Key Takeaway
Court ruling on serious injury threshold where defense expert's failure to address absence of pre-accident pain undermines degenerative condition defense in NY no-fault case.
Gaughan v Censeo Health, LLC, 2022 NY Slip Op 00587 (4th Dept. 2022)
“Plaintiff met his initial burden of establishing that he sustained a serious injury under the permanent consequential limitation of use and significant limitation of use categories by submitting the affidavit of his expert, who provided evidence that the range of motion of plaintiff’s spine was limited up to 50% when compared to a normal range of motion and that those limitations were permanent (cf. Mutombo v Certified Document Destruction & Recycling, Inc., 193 AD3d 1432, 1433-1434 ; see generally Toure v Avis Rent A Car Sys., 98 NY2d 345, 353 , rearg denied 98 NY2d 728 ). In addition, the expert opined that the injuries to plaintiff’s spine were caused by the motor vehicle accident inasmuch as a review of plaintiff’s medical records revealed that plaintiff had made no similar complaints of pain regarding his spine prior to the accident (cf. Grier v Mosey, 148 AD3d 1818, 1820 ). In opposition, defendants failed to raise an issue of fact through the affidavit of their expert physician, who found similar limitations to plaintiff’s range of motion (see Maurer v Colton , 180 AD3d 1371, 1373-1374 ; Clark v Boorman, 132 AD3d 1323, 1325 ). Although the defense expert attributed plaintiff’s injuries to age-related degeneration, the expert failed to account for the absence of pain in plaintiff’s spine prior to the accident. Thus, the expert’s opinion “was conclusory and therefore ‘insufficient to establish that plaintiff’s pain might be … unrelated to the accident’ ” (Ashquabe v McConnell, 46 AD3d 1419, 1419 ).”
I really love the “no prior pain” line of cases. It is akin to the prior asymptomatic injury that became symptomatic. I do enjoy the discussion.
Related Articles
Common Questions
Frequently Asked Questions
What is New York's no-fault insurance system?
New York's no-fault insurance system requires all drivers to carry Personal Injury Protection (PIP) coverage. This pays for medical expenses and lost wages regardless of who caused the accident, up to policy limits. However, you can only sue for additional damages if you meet the 'serious injury' threshold.
