went to a CLE years ago where I learned that no policy is truly fully self-funded.  The devil is in the details.  Anyway, PI firm settles a minimal policy case with Liability carrier.  Now, PI firm brings an OSC to join the major medial carrier and the no-fault carrier in an attempt to void lien.

Questions to be asked:

(1) Why did PI plaintiff continue treatment despite lien issue and no-fault cut off?  Answer: see cases above.

(2) Why did PI plaintiff not treat with no-fault or continue the treatment on a lien?  Answer: Many medical providers refuse to treat on lien or to allow more than 3-months post IME treatment despite ability to arbitrate.  Cash flow issues for providers pre-ordain these results.

(3) What should PI Plaintiff do?  Probably should either void lien through OSC or pay out lien and then file suit against no-fault carrier.

(3a) How about AOBs that were issued? Prevailing case law would appear to discharge AOB through conduct, i.e., paying for treatment.

(3b) But Jason, the bills were paid by a third party, how can we file suit against no-fault carrier?  Answer: Todaro v. Geico.  Google it.

But what fueled questions 1-3(b)?  The above line of cases.  In my opinion, the cessation of treatment issue involves legislation from the bench and should be statutorily killed.  It is a factor to determine the severity of injury and perhaps it is a factor for a jury to determine whether or not the injury was “serious”.  But why is it a sin qua non of whether a cause of action lies?  It is beyond arbitrary.  All you have to do is tell the  interlocutor at deposition that you stopped treating because the doctor said no further treatment would help  and the injury is permanent.

Should you tell them at deposition that you stopped treating because no-fault benefits were cut off,  then we go into issues of whether (a) you could afford to pay for the care, (b) whether major medical would cover or (c) whether medicaid/medicare would cover.  If you continue treatment with the above-sources, you save you cause of action but now have grief at the end.  If you stop treatment despite above, you are non-suited.

I shall go on record.  The state of law is just absurd and internally inconsistent.  Why should the ability to pay for treatment render “speculative as to the permanency, significance, and causation of the claimed injuries ”  No, I am not writing this at the behest of the NYSTLA.   I think this legal fiction breeds more dysfunction in an already  broken tort system.



Causation – interesting observations

Sanchez v Oxcin, 2018 NY Slip Op 00343 (1st Dept. 2018)

“The orthopedic surgeon also measured contemporaneous and continuing limitations, and opined that the cervical spine injury was caused by the subject accident, specifically noting that plaintiff had recovered from the injuries sustained in the earlier accident before incurring the current serious injuries (see James v Perez, 95 AD3d 788, 789 [1st Dept 2012]; Yuen v Arka Memory Cab Corp., 80 AD3d 481, 482 [1st Dept 2011]). Plaintiff also submitted certified records of all treatment provided by the surgeon who performed the cervical spine surgery and, although not admissible, because unsworn (CPLR 3212[b]), these records are consistent with the sworn expert report (cf. Garcia v Feigelson, 130 AD3d 498 [1st Dept 2015] [unaffirmed MRI reports were of no avail to plaintiff even if admissible because they did not address causation or compare results of earlier MRIs]). Since there is no medical or other evidence in the record indicating that plaintiff had a herniated disc in her cervical spine before the subject accident, nothing further was required of her in opposing the dismissal of her claim of serious injury to that part of her body.”