Feigned issue of fact coupled with cessation of treatment

Understanding the Feigned Issue of Fact Doctrine in Personal Injury Cases

The doctrine of feigned issues of fact represents a critical limitation on plaintiffs’ ability to defeat summary judgment motions through contradictory affidavits. Under New York law, when a party submits an affidavit that directly contradicts their prior sworn testimony without adequate explanation, courts will disregard the affidavit as creating only a sham issue designed to avoid summary judgment. This principle is particularly important in personal injury litigation where parties may be tempted to adjust their testimony when facing dismissal.

The doctrine serves an important gatekeeping function in the judicial system. Without it, litigants could perpetually avoid summary judgment by simply contradicting their deposition testimony whenever convenient. Courts have consistently held that sworn testimony carries significant weight and cannot be casually disavowed through later affidavits, especially when the contradictions involve material facts central to establishing a serious injury under Insurance Law Section 5102(d).

Case Background: The Alston v Elliott Decision

In Alston v Elliott, two plaintiffs pursued personal injury claims following a motor vehicle accident. Both plaintiffs received medical treatment for their alleged injuries but ceased that treatment within approximately three months of the accident. This cessation of treatment became a focal point during the litigation, particularly during depositions where both plaintiffs testified under oath about their reasons for stopping medical care.

During their depositions, the plaintiffs provided specific explanations for discontinuing treatment that suggested their injuries were relatively minor. Plaintiff Alston testified that she stopped attending therapy because it simply wasn’t helping her condition. Plaintiff Brown similarly testified that he terminated his treatment because the therapy sessions made him feel worse afterward, not better. These sworn statements became part of the litigation record and appeared to support the defendant’s position that the injuries did not meet the serious injury threshold.

However, when facing the defendant’s motion for summary judgment, both plaintiffs submitted affidavits that told a dramatically different story. In nearly identical affidavits, they now claimed they had ceased treatment not because of the ineffectiveness of care, but rather because their no-fault insurance benefits had been discontinued and they could no longer afford to pay out-of-pocket for continued medical treatment. This financial explanation, if true, would potentially support their claims that the injuries were more serious than the cessation of treatment might otherwise suggest.

Jason Tenenbaum’s Analysis:

Alston v Elliott, 2018 NY Slip Op 02019 (1st Dept. 2018)

The feigned issue of fact

(1) “In opposition, plaintiffs submitted affidavits that contradicted their sworn deposition testimony concerning the reasons for their cessation of medical treatment. Plaintiff Alston testified that she terminated treatment after about three months because therapy wasn’t “helping” her. Plaintiff Brown testified that he terminated treatment because it made him feel worse afterwards. However, in opposition to defendant’s motion, in near identical affidavits, both plaintiffs asserted that they ceased treatment because no-fault benefits were discontinued, and they could no longer afford to pay “out of pocket.” 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”

Went back to work and did not go for treatment for 7 years.

(2)“Moreover, the evidence that both plaintiffs returned to work shortly after the accident and ceased treatment within three months, demonstrates that their injuries were minor in nature, involving neither “significant” nor “permanent consequential” limitations in use of their spines ”

’…Moreover, defendant argued that both plaintiffs’ claims of serious injury were belied by their having ceased all treatment about seven years earlier, within three months of the accident, which they were required to explain”

Legal Significance: The Impact of Contradictory Testimony

The Appellate Division’s decision in Alston reinforces several important principles in serious injury litigation. First, the court emphasized that the near-identical nature of the plaintiffs’ affidavits raised additional credibility concerns. When multiple parties submit virtually identical sworn statements that contradict their prior testimony, courts view this pattern as evidence of coordination designed to manufacture a factual dispute rather than genuine recollection.

Second, the decision illustrates how cessation of treatment interacts with the serious injury threshold under Section 5102(d). The fact that both plaintiffs returned to work shortly after the accident and stopped all medical treatment within three months created a compelling narrative that their injuries were minor. This evidence, combined with the seven-year gap between the accident and trial without any resumed treatment, painted a picture of injuries that clearly did not meet the statutory threshold for serious injury.

The court’s analysis demonstrates that plaintiffs cannot simply assert financial inability to continue treatment when their deposition testimony attributed cessation to other causes. When faced with such contradictions, the burden shifts to the plaintiff to provide a satisfactory explanation for the discrepancy. In Alston, no such explanation was offered, and the nearly identical wording of both affidavits suggested a coordinated effort to create a false factual dispute.

Practical Implications for Personal Injury Practitioners

This decision carries important lessons for both plaintiffs’ and defendants’ counsel in serious injury litigation. For plaintiffs’ attorneys, the case underscores the critical importance of thorough deposition preparation. Clients must understand that their deposition testimony will be carefully scrutinized and cannot be easily changed later through affidavits. If financial inability to continue treatment is a factor in cessation, this must be clearly articulated during the deposition, not manufactured afterward when facing dismissal.

For defense counsel, Alston provides a roadmap for defeating serious injury claims where cessation of treatment is a factor. The decision emphasizes that defendants should thoroughly explore the reasons for treatment cessation during depositions and should carefully compare deposition testimony with any later affidavits submitted in opposition to summary judgment. When contradictions emerge, the feigned issue of fact doctrine provides a powerful tool for obtaining dismissal.

The seven-year gap between accident and trial without resumed treatment proved particularly fatal to the plaintiffs’ claims. This temporal element demonstrates that courts will consider the entire course of events when evaluating whether injuries meet the serious injury threshold. Extended periods without treatment or medical care strongly suggest that any initial injuries resolved quickly and did not result in permanent or significant limitations.

Key Takeaway

Courts will reject contradictory affidavits that attempt to create sham issues of fact to avoid summary judgment in personal injury cases. When plaintiffs testify under oath at deposition about reasons for ceasing treatment, they cannot later submit affidavits claiming different reasons without adequate explanation. Combined with evidence of returning to work shortly after an accident and a seven-year gap without treatment, such contradictions demonstrate that injuries were minor and fail to meet the serious injury threshold under New York Insurance Law Section 5102(d).

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