Andromeda Med. Care, P.C. v Utica Mut. Ins. Co., 2012 NY Slip Op 50344(U)(App. Term 2d Dept. 2012)
This is the first time I have seen this outcome. Perhaps, my faith in biomechanical reports has changed.
“In support of its motion, defendant submitted an affidavit by its biomechanical engineer… The engineer concluded that the injuries of plaintiff’s assignors could not have arisen out of the accident in question, after he reviewed, among other things, the photographs of the vehicle involved in the accident, the medical records of plaintiff and other providers regarding their treatment of the assignors, and copies of the transcripts of plaintiff’s assignors’ testimony at their examinations under oath, all of which defendant attached to its moving papers.
As defendant established its entitlement to judgment as a matter of law by submitting proof in admissible form showing the lack of a causal connection between the accident and the injuries claimed by plaintiff’s assignors, the burden shifted to plaintiff to rebut defendant’s showing. Plaintiff, in its opposition papers, failed to do so. Defendant’s motion for summary judgment dismissing the complaint should therefore have been granted.”
(Rios dissented)
3 Responses
This case seems contrary to a long line of cases a few years back which held that while a report from a biomechanical engieer was sufficient to defeat a plaintiffs’s motion for summary judgment, it was not sufficient to affirmatively grant an insruer summary judgment dismissing the case. Although the biomechanical expert in this case viewed the medical records, why should his medical opinion be accepted if he or she is not a medical doctor. I think you would need both an accident reconstuction expert and a medical doctor to shift the burden on summary judgment to the plaintiff.
This is a ridiculous holding. A person can suffer an injury with virtually no damage to a vehicle.
Provide a rebuttal affidavit. Perl v. Meher.