Opinion
113300.
Decided August 30, 2005.
Daniel J. Chiacchia, Esq., CHIACCHIA FLEMING, LLP, Hamburg, New York, Attorneys for Plaintiff.
Craig A. Leslie, Esq., PHILLIPS LYTLE LLP, Buffalo, New York, Attorneys for Defendants Ford Motor Credit Company and Ford Credit Titling Trust.
Joseph Goergen, Esq., LAW OFFICES OF MARY A. BJORK, Buffalo, New York, Attorneys for Defendants Eric C. Coleman and Sheri R. Coleman.
I. Background
On February 26, 2001, the plaintiff, while working as a part-time bus aide for T-NT Bus Company, was involved in a motor vehicle accident when the bus in which she was a passenger was struck by a vehicle operated by defendant Eric C. Coleman. The vehicle was leased from the defendants Ford Motor Credit Company and Ford Credit Titling Trust ("Ford").
The plaintiff commenced this action on or about February 24, 2004 alleging that she sustained a "serious injury" under Insurance Law § 5102(d) as a result of the accident. Following the completion of discovery, Ford filed a motion for summary judgment on the grounds that the plaintiff did not sustain a "serious injury," that pre-existing and intervening conditions interrupted the chain of causation between the accident and the claimed injuries, and that Vehicle and Traffic Law § 388 is unconstitutional as applied to long-term lessors such as Ford. The plaintiff has opposed the motion.
The medical evidence submitted by Ford in support of its motion included an affidavit of S. David Miller, M.D. Dr. Miller conducted an examination of the plaintiff on March 16, 2005 and reviewed her medical records, including reports of x-rays and MRIs performed shortly after the accident, and MRIs taken more than 2½ years after the accident. In opposition to the motion, the plaintiff submitted the videotaped trial testimony of Andrew Cappuccino, M.D., taken on July 25, 2005, the deposition testimony of Eugene J. Gosy, M.D., taken on May 6, 2004, the deposition testimony of Andrew Cappuccino, M.D., taken on May 24, 2004, and Dr. Cappuccino's operative note, dated July 13, 2004.
Dr. Miller opined, in his affidavit, that the x-rays of the plaintiff's cervical spine taken on the day of the accident revealed "hypertrophic spurring (bony irregularities) on plaintiff's lower cervical spine, as well as narrowing of intervertebral disc spaces between C5-6 and C6-7." The radiologist's impression noted on the x-ray report was "degenerative arthritic change on the lower cervical spine." Dr. Miller opined further that "[t]he changes in plaintiff's cervical spine revealed by the x-rays are the result of a chronic, degenerative process (as opposed to acute trauma), and therefore establish that plaintiff had a degenerative condition in her cervical spine that pre-dated the accident."
The record established that six weeks after the emergency room out-patient visit, the plaintiff saw Dr. Gosy for neck complaints. Dr. Gosy's initial impression was "muscular strain secondary to MVA." Dr. Gosy ordered an MRI of the plaintiff's cervical spine, which was done on April 19, 2001. Dr. Miller stated that the April 19, 2001 MRI revealed disc protrusions at C4-5, C5-6 and C6-7 that "are again consistent with, and the result of, a chronic and degenerative process (rather than acute trauma). This is confirmed by the presence of posterior spurring (bony outgrowth) at C5-6." Dr. Miller also highlighted the undisputed fact that during the 2½ years after the accident, the plaintiff continued to work as a school bus aide performing the same duties. The record establishes that the plaintiff was employed by a company that transported children with disabilities, including children confined to wheelchairs. The plaintiff assisted the disabled children during transportation and was required to lift handicapped children and ensure that the children in wheelchairs were properly secured on the bus.
During the 2½ years after the accident, the plaintiff received periodic and conservative pain management treatment from Dr. Gosy. Dr. Gosy consistently described the plaintiff's disability as "mild partial" or occasionally as "moderate partial," and noted that she was "neurologically unimpaired" and able to function in her current employment setting. The plaintiff attended nine physical therapy sessions between December 12, 2001 and January 23, 2002.
On July 11, 2003, well over 2 years after the accident, the plaintiff first was seen by Dr. Cappuccino, who ordered MRI studies of plaintiff's cervical and lumbar spine. Those MRI studies were done on October 2, 2003, over 2½ years after the accident. Dr. Miller stated in his affidavit that the October, 2003 MRI of the plaintiff's cervical spine ". . . again demonstrate[d] chronic, degenerative changes in plaintiff's cervical spine," and that "[t]hose changes progressed and worsened since the April 2001 MRI." Dr. Miller also emphasized that Dr. Cappuccino "noted relatively full range of motion in [the plaintiff's] cervical spine with some discomfort' at the extremes of movement" during his February 14, 2004 examination of the plaintiff. Dr. Miller concluded that there was no objective evidence of any permanent or significant injury, or any residual physical disability as a result of the accident. He further opined that the plaintiff sustained, at most, a cervical strain and a contusion of her shoulder as a result of the accident. Dr. Miller also states that the loss of the plaintiff's two children to cystic fibrosis in May, 2002 and June, 2003 were "psychosocial stressors" that increased the plaintiff's symptoms and interrupted the chain of causation between the accident and the plaintiff's injuries.
The plaintiff counters that despite efforts at conservative pain management, the pain in her neck, shoulder, arms and lower back continued to worsen, resulting in her consultation with Dr. Cappuccino in July, 2003. At that initial examination, Dr. Cappuccino concluded that the plaintiff had permanent and partial disabilities of a marked degree in both her neck and back. Ultimately, Dr. Cappuccino performed surgery on the plaintiff's cervical spine on July 13, 2004, more than 3 years after the accident.
Ford also contends that it should be entitled to summary judgment as a long term lessor of the vehicle that was involved in the accident at issue based on both Due Process and Equal Protection challenges to Vehicle and Traffic Law § 388. Ford acknowledges that precisely these arguments were rejected by the Fourth Department, which held that Vehicle and Traffic Law § 388 is not unconstitutional as applied to long term lessors. See Chilberg v. Chilberg, 13 AD3d 1089, 1091-93. Accordingly, Ford is not entitled to summary judgment on this ground. Id.
II. Decision
The Court of Appeals recently articulated additional criteria to be considered when deciding a summary judgment motion in a motor vehicle accident involving soft tissue injuries, such as those in this case. The Court of Appeals concluded that ". . . even where there is objective medical proof, when additional contributory factors interrupt the chain of causation between the accident and claimed injury such as a gap in treatment, an intervening medical problem or a preexisting condition summary dismissal of the complaint may be appropriate." Pommells v. Perez, 4 NY3d 566, 572.
As an initial matter, Ford's submissions in support of the claim that "psychosocial stressors" interrupted the chain of causation between the accident and the alleged injuries were insufficient, and therefore the burden was not shifted to the plaintiff on that point. Dr. Miller, Ford's expert, stated only that the symptoms were "influenced by the significant psychosocial stressors that plaintiff experienced independent of the accident." Significantly, Dr. Miller did not state that the pyschosocial stressors were an intervening cause of the plaintiff's injuries. Further, Pommells v. Perez, 4 NY3d 566, on which Ford relies, is distinguishable because that case involved an intervening objectively diagnosed medical problem, not intervening emotional events. However, Ford's submissions otherwise sufficiently establish that the plaintiff did not sustain a qualifying "serious injury" that was causally related to the accident. As a result, the burden shifted to the plaintiff to come forward with evidence to raise a triable issue of fact.
In Carrasco v. Mendez, decided sub nom Pommells, 4 NY3d at 578, the submissions in support of the defendant's motion for summary judgment established that the plaintiff suffered from a preexisting degenerative condition in his cervical and lumbar spine. The defendant argued that summary judgment was warranted because there was a lack of causation between the accident and the plaintiff's injuries, as a result of the plaintiff's preexisting degenerative condition. In response to the motion for summary judgment, the plaintiff's expert in Carrasco opined that the pain complained of and the exhibited loss of motion were completely consistent with disc herniations at the C4, 5, 6 and 7 and L2-3 levels that were revealed by the post-accident MRI. Id. at 579. The plaintiff's expert relied upon the objective findings of disc herniations at several levels of the plaintiff's cervical and lumbar spine and specific numerical deficiencies in movement of the plaintiff's cervical and lumbar spine. Id. The plaintiff's expert in Carrasco concluded that the plaintiff "sustained permanent severe partial disabilities as a result of the motor vehicle accident." Id.
The Court of Appeals affirmed the dismissal of the Carrasco complaint stating that the "defendant's submissions shifted to plaintiff the burden of coming forward with evidence indicating a serious injury causally related to the accident." Id. at 580. The Court stated that the ". . . defendant presented evidence of a preexisting degenerative disc condition causing plaintiff's alleged injuries, and plaintiff failed to rebut that evidence sufficiently to raise an issue of fact." Id. at 579. The Court stated that while the plaintiff's expert reported specific losses of motion in the plaintiff's spine and opined that the ". . . plaintiff suffered serious and permanent injuries which were causally related to the accident, plaintiff did not refute defendant's evidence of a preexisting degenerative condition." Id. at 579-80.
The facts in the record in this case closely resemble those in Carrasco, 4 NY3d at 580. The plaintiff's diagnostic imaging studies here reveal degenerative changes similar to those in Carrasco. The x-rays and MRI study performed shortly after the accident revealed degenerative arthritic changes in the plaintiff's cervical spine, and the MRI performed 2½ years later showed the progressive worsening of those degenerative changes. It is noteworthy that the degenerative changes are at the same level of the cervical spine that the plaintiff claims to have injured in the accident and are the level at which surgery was performed more than three years after the accident.
It is well established that proof of a herniated disc, without additional objective medical evidence establishing that the accident resulted in significant physical limitations within a reasonable time after the accident, is insufficient to establish a "serious injury" under the No-Fault Law. Pommells, 4 NY3d at 574; Petinrin v. Levering, 17 AD3d 173, 174. While Dr. Cappuccino opined that the cervical protrusions (which he referred to as "herniations") were traumatic rather than degenerative in nature and were caused by the accident, he did not explain the absence of any significant physical limitation resulting from the herniations for more than two years after the accident. Nor did the plaintiff submit any other evidence of objective findings demonstrating any significant physical limitations reasonably contemporaneous with the accident. See Thompson v. Abbasi, 15 AD3d 95, 97; Petinrin, 17 AD3d at 174. Dr. Gosy's findings regarding whatever limitations the plaintiff had during the 2½ years after the accident were not specifically or objectively quantified and appear to be based on her subjective complaints of pain.
In view of the evidence demonstrating the lengthy delay between the accident and the onset of the plaintiff's more serious symptoms that resulted in the surgery, and the absence of objective findings of any significant disability reasonably contemporaneous with the accident, it was incumbent upon the plaintiff to explain the effect of her preexisting degenerative disease on her alleged injuries. The plaintiff did not do this. While Dr. Cappuccino confirmed that he had "no doubt about" the existence of the preexisting degenerative condition in the plaintiff's spine, he did not explain the role the preexisting degenerative condition had in causing the plaintiff's more serious symptoms, that resulted in the surgery years after the accident. See Francini v. Palmieri, 1 NY3d 536; Montgomery v. Pena, 19 AD3d 288.
The evidence of the positive MRI findings submitted by the plaintiff alone are insufficient to raise an issue of fact. See Thompson v. Abbasi, 15 AD3d 95, 97. Dr. Cappuccino, who did not treat the plaintiff until years after the accident, concludes that the plaintiff's cervical condition was causally related to the accident rather than to her undisputed preexisting degenerative condition. Dr. Cappucino's opinion is no less conclusory than that of the physician in Carrasco, who, in causally relating the "permanent severe partial disabilities" of that plaintiff to the accident, also found that the disc herniations of that plaintiff were traumatic in nature. Thus, after considering the evidence in the record, the plaintiff has failed to establish a triable issue of fact as to whether her symptoms were causally related to the accident or her degenerative condition.
It is significant that the plaintiff continued to be employed for 2½ years after the accident in a position that required lifting handicapped children and that her treating physician documented her continuing ability to perform all of the duties of that employment. This undisputed fact is entirely inconsistent with a finding that the plaintiff sustained a "serious injury" under Insurance Law § 5102(d). Colon v. Kempner, ___ AD3d ___, 799 NYS2d 213, 215 [ 20 AD3d 372]. Additionally, the plaintiff did not submit any competent medical evidence to support a claim that she was unable to perform substantially all of her daily activities for not less than 90 of the first 180 days following the accident.
This Court does not perceive any discernible difference between this case and Carrasco. The plaintiff failed to sufficiently establish that her need for surgery three years after the accident and current disabilities were causally related to the accident, rather than to the normal progression of her preexisting degenerative condition. Further, there is no objective proof of any "consequential" or "significant" limitation in the 2½ years following the accident. Thus, it would be speculation to conclude that an objective determination of any limitation thereafter was causally related to the accident. As in Carrasco, once Ford, in the motion for summary judgment, presented this Court ". . . with persuasive evidence that plaintiff's alleged pain and injuries were related to a preexisting condition, plaintiff had the burden to come forward with evidence addressing defendant's claimed lack of causation." Carrasco, 4 NY3d at 580. Because the plaintiff failed to provide evidence sufficiently addressing the lack of causation, this Court finds that Ford is entitled to judgment as a matter of law, and the motion for summary judgment is granted.
Submit Order.