Opinion
02-CV-0351E(Sr)
December 22, 2003
MEMORANDUM and ORDER
This decision may be cited in whole or in any part.
Heisler filed suit May 10, 2002 seeking damages for personal injuries allegedly resulting from an automobile accident. Defendants filed summary judgment motions August 11, 2003. This matter was argued and submitted on December 5. For the reasons set forth below, defendants' summary judgment motions will be denied.
MPT New York, Inc. and the Fazio defendants join in and incorporate by reference the arguments set forth by the United States.
Rule 56(c) of the Federal Rules of Civil Procedure ("FRCvP") states that summary judgment may be granted only if the record shows "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." In other words, after discovery and upon motion, summary judgment is mandated" against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Summary judgment is thus appropriate where there is "no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Of course, the moving party bears the burden of showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995) (citing Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970)). If the moving party makes such a showing, the non-moving party must then come forward with evidence of specific facts sufficient to support a jury verdict in order to survive the summary judgment motion. Ibid.; FRCvP 56(e).
With respect to the first prong of Anderson, a genuine issue of material fact exists if the evidence in the record "is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, at 248. Stated another way, there is "no genuine issue as to any material fact" where there is a "complete failure of proof concerning an essential element of the nonmoving party's case." Celotex, at 323. Under the second prong of Anderson, the disputed fact must be material, which is to say that it "might affect the outcome of the suit under the governing law ***." Anderson, at 248.
See also Anderson, at 252 ("The mere existence of a scintilla of evidence in support of the [movant's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [movant].")
Furthermore, "[i]n assessing the record to determine whether there is a genuine issue as to any material fact, the district court is required to resolve all ambiguities and draw all factual inferences in favor of the party against whom summary judgment is sought." St. Pierre v. Dyer, 208 F.3d 394, 404 (2d Cir. 2000) (citing Anderson, at 255). Nonetheless, mere conclusions, conjecture, unsubstantiated allegations or surmise on the part of the non-moving party are insufficient to defeat a well-grounded motion for summary judgment. Goenaga, at 18.
See footnote 3.
On February 21, 2001 Heisler was involved in an automobile accident ("the Accident") involving Robert G. Williams, an employee of the federal government, and Darlene E. Fazio. Heisler filed suit May 10, 2002. Inasmuch as Williams was driving during the course of his employment, Heisler sued the United States under the Federal Tort Claims Act, §§ 1346(b), 2671-2680. Because the Accident occurred in the State of New York, this action is subject to New York law. New York State Insurance Law §§ 5101 et. seq. — New York's No-Fault Law ("NYNFL") — is thus applicable.
David T. Fazio is the owner of a vehicle operated by his wife Darlene. MPT New York, Inc. owned the leased vehicle operated by Williams.
Molzof v. U.S., 502 U.S. 301, 305 (1992) (construing 28 U.S.C. § 2674).
In support of its motion for summary judgment, the United States argues that Heisler has failed to establish a "serious injury" as required by section 5104(a) of NYNFL. The United States proffered the affidavit of Dr. James J. White, Jr., who examined Heisler on June 13, 2003 and reviewed her medical history. Dr. White opined that Heisler has "degenerative disc disease of the cervical spine from C2-3 disc through C6-7 disc." White Aff., ¶ 22. He further opined that this condition antedated the Accident and that he "did not see any change in the diagnostic studies done prior to [the Accident] compared with the studies done after [the Accident]." Id., ¶ 23. Finally, Dr. White concluded that Heisler's condition was not related to the Accident. Id., ¶ 24.
Under New York law, defendants have the "initial burden of establishing a prima facie case that a plaintiff has not sustained any `serious injury.'" Carter v. Geldis, 2002 WL 1159904, at *5 (E.D.N.Y. 2002) (following Gaddy v. Eyler, 79 N.Y.2d 955, 956-957 (1992)). Defendants have satisfied their burden by submitting Dr. White's affidavit. The burden consequently shifts to Heisler to establish a prima facie case that she has suffered a "serious injury." Ibid.
In response, Heisler proffered the affidavit of Dr. Thomas D. Denecke, a chiropractor who treated her from 1996 until 2003. In 1996 Dr. Denecke treated Heisler for complaints of headaches, neck stiffness/tension, and right shoulder tension/pain. Denecke Aff., ¶¶ 6-7. Dr. Denecke treated Heisler in 2000 for complaints of "frequent moderate neck and upper back pain accompanied by stiffness." Id., ¶ 10. Subsequent to having been seen by Dr. Denecke, Heisler was involved in the Accident. Heisler saw Dr. Denecke the day after the Accident, at which time she indicated that she was experiencing sharp and shooting pain in the right side of her neck. Id., ¶¶ 18-20. During the course of Dr. Denecke's treatment of Heisler, she exhibited decreased range of motion ("ROM") of her cervical spine as follows:
This chart — a modified version of a chart submitted by the United States — compares Heisler's ROM at various times with a normal ROM. See USA's Reply Mem. of Law, Exh. A.
The normal ROM for left and right lateral flexion is reported as 45° in Dr. Denecke's affidavit, but is listed as 40° in his medical records for Heisler. The chart submitted by the United States also adopts 45° as the appropriate baseline. This Court will adopt the 45° baseline figure adopted by the parties.
See note 10, supra.
Although Dr. Denecke's affidavit indicates that Heisler's left rotation on 8/18/00 was 80°, his notes arguably (albeit hard to decipher) appear to indicate 85°. This Court will use the 80° figure adopted by the parties.
See note 22, infra (noting that Drs. White and Denecke used different baselines for measuring Heisler's left lateral flexion).
Dr. White noted that Heisler achieved 80 degrees external rotation. White Aff., ¶ 15. It is not clear, however, whether Dr. White's measurement of external rotation is comparable to Dr. Denecke's measurement of right and left rotation.
Dr. Denecke referred Heisler for an MRI on October 1, 2001 based largely on the "different character of Ms. Heisler's complaints of pain" after the Accident. Id., ¶ 25. Dr. Denecke noted that he reviewed the MRI results, which were interpreted by Dr. Gerald J. Joyce as demonstrating
"a left paracentral disc protrusion at C3-C4 midly effacing the thecal sac with bony facet arthropathy and bony hypertrophy producing foraminal stenosis on the right side at that level; a broad based central disc protrusion mildly effacing the thecal sac at C4-C5; and sponylosis at C5-C6 producing canal and bilateral foraminal stenosis." Id., ¶ 32.
On December 14, 2001 Heisler obtained a neurosurgical consultation from Dr. P. Jeffrey Lewis based upon a referral from Dr. Denecke. Id., ¶ 35. Dr. Lewis recommended a microdisectomy and fusion procedure, which Heisler declined due to the perceived risks of the procedure. Id., ¶¶ 36-37. Dr. Denecke continued to treat Heisler through January 16, 2003. Id., ¶ 38. Dr. Denecke opined that the "diagnostic testing performed on Ms. Heisler objectively establishes that she has sustained permanent injuries in her cervical spine." Id., ¶ 39. He further opines that Heisler's "disc pathology was not symptomatic prior to" the Accident and that, had it been so, "it would have been consistently manifested in the orthopedic tests [that he] routinely conducted" during her pre-Accident treatment. Id., ¶ 46. Dr. Denecke finally concludes that Heisler sustained "an injury to her cervical spine as a result of [the Accident], in that it either caused the actual disc pathology objectively demonstrated on her October 1, 2001 MRI study, or it has caused an asymptomatic condition to become symptomatic." Id., ¶ 47. Despite Dr. Denecke's either/or opinion, he also opined that "Heisler was asymptomatic prior to the [Accident], and is now symptomatic as a result." Id., ¶ 48.
As noted above, defendants argue that Heisler has not suffered a "serious injury" within the meaning of NYNFL. At oral argument, Heisler conceded that the "significant limitation" prong was the only basis applicable here. Defendants argue that Dr. White's affidavit indicates that the objective medical evidence — including Heisler's MRIs, x-rays and CT scans — demonstrates that Heisler's disc pathology was the same before and after the Accident. Heisler concedes that she had disc pathology before the accident, but counters that the Accident exacerbated her condition as demonstrated by a decreased ROM observed by Dr. Denecke as well as by Dr. White. Heisler also contends that the defendants fail to address her qualitative symptoms of increased pain. Defendants in turn argue that the decreased ROM observed by Dr. Denecke was observed the day after the accident and that Heisler has proffered no evidence that she currently has ROM deficits.
In order for Heisler's claim to survive summary judgment, she must have suffered a "serious injury" within the meaning of section 5104(a) — which is a question of law for this Court to determine. "Serious injury" is defined in relevant part as "a personal injury which results in *** significant limitation of use of a body function or system ***." N.Y. Ins. Law § 5102(d). "In order to be a significant limitation, the limitation must be something more than a `minor, mild or slight limitation of use.'" Moreover, Heisler's "subjective pain, standing alone without objective indicia, [cannot] constitute a significant limitation." A finding of medical significance "involves a comparative determination of the degree or qualitative nature of an injury based on the normal function, purpose and use of the body part." New York courts hold that a decreased ROM constitutes a significant limitation. Consequently, Heisler's ROM deficits constitute a significant limitation sufficient to satisfy her burden of demonstrating that she has a "serious injury" within the meaning of NYNFL.
Licari v. Elliott, 57 N.Y.2d 230, 238 (1982); Nasrallah v. Oliveiri Helio de, 1998 WL 152568, at *4 (S.D.N.Y. 1998) (citing Licari).
Absent "serious injury," Heisler's action must be dismissed. Tarnopolsky v. Sanchez, 2002 WL 31409927, at *1 (discussing N.Y. Ins. Law § 5104(a)).
Nasrallah, supra note 16, at *5 (quoting Licari, supra note 16, at 236).
Nasrallah, supra note 16, at *5 (citing Scheer v. Koubek, 70 N.Y.2d 678, 679 (1987)).
Dufel v. Green, 84 N.Y.2d 795, 798 (1995).
See, e.g., Nasrallah, supra note 16, at *6-7 (citing cases holding that a ROM deficit constitutes a significant limitation and noting that "the vast amount of New York case law" supports this proposition); Toure v. Avis Rent-A-Car Systems, Inc., 98 N.Y.2d 865, 868 (2002) ("In order to prove the extent or degree of physical limitation, an expert's designation of a numeric percentage of a plaintiff's loss of range of motion can be used to substantiate a claim of serious injury."); see also Oved v. Salotti, 2000 WL 1099926, at *1 (S.D.N.Y. 2000) (denying summary judgment because plaintiff proffered "chiropractor's findings of 15 to 40 degree limitations in the plaintiff's cervical and lumbar flexion, extension, and bilateral rotation" on the ground that it constituted a significant limitation); Zavialov v. Morgan, 2000 WL 133846, at *5 (E.D.N.Y. 2000) (denying summary judgment because plaintiff submitted an affidavit of a physician who noted cervical ROM deficits of between 10%-20% that the physician concluded to be permanent); Khouzam v. Zalesky, 1996 WL 79882, at *5 (S.D.N.Y. 1996) ("Generally *** where medical records indicate specific measurements of limited movement, courts have found a triable issue as to whether there is a significant limitation."); Lopez v. Senatore, 65 N.Y.2d 1017, 1020 (1985) (finding denial of summary judgment appropriate where plaintiff's medical expert stated that plaintiff suffered a neck ROM deficit of 10 degrees to the right or left); Livai v. Amoroso, 239 A.D.2d 565, 565 (1st Dep't 1997) (finding a 20% ROM deficit in plaintiff's cervical spine sufficient to establish a significant limitation); Grullon v. Chang Ok Chu, 240 A.D.2d 367, 367 (2d Dep't 1997) (finding that "restricted motion of [plaintiff's] lumbrosacral spine of 35 to 40 degrees" to be a significant limitation). But see Trotter v. Hart, 285 A.D.2d 772, 773 (3d Dep't 2001) (finding 20% loss of the use of the cervical spine to be insignificant).
See note 21, supra; see also Tarnopolsky, supra note 17, at *4 (denying summary judgment because plaintiff's physician noted ROM deficits that he attributed to the subject car accident). Dr. Denecke noted that Heisler's ROM deficits for right lateral flexion, left lateral flexion and right rotation were between 5 to 10 degrees less than normal. Dr. White indicated that Heisler's ROM deficit for right lateral flexion was 30 degrees and that her left lateral flexion was 60 degrees. Consequently, there is a genuine issue for trial concerning, inter alia, Heisler's ROM deficits. The fact that Drs. Denecke and White use different baselines for assessing Heisler's left lateral flexion (45° verus 60° respectively) further underscores the need for a trial.
Furthermore, the Appellate Division for the Fourth Department has held that the duration of a significant limitation is a fact issue to be determined at trial. Nathanson v. David, 244 A.D.2d 930, 930 (4th Dep't 1997). In Nathanson, defendants satisfied their initial burden by submitting the report of a neurologist who examined plaintiff in August of 1995. Ibid. Plaintiff, however, raised an issue of fact by submitting the report of a chiropractor who opined that plaintiff experienced specified limitations as of the last day of plaintiff's treatment in October of 1992. Ibid. Despite the three years that had lapsed between the time of plaintiff chiropractor's examination and the examination conducted by the defendant's medical expert, the Appellate Division held that a fact issue remained as to the duration of plaintiff's significant limitation. Ibid. Consequently, the Appellate Division for the Fourth Department does not follow courts holding that a "stale" medical examination is insufficient to forfend summary judgment. Ibid. Applying Nathanson, the duration of Heisler's ROM deficits is a jury question.
Nathanson held that, "[o]nly after all the facts are developed upon the trial, including the duration of the limitation and the effect it had upon the plaintiff, can it be determined *** whether the plaintiff suffered a significant limitation of use within the meaning of the No-Fault Law." Nathanson, at 931 (quoting Hayes v. Riccardi, 97 A.D.2d 954 (4th Dep't 1983)). Furthermore, Hayes held that a genuine issue of material fact existed where an examination of the plaintiff four days after the accident indicated a 40% ROM deficit in plaintiff's cervical spine despite the fact that such deficit did not exist fifteen months later. Hayes, at 954.
See also Hayes, supra note 23, at 954 (holding that a genuine issue of material fact existed where an examination of the plaintiff four days after the accident indicated a 40% ROM deficit in plaintiff's cervical spine despite the fact that such deficit did not exist fifteen months later); Williams v. Elzy, 2003 WL 22208349, at *9 (S.D.N.Y. 2003) (citing Hayes with approval). But see Williams v. Ritchie, 139 F. Supp.2d 330, 341-342 (E.D.N.Y. 2001) (finding that plaintiff's expert report — which was based on an examination performed more than a year before an examination conducted by defendant's medical expert — was state and insufficient to defect summary judgment); Khouzam, supra note 21, at *6 (rejecting medical examination that was almost three years old and discussing cases that have similarly rejected stale medical examinations); Best v. Bleau, 300 A.D.2d 858, 861 (3d Dep't 2002) (finding plaintiff's expert's medical opinion insufficient because, inter alia, it was made four years after plaintiff's last examination).
Moreover, although Dr. Denecke's last reported observation regarding Heisler's ROM deficits was made more than two years ago, it is nonetheless sufficient to create a genuine issue of material fact concerning Heisler's present ROM deficits — especially when viewed in conjunction with Dr. White's findings concerning Heisler's ROM deficits as of June 13, 2003. As noted above, this Court must resolve all ambiguities and draw all factual inferences in Heisler's favor. Consequently, Dr. Denecke's affidavit creates a genuine issue of material fact concerning the duration and origin of Heisler's deficits. Accordingly, defendants' motions for summary judgment will be denied because there exists a genuine issue of material fact whether Heisler suffered a "serious injury" within the meaning of section 5102(d).
See Nasrallah, supra note 16, at *6 (holding that "an injury need only be significant, not permanent" and denying summary judgment despite fact that defendant's medical expert indicated that plaintiff's injuries were far less severe in May of 1997 than they were when plaintiff's expert examined her in June of 1995); Hayes, supra note 23, at 954; Allen v. Brooks, 1993 WL 138830, at *1 (S.D.N.Y. 1993) (following Hayes and denying defendant's summary judgment motion where plaintiff's chiropractor noted various ROM deficits four days after accident).
Denecke Aff., ¶ 35 ("I continued to treat Ms. Heisler through January 16, 2003, noting that my clinical observations of Ms. Heisler's symptoms consistently correlated to her subjective complaints of pain and her frequent onset of occipital headaches."); see also id. ¶¶ 47-49 (opining that — based on his treatment of Heisler through January of 2003 and based on her medical records — Heisler's deficits were either caused by or exacerbated by the Accident and that such were permanent). Construing Dr. Denecke's affidavit in Heisler's favor, this Court reads it to say that his opinions were based on Heisler's condition as of her last examination on January 16, 2003. Consequently, aside from the import of Nathanson and Hayes, this Court finds distinguishable those cases holding that limitations of short duration after an accident do not establish a significant limitation because Dr. Denecke opined that Heisler's deficits were permanent. See, e.g., McCleary v. Hefter, 194 A.D.2d 594, 594 (2d Dep't 1993) (finding limitation insignificant where plaintiff's ROM was normal three months after the accident); Partlow v. Meehan, 155 A.D.2d 647, 648 (2d Dep't 1989) (finding limitation insignificant where it existed during examination on date of accident but not during an examination 22 months after the accident).
See, e.g., Nasrallah, supra note 16, at *5-8.
Defendants contend that Heisler failed to establish a causal relationship between the Accident and the aggravation of her pre-existing condition. The issue of causation is separate and distinct from the issue of whether Heisler suffered "serious injury" as a matter of law. Although Dr. White found that Heisler's pre-existing disc pathology remained unchanged after the Accident, Dr. Denecke opined that Heisler's deficits resulted from the Accident. Accordingly, there is a genuine issue of material fact as to causation. Inasmuch as defendants' motions for summary judgment will be denied, this Court will not address Heisler's remaining arguments.
See Carter, supra note 8, at *6 ("It is well-settled in New York that a defendant may prevail on summary judgment by establishing that a plaintiff's injuries are not `serious' pursuant to the insurance law *** or by establishing that the plaintiff's injuries are not causally related to the relevant accident. There is no requirement that defendant establish both.") (citations omitted).
Notably, Dr. White did not opine to a "reasonable degree of medical certainty" that Heisler's condition was not related to the Accident. White Aff., ¶¶ 24, 26.
Cf. Nasrallah, supra note 16, at *8 (denying defendant's summary judgment motion because "the fact that [plaintiff] already had degenerative disc disease does not prevent an accident from causing serious injury by aggravating this condition").
Accordingly, it is hereby ORDERED that defendants' motions for summary judgment are denied and that the parties shall appear before Part III of this Court on January 23, 2004 at 3:00 p.m. (or as soon thereafter as they may be heard) to set a date for trial.