Opinion
Index No. 514400/2020
09-29-2023
Diana Davis, Plaintiff, v. Abdugani Rakhimjonov, MICHAEL A. TAYLOR, SHAWN A. GODDARD, VINCENT MOY, and SUEN WAI WONG, Defendants.
Stefano A. Filipazzo, P.C., Brooklyn (Steven Finkin of counsel), for Plaintiff. Baker McEvoy & Moskovits, P.C., Brooklyn (Yehuda Willner of counsel), for Defendant Abdugani Rakhimjonov. James F. Butler & Associates, Jericho (Peter Withey of counsel), for Defendant Michael A. Taylor. Law Offices of Jennifer S. Adams, Yonkers (Hariharan Krishnaraj of counsel), for Defendant Shawn A. Goddard. Morris Duffy Alonso Faley & Pitcoff, New York (Lynn Golder of counsel), for Defendants Vincent Moy and Suen Wai Wong.
Unpublished Opinion
Stefano A. Filipazzo, P.C., Brooklyn (Steven Finkin of counsel), for Plaintiff.
Baker McEvoy & Moskovits, P.C., Brooklyn (Yehuda Willner of counsel), for Defendant Abdugani Rakhimjonov.
James F. Butler & Associates, Jericho (Peter Withey of counsel), for Defendant Michael A. Taylor.
Law Offices of Jennifer S. Adams, Yonkers (Hariharan Krishnaraj of counsel), for Defendant Shawn A. Goddard.
Morris Duffy Alonso Faley & Pitcoff, New York (Lynn Golder of counsel), for Defendants Vincent Moy and Suen Wai Wong.
Aaron D. Maslow, J.
The following numbered papers were read on these motions:
Submitted by Defendant Rakhimjonov
NYSCEF Doc No. 54 (Motion Seq. 2): Notice of Motion
NYSCEF Doc No. 55 (Motion Seq. 2): Affirmation of Michael Lachman, Esq. in Support
NYSCEF Doc No. 56 (Motion Seq. 2): Statement of Material Facts
NYSCEF Doc No. 57 (Motion Seq. 2): Exhibit A - Summons and Complaint
NYSCEF Doc No. 58 (Motion Seq. 2): Exhibit B - Answer of Defendant Rakhimjonov
NYSCEF Doc No. 59 (Motion Seq. 2): Exhibit C - Bill of Particulars to Defendant Rakhimjonov
NYSCEF Doc No. 60 (Motion Seq. 2): Exhibit D - IME Report of Dr. Pierce Ferriter
NYSCEF Doc No. 61 (Motion Seq. 2): Exhibit E - Cervical, Lumbar, and Left Shoulder MRI Reports of Dr. Scott A. Springer
NYSCEF Doc No. 62 (Motion Seq. 2): Exhibit F - Plaintiff's EBT Transcript
Submitted by Defendant Taylor
NYSCEF Doc No. 63 (Motion Seq. 3): Notice of Cross-Motion
NYSCEF Doc No. 64 (Motion Seq. 3): Affirmation of Linda Meisler, Esq. in Support
NYSCEF Doc No. 65 (Motion Seq. 3): Exhibit G - Answer of Defendant Taylor
NYSCEF Doc No. 66 (Motion Seq. 3): Proof Service
NYSCEF Doc No. 67 (Motion Seq. 3): Certification
Submitted by Defendant Goddard
NYSCEF Doc No. 68 (Motion Seq. 4): Notice of Cross-Motion
NYSCEF Doc No. 69 (Motion Seq. 4): Affirmation of Hariharan Krishnaraj, Esq. in Support
NYSCEF Doc No. 70 (Motion Seq. 4): Exhibit A - Copy of Defendant Rakhimjonov's Motion
NYSCEF Doc No. 71 (Motion Seq. 4): Exhibit B - Answer of Defendant Goddard
Submitted by Defendants Moy and Wong
NYSCEF Doc No. 90 (Motion Seq. 6): Notice of Motion
NYSCEF Doc No. 91 (Motion Seq. 6): Statement of Material Facts
NYSCEF Doc No. 92 (Motion Seq. 6): Affirmation of Frank H. Foster, Esq. in Support
NYSCEF Doc No. 93 (Motion Seq. 6): Exhibit A - Pleadings
NYSCEF Doc No. 94 (Motion Seq. 6): Exhibit B - Bill of Particulars to Defendants Moy and Wong
NYSCEF Doc No. 95 (Motion Seq. 6): Exhibit C - Plaintiff's EBT Transcript
NYSCEF Doc No. 96 (Motion Seq. 6): Exhibit D - IME Report of Dr. Pierce Ferriter
NYSCEF Doc No. 97 (Motion Seq. 6): Exhibit E - Cervical, Lumbar, and Left Shoulder MRI Reports of Dr. Scott A. Springer
NYSCEF Doc No. 98 (Motion Seq. 6): Exhibit F - Proposed Court Order
Submitted by Plaintiff Davis
NYSCEF Doc No. 99 (Motion Seq. 2): Affirmation of Briana M. Longo, Esq. in Opposition
NYSCEF Doc No. 100 (Motion Seq. 2): Exhibit 1 -Affirmation of Dr. Enrique H. Monsanto
NYSCEF Doc No. 101 (Motion Seq. 2): Exhibit 2 - Affirmation of Dr. Mehrdad Hedayatnia
NYSCEF Doc No. 102 (Motion Seq. 2): Exhibit 3 - Affirmation of Dr. Harold Tice
NYSCEF Doc No. 103 - Memorandum of Law
NYSCEF Doc No. 104 - Response to Statement of Material Facts
NYSCEF Doc No. 105 (Motion Seq. 3): Affirmation of Briana M. Longo, Esq. in Opposition
NYSCEF Doc No. 106 (Motion Seq. 3): Exhibit 1 -Affirmation of Dr. Enrique H. Monsanto
NYSCEF Doc No. 107 (Motion Seq. 3): Exhibit 2 - Affirmation of Dr. Mehrdad Hedayatnia
NYSCEF Doc No. 108 (Motion Seq. 3): Exhibit 3 - Affirmation of Dr. Harold Tice
NYSCEF Doc No. 109 - Memorandum of Law
NYSCEF Doc No. 110 - Response to Statement of Material Facts
NYSCEF Doc No. 111 (Motion Seq. 3): Exhibit 4 - AMA Guides to Evaluation of Permanent Impairment Sixth Edition p 2
NYSCEF Doc No. 112 (Motion Seq. 3): Exhibit 4 - AMA Guides to Evaluation of Permanent Impairment p. 472
NYSCEF Doc No. 113 (Motion Seq. 3): Exhibit 4 - AMA Guides to Evaluation of Permanent Impairment Sixth Edition Clarifications and Corrections
NYSCEF Doc No. 114 (Motion Seq. 4): Affirmation of Briana M. Longo, Esq. in Opposition
NYSCEF Doc No. 115 (Motion Seq. 4): Exhibit 1 -Affirmation of Dr. Enrique H. Monsanto
NYSCEF Doc No. 116 (Motion Seq. 4): Exhibit 2 - Affirmation of Dr. Mehrdad Hedayatnia
NYSCEF Doc No. 117 (Motion Seq. 4): Exhibit 3 - Affirmation of Dr. Harold Tice
NYSCEF Doc No. 118 (Motion Seq. 4): Exhibit 4 - AMA Guides to Evaluation of Permanent Impairment Sixth Edition p. 2
NYSCEF Doc No. 119 (Motion Seq. 4): Exhibit 4 - AMA Guides to Evaluation of Permanent Impairment Sixth Edition p. 471
NYSCEF Doc No. 120 (Motion Seq. 4): Exhibit 4 - AMA Guides to Evaluation of Permanent Impairment Sixth Edition Clarifications and Corrections
NYSCEF Doc No. 121 (Motion Seq. 4): Memorandum of Law
NYSCEF Doc No. 122 (Motion Seq. 4): Response to Statement of Material Facts
NYSCEF Doc No. 123 (Motion Seq. 5): Affirmation of Briana M. Longo, Esq. in Opposition
NYSCEF Doc No. 124 (Motion Seq. 5): Exhibit 1 -Affirmation of Dr. Enrique H. Monsanto
NYSCEF Doc No. 125 (Motion Seq. 5): Exhibit 2 - Affirmation of Dr. Mehrdad Hedayatnia
NYSCEF Doc No. 126 (Motion Seq. 5): Exhibit 3 - Affirmation of Dr. Harold Tice
NYSCEF Doc No. 127 (Motion Seq. 5): Exhibit 4 - AMA Guides to Evaluation of Permanent Impairment Sixth Edition p. 2
NYSCEF Doc No. 128 (Motion Seq. 5): Exhibit 4 - AMA Guides to Evaluation of Permanent Impairment Sixth Edition p. 471
NYSCEF Doc No. 129 (Motion Seq. 5): Exhibit 4 - AMA Guides to Evaluation of Permanent Impairment Sixth Edition Clarifications and Corrections
NYSCEF Doc No. 130 (Motion Seq. 5): Memorandum of Law
NYSCEF Doc No. 131 (Motion Seq. 5): Response to Statement of Material Facts
NYSCEF Doc No. 132 (Motion Seq. 2): Exhibit 4 - AMA Guides to Evaluation of Permanent Impairment Sixth Edition p. 2
NYSCEF Doc No. 133 (Motion Seq. 2): Exhibit 4 - AMA Guides to Evaluation of Permanent Impairment Sixth Edition p. 471
NYSCEF Doc No. 134 (Motion Seq. 2): Exhibit 4 - AMA Guides to Evaluation of Permanent Impairment Sixth Edition Clarifications and Corrections
Submitted by Defendants Moy and Wong
NYSCEF Doc No. 156 (Motion Seq. 6): Reply Affirmation of Frank H. Foster, Esq. in Support
I. Question Presented
On motions for summary judgment involving the serious injury threshold for maintaining an action for personal injuries resulting from a motor vehicle accident, is the opinion of a medical expert concerning functionality of body parts probative where it is challenged for applying an outdated edition of medical guidelines and the expert does not address this?
II. Introduction
Plaintiff Diana Davis ("Plaintiff Davis" hereinafter) asserts in this action that she sustained personal injuries while driving on August 12, 2018, as a result of the negligent operation of vehicles driven by Defendants Abdugani Rakhimjonov, Michael A. Taylor, Shawn A. Goddard, and Vincent Moy , which were involved in a multi-vehicle chain collision. Defendant Rakhimjonov moves for summary judgment and is joined by Defendants Taylor, Goddard, Moy, and Wong (collectively "Moving Defendants"), claiming that Plaintiff failed to meet the "serious injury" threshold of Insurance Law §5104 (a), as defined in §5102 (d). There are nine categories of serious injury, per Insurance Law §5102 (d).
Defendant Suen Wai Wong was the owner of the vehicle driven by Defendant Vincent Moy.
Defendant Rakhimjonov also moved for summary judgment dismissing all claims and cross-claims against him, which motion was assigned Seq. No. 7. He drove the forward vehicle in a five-part chain collision. His motion was opposed on papers by Defendant Michael A. Taylor. The decision and order with respect to the motion will be uploaded as NYSCEF Doc No. 158.
" 'Serious injury' means a personal injury which results in [1] death; [2] dismemberment; [3] significant disfigurement; [4] a fracture; [5] loss of a fetus; [6] permanent loss of use of a body organ, member, function or system; [7] permanent consequential limitation of use of a body organ or member; [8] significant limitation of use of a body function or system; or [9] 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 constitute 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."
Summary judgment is a drastic remedy that should be granted only if no triable issues of fact exist and the movant is entitled to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986]; Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985]; Andre v Pomeroy, 35 N.Y.2d 361, 364 [1974]).
The issue of whether a claimed injury falls within the statutory definition of "serious injury" is a question of law for the Court, which may be decided on a motion for summary judgment (see Licari v Elliott, 57 N.Y.2d 230 [1982]). Moving Defendants bear the initial burden of establishing, by the submission of evidentiary proof in admissible form, a prima facie case that Plaintiff Davis has not suffered a serious injury from the subject motor vehicle accident as a matter of law, i.e., that there are no material issues of fact (see Toure v Avis Rent A Car Sys., Inc., 98 N.Y.2d 345 [2002]; Gaddy v Eyler, 79 N.Y.2d 955 [1992]). A failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Winegrad, 64 N.Y.2d 851).
If Moving Defendants have made such a showing that Plaintiff Davis has not suffered a serious injury from the subject motor vehicle accident as a matter of law, the burden shifts to Plaintiff Davis to submit evidence in admissible form sufficient to create a material issue of fact necessitating a trial (see Franchini v Palmieri, 1 N.Y.3d 536 [2003]; Grasso v Angerami, 79 N.Y.2d 813 [1991]).
III. Bill of Particulars
In Plaintiff Davis's bill of particulars, she (58 years old when the accident occurred) claimed injuries to the cervical spine (including disc herniation), lumbar spine (including disc herniation), bilateral hips, and left shoulder. She asserted that the injuries prevented her from enjoying normal activities. As for serious injury threshold categories, Davis claimed fracture; permanent loss of use of body organ, member, function, or system ("permanent loss of use"); permanent consequential limitation of use of a body organ or member ("permanent consequential limitation"); significant limitation of use of a body function or system ("significant limitation"); and a medically determined injury or impairment preventing her from performing substantially all daily activities for not less than 90 days during the 180 days immediately following the subject accident ("90/180"). (See NYSCEF Doc No. 59, Bill of Particulars to Defendant Rakhimjonov at 3-6; NYSCEF Doc No. 94, Bill of Particulars to Defendants Moy and Wong at 3-5 .)
The two bills of particulars are practically identical; further references will be to the bill of particulars to Defendant Rakhimjonov.
Notably, the bill of particulars also included:
j. aggravation and exacerbation of a C2/C3 disc herniation with progressive neural foraminal stenosis;
...
dd. exacerbation at L4-L5 disc herniation (NYSCEF Doc No. 59 p. 3-4 ¶ 10;(NYSCEF Doc No. 59, Bill of Particulars to Defendant Rakhimjonov at 3-4 [emphasis added].)
IV. Defendants' Evidence
In their motion for summary judgment, Moving Defendants first relied on an affirmed independent medical examination ("IME") report prepared by Dr. Pierce Ferriter, M.D., a Board-certified orthopedic surgeon, on October 7, 2021, detailing the examination of Plaintiff, findings, and conclusions. Moving Defendants also relied on MRI reports prepared by Dr. Scott A. Springer, a licensed radiologist, evaluating MRI films of Plaintiff taken prior to and after the subject accident: cervical spine on August 2, 2012 and November 18, 2013; lumbar spine on February 9, 2015; and left shoulder on November 2, 2020. Moving Defendants further relied on the certified transcript of the examination before trial ("EBT") of Plaintiff Davis they conducted on August 4, 2021.
A. Dr. Pierce Ferriter's Exam Report (NYSCEF Doc No. 60)
Dr. Ferriter's report was submitted by both Defendants Rakhimjonov, and Moy and Wong. This Court will refer to the copy submitted by Rakhimjonov. The same applies to Dr. Springer's MRI reports and Plaintiff Davis's EBT transcript.
Dr. Ferriter noted that Davis was a restrained driver when she was rear-ended. She did not report if she lost consciousness or if she sustained any lacerations as a result of the accident. Davis denied seeking emergency hospital care immediately following the accident but within two months came under the care of various health service providers, including a physical therapist. At the IME, Davis complained of pain in the neck, low back, left shoulder, and bilateral hips. (See NYSCEF Doc No. 60, Dr. Ferriter's IME Report at 1-2. )
Where no page numbers appear in the document or there are multiple paginated documents within a NYSCEF Document, reference is to the PDF page numbers.
Davis walked with a normal gait and posture and without assistive devices. Dr. Ferriter compared Davis's observed ranges of motion to what he considered normal and found full range of motion in the cervical spine, lumbar spine, left shoulder, right hip, and left hip. Range of motion testing was performed using a goniometer and the Guidelines to the Evaluation of Permanent Impairment, Fifth Edition, published by the American Medical Association (AMA). (See id. at 2-3.)
Dr. Ferriter also conducted the following orthopedic tests, which yielded negative results: Spurling's, Shoulder Shrug, Hoffman's, Atrophy of Scapula, Compression, Jackson's, Soto-Hall's, Fabere, Kemp's, Minor's sign, Laseque's test, Hawkins/Kennedy Impingement, Neer's Impingement, Cross-Arm Abduction, Empty Can (Jobe's), Scapular Winging, Drop Arm, O'Brien, Painful Arc, Atrophy of Deltoid, Ober, sitting bilateral straight leg raise, and supine bilateral straight leg raise. There was no bursitis, muscle spasm, complaint of tenderness, heat, swelling, effusion, erythema, or crepitus. Dr. Ferriter also found that Plaintiff Davis scored 5/5 for muscle strength, rotator cuff strength, flexion strength, and abduction strength. Well healed surgical scars from surgery were noted on the left shoulder. (See id. at 3-5.)
Dr. Ferriter also added:
The examinee presents with a normal orthopedic examination on all objective testing. The orthopedic examination is objectively normal and indicates no findings which would result in orthopedic limitations in use of the body parts examined. The examinee is capable of functional use of the examined body parts for normal activities of daily living. Currently, the claimant is working. There is no functional disability and the claimant may continue working as she currently does. The claimant is able to perform normal activities of daily living without limitations. There is no disability or permanency.
Upon completion of the examination, Ms. Davis offers no complaints as a result of this examination and left the examining area stable and unchanged.(Id. at 5-6.)
B. Dr. Scott A. Springer's MRI Reports (NYSCEF Doc. No. 61)
Dr. Springer examined MRI films of Plaintiff Davis's cervical spine taken August 2, 2012, six years and ten days prior to the subject accident, and November 18, 2013, four years, eight months, and 25 days prior to the subject accident. He summarized his findings as follows:
Cervical Spine - MRI August 2, 2012 (NYSCEF Doc No. 61 at 2):
IMPRESSIONS:
Examination is limited, as described above.
Straightening of the normal cervical lordosis.
Mild degenerative changes with anterior osteophytes, C5-C6.
Generalized disc desiccation.
Disc space height loss, C4-C5.
Disc bulges, C3-C4, C5-C6 and C6-C7.
Disc herniations, C2-C3 and C4-C5.
Central canal narrowing, C4-C5.
Disc osteophyte complex, C4-C5.
Neural foraminal narrowing, C4-C5.
No fracture or subluxation.
No posttraumatic changes causally related to the subsequent 8/12/2018 incident.
Cervical Spine - MRI November 11, 2013 (NYSCEF Doc No. 61 at 2):
IMPRESSIONS:
Straightening of the normal cervical lordosis.
Mild degenerative changes with anterior osteophytes, C4-C5, C5-C6 and C6-C7.
Generalized disc desiccation.
Disc space height loss, C4-C5.
Disc bulges, C3-C4, C5-C6 and C6-C7.
Disc herniations, C2-C3 and C4-C5.
Central canal narrowing, C4-C5.
Disc osteophyte complex, C4-C5.
Neural foraminal narrowing, C4-C5.
No fracture or subluxation.
No posttraumatic changes causally related to the subsequent 8/12/2018 incident.
Dr. Springer reviewed a lumbar MRI taken February 9, 2015, three years, six months, and five days prior to the subject accident. He summarized his findings as follows:
IMPRESSIONS:
Mild rightward curvature on the scout coronal views.
Straightening of the normal lumbar lordosis on the sagittal views.
Grade 1 anterolisthesis of L4 on L5.
Mild degenerative changes with anterior osteophytes, L4-L5.
Disc desiccation, T11-T12 through L5-S1.
Disc space height loss, L4-L5.
Schmorl's node in the superior endplate of L1.
Disc bulges, L2-L3, L3-L4 and L5-S1.
Disc herniations, T12-L1 and L4-L5.
Disc osteophyte complex, T12-L1.
Neural foraminal narrowing / stenosis, T12-L1, L2-L3 and L4-L5.
Paraspinal musculature atrophy.
No fracture or subluxation.
No posttraumatic changes causally related to the subsequent 8/12/2018 incident.(NYSCEF Doc No. 61 at 6.)
Dr. Springer also examined MRI films of the left shoulder taken November 2, 2020, two years, two months, and 21 days following the subject accident. He summarized his findings as follows:
IMPRESSIONS:
Hypertrophic change, acromioclavicular joint.
Lateral down sloping acromial process.
Tendinosis, supraspinatus and infraspinatus tendons.
Partial thickness interstitial tears, supraspinatus and infraspinatus tendons.
Tendinosis, long head of the bicep tendon.
Subchondral bone cysts.
Spurring, greater tuberosity.
Narrowing, glenohumeral joint.
Fluid in the subglenoid recess.
Mild associated atrophy of the supraspinatus and infraspinatus muscles.
No fracture, dislocation or acromioclavicular joint separation.
No posttraumatic changes causally related to the 8/12/2018 incident.(Id. at 6.)
C. Examination Before Trial (NYSCEF Doc No. 62)
Defendant Rakhimjonov's counsel, in his affirmation (NYSCEF Doc No. 55, Michael Lachman Affirmation) emphasized the following testimony given by Plaintiff Davis at her deposition, the transcript of which was submitted as NYSCEF Doc No. 62:
Following the subject accident, Plaintiff Davis refused medical attention and did not leave the accident in an ambulance (citing NYSCEF Doc No. 62, EBT Transcript at 28-29, 50). Davis did not experience pain until about three weeks later, around which time she first sought medical attention (citing id. at 30, 50-51). Davis visited Dr. Hedayatnia for treatment, which she had been doing prior to the accident (citing id. at 30, 32, 40). She later received left shoulder surgery and wore a sling for "maybe two (2) weeks" (citing id. at 35). Despite the accident taking place in 2018, Davis did not seek physical therapy until after the surgery in 2020 and attended only for six weeks (citing id. at 36, 53). (See NYSCEF Doc No. 55, Michael Lachman Affirmation at 6-7.)
Davis had a prior back and neck injury after jumping out of the second floor of a building 20 years before the subject accident; she received injections to her back until the time of the accident because it continued to hurt her (citing NYSCEF Doc No. 62, EBT Transcript at 39-42). Her prescription of oxycodone from jumping out of the second-floor building did not change as a result of the August 18, 2018 accident (citing id. at 58-59). (See NYSCEF Doc No. 55, Michael Lachman Affirmation at 7.)
At the time of the accident, Davis was employed as a dietitian for New York Presbyterian (citing NYSCEF Doc No. 62, EBT Transcript at 12). Despite working five days a week for 7.5 hours a day, she did not miss time from work as a result of the accident (citing id. at 13-14). Davis also continued to drive every weekend for two and a half hours (citing id. at 59). (See NYSCEF Doc No. 55, Michael Lachman Affirmation at 7.)
V. Plaintiff's Evidence
In opposition, Plaintiff Davis submitted an affirmation from her attorney, Briana M. Longo, that relied on: an affirmation of Dr. Enrique H. Monsanto, M.D., a Board-certified orthopedic surgeon, who treated Plaintiff from October 28, 2020 to April 21, 2021, detailing his examinations of Plaintiff, findings, and conclusions (NYSCEF Doc No. 100); an affirmation of Dr. Mehrdad Hedayatnia, M.D., a Board-certified physiatrist, who treated Plaintiff from prior to the subject accident until March 2, 2021, detailing his examinations of Plaintiff, findings, and conclusions (NYSCEF Doc No. 101); and an affirmation of Dr. Harold Tice, who interpreted MRI films of the lumbar spine taken February 9, 2015 and September 7, 2021, and the cervical spine taken November 18, 2013 and August 24, 2021 (NYSCEF Doc No. 102).
NYSCEF Doc No. 102 included Dr. Tice's MRI reports of imaging of Plaintiff Davis. They revealed the following:
Lumber Spine - MRI February 9, 2015 (NYSCEF Doc No. 102 at 4):
IMPRESSION:
L4/5 disc herniation with grade I spondylolisthesis deforming the thecal sac contributing to marked central spinal stenosis in conjunction with posterior hypertrophic changes with bilateral neural foraminal extension abutting the exiting L4 nerve roots contributing to bilateral neural foraminal narrowing.
L5/S1, L3/4, and L2/3 and T12/L1 disc bulges.
Old L1 vertebral body compression fracture, with mild retropulsion.
Lumber Spine - MRI September 7, 2021 (id. at 6):
IMPRESSION:
L4/5 disc herniation with grade I spondylolisthesis deforming the thecal sac abutting the proximal L5 nerve roots bilaterally with bilateral neural foraminal extension abutting the exiting L4 nerve roots contributing to bilateral neural foraminal narrowing and marked central spinal stenosis in conjunction with facet and ligamentous hypertrophic changes.
L5-S1, L3-4, L2-3, and T12-L1 disc bulges.
Chronic L1 right compression deformity.
Levoscoliosis.
No significant changes in both findings compared to previous MRI study dated 02/09/2015.
Cervical Spine - MRI November 20, 2013 (id. at 9):
IMPRESSION:
C2/3, C4/5 and C6/7 herniations deforming the thecal sac with cord abutment at C4/5 and C6/7 and C4/5 right neural foraminal narrowing.
C3/4 and C5/6 disc bulges.
Cervical spine straightening.
Cervical Spine - MRI August 24, 2021 (id. at 11):
IMPRESSION:
C4-5, C5-6 and C6-7 disc herniations deforming the thecal sac abutting the spinal cord, with C4-5 and C6-7 bilateral neural foraminal extensions abutting the exiting nerve roots bilaterally at both levels, in addition to C4-5 bilateral neural foraminal narrowing in conjunction with bilateral facet and uncinate hypertrophic changes, paracentral osseous hypertrophic changes, disc degeneration and mild central spinal stenosis in conjunction with posterior ligamentous hypertrophy.
C2-3, C3-4 and C7-T1 disc bulges.
Dr. Monsanto discussed his initial and follow-up examinations of the Plaintiff in NYSCEF Doc No. 100. Decreased ranges of motion regarding the left shoulder were found on October 28, 2020; December 1, 2020; December 15, 2020; January 6, 2021; and April 21, 2021. Use of a goniometer is noted in addition to the AMA Guide Sixth Edition. Dr. Monsanto also performed left shoulder surgery on Plaintiff on November 12, 2020, to repair a "SLAP lesion, glenohumeral joint debridement, arthroscopic decompression of shoulder with acromioplasty revision of AC ligament, and resection of distal clavicle more than 9 mm" (NYSCEF Doc No. 100, Dr. Monsanto's Affirmation at 3).
Plaintiff also submitted an affirmation by Dr. Hedayatnia under NYSCEF Doc No. 101. Having treated Plaintiff Davis for preexisting injuries, Dr. Hedayatnia noted that Plaintiff's neck and back conditions were under control as of eight months prior to the subject accident. Decreased ranges of motion were found to both the cervical and lumbar spines on January 24, 2019 and July 11, 2019, whereas decreased ranges of motion to only the lumbar spine were found during examinations performed on February 14, 2019; March 4, 2019; and September 15, 2019. Additionally, decreased ranges of motion were found on the most recent examination, which did not have a specified date, for the cervical spine, lumbar spine, and left shoulder. While use of a goniometer is listed for each of the examinations, only the most recent examination lists degrees, norms, and use of the Sixth Edition of the AMA Guidelines.
VI. Discussion
As set forth above, Plaintiff Davis claimed fracture, permanent loss, permanent consequential limitation, significant limitation, and inability to perform substantially all daily activities for 90 of 180 days following the accident in the bill of particulars (see NYSCEF Doc No. 59, Bill of Particulars to Defendant Rakhimjonov ¶ 20 at 6). She claimed that the serious injuries were "caused by the subject occurrence" (id. ¶ 10 at 3).
(1) Fracture
Without evidence of a fracture, there is no serious injury (see Friscia v Mak Auto, Inc., 59 A.D.3d 492 [2d Dept 2009]). Plaintiff Davis provided no evidence of a fracture nor is there evidence of fracture according to Drs. Ferriter and Springer's reports. Therefore, Defendants established a prima facie case that Plaintiff did not sustain a fracture. This was not rebutted by Plaintiff Davis.
(2) Permanent Loss of Use of a Body Organ, Member, Function or System
A plaintiff claiming this must prove that the permanent loss of use is a total loss of use (see Oberly v Bangs Ambulance, Inc., 96 N.Y.2d 295 [2001]). Dr. Ferriter's IME report established a prima facie case that Plaintiff did not sustain total loss of use of an organ, member, function or system. Even Drs. Monsanto and Hedayatnia described ranges of motion more than zero degrees, which confirms that there were no body components which suffered total loss of use. Therefore, Defendants established a prima facie case that Plaintiff did not sustain a permanent loss of use. This was not rebutted by Plaintiff Davis.
(3) Permanent Consequential Limitation of Use of a Body Organ or Member; Significant Limitation of Use of a Body Function or System
Dr. Ferriter's IME report reflecting orthopedic testing recorded no limitations to range of motion in Davis's cervical spine, lumbar spine, left shoulder, right hip, and left hip (see NYSCEF Doc No. 60 at 3-5). Establishing a lack of any limitations would normally allow a defendant to successfully establish that these two limitation categories have not been met by the plaintiff (see Franchini, 1 N.Y.3d 536; Toure, 98 N.Y.2d 345; Gaddy, 79 N.Y.2d 955; Grasso, 79 N.Y.2d 813).
It has been this Court's position that the guidelines which a medical expert uses to determine whether ranges of motion are deemed normal or limited must be reported in addition to which device was used to perform measurements (such as a goniometer or inclinometer) see Wilks v Baichans (79 Misc.3d 1226 [A], 2023 NY Slip Op 50731[U] [Sup Ct, Kings County 2023]). This is an crucial information in presenting expert medical opinion evidence in an area where objective - rather than subjective - evidence is necessary due to the legal consequences. This Court is now confronted with a new issue, one raised by Plaintiff Davis: May Defendants rely on an outdated set of medical guidelines on range of motion norms for their legal arguments that Plaintiff's condition evidences no limitations which would constitute serious injury? Dr. Ferriter, whose IME report was relied upon by all Moving Defendants, relied on the Fifth Edition of the AMA's Guidelines to the Evaluation of Permanent Impairment.
This Court wrote in Wilks:
Nonetheless, this Court finds that Defendants failed to make out a prima facie case of entitlement to summary judgment with respect to these two categories. Dr. Guttman did not set forth the authority he relied upon to determine what the norms are on range of motion testing. While this Court has not located appellate authority for the proposition that an examining doctor whose report is used on a motion for summary judgment to dismiss a complaint premised on the asserted ground of a lack of serious injury must set forth where the doctor derived the norms, this Court notes that doctors do not always agree on them (see Layne v Drouillard, 65 A.D.3d 1197 [2d Dept 2010, Spolzino, J., dissenting]; Balkaran v Shapiro-Shellaby, 26 Misc.3d 1228 (A), 2009 NY Slip Op 52755(U) (Sup. Ct. Bronx Co. 2009). Summary judgment dismissing a complaint and depriving a plaintiff of a jury trial is a drastic remedy. To premise a grant of summary judgment on a doctor's range of motion findings without the doctor stating the source of the "normal degrees" is inequitable and insufficient, inasmuch as case law has noted that there are at least several sources (e.g. Ramos v Keenan, 2017 NY Slip Op 31286(U), *1 [Sup Ct, NY County 2017] [AMA Guidelines 5th Edition, NYS guidelines, McBride's Guide to Permanent Disability]; Roldan v Perro, 2013 WL 9972883, *2 [Sup Ct, Nassau County, May 23, 2013, No. 16464/2011] [AMA Guidelines]; Davis v Rivers, 2010 WL 3738550 [Sup Ct (Nassau County), Sept. 15, 2010, No. 19190/2008] [Physical Examination of the Spine and Extremities by Dr. Hoppenfeld, American Medical Association Guidelines to the Evaluation of Permanent Impairment, Campbell's Operative Orthopedics]).
Conclusory findings of a doctor are insufficient on a motion for summary judgment (see Pupko v Hassan, 149 A.D.3d 988 [2d Dept 2017] [conclusory and speculative opinion regarding causation]; Landman v Sarcona, 63 A.D.3d 690 [2d Dept 2009] [doctor's opinion that significant limitation due to plaintiff's age and evidence of degenerative disease conclusory]). Providing an opinion without stating the tests relied on is insufficient (see Smith v Quicci, 62 A.D.3d 858 [2d Dept 2009]; Rodriguez v J&K Taxi, Inc., 12 A.D.3d 434 [2d Dept 2004]). Stating results without the norms is insufficient (see Shirman v Lawal, 69 A.D.3d 838 [2d Dept 2010]; Malave v Basikov, 45 A.D.3d 539 [2d Dept 2007]; DeLuca v Miceli, 37 A.D.3d 643 [2d Dept 2007]; Frey v Fedorciuc, 36 A.D.3d 587 [2d Dept 2007]; Powell v Alade, 31 A.D.3d 523 [2d Dept 2006]). Likewise, without indicating where the norms were obtained from, it is insufficient to opine that "There were no objective findings on examination" (NYSCEF Doc No. 88, Dr. Jeffrey N. Guttman IME report at 7), especially since the doctor himself found reduced range of motion by his own lack-of-source standard.(Wilks, 2023 NY Slip Op 50731[U], *6-7.)
Through Dr. Hedayatnia's affirmation, Plaintiff Davis brought to this Court's attention differences between the Fifth and Sixth Editions of the AMA Guidelines. Dr. Hedayatnia opined:
Plaintiff Davis's counsel's affirmation also argued that the Guidelines utilized by Dr. Ferriter were outdated (see NYSCEF Doc No. 99, Briana M. Longo Affirmation at 2-4, 9-10). So too did her memorandum of law (see NYSCEF Doc No. 103, Plaintiff's Memorandum of Law at 1-8).
9. Defendants' examining orthopedist Dr. Ferriter performed objective range of motion testing using a goniometer, expressly relying on the AMA Guide to Physical Impairment, 5th Edition for the normal ranges on his range of motion measurements. However, the AMA Guide to Physical Impairment, 5th Edition was superseded by the AMA Guides to the Evaluation of Permanent Impairment, Sixth Edition in 2009. The normal ranges of motion [for] the shoulder are found at page 472 of the AMA Guides to the Evaluation of Permanent Impairment, Sixth Edition. These normal ranges are often significantly larger in the Sixth Edition. Page 472 of "Guidelines to the Evaluation of Permanent Impairment," 6th Edition published by the American Medical Association sets range of motion guidelines for the shoulder at Forward Flexion and Abduction of 180 degrees, Adduction of 50 degrees (thus Dr. Ferriter actually measures a 20 degree, 40% limitation)[,] Extension of 50 degrees (thus Dr. Ferriter actually measures a 10 degree, 20% limitation), internal rotation of 90 degrees (thus Dr. Ferriter actually measures a 10 degree, 11% limitation) and external rotation of 90 degrees.(Dr. Hedayatnia's Affirmation at 6.)
In "Clarifications and Corrections," the authors note that the Sixth Edition "eliminate[s] contradictions, and correct[s] omissions to build on our stated goals of greater precision, standardization of the rating process, and internal consistency (6th ed, page iii)" (NYSCEF Doc No. 113, Clarifications and Corrections at 1). This is followed by 53 pages of corrections and revisions made to the Fifth Edition. The Sixth Edition Guidelines discuss why such corrections and revisions were made, mentioning criticisms of the Fifth Edition:
There was a failure to provide a comprehensive, valid, reliable unbiased, and evidence-based rating system.
Impairment ratings did not adequately or accurately reflect loss of function.
Numerical ratings were more the representation of "legal fiction than medical reality."(NYSCEF Doc No. 111, AMA Guides to Evaluation of Permanent Impairment p 2.)
The Sixth Edition also notes that the recommended changes were included to "correct the deficiencies in the Fifth Edition" such as:
Standardized assessment of Activities of Daily Living (ADL) limitations associated with physical impairments.
Application of functional assessment tools to validate impairment rating scales.
Include measures of functional loss in the impairment rating.
Overall improvements in intrarater and interrater reliability and internal consistency.(Id.)
The Sixth Edition further asserts the importance of using this edition over older versions:
The Guides adopts the terminology and conceptual framework of disablement as put forward by the International Classification of Functioning, Disability, and Health (ICF).
The Guides becomes more diagnosis based with these diagnoses being evidence-based when possible.
Simplicity ease-of-application, and following precedent, where applicable, are given high priority, with the goal of optimizing interrater and intrarater reliability.
Rating percentages derived according to the Guides are functionally based, to the fullest practical extent possible.
The Guides stresses conceptual and methodological congruity within and between organ system ratings.(Id.)
As noted in this Court's previous decision of Chen v Sahin (- Misc.3d -[A], 2023 NY Slip Op 50965[U], *8-9 [Sup Ct, Kings County 2023]), the scientific community indicates the authority and measurements used to enable others to replicate their work. With progress in mind, it is hard to imagine members of said community purposefully using outdated methods to solve a problem when knowledge of more current and accepted methods exist. Similarly, it is hard to imagine doctors not having the same sentiment regarding diagnostic and treatment methodology when dealing with allegedly injured patients. Therefore, it is also this Court's position that medical experts for both plaintiffs and defendants submitting evidence on summary judgment motions should utilize the most recent edition of whatever guidelines they are using to assess functionality of body parts for legal purposes. For example, if the AMA's Guidelines to the Evaluation of Permanent Impairment is being utilized then the latest edition containing range of motion data should be applied - not an outdated one. However, if a medical expert whose opinion is offered by a party disagrees with the latest version, it behooves the expert to explain why a prior edition was used. Absent doing so, and where the opposing party challenges the use of outdated medical data, the expert's opinion lacks probative value.
Following up on Wilks (79 Misc.3d 1226[A], 2023 NY Slip Op 50731[U]), where the defendants failed to note the guidelines relied on, this Court wrote in Chen (- Misc.3d -[A], 2023 NY Slip Op 50965[U], *8-9), where there was a similar deficiency, "It might also be prudent to add that in the medico-scientific community, it is generally accepted practice for scientists and physicians to note authority and measurements to not only enable others to replicate their work but also for others to better understand the process. Thus, it is questionable how fairness can be demonstrated when medical experts, as members of the scientific community, offer degrees of measurement without at least stating what authority was used."
Although Plaintiff contested Dr. Ferriter's use of an outdated version of the AMA Guidelines he did not reply any justification for doing so. Counsel for Defendants Moy and Wong argued that the Fifth Edition Guidelines were sufficient (see NYSCEF Doc No. 156, Frank H. Foster Affirmation 7), yet this is a subject within the professional expertise of doctors, not lawyers. After all, it was Dr. Hedayatnia, who treated Plaintiff Davis, who challenged Dr. Ferriter's use of the Fifth Edition. Therefore, counsel's reply affirmation argument is unavailing.
Of course, if the adverse party does not dispute a set of guidelines used by a medical expert, then there is no issue. This is consistent with Dietrich v Puff Cab Corp. (63 A.D.3d 778 [2d Dept 2009]), in which the court held that if the plaintiff's doctors did not set forth norms for range of motion then recorded degrees may be compared to norms set forth by the defendant's doctors.
As applied to the instant case, when examining Plaintiff Davis's left shoulder, Dr. Ferriter recorded extension at 40 degrees, but the Sixth Edition's norm is 50 degrees; this yields a 20% limitation. Dr. Ferriter recorded adduction at 30 degrees, but the Sixth Edition's norm is 40 degrees; this yields a 25% limitation. A 20% limitation is significant (see Dufel v Green, 84 N.Y.2d 795 [1995]; Kholdarov v Hyman, 165 A.D.3d 1087 [2d Dept 2018]).
With Defendants' own medical expert confirming a significant limitation on October 7, 2021, more than three years after the subject accident, Defendants failed to establish entitlement to judgment as a matter of law, i.e., they failed to establish that there are no material issues of fact as to whether Plaintiff Davis met the serious injury threshold categories of permanent consequential limitation and significant limitation (see Alvarez, 68 N.Y.2d 320; Winegrad, 64 N.Y.2d 851; Andre, 35 N.Y.2d 361; Mullen v Lauffer, 31 A.D.3d 402 [2d Dept 2006]; Tchevskaia v Chase, 15 A.D.3d 389 [2d Dept 2005]).
(4) 90/180
This category is defined specifically as "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 constitute 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" (Insurance Law § 5102[d] [emphasis added]). By emphasizing that Plaintiff missed no work, Defendants made out a prima facie case that there is no issue of fact concerning 90/180 category; Plaintiff Davis failed to establish a serious injury under this category (see Ranford v Tim's Tree & Lawn Service, Inc., 71 A.D.3d 973 [2d Dept 2010] [Defendant's prima facie case established by submitting plaintiff's deposition testimony that no time from work was missed]). This was not rebutted by Plaintiff Davis.
(5) Proximate Causation
Dr. Springer opined that there were no posttraumatic changes causally related to the August 12, 2018 accident with respect to the left shoulder MRI, the only MRI imaging taken following the subject accident (see NYSCEF Doc No. 61, Dr. Springer's MRI reports at 8). However, neither Dr. Springer nor Dr. Ferriter discussed the claim of exacerbation made in the bill of particulars (see supra at 5); Defendants failed to establish a prima facie case that there is no material issue of fact pertaining to proximate causation (see Liburd v Mondal, 215 A.D.3d 655 [2d Dept 2023); Menjivar v Capers, 214 A.D.3d 640 [2d Dept 2023]).
Dr. Springer's reviews of pre-accident MRI films are of no legal import as to proximate causation with respect to the cervical and lumbar spines, and he did not examine Plaintiff Davis. Dr. Ferriter did not offer an opinion on proximate causation.
Plaintiff Davis was not called upon to rebut Defendants' evidence on the issue of proximate causation.
VII. Conclusion
Defendants failed in their effort to make out a prima facie case that as a matter of law, injuries claimed by Plaintiff Davis were not proximately caused by the August 12, 2018 motor vehicle accident and therefore there was no serious injury. The burden did not shift to Plaintiff Davis to rebut Defendants' evidence on this issue (see Winegrad, 64 N.Y.2d 851).
In terms of the categories of fracture, permanent loss of use, and 90/180, Defendants did establish a prima facie case that Plaintiff Davis did not sustain a serious injury, and the burden shifted to the Plaintiff to submit evidence, in admissible form, to demonstrate the presences of a material issue of fact (see Franchini, 1 N.Y.3d 536; Grasso, 79 N.Y.2d 813). Plaintiff Davis failed to do so.
In terms of the categories of permanent consequential limitation and significant limitation, Defendants failed to make a prima facie showing that there are no material issues of fact. Therefore, Plaintiff Davis's evidence with respect to these two categories is legally irrelevant (see Winegrad, 64 N.Y.2d 851; Curiale v Delfavero, 211 A.D.3d 905 [2d Dept 2022]).
Since Defendants did not eliminate a material issue of fact as to two categories of serious injury, the motion for summary judgment must be denied and Plaintiff Davis is entitled to seek recovery for all injuries proved at trial to have proximately been caused by the aforesaid accident (see Linton v Nawaz, 14 N.Y.3d 821 [2010]; Detoma v Dobson, 214 A.D.3d 949 [2d Dept 2023]; O'Neill v O'Neill, 261 A.D.2d 459 [2d Dept 1999]).
Therefore, it is legally irrelevant that Plaintiff failed to demonstrate a triable issue of fact as to fracture, permanent loss of use, and 90/180 once Defendants met their prima facie burden as to those categories (see Curiale, 211 A.D.3d 905).
Accordingly, IT IS HEREBY ORDERED that Defendants' motion for summary judgment is DENIED.