Opinion
# 2013-032-038 Claim No. 118443 Motion No. M-82846
08-27-2013
MARY FERNALD v. NEW YORK STATE THRUWAY AUTHORITY
Synopsis
Case information
UID: 2013-032-038 Claimant(s): MARY FERNALD Claimant short name: FERNALD Footnote (claimant name) : Defendant(s): NEW YORK STATE THRUWAY AUTHORITY Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 118443 Motion number(s): M-82846 Cross-motion number(s): Judge: JUDITH A. HARD Bendall & Mednick, Esqs. Claimant's attorney: By: J. David Burke, Esq. Hon. Eric T. Schneiderman, NYS Attorney General Defendant's attorney: By: Joan Matalavage, Assistant Attorney General, Of Counsel Third-party defendant's attorney: Signature date: August 27, 2013 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Claimant Mary Fernald (claimant) commenced the underlying claim seeking damages for a number of injuries that she alleges occurred as a result of a January 26, 2009 motor vehicle accident involving a truck that was owned and operated by an employee of the New York State Thruway Authority (defendant). Defendant now moves for summary judgment on the sole ground that claimant did not sustain a "serious injury" as defined by Insurance Law § 5102 (d) and, thus, cannot maintain a claim for her alleged personal injuries. Claimant opposes the motion on the grounds that defendant failed to make its prima facie showing of entitlement to judgment as a matter of law, or alternatively, even if defendant did meet its initial burden on the motion, claimant's responding papers raise material questions of fact that require a trial. For the reasons set forth below, defendant's motion is denied.
Defendant makes no mention of claimant's second cause of action, for property damage, so the Court will treat this motion as if defendant is seeking summary judgment only on claimant's cause of action for personal injuries.
In the Memorandum of Law submitted in opposition to the motion, claimant urges the Court to deny the motion because granting the motion would "deny [claimant's] constitutional right to a jury trial" (Claimant's Memorandum of Law at 5), referring specifically to her "right to a jury trial enshrined in article 1 § 2 of the New York State Constitution" (id. at 1). Claimant is apparently unaware that there are no jury trials in the Court of Claims. The Court of Claims has exclusive "jurisdiction to hear and determine claims against the state" (NY Constitution, art VI, § 9; see also Court of Claims Act § 9). The Legislature provided that claims against the State would be governed by section 12 (3) of the Court of Claims Act, which provides that "[c]laims shall be heard and judgments thereon rendered by one judge . . . .".
The facts of the accident are not at issue on this motion, so the Court will provide only a brief summary. On January 26, 2009, claimant's motor vehicle was parked on the shoulder of the entrance to the New York State Thruway from the Guilderland Service Plaza, which is located at approximately mile marker 152 on the eastbound side of the Thruway. While claimant was parked on the shoulder, a truck that was owned by defendant and operated by one of defendant's employees backed into claimant's vehicle, resulting in damage to the vehicle and alleged injuries to claimant. Claimant allegedly acted "bizarre" and was unresponsive at the scene. She was taken into custody due to concerns for her mental health. Claimant was transported to Ellis Hospital in Schenectady, where she remained for treatment until February 24, 2009.
The underlying claim was commenced by service of the claim upon defendant and filing of the claim with the Clerk of the Court of Claims on May 24, 2010. One cause of action was asserted for personal injury and one cause of action was asserted for property damage for the alleged damages to her vehicle. In her verified bill of particulars, claimant alleged the following personal injuries occurred as a result of the accident:
"- [T]raumatic brain injury;
- post traumatic stress disorder;
- aggravation of traumatic brain injury;
- aggravation of pre-existing condition of bipolar with psychiatric features;
- aggravation of condition of depression;
- dementia due to behavioral disturbance;
- anxiety disorder;
- mood disorder due to head injury with manic features; [and]
- residual cognitive and psychiatric difficulties" (Matalavage Affidavit, Exhibit C, ¶ 15).
As stated above, defendant's basis for relief on this motion is that claimant failed to sustain a "serious injury" as defined in section 5102 of the Insurance Law and, thus, the claim for personal injuries should be dismissed. Defendant points to the fact that in 1988 claimant sustained a traumatic brain injury (TBI) when she was struck by a passing truck while she was walking home from school (Matalavage Affidavit, Exhibit G at 259), and contends that claimant's current symptoms are attributable not to the January 26, 2009 accident, but from injuries allegedly sustained in 1988.
Exhibits D-N annexed to Ms. Matalavage's affidavit consist of 3312 Bates-stamped pages, numbered 1-3312. Hereinafter, all references to those Exhibits will be to both the Exhibit and the page number.
Summary judgment is a drastic remedy which should not be granted unless it is clear that there are no triable issues of fact (see Andre v Pomeroy, 35 NY2d 361, 364 [1974]). The court's function in a motion for summary judgment is not to resolve issues of fact, but to determine whether issues of fact exist (see Barr v County of Albany, 50 NY2d 247 [1980]). The proponent of a motion for summary judgment must make a showing of prima facie entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). Failure to make such a showing requires denial of a summary judgment motion, regardless of the sufficiency of the opposing party's papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]). Once this showing has been made, the burden shifts to the opponent of the motion to produce evidentiary proof, in admissible form, sufficient to establish the existence of material issues of fact which require a trial of the action (see Alvarez, 68 NY2d at 324; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). The evidence must be viewed in the light most favorable to the opponent of the motion, and that party should be given every favorable inference (see McKinnon v Bell Sec., 268 AD2d 220 [1st Dept 2000]).
In New York State, a covered person may not recover for non-economic loss against another covered person, for personal injuries arising out of a motor vehicle accident, except where a serious injury has been sustained (Insurance Law § 5104 [a]). Accordingly, in order to recover for non-economic loss against defendant, a claimant is required to plead and prove that she sustained a serious injury as defined by Insurance Law § 5102 (d) (Zecca v Riccardelli, 293 AD2d 31 [2d Dept 2002]; Licari v Elliott, 57 NY2d 230, 235 [1982]).
A "covered person" is defined in section 5102 (j) of the Insurance Law as "any pedestrian injured through the use or operation of, or any owner, operator or occupant of, a motor vehicle which has in effect the financial security required" by the Vehicle and Traffic Law.
A "serious injury" is defined in section 5102 (d) of the Insurance law as:
"a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which 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."
On a motion for summary judgment, where the issue is whether claimant has sustained a serious injury within the meaning of Insurance Law § 5102 (d), defendant bears the initial burden of establishing, through the submission of competent medical evidence, that claimant did not suffer a serious injury causally related to the accident (Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). In doing so, defendant may rely on the medical records and reports prepared by claimant's treating physicians (Franchini v Palmieri, 1 NY3d 536 [2003]; Cody v Parker, 263 AD2d 866 [3d Dept 1999]). If the initial burden is met by defendant, the burden shifts to claimant to produce sufficient evidence to overcome defendant's motion by demonstrating that claimant sustained a serious injury within the meaning of the No-Fault Insurance Law (Gaddy, 79 NY2d at 957). The evidence submitted must be based upon objective medical findings and diagnostic tests, so as to create a genuine triable issue of fact concerning the existence of a serious injury (John v Engel, 2 AD3d 1027 [3d Dept 2003]; Trotter v Hart, 285 AD2d 772, 773 [3d Dept 2001]).
In support of the motion, defendant has provided the Court with extensive medical records pertaining to claimant's neuropsychological treatment from 1988 to the present day, as well as the affidavit and report of Robert J. McCaffrey, Ph.D., a board certified clinical neuropsychologist, who provided defendant with an evaluation of claimant and her medical history following the 1988 and 2009 accidents (Matalavage Affidavit, Exhibit N, Exhibit 2 at 3303-3311).
Defendant included treatment records from the following providers: Mary Martin, N.P., Center for Disability Services (Exhibit D); Albany Medical Center (Exhibit E); Dzintra Celmins, M.D., The Neurosciences Institute (Exhibit F); Alison Curley, Ph.D., Associates in Mental Health and Neuropsychology (Exhibit G); Ellis Hospital (Exhibit H); Four Winds Hospital (Exhibit I); Living Resources (Exhibit J); and St. Peter's Hospital (Exhibit K).
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As an initial matter, claimant contends that Dr. McCaffrey's opinion lacks probative value because only 13 of the 26 records reviewed by Dr. McCaffrey for his evaluation were submitted with the motion for summary judgment (Claimant's Memorandum of Law at 2-3). The records listed in Dr. McCaffrey's report that were not included with the motion are the following: Comprehensive Neuropsychological Services; County of Albany Department of Mental Health; Sai B. Grandham, M.D., Lions Eye Institute; Geico/No Fault File; Edward Yoon, M.D., Clifton Park Family Medicine, Latham Medical Group; Capital Region Orthopaedic Group; Capital Neurological Associates; Albany ENT & Allergy Services, PC; Albany Center for Pain Management; Millview Center, Mary Einhorn, M.S., C.I.C.; and NYS Workers' Compensation Board. Claimant relies upon three cases in support of the proposition that Dr. McCaffrey's opinion lacks probative value because all of the records he reviewed are not included with the motion: Daniels v Meyers (50 AD3d 1613 [4th Dept 2008]), State of New York v United States Fid. & Guar. Co. (221 AD2d 849 [3d Dept 1995]), and Tyler v Dewey's, Inc. (22 Misc 3d 1132[A], 2009 NY Slip Op 50403[U] [Sup Ct, NY County 2009]). In both Daniels and Tyler, the supporting expert affidavits were found insufficient because the records relied upon were not submitted with the motion (Daniels at 1614; Tyler at *6). In United States Fid., the expert's affidavit was found insufficient because relevant records and affidavits relied upon by the expert were not submitted (United States Fid. at 851). Defendant replies that it is not required to submit each and every document reviewed by Dr. McCaffrey, particularly those that are unrelated to claimant's alleged injuries, and also that it provided those records that are relevant to Dr. McCaffrey's conclusions (Matalavage Reply, ¶¶ 3-5).
The Court disagrees with claimant. While not every report reviewed by Dr. McCaffrey was included in the motion papers, the medical records offered by defendant certainly appear to be relevant to the conclusions reached by Dr. McCaffrey in his evaluation of claimant, and thus are sufficient to permit his report to have probative value with regard to the issue of whether claimant sustained a serious injury in the January 26, 2009 automobile accident. Certainly, providing the complete set of records is preferable, but in this particular instance the voluminous relevant medical records provided by defendant appear to be sufficient.
In his report, Dr. McCaffrey gives a very brief summary of claimant's medical history going back to her 1988 traumatic brain injury, including cognitive sequelae, diagnoses of bipolar disorder at age 17, posttraumatic stress disorder, and multiple psychiatric hospitalizations. Dr. McCaffrey also notes that claimant was receiving Social Security Disability benefits at the time of her 2009 accident due to her 1988 traumatic brain injury and her subsequent psychiatric history (Matalavage Affidavit, Exhibit N, Exhibit 2, at 3309-3310). He states that claimant was administered the following neuropsychological tests as part of the evaluation: the Rey 15-Item Test; the TOMM; the Victoria Symptom Validity Test; the Word Memory Test; the Halstead-Reitan Neuropsychological Test Battery for Adults (in its entirety); the Memory Assessment Scales; the Reynolds Intellectual Assessment Scales; and the Minnesota Multiphasic Personality Inventory-2-RF (MMPI) (id. at 3308). The scores of those exams were to be disregarded, however, in that Dr. McCaffrey found that "[claimant's] performance across all formal performance validity indicators revealed the presence of performance invalidity" (id.). "Performance invalidity" is neither described in Dr. McCaffrey's report nor can the Court find any reference to the term in either the medical reference dictionary or in case law. Dr. McCaffrey goes on to state that claimant did not exhibit performance invalidity on two prior neuropsychological examinations, the dates of which are not specified, and that when he administered the exams her performance "best fit the profile associated with patients with a diagnosis of early dementia who are in their 70s" (id.). Dr. McCaffrey goes on to state, without further explanation, that "[claimant's] performance invalidity cannot be accounted for by either her psychiatric history or her [TBI]" (id.).
Nevertheless, Dr. McCaffrey described the results of the exams. Claimant's performance on the Halstead-Reitan test resulted in a score in the range of "moderate neuropsychological impairment," although he again stressed that the score "cannot be considered to be a valid indication of her actual neuropsychological status" due to performance invalidity (id.). On the Memory Assessment Scales, claimant's scores ranged from the first to the fourth percentile, and again Dr. McCaffrey stressed that those scores "cannot be considered to be a valid representation of her actual memory abilities" (id. at 3309). Claimant's scores on the Reynolds Intellectual Assessment Scales ranged from the fourth to the sixteenth percentile. Claimant's results in the MMPI were "inconsistent" but "not to the level that would have resulted in an invalid profile." Dr. McCaffrey stated that her MMPI profile was "consistent with an individual who was underreporting her current emotional/psychological symptoms," and depicts an individual "who responded to the items in such a manner as to present herself as extremely well adjusted. Diagnostically, her [MMPI] did not indicate the presence of any DSM-IV-TR psychiatric condition" (id.).
Dr. McCaffrey's conclusion states that there is evidence of a decline in claimant's cognitive function over time prior to the 2009 accident, and that her performance in the objective measures post-2009 could not be explained by her history of traumatic brain injury. Rather, Dr. McCaffrey states that "psychiatric and/or motivational factors on her part" would account for her decline in performance (id. at 3310). He stressed that her variability across the evaluations "raises the question" of performance invalidity, and states that the presence of performance invalidity mars claimant's test results such that they "cannot be considered to reflect her actual neuropsychological status"; "[s]uch an abysmal performance is not reflective of any cognitive sequelae of a brain injury sustained in 1998 or any alleged brain injury sustained in 2009, either alone or in combination" (id.). Dr. McCaffrey goes on to state that claimant's pre-2009 decline was not due to her 1988 traumatic brain injury and, rather, was consistent with impairment known to accompany bipolar disorder, which remains present even when the psychiatric impairment is in remission. In sum, Dr. McCaffrey opines, within a reasonable degree of clinical neuropsychological certainty, that "the accident of January 26, 2009 has not resulted in any clinically significant neuropsychological impairment beyond that which would reasonably be attributable to the 1988 [TBI] and her history of Bipolar Disorder" (id. at 3311).
The Court finds that Dr. McCaffrey's report and the medical records provided fail to meet defendant's burden of making a prima facie showing of entitlement to judgment as a matter of law and, thus, the motion must be denied. Dr. McCaffrey's conclusions discount completely the results of claimant's objective neuropsychological testing, waving away her apparently abysmal performance by stating that the results reflected "performance invalidity" across each of the tests. Again, as noted, Dr. McCaffrey failed to explain the meaning of "performance invalidity" in his report. Regardless, in rather conclusory fashion, Dr. McCaffrey states that the invalidity cannot be attributed to either claimant's psychiatric history or her history of TBI, but he fails to offer any explanation as to why that is the case. He also appears to hedge his opinion on the presence of performance invalidity across all of the exams by stating in his conclusion that claimant's poor performance merely "raises the question" of performance invalidity. Dr. McCaffrey's report suggests that claimant's objective testing results were in line with what one would expect from an early stage dementia patient in their 70s, and therefore, they are invalid and must be disregarded. This may yet prove to be the case, but on this motion Dr. McCaffrey failed to adequately explain the basis for this opinion in his report.
Moreover, there are statements within the record submitted by defendant that raise questions of fact as to whether claimant sustained some additional or aggravating serious injury in the January 26, 2009 accident. Mary Martin, N.P. at the Center for Disability Services, who appears to have treated claimant since 2007 for some of her neuropsychological issues, states in an entry from June 3, 2009 that certain cognitive deficits described by claimant occurred subsequent to her January 2009 motor vehicle accident (Matalavage Affidavit, Exhibit D at 25). Dzintra Celmins, M.D., Assistant Professor of Neurology at Albany Medical College, treated claimant on two occasions after her 2009 accident, and noted in an entry from January 7, 2010 that claimant's cognitive function was "significantly below predicted" based on prior neuropsychological testing, and that her impression of claimant's condition was "cognitive disorder, [not otherwise specified], due to repeated [TBI]" (Matalavage Affidavit, Exhibit F at 255-257). Richard DeBenedetto, Ph.D., who performed an independent neuropsychological examination of claimant on July 22, 2010 and August 2, 2010, concluded his report with the opinion that claimant's current cognitive deficits observed at the evaluation "likely represent an exacerbation of preexisting cognitive defects" (Matalavage Affidavit, Exhibit G at 281).
In light of the foregoing, defendant failed to make it prima facie showing that claimant did not sustain a serious injury in the January 26, 2009 motor vehicle accident and, accordingly, the motion is denied. As defendant failed to meet its burden, there is no need for the Court to consider claimant's responding evidence. Claimant is reminded, however, that not only will she have to prove liability at trial but it will also be her relatively heavy burden to demonstrate that she sustained a serious injury, as defined by Insurance Law § 5102 (d), in that accident.
Accordingly, it is ordered that motion No. M-82846 is hereby denied.
August 27, 2013
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims
Papers considered
1. Notice of Motion (M-82846), dated January 10, 2013.
2. Affidavit of Joan Matalavage, Esq., sworn to on January 10, 2013, with Exhibits annexed.
3. Defendant's Memorandum of Law, dated January 10, 2013.
4. Responding Affirmation of J. David Burke, Esq., dated April 23, 2013.
5. Responding Affidavit of Maria Deinzer Lifrak, sworn to on April 9, 2013, with Exhibits annexed.
6. Claimant's Memorandum of Law, dated April 23, 2013, with attachment.
7. Reply Affidavit of Joan Matalavage, Esq., sworn to on June 10, 2013.