Opinion
00 Civ. 5137 (SWK).
June 4, 2003.
OPINION
Defendants Gil Rafael and Luis Padilla move for summary judgment pursuant to Federal Rule of Civil Procedure 56(c), asserting that Plaintiff Maria DeJesus has failed to demonstrate that she suffered a "serious injury" as required by New York State Insurance Law § 5102(d). For the reasons set forth below, Defendants' motion for summary judgment on the threshold issue of whether DeJesus suffered a "serious injury" is granted.
I. FACTS AND PROCEDURAL HISTORY
On January 23, 2000, DeJesus was driving a vehicle in Bronx, New York in which Plaintiff Vincente Delgado was a passenger. DeJesus stopped her vehicle at a red light at the intersection of East Gunhill Road and Boston Road and was subsequently struck from behind by a vehicle driven by Defendant Rafael and owned by Defendant Padilla. It had rained earlier that day and the roads were wet at the time of the accident. Rafael allegedly attempted to brake but skidded on the wet road into the back of DeJesus's car.
In an earlier opinion, the Court granted partial summary judgment for the Plaintiffs on the issue of liability. See No. 00 Civ. 5137, 2002 WL 31925501 (S.D.N.Y. Dec. 31, 2002).
Following the accident, DeJesus was treated at a hospital for her injuries and she later began a course of physical therapy lasting for approximately seven months. DeJesus was also examined by a psychologist for possible anxiety and depression as a result of the accident. Defendants move for summary judgment asserting that DeJesus's injuries from the accident fail to meet the "serious injury" requirement of Section 5102(d) of the New York State Insurance Law.
II. DISCUSSION
A. LEGAL STANDARD
Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party must initially satisfy a burden of demonstrating the absence of a genuine issue of material fact, which can be done merely by pointing to an absence of evidence in support of the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 323-25, (1986). The nonmoving party must then come forward with "specific facts showing that there is a genuine issue for trial," Fed.R.Civ.P. 56(e), by "a showing sufficient to establish the existence of [every] element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp., 477 U.S. at 322.
The court "must resolve all ambiguities and draw all reasonable inferences in favor of the party defending against the motion." Eastway Constr. Corp. v. New York, 762 F.2d 243, 249 (2d Cir. 1985); see also Adickes v. S.H. Kress Co., 398 U.S. 144, 158-59 (1970); Hathaway v. Coughlin, 841 F.2d 48, 50 (2d Cir. 1988); Knight v. United States Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986). But the court is to inquire whether "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party," Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986), and to grant summary judgment where the nonmovant's evidence is merely colorable, conclusory, speculative or not significantly probative. See id. at 249-50; Knight, 804 F.2d at 12, 15;Argus Inc. v. Eastman Kodak Co., 801 F.2d 38, 45 (2d Cir. 1986). In sum, if the court determines that "the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no `genuine issue for trial.'"Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, (1986) (quoting First Nat'l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 289 (1969))
B. APPLICABLE LAW
Under the No-Fault Law of the State of New York, an injured party may bring an action in tort to recover for non-economic loss, pain and suffering, but must show that he or she has suffered a serious injury. Pursuant to New York State Insurance Law 5102(d), a serious injury is defined as:
A personal injury which results in death; dismemberment; significant disfigurement; a fracture; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitutes such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment
"It is well settled that to prove a permanent consequential limitation or significant limitation of use, a plaintiff must demonstrate `something more than . . . a minor, mild or slight limitation of use.'" Mastrantuono v. United States, 163 F. Supp.2d 244, 254 (S.D.N.Y. 2001) (quoting Ventra v. United States, 121 F. Supp.2d 326, 333 (S.D.N.Y. 2000)). The significance of the limitation must be supported by "credible medical evidence and must be objectively measured and quantified." Ventra, 121 F. Supp.2d at 333-34; see also Pierre v. Nanton, 279 A.D.2d 621, 719 N.Y.S.2d 706, 707 (2d Dep't 2001) ("a plaintiff is required to provide objective evidence of the extent or degree of the alleged physical limitations resulting from the injury and their duration") (citations omitted). Subjective complaints of pain do not suffice. See Mastrantuono, 163 F. Supp.2d at 255. "Therefore, a diagnosis based solely on the patient's subjective expressions of pain, and a range of motion test, is insufficient to support an objective finding of serious injury." Id.
Tests such a MRIs, x-rays and CT-scans are objective and credible medical evidence of a serious injury because they do not rely on a patient's complaints of pain. See, e.g., Mastrantuono, 121 F. Supp.2d at 255; Palivoda v. Sluberski, 275 A.D.2d 1036, 713 N.Y.S.2d 378 (4th Dep't 2000); Bushman v. Di Carlo, 268 A.D.2d 920, 702 N.Y.S.2d 426, 429 (3d Dep't 2000). However, the above list of tests is not exclusive. The Appellate Division, First Department held that objective evidence such as straight-leg raising tests, conducted by a treating physician and observations of spasms, could, notwithstanding normal MRI and CT-scans, can be sufficient to withstand a summary judgment motion. See Adetunji v. U-Haul Co. of Wis., Inc., 250 A.D.2d 483, 672 N.Y.S.2d 869, 870 (1st Dep't 1998). Courts have also noted the importance of passive range of motion tests, which are based upon objective criteria.See Mastrantuono, 121 F. Supp.2d at 255 (citing cases).
Finally, the verified objective medical findings must be based upon a recent examination of the plaintiff. See Kauderer v. Penta, 261 A.D.2d 365, 689 N.Y.S.2d 190 (2d Dep't 1999). "[A]ny significant lapse of time between the cessation of the plaintiff's medical treatments after the accident and the physical examination conducted by his own expert must be adequately explained." Grossman v. Wright, 268 A.D.2d 79, 707 N.Y.S.2d 233, 237 (2d Dep't 2000)
On a motion for summary judgment, a defendant can establish that a plaintiff's injuries are not serious within the meaning of § 5102(d) by submitting affidavits or affirmations of medical experts who examined the plaintiff and concluded that no objective medical findings support the plaintiff's claim. See Grossman 268 A.D.2d at 83-84, 707 N.Y.S.2d at 237. With this established, the burden then shifts to the plaintiff to demonstrate a triable issue of fact that a serious injury was sustained within the meaning of the Insurance Law. See id. at 84, 707 N.Y.S.2d at 237-38. The plaintiff may accomplish this by presenting objective evidence of the injury; however, the "mere parroting of language tailored to meet statutory requirements is insufficient." Id. at 84, 707 N.Y.S.2d at 237.
C. ANALYSIS
Although this Court found that Defendants were liable for the accident, in order to defeat a motion for summary judgment on this threshold issue, Plaintiff DeJesus must demonstrate that she suffered a serious injury as defined in § 5102(d). Defendants' experts have examined Plaintiff and have concluded that she suffers from no serious injury as a result of the accident. Dr. Andrew Bazos, M.D., a board certified orthopedist, conducted several objective tests during his examination of DeJesus and found that all sprains were resolved and noted "there is no causally related orthopedic disability." Affidavit of Steven Martin, Esq., dated May 17, 2002 at ¶ 14, Ex. J, Independent Medical Examination by Dr. Andrew N. Bazos, M.D., dated February 21, 2002, at 3. Dr. Bazos conducted the following medical tests on DeJesus's cervical spine, thoracic spine, lumbar spine, and upper and lower extremities: Cervical Compression test, Spurling's test, Bechterew's test, Linders test, Ely's test, Yoeman's test, Impingement test, Apprehension test, Codman's test, Yergonson's test, McMurray's test, Patella Grind test, and Alley's Compression test. See id. at 2-3.
Dr. Paul Schmidt, M.D., a neurologist, also examined DeJesus on February 21, 2002, and concluded that she suffered no neurological limitations as a result of the accident. Dr. Schmidt examined DeJesus's cervical spine, lumbar spine, mental status, cranial nerves, motor system, reflexes, sensory, gait and coordination. See Martin Aff. at ¶ 15, Independent Medical Examination by Paul Schmidt, M.D., dated February 21, 2002, at 2.
Defendants also argue that DeJesus's own deposition testimony reveals that she did not suffer a serious injury as a result of the accident. In support, they cite her testimony that x-rays were not taken at the hospital following the accident. See Martin Aff. at ¶ 9, Ex. G, Deposition Testimony of Maria DeJesus, dated September 4, 2001 at 96 ("DeJesus Dep."). However, DeJesus testified that x-rays were taken the first time she visited a doctor after her release from the hospital. See id. at 123. DeJesus also stated that she wore a neck collar for a month, wore a girdle for seven months, and used a cane for three or four months. See id. at-130-31. DeJesus ceased therapy for her injuries in August 2000. See id. at 146. However, with regard to any changes in her lifestyle as a result of the accident, DeJesus testified that she continues to do the cooking in her house, she continues to do household chores, and she continues to do the grocery shopping for the household.See id. at 150-51. She also testified that she can do everything that she was able to do before the accident. See id. at 151.
Through the expert medical reports of their experts and the deposition testimony of DeJesus, Defendants have established a prima facie case that DeJesus did not sustain a serious injury within the meaning of New York State Insurance Law § 5102(d) as a result of the accident. See Monette v. Keller, 281 A.D.2d 523, 721 N.Y.S.2d 839 (2d Dep't 2001). The burden now shifts to the Plaintiff to "come forward with evidence to overcome the defendant[s'] submissions by demonstrating a triable issue of fact that a serious injury was sustained within the meaning of the Insurance Law." Grossman, 268 A.D.2d at 84, 707 N.Y.S.2d at 237-38.
In response, DeJesus's treating physician, Dr. Meena Tamhankar, M.D., states that several objective tests were conducted on DeJesus and they show restricted motion as a result of the accident. See Affidavit of Jonathan A. Rapport, Esq., dated June 20, 2002 at ¶ 13, Affidavit of Dr. Meena Tamhankar, M.D., dated June 17, 2002, at ¶ 5(a)-(d). At her initial visit on January 27, 2000, DeJesus's right lateral flexion and rotation were reduced to 20 degrees and Dr. Tamhankar also states that a later MRI exam revealed a herniated disc and disc bulges. See id. at ¶¶ 5-6. The MRI exam of DeJesus's cervical spine, performed on March 18, 2000, showed "a herniation at C7-T1; disc bulge with compression on the thecal sac at C4-5; disc bulge at C5-6 with compression on the thecal sac and extending into the left neural foramen." Id. at ¶ 6. Additionally, the March 18, 2000 MRI exam of DeJesus's lumbar spine revealed "a disc bulge at L4-5 with compression on the thecal sac and extending into the bilateral neural foramen; disc bulge at L3-4 and L2-3." Id. Dr. Tamhankar concluded that DeJesus suffered the following injuries as a result of the January 23, 2000 accident: Herniated disc at C6-7; multiple disc bulges in the lumbar spine; cervical radiculopathy; and lumbar radiculopathy. See id. at ¶ 8.
Dr. Michael Katz, Psy.D., also performed a psychological examination of DeJesus with regard to the psychological impact of the accident. Dr. Katz ran the following tests on DeJesus: Bender-Gestalt, Neuropsychological Symptom Checklist R (NSC-R), Symptom Validity Testing, Beck's Anxiety Inventory, Beck's Depression Inventory, West Haven Yale Multidimensional Pain Inventory (WHYMPI), WAIS-R (selected subtests), Wechsler Memory Scale-Revised (Digit Span) (WMS-R(DS)), Goodenough Figure Drawing, Mini Mental State Inventory, Millon Health Inventory, Philadelphia Head Injury Questionnaire, Stroop Neurological Screening Test, and the Symbol Digit Modality Test (SDMT). Dr. Katz concluded that DeJesus "evinces many of the symptoms termed post concussive syndrome" and her symptoms included, but are not limited to, "impaired concentration and attention, difficulties in shifting conceptual strategies, problems with processing and holding information visually, increased anxiety, depression and fatigue." Rapport Aff. at ¶ 13, Ex. E, Psychological Evaluation by Dr. Michael Katz, Psy.D., dated April 31, 2000 at 5.
Although tests revealed a disc bulge shortly after the accident, there is no evidence that the disc bulge still exists today or even persisted for 90 out of the 180 days following the accident. No subsequent x-rays or MRI exams were ever taken to document the lasting nature of Plaintiff's injury. See DeJesus Dep. at 134. "Although a bulging or herniated disc may constitute a serious injury within the meaning a Insurance Law § 5102(d), a plaintiff must provide objective evidence of the extent or degree of the alleged physical limitations resulting from the disc injury and its duration." Monette, 281 A.D.2d at 523-24, 721 N.Y.S.2d at 839. Plaintiff has not provided objective medical evidence of any physical limitations resulting from the disc injury. Plaintiff testified that she was able to, and remains able to, do everything required in her daily life such as shopping, cleaning and cooking. See DeJesus Dep. at 150-51. Therefore, the Plaintiff has failed to raise a triable issue of fact as to whether she was prevented from performing substantially all of her customary and usual activities for not less than 90 days during the 180 days immediately following the accident. See, e.g., Monette, 281 A.D.2d at 524, 721 N.Y.S.2d at 840. Plaintiff did not identify any daily activity that she could not accomplish as a result of the accident, and her treating physician's reports of pain on her behalf are insufficient. Moreover, the affidavit of Plaintiff's treating physician was prepared nearly two years after she ceased treatment, thereby shedding little light on the lasting effects of Plaintiff's injuries. See Duldulao v. City of New York, 284 A.D.2d 296, 725 N.Y.S.2d 380, 381-82 (2d Dep't 2001);Guzman v. Paul Michael Mgmt., 266 A.D.2d 508, 698 N.Y.S.2d 719 (2d Dep't 1999). Therefore, DeJesus has not submitted sufficient evidence to raise a triable issue of fact that she sustained a serious injury as a result of the accident.
III. CONCLUSION
For the reasons set forth above, Defendants' motion for summary judgment regarding Plaintiff DeJesus's lack of a serious injury as a result of the accident is granted. Plaintiff DeJesus has not shown a serious injury under New York State Insurance Law § 5102(d) and her claim is therefore dismissed.
SO ORDERED.