Opinion
6156-16
03-10-2021
Candedia L. ALTMAN, Plaintiff, v. Michael SHAW, Johnson & Johnson and Jamel R. Gibson, Defendants.
Edward P. Ryan, Esq., Attorney for Plaintiff, 38 Eagle Street, Albany, New York 12207 Goldberg Segalla LLP, James F. Faucher II, Esq., Attorneys for Defendants Michael Shaw and Johnson & Johnson, 8 Southwoods Boulevard, Suite 300, Albany, New York 12211 Kelly & Leonard, LLP, Thomas E. Kelly, Esq. Attorneys for Defendant Jamel R. Gibson, 20 Fenwick Street, Ballston Spa, New York 12020
Edward P. Ryan, Esq., Attorney for Plaintiff, 38 Eagle Street, Albany, New York 12207
Goldberg Segalla LLP, James F. Faucher II, Esq., Attorneys for Defendants Michael Shaw and Johnson & Johnson, 8 Southwoods Boulevard, Suite 300, Albany, New York 12211
Kelly & Leonard, LLP, Thomas E. Kelly, Esq. Attorneys for Defendant Jamel R. Gibson, 20 Fenwick Street, Ballston Spa, New York 12020
Denise A. Hartman, J. In this claim for damages arising from a three-car, chain reaction accident, plaintiff moves to compel defendants to accept expert disclosure of plaintiff's orthopedic physician and to permit him to appear and testify at trial regarding plaintiff's ankle injury. Defendants Michael Shaw and Johnson & Johnson (hereinafter the Shaw defendants) oppose and move in limine for an order precluding plaintiff from presenting any testimony or documentary evidence, or making any mention of any evidence, of injuries not related to plaintiff's alleged cervical injury under the significant limitation of use category. Defendant Jamel Gibson filed an attorney affirmation in support of the Shaw defendants’ motion, adopting all arguments made by them and joining in their motion. For the reasons that follow, plaintiff's motion is granted, and the Shaw defendants’ motion is denied.
Background
On September 10, 2015, plaintiff was operating her 2014 Buick Encore in stop-and-go, rush-hour traffic on Central Avenue, in the Town of Colonie. While fully stopped, plaintiff's vehicle was rear-ended in a chain reaction collision involving two other vehicles. The middle vehicle was a 2014 Subaru Legacy sedan operated by defendant Michael Shaw and owned by defendant Johnson & Johnson. The rear vehicle was a 2006 Honda Accord operated by defendant Jamel Gibson.
In 2016, plaintiff commenced this action alleging that she sustained serious injuries within the meaning of Insurance Law § 5102 (d) as a result of the accident. Issue having been joined, discovery completed, and the note of issue filed, the Shaw defendants moved for summary judgment on the issue of liability and, alternatively, on the ground that plaintiff did not suffer a serious injury as the result of the accident. Gibson took no position on the Shaw defendants’ motion regarding the issue of their liability, but he joined in that portion seeking summary judgment on the ground that plaintiff did not suffer serious injury as a result of the accident.
Plaintiff cross-moved for partial summary judgment on the issue of liability and otherwise opposed defendants’ motions, claiming that she suffered a serious injury under Insurance Law § 5102 (d) because (1) her injuries prevented her from performing all of the material acts of her usual daily activities for at least 90 days of the 180 days after the accident; (2) she suffers from a significant limitation of use of a body function or system; and (3) she suffers from a permanent consequential limitation of use of a body organ or member.
Plaintiff had also alleged in her bill of particulars that she suffered a serious injury in the significant disfigurement and permanent loss categories but, as she did not address these categories in her motion papers, the Court deemed such grounds abandoned (see Eason v. Blacker , 155 A.D.3d 1180, 1181 n. 2, 63 N.Y.S.3d 615 [3d Dept. 2017] ).
By decision and order dated September 27, 2019, the Court denied the Shaw defendants’ motion on the issue of liability; denied the defendants’ motions on the issue of serious injury as it pertained to plaintiff's cervical spine injury in the significant limitation of use category, but otherwise granted that portion of the motion; denied plaintiff's cross motion for partial summary judgment on the issue of liability as it pertained to the Shaw defendants; and granted plaintiff's cross motion for partial summary judgment on the issue of liability as it pertained to defendant Gibson.
The Shaw defendants appealed the Court's September 27, 2019 decision and order (see Altman v. Shaw , 184 A.D.3d 995, 126 N.Y.S.3d 526 [3d Dept. 2020] ). On appeal, the Shaw defendants asserted, as is relevant here, that this Court erred in allowing plaintiff's claim relating to her cervical spine injury to move forward because "plaintiff's expert failed to address and distinguish plaintiff's preexisting conditions from any injury caused by the subject accident" ( Altman v. Shaw , 184 A.D.3d at 996, 126 N.Y.S.3d 526 ). In opposition, plaintiff contended that "her sworn affidavit and the medical report of Thomas M. McCormack, her neurosurgeon, establish[ed] that she did not suffer from cervical spinal issues before the accident and, thus, a triable issue of fact ha[d] been raised that support[ed] denial of the Shaw defendants’ motion" ( id. at 996, 126 N.Y.S.3d 526 ). The Appellate Division affirmed, finding that "plaintiff's proof was sufficient to raise a triable issue of fact regarding whether plaintiff's cervical spine condition was a serious injury caused by the accident and, therefore, [this Court] properly denied the Shaw defendants’ motion in this regard" ( id. at 998, 126 N.Y.S.3d 526 ).
On February 7, 2020, plaintiff served upon defendants an expert disclosure for David J. Dixon, M.D., plaintiff's attending orthopedic physician. Plaintiff expected Dr. Dixon to testify that her pre-existing ankle/Achilles tendon injury was aggravated by the accident; that the car accident, which occurred five months after surgical repair of her ankle, had "caused her Achilles to not heal as well;" and that she was limited by her ankle injury. Counsel for the Shaw defendants rejected plaintiff's expert disclosure.
Plaintiff now moves to compel defendants to accept Dr. Dixon's expert disclosure and permit him to appear at trial. Plaintiff contends that the "practical significance of [her ankle] injuries and aggravation of the pre-existing condition is that it impaired her rehabilitation from [her] prior tendon surgery, extended her disability and made it more difficult to be on her feet, particularly at work as a Physician's Assistant; this, in turn, has contributed to her economic damages."
Defendants oppose and the Shaw defendants, joined by defendant Gibson, move in limine for an order precluding plaintiff from presenting any testimony or documentary evidence, or making any mention of any evidence, of injuries not related to the alleged cervical injury under the significant limitation of use category. Defendants argue that plaintiff's proof regarding her ankle injury should be precluded because it does not comport with facts established on summary judgment, which constitute law of the case.
Analysis
"[A] grant of summary judgment establishes the law of the case as to the issues essential to that determination" ( Dukett v. Wilson , 31 A.D.3d 865, 868, 818 N.Y.S.2d 337 [3d Dept. 2006] [internal quotation marks and citation omitted]; see CPLR 3212 [g] ). "The law of the case doctrine generally precludes relitigating an issue decided in an ongoing action where there previously was a full and fair opportunity to address the issue" ( Town of Massena v. Healthcare Underwriters Mut. Ins. Co. , 40 A.D.3d 1177, 1179, 834 N.Y.S.2d 736 [3d Dept. 2007] ; see People v. Evans , 94 N.Y.2d 499, 502-504, 706 N.Y.S.2d 678, 727 N.E.2d 1232 [2000] ; Gitman v. Martinez , 169 A.D.3d 1283, 1284-1285, 95 N.Y.S.3d 427 [3d Dept. 2019] ).
Relying on the law of the case doctrine, defendants argue that plaintiff should be precluded from presenting any evidence relating to injuries purportedly sustained or exacerbated by the accident, other than her cervical spine injury in the significant limitation of use category, because such claims were previously dismissed on summary judgment. It is true that this Court held in its September 27, 2019 decision and order that plaintiff failed to raise a triable issue of fact with regard to whether any injuries to her ankle were serious physical injuries caused by the accident. And to that extent, the law of the case doctrine precludes plaintiff from relying on injuries to her ankle or exacerbation of a prior ankle injury for purposes of establishing the Insurance Law threshold for serious physical injury.
Indeed, plaintiff does not argue to the contrary. Rather, plaintiff argues that because the Court determined that plaintiff's cervical spine injury met the serious injury threshold, it "opened the gate" to evidence of any injury plaintiff sustained in the accident for purposes of establishing damages. Relying on Rubin v. SMS Taxi Corp., 71 A.D.3d 548, 898 N.Y.S.2d 110 (1st Dept. 2010), plaintiff contends that she can be compensated for all injuries suffered from the accident, provided that she establishes causation. In Rubin v. SMS Taxi Corp. , the First Department noted that when " ‘a prima facie case of serious injury has been established and the trier of fact determines that a serious injury has been sustained, [the] plaintiff is entitled to recover for all injuries incurred as a result of the accident’ " ( 71 A.D.3d at 549, 898 N.Y.S.2d 110, quoting Obdulio v. Fabian , 33 A.D.3d 418, 419, 822 N.Y.S.2d 276 [1st Dept. 2006] ). The Court explained, "once an alleged claim meets at least one of the serious injury thresholds, the statute's gatekeeping function, to reduce caseloads by limiting what the courts adjudicate, is satisfied [and] judicial economy is no longer a reason to preclude plaintiff from presenting to the jury all injuries causally related to the accident" ( id. at 549-550, 898 N.Y.S.2d 110 ). Thus, "[o]nce a jury determines that [a] plaintiff has met the threshold for serious injury, the jury may award damages for all of [the] plaintiff's injuries causally related to the accident, even those not meeting the serious injury threshold" ( id. at 549, 898 N.Y.S.2d 110 ). This Court agrees, at least under the facts and circumstances of this case, that plaintiff is entitled to introduce evidence that the accident caused or exacerbated injuries to her ankle for the purposes of assessing damages.
Defendants seek to distinguish Rubin on the ground that the defendant there relied on the severity of the plaintiff's injury in moving for summary judgment, not whether the plaintiff's injuries were causally related to the accident. And they point to a more recent line of cases issued out of the Appellate Division, First Department in support of their proposition that, where a court has found a lack of causation between the accident and an alleged serious injury, a plaintiff cannot subsequently introduce evidence of that injury at trial (see Bianchi v. Mason , 179 A.D.3d 567, 568, 118 N.Y.S.3d 559 [1st Dept. 2020] ; Deneen v. Bucknor , 178 A.D.3d 461, 462, 114 N.Y.S.3d 327 [1st Dept. 2019] ; Rosario v. Cablevision, Sys. , 160 A.D.3d 545, 546, 76 N.Y.S.3d 25 [1st Dept. 2018] ; Taylor v. Delgado , 154 A.D.3d 620, 621, 63 N.Y.S.3d 366 [1st Dept. 2017] ; Fathi v. Sodhi , 146 A.D.3d 445, 446, 44 N.Y.S.3d 406 [1st Dept. 2017] ; Hojun Hwang v. Doe , 144 A.D.3d 507, 508, 40 N.Y.S.3d 767 [1st Dept. 2016] ).
This Court is disinclined to apply the rule of this more recent line of cases from the First Department here. First, these cases appear to be in tension with the Court of Appeals’ holding in Linton v. Nawaz, 14 N.Y.3d 821, 822, 900 N.Y.S.2d 239, 926 N.E.2d 593 (2010). Second, defendants, by focusing in their original summary judgment motion on whether the accident caused serious physical injury, did not give plaintiff unambiguous notice that her failure to produce medical evidence causally relating any ankle injury to the accident would preclude her from producing such evidence at trial for the purpose of establishing economic damages.
In Linton v. Nawaz , the Court of Appeals held that, once a plaintiff has "established that at least some of his [or her] injuries meet the ‘No Fault’ threshold, it is unnecessary [for courts] to address whether [the plaintiff's] proof with respect to other injuries ... allegedly sustained [are] sufficient to withstand [a] defendants’ motion for summary judgment" ( Linton v. Nawaz , 14 N.Y.3d at 822, 900 N.Y.S.2d 239, 926 N.E.2d 593 ). The Second Department appears to apply the Linton rule, rather than the First Department rule (see Nussbaum v. Chase , 166 A.D.3d 638, 638-639, 87 N.Y.S.3d 120 [2d Dept. 2018] ; Navarro v. Afifi , 138 A.D.3d 803, 804, 30 N.Y.S.3d 188 [2d Dept. 2016] ; Rivera v. Sloane , 133 A.D.3d 838, 838, 19 N.Y.S.3d 440 [2d Dept. 2015] ; Bonner v. Hill , 302 A.D.2d 544, 545, 756 N.Y.S.2d 82 [2d Dept. 2003] ). The Court is unaware of cases from the Third Department, and the parties have cited none, that squarely address the issue. As a result, plaintiffs in the Third Department have not been put on notice as a matter of law that their failure to address causation related to all alleged injuries in response to defendants’ summary judgment motions seeking dismissal for failure to meet Insurance Law thresholds would preclude them from adducing at trial evidence regarding such injuries on the question of damages.
Furthermore, as a factual matter in this case, the thrust of defendants’ motion for summary judgment was whether plaintiff could overcome the serious injury threshold with regard to any of her claimed injuries — not whether any or all of plaintiff's claimed injuries were caused by the accident. In counsel's affidavit in support of their summary judgment motion, the Shaw defendants argued that plaintiff "did not suffer a ‘serious injury’ as defined in Insurance Law § 5102 (d)" (Affidavit of James F. Faucher II Esq. in Support, dated May 31, 2019, ¶ 2); that "[t]here is no evidence that (p)laintiff was subjected to the forces necessary to cause a serious injury under New York's no fault law " (Affidavit of James F. Faucher II Esq. in Support, dated May 31, 2019, ¶ 26 [emphasis added]); and that there was no "objective medical evidence that (p)laintiff incurred a serious injury as defined by the No Fault law as a result of [the accident]" (Affidavit of James F. Faucher II Esq. in Support, dated May 31, 2019, ¶ 27 [emphasis added]). While defendants’ experts made statements to the effect that plaintiff's ankle injury was not causally related to the accident, and counsel made some broader assertions that plaintiff's "complaints regarding her left ankle are not causally linked to the accident at issue" (Affidavit of James F. Faucher II Esq. in Support, dated May 31, 2019, ¶ 37), these statements created at least an ambiguity with regard to the relief defendants sought. Defendants’ submissions on the summary judgment motion did not reasonably place plaintiff on notice of defendants’ current position that she must come forth with objective medical evidence causally relating her ankle injury to the accident or risk forfeiting the use of such evidence at trial for the purpose of establishing damages.
Nor did the Court read defendants’ summary judgment papers as requesting such relief, and it made no finding about whether any ankle injury was caused or exacerbated by the accident. Rather, having concluded that plaintiff raised issues of fact regarding whether she suffered a serious injury to her cervical spine as a result of the accident, the Court noted that plaintiff had "proffered no competent evidence to raise a question of fact about whether she suffered a serious injury to her ankle as a result of the accident" (emphasis added). While the Court granted defendants’ motion to the extent that they sought dismissal of plaintiff's claim that the motor vehicle accident caused serious physical injury to her ankle, the Court simply did not decide whether plaintiff suffered some ankle injury caused by the accident for the purpose of awarding damages. Thus, the doctrine of "law of the case" does not apply to preclude such evidence (see Dukett v. Wilson , 31 A.D.3d 865, 868, 818 N.Y.S.2d 337 [3d Dept. 2006] ).
Once the Court found that plaintiff raised a question of fact regarding whether she suffered a serious injury to her cervical spine as a result of the accident, issues relating to her ankle injury were arguably no longer essential to the Court's determination (see Linton v. Nawaz , 14 N.Y.3d 821, 822, 900 N.Y.S.2d 239, 926 N.E.2d 593 [2010] ; Navarro v. Afifi , 138 A.D.3d 803, 804, 30 N.Y.S.3d 188 [2d Dept. 2016] ; Dukett v. Wilson , 31 A.D.3d 865, 868, 818 N.Y.S.2d 337 [3d Dept. 2006] ). In any event, plaintiff does not now seek to adduce evidence regarding the ankle/Achilles injury for purposes of meeting the Insurance Law threshold; she seeks to adduce such evidence only on the issue of damages.
In conclusion, given the Linton decision, and without clear, explicit notice to the plaintiffs’ bar or to plaintiff in this case of their obligation to adduce evidence regarding causation for all non-threshold injuries in response to such summary judgment motions, the Court declines in the exercise of its discretion to exclude evidence about whether plaintiff suffered or exacerbated an ankle injury as a result of the motor vehicle accident, giving rise to damages.
Defendants seeking summary judgment on the ground that a plaintiff cannot show causation of serious physical injury under the Insurance Law, and also on the ground that she cannot show causation of other injuries not meeting the serious injury threshold, would be well-advised to give express notice of the latter ground in their motion papers.
Accordingly, it is:
Ordered that plaintiff's motion to compel defendants to accept the expert disclosure of David J. Dixon, M.D., plaintiff's orthopedic physician, is granted; and it is Ordered that Dr. Dixon is not precluded from testifying at trial for the purpose of establishing damages caused by the accident, provided that plaintiff establishes serious injury to her cervical spine as a result of the accident; and it is
Ordered that the Shaw defendants’ motion in limine is denied to the extent that it seeks to preclude evidence regarding non-threshold injuries for purposes of establishing damages.
This constitutes the decision and order of the Court.