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 ; Acosta v Zulu Servs., Inc., 129 AD3d 640 ).

(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 ).”

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.

Legal Significance

The First Department’s two-part analysis establishes critical principles about causation and serious injury. First, the court held that defendant met its prima facie burden by submitting an expert report finding full range of motion (suggesting no serious injury) and opining that the knee surgery was not causally related to the accident. The expert’s review of intraoperative photographs provided a sound basis for the causation opinion, demonstrating that modern defense strategies increasingly rely on surgical records and operative photographs rather than solely on MRI films or physical examination findings.

Second, and more significantly, the court held that plaintiff’s failure to raise a triable issue on causation meant “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.” This holding follows Rubin v SMS Taxi Corp. and establishes that causation and threshold are independent requirements—satisfying one does not excuse failure to satisfy the other.

Jason Tenenbaum’s observation about the practical impact is particularly astute: “The value of the case would rest with the right knee injury.” Knee surgeries typically drive settlement values in personal injury cases far more than cervical and lumbar disc herniations without surgery. By eliminating the knee injury from the case based on lack of causation, the defendant effectively gutted the case’s settlement value, even though the plaintiff may still proceed to trial on the neck and back claims.

The decision also illustrates the evolution of causation defense strategies. As Jason notes, “The causation piece fits within the more contemporary manner of trying an extremity of surgery where heavy reliance is placed on the operative photos and minimal reliance is placed on the MRI films.” Defense experts increasingly argue that operative findings showing minimal pathology indicate that any injuries seen on MRI were degenerative or pre-existing rather than traumatic. By reviewing intraoperative photographs, defense experts can point to specific surgical findings and argue that the absence of traumatic pathology negates causation.

Practical Implications

For plaintiffs’ attorneys, this decision underscores the critical importance of establishing causation for each claimed injury, particularly high-value surgical claims. It is not sufficient to prove that surgery occurred; plaintiffs must present expert testimony establishing that the surgical findings were consistent with traumatic injury rather than degenerative changes. This may require retaining experts who can review operative notes and photographs and explain how the surgical findings demonstrate acute trauma.

For defense counsel, the decision validates the strategy of attacking causation through review of surgical records and intraoperative photographs. When operative findings appear minimal or inconsistent with traumatic injury, defense experts can use those findings to argue that the surgery addressed pre-existing degenerative conditions unrelated to the accident.

The decision also demonstrates how failure on one injury can disproportionately impact case value. Even when plaintiffs may survive summary judgment on some injuries, losing their most valuable injury claim can make settlement or trial economically unviable. Defense attorneys should recognize this leverage opportunity and consider causation challenges even when threshold challenges alone might not succeed.

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