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

Preclusion of bio-mechanical opinion

Dovberg v Laubach, 2017 NY Slip Op 07238 (2d Dept. 2017)

(1) “Prior to the commencement of a trial on the issue of damages, the defendants served an expert witness disclosure notice pursuant to CPLR 3101(d), advising the plaintiff that they intended to call Dr. Alfred Bowles, a biomechanical engineer and board-certified surgeon, who would testify that the force generated by the accident could not have caused any of the plaintiff’s alleged knee injuries, and that those alleged injuries were the result of wear and tear from athletic [*2]activities. The expert disclosure notice indicated that the proposed testimony would be based upon Bowles’s review of deposition testimony and the plaintiff’s medical records. The plaintiff moved in limine to preclude Bowles from testifying, arguing that his proposed testimony was speculative and without basis in fact, and that the expert disclosure notice did not make reference to any empirical data that Bowles may have relied upon, or any peer-reviewed journals, studies, treatises, or texts showing that an accident that does not meet a specific severity threshold cannot cause injury. In opposition, the defendants alleged that Bowles’s testimony would be based on scholarly works that were published in the fields of medicine and biomedical engineering, and had gained general acceptance in those fields.  In support of this claim, the defendants listed the names of three works, which, according to their titles, involved head, neck, and mandible injuries. The authors, years of publication, and contents of these works were not set forth.”

(2) “The Supreme Court denied the plaintiff’s motion, and permitted Bowles to testify at the damages trial.  Bowles thereafter testified that in his opinion, with a reasonable degree of engineering certainty, the force generated by a low speed rear-end collision that propelled a vehicle into a 2000 Ford Taurus would not have caused the driver of the Ford Taurus to hit her knees against the dashboard. In reaching his conclusion, Bowles relied upon the defendant driver’s deposition testimony that he was driving at a speed of no more than 10 miles per hour at the time of the collision, and the plaintiff’s deposition testimony that she was driving at a speed of 3 to 5 miles per hour.  Although Bowles did not know how close the plaintiff’s seat was positioned to the steering wheel and dashboard at the time of the accident, he maintained that moving the seat up would not increase the likelihood of a driver’s knees hitting the dashboard in a rear-end collision. At the conclusion of the damages trial, the jury returned a verdict finding that the accident was not a substantial factor in causing the injuries alleged by the plaintiff. The plaintiff then moved to set aside the verdict as contrary to the weight of the evidence and for a new trial, and the Supreme Court denied the motion. A judgment in favor of the defendants was subsequently entered, and the plaintiff appeals.”

….

(3)… “The expert disclosure notice simply stated that Bowles analyzed “the medical and engineering aspects of the accident. While the defendants cited to three works in opposition to the motion in limine, they did not identify the [*3]authors, years of publication, and contents of those works, or any explanation as to their relevance in evaluating the cause of knee injuries. Moreover, the defendants provided no description of the methodology Bowles utilized to determine the force of the accident, and the biomechanical engineering principles he relied upon in reaching his conclusion that the force generated by the accident could not have caused the plaintiff’s knees to come into contact with the vehicle dashboard. Under these circumstances, the Supreme Court should have granted the plaintiff’s motion to the extent of precluding Bowles from offering his opinion testimony that the force generated by the accident could not have caused the plaintiff’s knee injuries (see Saulpaugh v Krafte, 5 AD3d 934; cf. Valentine v Grossman, 283 AD2d 571). Accordingly, we reverse the judgment and remit the matter to the Supreme Court, Suffolk County, for a new trial on the issue of damages.”

It is interesting to see a more robust review of what is required to allow a bio-mechanical engineer give testimony on the basis of a 3101(d).  It would appear to me that a report with relevant and appropriate citations to the principles set forth herein would be the best way to go about this.

Lack of causation not established on a peer review

Shur v Unitrin Advantage Ins. Co., 2017 NY Slip Op 51011(U)(App. Term 2d Dept. 2017)

“Here, the affirmed report of the doctor who had performed an independent medical examination (IME) of the assignor contained contradictory statements (see e.g. Black v County of Dutchess, 87 AD3d 1097[2011]; Coscia v 938 Trading Corp., 283 AD2d 538 [2001]) as to whether the injury to plaintiff’s assignor’s right knee was “partially causally related to” the accident at issue or caused by “preexisting degenerative changes.” Furthermore, an MRI report that was reviewed by the IME doctor did not set forth an impression of degenerative changes. Nor did the IME doctor indicate that he had examined an operative report on the arthroscopy at issue. Thus, contrary to the determination of the District Court, defendant failed to make a prima facie showing of lack of causation. Consequently, defendant’s motion should have been denied.”

The above raise two issues: examination of operative report and examination of the MRI report play.  Both of these documents play a critical role in whether a peer doctor’s causation analysis (who opines that surgery is not related to the accident) is valid.  I sense a lot of causation peer reviews will not survive the Vladamir Shur test.

*** It was a Thomas Nipper peer review **

Failure to review actual images insufficient to defeat causation MSJ

Aliosha v Ostad, 2017 NY Slip Op 06055 (2d Dept. 2017)

“In attempting to refute the opinion of the defendant’s expert regarding good blood flow to the right testicle, the plaintiff’s expert did not actually review the ultrasound images on which the defendant’s expert opinion was based, but reviewed only the ultrasound report”

The case came down to proximate cause and the Court found proofs to be insufficient based upon the failure to review the actual films.  Interesting.

Minor impact and expert report sufficient to prove lack of causation

Frank v Gengler, 2017 NY Slip Op 04423 (2d Dept. 2017)

 

“Here, the Supreme Court erred in determining that the jury verdict in favor of the defendant was not supported by legally sufficient evidence. The evidence presented at trial included photographic evidence and witness testimony indicating the relatively minor nature of the motor vehicle accident, and expert testimony presented by the defendant indicating that the plaintiff’s alleged injuries were solely the result of degenerative processes and were not caused by traumatic injury. Contrary to the court’s conclusion, on the basis of the evidence presented at trial, there was a valid line of reasoning by which the jury could conclude that the motor vehicle accident was not a substantial factor in causing the injuries allegedly sustained by the plaintiff (see Wilson v Philie, 107 AD3d 700, 701; Rubino v Scherrer, 68 AD3d 1090, 1092; cf. Jilani v Palmer, 83 AD3d 786, 787; see generally Imbrey v Prudential Ins. Co., 286 NY 434, 440). Accordingly, the court, upon reargument, should have adhered to its prior denial of that branch of the plaintiff’ motion which was pursuant to CPLR 4404(a) to set aside the jury verdict in favor of the defendant and for judgment as a matter of law.”

Personally, I think this case has huge repercussions.  Never have I seen a court lay out such a simple road-map for getting to a determination of lack of causation between the accident and injury.  It is the same thought process, regardless of whether we are litigating first-party lack of causation of third-party causation,

 

This is what Perl spoke up against

Lee v Rodriguez, 2017 NY Slip Op 03869 (1st Dept. 2017)

“They also submitted evidence that plaintiffs neither reported any injury to the police immediately after the motor vehicle accident nor sought any medical treatment shortly after the accident, indicating that their claimed injuries were not causally related to the accident”

I cannot say much more.

Causation defense not substantiated in intercompany arbitration

Matter of DTG Operations, Inc. v Travelers Indem. Co., 2016 NY Slip Op 08967 (1st Dept. 2016)

This looks like a case where the Petitioner was fighting an inter-company arbitration award on the basis that the injuries sustained to Respondent Assignor were not related to the accident

(1) “Accordingly, this matter involves compulsory arbitration, and the award will be upheld so long as it comports with CPLR 7511 and is not arbitrary and capricious (Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214, 223 [1996]; Matter of Emerald Claims Mgt. for Ullico Cas. Ins. Co. v A. Cent. Ins. Co., 121 AD3d 481, 482 [1st Dept 2014]).”

(2) “An evidentiary basis exists in the record to support a finding that respondent had demonstrated a causal relationship between the accident and the medical treatments for which it paid (American Transit Insurance Company v Acceptance Indemnity Insurance Company, 2009 NY Slip Op 33169[U] [Sup Ct, Nassau County [2009]). Respondent “responded in writing to the causation argument” (emphasis omitted), stating that the applicant passenger, who was injured while riding in an Access-A-Ride vehicle insured by respondent, was disabled prior to this loss, that the loss worsened any prior condition, that it takes a disabled person much longer to recover from said injuries, and that a disabled person therefore requires more treatment.

As can be seen here, the exacerbation argument won the day in this case.  As we saw in Liberty v. Global, the burden was on DTG to present evidence that the injury was not related or that the accident made the condition worse.  Failing this showing, the award could not be vacated.

 

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.

A good causation case

Jones v MTA Bus Co., 2014 NY Slip Op 08915 (1st Dept. 2014)

 

As for plaintiff’s other claimed injuries, defendants met their burden by relying on plaintiff’s testimony that her eye stopped hurting within weeks of the accident, and her post-accident hospital and medical records showing that she made no complaints until about five months after the accident, which was too remote in time to establish a causal relationship (see Rosa v Mejia, 95 AD3d 402, 404 [1st Dept 2012]).

There was a bit more to the case but this is the snippet that has relevance to me.