The inability to recall which shoulder was hurt damages the plaintiff’s case

Personal injury cases under New York’s no-fault insurance law require plaintiffs to demonstrate their injuries with precision and consistency. The 5102(d) threshold requires careful documentation and clear presentation of medical evidence. However, what happens when a plaintiff’s own testimony undermines their case?

Fludd v Pena and the 5102(d) threshold

The First Department’s decision in Fludd v Pena illustrates how memory lapses and inconsistent complaints during medical examinations can be fatal to a plaintiff’s claims. This case demonstrates a crucial principle: defendants may not need to provide medical evidence regarding body parts that plaintiffs fail to properly identify or complain about during examinations. This ruling has significant implications for how personal injury cases are prepared and presented.

Understanding these evidentiary requirements is essential, as inconsistencies in testimony can derail even cases with legitimate medical documentation. This decision shows how procedural missteps can impact the substantive outcome of no-fault insurance disputes.

Jason Tenenbaum’s Analysis:

No complaints at the IME and the missing shoulder exam

Fludd v Pena, 2014 NY Slip Op 07747 (1st Dept. 2014)

This 5102(d) case is interesting because it stands for the proposition that the failure to make complaints of pain at the IME of the affected body parts will negate the requirement to examine that body part. I am going to say that is the case even when there is record evidence of pain at that body part.

The First Department’s language on the left shoulder injury

“Defendants were not required to present medical evidence with respect to plaintiff’s alleged injury to her left shoulder, since plaintiff failed to recall at her deposition which shoulder was injured (see Thomas v City of New York, 99 AD3d 580, 582 , lv denied 22 NY3d 857 ). Moreover, plaintiff made no complaints about any shoulder injury when she was examined by defendants’ expert.”

Interesting…

Key Takeaway

This case establishes that defendants may avoid the burden of providing medical evidence for specific body parts when plaintiffs fail to consistently identify their injuries or complain about them during independent medical examinations. Even with documented medical evidence, procedural failures in testimony and examination can undermine a plaintiff’s case, highlighting the critical importance of preparation and consistency throughout the litigation process.

Related Articles

• Understanding when IME doctors must explain their findings about self-restricted motion
• How hospital records can undermine a plaintiff’s threshold motion
• Requirements for establishing prima facie showing of lack of serious injury
• New York’s serious injury threshold compared to medical necessity standards
• Personal Injury

Legal Update (February 2026): Since this 2014 decision, New York’s Insurance Regulation 68 has undergone multiple amendments affecting IME protocols and documentation requirements under Insurance Law § 5102(d). Additionally, appellate decisions in the intervening years may have refined the standards for medical testimony consistency and the burden of proof regarding body part identification in no-fault cases. Practitioners should verify current regulatory provisions and recent case law developments when advising clients on IME preparation and medical evidence presentation requirements.