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finding a treating physician must "at a minimum, provide Defendants with a [Rule 26(a)(2)(C)] summary of his opinions about Plaintiff's medical condition"
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No. 10 Civ. 5946 (RJS)
03-28-2012
WENDY ZIEGENFUS, Plaintiff, v. JOHN VERIHA TRUCKING AND EDWARD MICHAEL THAMM, Defendants.
Plaintiff is represented by Leslie V. Lipton, Lipton & Lipton, 277 Broadway, New York, NY 10007. Defendants are represented by Jeffrey A. Segal, Rawle & Henderson, LLP, 14 Wall Street 27th Floor, New York, NY 10005.
MEMORANDUM AND ORDER :
Plaintiff Wendy Ziegenfus brings this action against Defendants John Veriha Trucking and Edward Michael Thamm. Plaintiff alleges that she sustained "serious injuries," as defined by N.Y. Ins. Law § 5102(d), when her automobile collided with a tractor-trailer driven and operated by Defendants. As a result of those alleged "serious injuries," Plaintiff seeks to hold Defendants liable under N.Y. Ins. Law § 5104(a). Before the Court is Defendants' motion for summary judgment. For the reasons that follow, the Court grants Defendants' motion.
Defendants' names are misspelled as John Verha Trucking and Edward Michael Thaim in Plaintiff's pleadings. Although the mistakes were never corrected, the Court will hereafter refer to Defendants by using the correct spellings of their names - "John Veriha Trucking" and "Edward Michael Thamm." The Clerk of the Court is directed to amend the case caption accordingly.
I. BACKGROUND
A. Facts
On April 23, 2010, Plaintiff's motor vehicle and Defendants' tractor-trailer collided at an intersection in New York City. (Defs.' 56.1 Stmt. ¶¶ 1-2.) Plaintiff did not report feeling pain immediately after the accident and did not receive medical treatment for her alleged injuries until she visited Dr. Richard Iglesias, a chiropractor, nearly three weeks later on May 12, 2010. (Id. ¶¶ 3-4.) During that visit, Dr. Iglesias treated Plaintiff and diagnosed her with a strain/sprain and radiculopathy, a disease of the spinal nerve roots. (Id.) Dr. Iglesias did not issue a narrative report describing his findings or the methods he used to diagnose Plaintiff's injuries. (Id. ¶ 4.) Following the examination, Dr. Iglesias referred Plaintiff to Dr. Richard Memoli, an orthopedic surgeon. (Id. ¶¶ 5-6.)
The following facts are taken from Defendants' Local Rule 56.1 Statement ("Defs.' 56.1 Stmt.") and the exhibits and affidavits attached thereto. Plaintiff did not properly assert any facts in her Local Rule 56.1 submission. Therefore, where Defendants Local Rule 56.1 Statement is cited, Plaintiff does not dispute that fact or has offered no admissible evidence to controvert that fact. Any facts attributed to Plaintiff, unless otherwise noted, come from her response to Defendants' motion to dismiss and the affidavits and exhibits attached thereto.
Although Dr. Iglesias did not issue a narrative report at the time of Plaintiff's initial visit, Plaintiff offered, in response to the instant motion, an affidavit from Dr. Iglesias, which references tests he performed while examining Plaintiff after the close of discovery and nearly a week after Defendants filed their motion. Because Dr. Iglesias was never identified as an expert in Plaintiff's disclosures, his affidavit is not properly before this Court. See infra.
Remarkably, Plaintiff likewise failed to identify Dr. Memoli as an expert witness. (See Tr. of Feb. 22, 2012 Proceedings ("Feb. 22 Tr.") 7:8-8:17, 21:11-22:13.)
On July 2, 2010, Dr. Memoli examined Plaintiff and noted that she complained of neck and back pain, intermittent pain down her arms and legs, and right knee pain and buckling. (Pl.'s Opp'n Ex. 1 at 5-6.) He also noted that Plaintiff had pre-existing injuries to her neck, back, and knee from a previous no-fault accident. (Id. at 6.) After the examination, Dr. Memoli prepared a letter, addressed "To Whom It May Concern," noting the results of several range of motion tests and confirming Dr. Iglesias's diagnosis of Plaintiff's condition. (Id. at 5-7) Additionally, he stated, in a single sentence without elaboration, that the injuries were causally related to the April 23, 2010 accident that Plaintiff described. (Id. at 7.) Dr. Memoli also referred Plaintiff for magnetic resonance imaging ("MRI") of her alleged injuries. (Id. at 6.)
The MRIs ordered by Dr. Memoli were taken on or about July 15, 2010, the day after Plaintiff filed her complaint in this action, and they revealed several bulging and herniated discs in Plaintiff's neck and back, along with a tear of the posterior horn of the medial meniscus in Plaintiff's right knee. (Defs.' 56.1 Stmt. ¶¶ 8-10.) However, MRIs taken after Plaintiff's previous accident also revealed bulges and herniations in Plaintiff's neck and back. (Id. ¶¶ 12-13.) There is nothing in the record indicating that Dr. Memoli updated his diagnosis of Plaintiff's injuries based on the results of the July 15, 2010 MRIs.
On July 7, 2010, Plaintiff underwent two independent medical examinations ("IMEs"). (Id. ¶¶ 14-18.) Neither examiner found evidence that Plaintiff had suffered a permanent or serious medical injury as a result of the April 23, 2010 accident, and both examiners concluded that Plaintiff could engage in her daily activities without restriction. (Id.) Plaintiff also underwent, at Defendants' request, a neurological IME on April 27, 2011. According to the IME, Plaintiff had "mild, purely subjective complaints of neck and low back pain and was not disabled" and "any soft tissue injury [she might have suffered] . . . should have resolved." (Id. ¶ 19.)
Plaintiff testified that she missed twelve days of work as a result of her alleged injuries. (Id. ¶ 20.)
B. PROCEDURAL HISTORY
Plaintiff commenced this action by filing a Complaint on July 14, 2010, in the New York State Supreme Court, Bronx County. Defendants removed the case to this Court on August 6, 2010 on the basis of diversity jurisdiction. (Doc. No. 1.) After an initial conference on October 27, 2010, the Court issued a Case Management Plan and Scheduling Order ("Scheduling Order"). In the Scheduling Order, which largely endorsed the timeline jointly proposed by the parties, the Court ordered depositions to be completed by January 28, 2011, fact discovery to be completed by February 28, 2011, and Plaintiff's expert disclosures - including reports, production of underlying documents, and depositions - to be completed by March 14, 2011. The Court also set a May 2, 2011 deadline for all discovery to be completed and scheduled a post-discovery conference for May 18, 2011.
On January 12, 2011, Plaintiff requested a sixty-day adjournment of the deadline to complete depositions. The Court denied the request the same day without prejudice because Plaintiff failed to explain her reasons for making the request. Shortly thereafter, the parties made a joint request for additional time to conduct discovery, explaining that the parties could not agree on a date or location of the parties' respective depositions. On January 26, 2011, the Court granted the request for a thirty-day extension of the deadline for depositions but amended no other discovery deadlines. In addition, the Court directed Plaintiff's counsel, for the third time, to file a notice of appearance and warned that sanctions would result from a continuing failure to ignore Court orders. On February 10, 2011, Plaintiff filed a notice of appearance.
On April 26, 2011, Defendants filed a pre-motion letter seeking permission to file a motion for summary judgment. In their letter, Defendants argued, inter alia, that Plaintiff "has failed to produce any expert reports" sufficient to establish her claim and that the "deadline to serve expert reports has passed." (Defs.' Ltr., dated April 26, 2011, at 2.) Plaintiff responded to Defendants' pre-motion letter on April 28, 2011, via email and in contravention of the Court's Individual Practices. Nowhere in her email did Plaintiff either refute Defendants' assertion or request a continuance of the discovery deadline; rather, Plaintiff simply claimed that her "physicians are prepared to swear affidavits." (Pl.'s Ltr., dated April 28, 2011, at 1.)
The Court held a pre-motion conference on May 18, 2011. During the conference, the Court notified Plaintiff that discovery rules in federal court differ from those in state court and that the discovery deadline had passed. (Tr. of May 18, 2011 Proceedings ("May 18 Tr.") 4:7-5:1.) Moreover, the Court warned Plaintiff that given her failure to name any expert witnesses, she would have difficulty withstanding a motion for summary judgment. (Id. 5:9-12.) Despite the Court's warning, Plaintiff did not request a continuance of discovery, either during or immediately after the pre-motion conference. The Court thus asked the parties to submit, following a previously scheduled settlement conference, a joint letter proposing a briefing schedule. (Id. 6:7-13.)
The Court subsequently endorsed the parties' proposed briefing schedule, and, on July 1, 2011, Defendants moved for summary judgment. Plaintiff submitted her response to Defendants' motion on August 9, 2011, attaching three affidavits - one from each of her two treating physicians, who were never identified as expert witnesses, and one from her employer, who was never disclosed as a fact witness during discovery. (See Pl.'s Opp'n Exs. 1-2.) The motion was fully briefed on August 16, 2011, and the Court held oral argument on February 22, 2012. During the oral argument, Plaintiff's counsel acknowledged that she neither submitted expert reports nor identified any experts prior to the filing of Defendants' motion. (Feb. 22 Tr. 4:7-18, 7:16-24, 8:21-9:1, 17:14-16.) She also acknowledged that she did not identify Plaintiff's employer during discovery even though she knew he possessed relevant information. (Id. 15:10-14.)
II. LEGAL STANDARDS
A. Summary Judgment
Pursuant to Rule 56(a) of the Federal Rules of Civil Procedure, a court shall grant a motion for summary judgment if "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The moving party bears the burden of showing that it is entitled to summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). The court "is not to weigh evidence but is instead required to view the evidence in the light most favorable to the party opposing summary judgment, to draw all reasonable inferences in favor of that party, and to eschew credibility assessments." Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 122 (2d Cir. 2004) (internal quotation marks omitted); accord Anderson, 477 U.S. at 248. Once the moving party has met its burden, the nonmoving party "must come forward with specific facts showing that there is a genuine issue for trial." Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir. 2002) (emphasis in original) (internal citations and quotation marks omitted).
B. New York's Substantive Law
Under New York Insurance Law, in an action "for personal injuries arising out of negligence in the use or operation of a motor vehicle . . . [,] there shall be no right of recovery for non-economic loss, except in the case of a serious injury." N.Y. Ins. Law § 5104(a). A "serious injury" is defined 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.N.Y. Ins. Law § 5102(d). "Proof of the extent of plaintiff's injury is necessary because the legislative intent . . . [of § 5104(a)] was to weed out frivolous claims and limit recovery to significant injuries." Dufel v. Green, 84 N.Y.2d 795, 798 (1995) (citing Licari v. Elliot, 57 N.Y.2d 230, 234-35 (1982)).
To determine if summary judgment is appropriate on the issue of whether a plaintiff has suffered a serious injury, the New York Court of Appeals has articulated a burden-shifting framework to be applied by courts, including federal courts sitting by virtue of diversity jurisdiction. Yong Qin Luo v. Mikel, 625 F.3d 772, 777 (2d Cir. 2010). According to this framework:
a defendant must establish a prima facie case that plaintiff did not sustain a "serious injury" within the meaning of Insurance Law § 5102(d). In support of its argument that there is no such serious injury, defendant may rely on the unsworn reports by plaintiff's physicians, but must provide evidence from its own physicians in the form of sworn affidavits. Once a defendant's burden is met, the plaintiff is then required to establish a prima facie case that [s]he sustained a serious injury. For plaintiff to defeat a summary judgment motion, admissible evidence must be presented in the form of sworn affidavits by physicians.Id. (internal quotation marks omitted). To establish a prima facie case, Defendants may rely on admissible reports from expert witnesses. See id. (reports from defendants' experts were sufficient to establish Defendant's prima facie case). For a plaintiff to establish a prima facie case, there must be "objective proof of . . . [her] injury in order to satisfy the statutory serious injury threshold; subjective complaints alone are not sufficient." Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 350 (2002) (citations omitted). Moreover, "[p]roof of a herniated disc, without additional objective medical evidence establishing . . . significant physical limitations, is not alone sufficient to establish a serious injury." Pommells v. Perez, 4 N.Y.3d 566, 574 (2005).
III. DISCUSSION
Plaintiff alleges that her injuries fall within three of the categories of serious injuries recognized by § 5102(d): (1) a permanent consequential limitation of use of a body organ or member; (2) a significant limitation of use of a body function or system; and (3) a non-permanent injury or impairment that prevented her from performing substantially all of the material acts constituting her daily activities for not less than 90 of the 180 days immediately following the accident. (Pl.'s Opp'n at 4); see N.Y. Ins. Law § 5102(d). For the reasons that follow, the Court finds that Defendants have established a prima facie case that Plaintiff has not sustained a "serious injury," which Plaintiff has failed to rebut.
A. Defendants' Prima Facie Case
In support of their argument that Plaintiff did not sustain a serious injury, Defendants note that Plaintiff alleges to have missed approximately twelve days of work as a result of the accident and did not have pain or seek medical treatment immediately after the accident. (Defs.' 56.1 Stmt. ¶¶ 3, 20.) Additionally, Defendants rely on a sworn report prepared by one of their identified expert witnesses, Dr. Oliveto, who examined Plaintiff on July 7, 2010, tested the ranges of motion in her neck, back, and knee, and found them to be normal. (Defs.' Mem. Ex. G at 2-4.) In his report, Dr. Oliveto found no medical evidence to justify Plaintiff's subjective complaints of pain and discomfort and determined that she could engage in her normal daily activities without restriction. (Id.) Indeed, he concluded that Plaintiff had recovered from any injuries she may have suffered as a result of the accident. (Id. at 3.)
Although Dr. Oliveto's report is sworn, it has not been notarized. (Defs.' Mem. Ex. G at 2-4.) Nonetheless, such a report is admissible in support of a summary judgment motion because it was signed "under the penalties of perjury." See Hameed v. S. Pundt, 964 F. Supp. 836, 840-41 (S.D.N.Y. 1997) (citing McLaughlin v. Cohen, 686 F. Supp. 454, 457 (S.D.N.Y. 1988)). However, the Court will not consider the additional expert report, prepared by Dr. Allan E. Rubenstein and relied on by Defendants, because it was neither notarized nor signed under penalty of perjury. See id.
Dr. Oliveto's findings, particularly when coupled with Plaintiff's own testimony that she did not have pain or seek medical treatment immediately after the accident, are sufficient to make a prima facie showing that Plaintiff did not suffer a "permanent consequential" or "significant" limitation as a result of the accident. Furthermore, because Plaintiff missed only approximately twelve days of work, she was plainly not prevented from performing substantially all of her daily activities for at least 90 of the 180 days after the accident involving Defendants' tractor-trailer.
Because Defendants have made a prima facie showing that Plaintiff did not suffer a serious injury, the burden shifts to Plaintiff to establish a prima facie case that she has.
B. Plaintiff's Prima Facie Case
1. Inadmissible Evidence
As noted above, to avoid summary judgment, Plaintiff must produce admissible evidence that establishes a prima facie case of a serious injury. In attempting to meet that burden, Plaintiff relies primarily on affidavits from each of her two treating physicians and her employer. However, these affidavits were produced months after the close of discovery from witnesses who were never noticed as experts or even persons with relevant information.
The Federal Rules of Civil Procedure require parties to disclose during discovery the name, address, and telephone number of each individual likely to have discoverable information, Fed. R. Civ. P. 26(a)(1)(A)(i), and the identity of any expert witness who may be used at trial, Fed. R. Civ. P. 26(a)(2)(A). For witnesses "retained or specifically employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony," "this disclosure must be accompanied by a written report," "unless otherwise stipulated or ordered." Fed. R. Civ. P. 26(a)(2)(B). However, even when a party is not required to include a written report with its expert disclosure, the disclosure must still state: "(i) the subject matter on which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705; and (ii) a summary of the facts and opinions to which the witness is expected to testify." Fed. R. Civ. P. 26(a)(2)(C); see Fed. R. Civ. P. 26(a)(2)(C) advisory committee's note (explaining that examples of expert witnesses qualifying under Rule 26(a)(2)(C) include "physicians or other health care professionals and employees of a party who do not regularly provide expert testimony").
If a party fails to disclose the requisite information pursuant to Rule 26(a), "the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless." Fed. R. Civ. P. 37(c)(1). Accordingly, courts may exclude reports and affidavits from experts who were not properly identified. See Crucey-Castillo v. United States, No. 06 Civ. 11462 (DC), 2009 WL 564287, at *5 (S.D.N.Y. Mar. 5, 2009) (excluding a report from a previously unidentified expert witness that was produced two months after the close of discovery); Ebewo v. Martinez, 309 F. Supp. 2d 600, 606-08 (S.D.N.Y. 2004) (excluding an affidavit from a previously unidentified expert witness).
It is well settled that a district court has discretion in deciding whether to apply discovery sanctions for late discovery. Design Strategy, Inc. v. Davis, 469 F.3d 284, 297-98 (2d Cir. 2006); Hein v. Cuprum, S.A., 53 F. App'x 134, 136 (2d Cir. 2002). In considering whether to exclude improper or untimely evidence, a district court should consider "(1) the party's explanation for the failure to comply with the discovery order; (2) the importance of the evidence; (3) the prejudice suffered by the opposing party as a result of having to respond to the new evidence; and (4) the possibility of a continuance." Trouble v. Wet Seal, Inc., 179 F. Supp. 2d 291, 296-97 (S.D.N.Y. 2001) (citing Softel, Inc. v. Dragon Med. & Scientific Commc'ns, Inc., 118 F.3d 955, 961 (2d Cir. 1997)). For the reasons that follow, the Court excludes each of Plaintiffs' three affidavits.
a. Unidentified Experts
Plaintiff attached an affidavit from Dr. Memoli in her opposition to Defendants' motion. Dr. Memoli's affidavit, sworn after Defendants' moving papers were filed, revealed for the first time that Dr. Memoli had analyzed Plaintiff's July 2010 MRIs. (Aff. of Dr. Richard Memoli, dated July 22, 2011, Doc. No. 27-1 ("Memoli Aff."), at 3-4.) In performing his analysis, Dr. Memoli allegedly found new injuries - not present after her prior injury - to specific discs in Plaintiff's back and neck. (Id. at 4.) However, Plaintiff never identified Dr. Memoli as an expert witness and did not provide Defendants with the requisite expert disclosure under Rule 26(a).
Plaintiff's opposition to the motion also attaches an affidavit from Dr. Richard Iglesias wherein he opines - for the first time - that Plaintiff suffered serious injuries as a result of the April 2010 accident. (Aff. of Dr. Richard Iglesias, dated Aug. 9, 2011, Doc. No. 27-2 ("Iglesias Aff."), at 1-2 (stating that Plaintiff had "50% use of her cervical spine" as a result of the accident).) However, Dr. Iglesias, like Dr. Memoli, was never identified as an expert witness. Moreover, Dr. Iglesias's affidavit, like Dr. Memoli's, was sworn after Defendants filed their moving papers. In fact, the affidavit is based on an examination that did not even occur until after Defendants filed their moving papers. (Iglesias Aff. at 2.)
Although the importance of the affidavits from Dr. Memoli and Dr. Iglesias is great - given that the outcome of the instant motion likely turns on their admissibility - the remaining factors clearly weigh in favor of excluding both affidavits.
Significantly, Plaintiff's principal explanation for failing in her discovery duties with regard to Dr. Memoli and Dr. Iglesias was that she "could not get a hold of them." (Feb. 22 Tr. 10:1-2.) When asked by the Court, incredulously, whether she tried calling the physicians on the telephone, Plaintiff's counsel stated, "I did your Honor. I had a little bit of trouble, especially with one of them." (Id. 10:4-5.) However, curiously, counsel had little difficulty reaching both physicians and submitting their affidavits soon after Defendants filed their motion papers in early July 2011. (Id. 13:18-25.)
In light of the fact that counsel had eight months from the time this action was filed until the close of expert discovery to contact the experts in question - or any other medical expert - the Court finds wholly inadequate Plaintiff's explanation for her failure to provide Rule 26(a) notice. As noted above, the Court ordered, pursuant to the Scheduling Order proposed by both parties in October 2010, all expert disclosures to be completed by March 14, 2011. At the very least, when Plaintiff received Defendants' expert disclosures during discovery, it should have alerted Plaintiff to the need to disclose her own experts. In addition, at the pre-motion conference on May 18, 2011, Plaintiff was put on notice that discovery had closed, and that her case would be difficult without any evidence from experts. (May 22 Tr. 4:10-5:12.) Nevertheless, Plaintiff made no attempt to reopen discovery for the limited purpose of disclosing her experts.
Although Plaintiff makes much of the fact that she disclosed Dr. Memoli's name in response to an interrogatory and produced the July 2010 "To Whom It May Concern" letter from Dr. Memoli stating his initial observations, neither the interrogatory response nor the letter satisfied Plaintiff's obligations under Rule 26(a) or put Defendants on notice that Dr. Memoli might offer expert testimony on a motion or at trial. Plaintiff argues that Dr. Memoli was not required to file an expert report because he was Plaintiff's treating physician. However, Plaintiff's argument misses the mark. Regardless of whether Dr. Memoli was required to submit an expert report, there is no doubt that Plaintiff was required to disclose him as an expert and, at a minimum, provide Defendants with a summary of his opinions about Plaintiff's medical condition. See Fed R. Civ. P. 26(a)(2)(C).
Perhaps if Plaintiff had requested a continuance to reopen discovery during the pre-motion conference in May 2011, or just after Defendant filed their motion papers in July 2011, the request could have been granted with less prejudice to Defendants. However, Plaintiff did not request a continuance or leave to reopen discovery until February 22, 2012, during oral argument on the instant motion. Were Plaintiff's request for a continuance granted at this point, the time and resources spent preparing and briefing the instant motion would be all but wasted. In addition, through no fault of their own, Defendants would be no closer to resolving th$ matter in dispute than they were at the start of discovery in October 2010.
In sum, although the importance of the evidence is great, the balance of the factors weighs in favor of excluding the evidence offered by Dr. Memoli and Dr. Iglesias.
b. Undisclosed Fact Witness
Plaintiff also relies on the affidavit of Michael Austin Corr, who represents himself to be the President and Owner of Golden Eye Claims, Plaintiff's employer at the time of the accident. (See Aff. of Michael Corr, dated July 25, 2011, Doc. No. 27-1 ("Corr Aff."), at 1-2.) Corr's affidavit represents that he was forced to reassign Plaintiff to a lower-paying administrative job after the accident because Plaintiff could no longer perform the physical duties of her previous position. (Id.)
As with the expert witnesses, Plaintiff never disclosed Corr to Defendants as required by Fed. R. Civ. P. 26(a). (Feb. 22 Tr. 15:10-14.) And, once again, Corr's affidavit was sworn on July 25, 2011, after Defendants filed their motion papers. (Corr Aff. at 2.)
The Court finds Corr's affidavit to be inadmissible. Again, Plaintiff fails to offer any explanation for why Corr was not disclosed to Defendants during discovery; in any event, Corr's affidavit is relatively unimportant because it does not provide objective proof that Plaintiff suffered a serious injury. Additionally, although granting a continuance and reopening discovery could provide Defendants with an opportunity to depose Corr, the extra time and expense needed to do so would prejudice Defendants because it would waste the time and effort Defendants spent briefing the instant motion. Because Plaintiff failed to offer any justification for why Corr was not disclosed during discovery, and because the balance of the remaining factors also weighs in favor of exclusion, the Court excludes Corr's affidavit.
Although exclusion of the three affidavits is a significant sanction, parties in civil matters are generally responsible for the errors made by their counsel. See, e.g., Counter Terrorist Grp. U.S. v. N.Y. Magazine, 374 F. App'x 233, 235 (2d Cir. 2010) (ruling that attorney error is not "good cause" for extension under Rule 4(m)). "[O]ur system of representative litigation, in which each party is deemed bound by the acts of his lawyer-agent," militates in favor of holding Plaintiff accountable for the errors of her counsel in this case rather than giving her a second chance at litigating Defendants' motion. Link v. Wabash R.R., 370 u.S. 626, 633-34 (1962); accord Hoodho v. Holder, 558 F.3d 184, 192 (2d Cir. 2009). Accordingly, while timely disclosure of these individuals may have helped to defeat Defendants' motion for summary judgment, Plaintiff is not entitled to a second bite at the apple at this late stage of the proceedings - approximately one year after expert discovery was to have concluded.
2. Admissible Evidence
The only remaining admissible evidence on which Plaintiff relies to demonstrate a "serious injury" is Dr. Memoli's letter and her own subjective complaints of pain. For the reasons that follow, neither is sufficient for Plaintiff to establish a prima facie case.
a. Significant or Consequential Limitation
With respect to Plaintiff's attempts to establish a serious injury under the "significant" or "permanent consequential" limitation of use categories, "the New York Court of Appeals uses the terms significant and consequential interchangeably and defines significant and consequential simply as important." Byrne v. Oester Trucking, Inc., 386 F. Supp. 2d 386, 393 (S.D.N.Y. 2005) (citations and internal quotation marks omitted). In seeking to establish a significant or consequential injury, a plaintiff must present objective proof of a serious injury. Id. at 392-93; Toure, 98 N.Y.2d at 350. Subjective complaints of pain, standing alone, are insufficient to avoid summary judgment. Byrne, 386 F. Supp. 2d at 392-93; Toure, 98 N.Y.2d at 350. "Whether an injury is permanent is usually a medical question beyond the knowledge of a lay jury, and whether a limitation of use or function is 'significant' or 'consequential' relates to medical significance and involves a comparative determination of the degree or qualitative nature of an injury based on the normal function, purpose[,] and use of the body part." Dufel, 84 N.Y.2d at 798. "An expert's opinion unsupported by an objective basis may be wholly speculative, thereby frustrating the legislative intent of the No-Fault Law to eliminate statutorily-insignificant injuries or frivolous claims." Toure, 98 N.Y.2d at 351. Further, injuries that cause a "minor, mild[,] or slight limitation of use should be classified as insignificant within the meaning of the statute." Licari, 57 N.Y.2d at 236; see also Gaddy v. Eyler, 79 N.Y.2d 955, 957-58 (1992) (holding that a chronic sprain was insufficient to avoid summary judgment where the doctor found that the injury resulted in only a mild limitation).
In the instant case, although Dr. Memoli's letter indicates that he conducted some range of motion tests, the letter does not contain a comparative numerical analysis of Plaintiff's injuries or an analysis of Plaintiff's post-accident MRIs. Indeed, the letter does not conclude that Plaintiff suffered anything more than strains and sprains. Furthermore, Dr. Memoli does not opine as to whether Plaintiff suffered any limitations as a consequence of the accident. Therefore, Dr. Memoli's letter does not provide objective proof that Plaintiff suffered a serious injury. Thus, Plaintiff's evidence is insufficient to show that she suffered a serious or consequential limitation as a result of her accident with Defendants' tractor-trailer.
b. Ninety-Out-of-One-Hundred-and-
Eighty-Day Impairment
To demonstrate a serious injury under the 90-out-of-180-day impairment prong of the "serious injury" definition, a plaintiff must show that she was prevented from performing "substantially all of the material acts which constitute [her] . . . customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment." N.Y. Ins. Law § 5102(d). A plaintiff must also "present objective evidence of 'a medically determined injury or impairment of a non-permanent nature.'" Toure, 98 N.Y.2d. at 357 (quoting N.Y. Ins. Law § 5102(d)).
Plaintiff has not produced any objective medical evidence to demonstrate that she suffered a non-permanent injury or impairment that prevented her from performing substantially all of her customary daily activities. Dr. Memoli, in his letter written during the 180-day period immediately following the accident, did not opine as to Plaintiff's ability to work, nor did he recommend that Plaintiff avoid engaging in any of her daily or customary activities. In addition, Plaintiff herself testified that her injuries caused her to miss only about twelve days of work. (Defs.' 56.1 Stmt. ¶ 20.)
Put simply, Plaintiff has failed to meet her burden of establishing a prima facie case of a "serious injury." Accordingly, Defendants have shown that there is no genuine dispute as to any material fact and that they are entitled to judgment as a matter of law.
IV. CONCLUSION
For the foregoing reasons, the Court grants Defendants' motion for summary judgment. The Clerk of the Court is respectfully directed to terminate the motion located at Doc. No. 16 and to close this case. SO ORDERED.
/s/_________
RICHARD J. SULLIVAN
United States District Judge Dated: March 28, 2012
New York, New York
* * *
Plaintiff is represented by Leslie V. Lipton, Lipton & Lipton, 277 Broadway, New York, NY 10007.
Defendants are represented by Jeffrey A. Segal, Rawle & Henderson, LLP, 14 Wall Street 27th Floor, New York, NY 10005.