Anatomy of a No-Fault serious injury decision: Bronx court grants defendants' motion for summary judgment finding no causation theory to rebut expert report of degenerative damage

Appiah v. Adjei, et al., Index 21939/2014E (Bronx Cty. November 30, 2018)

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The transcript of Oral Argument on defendants' motion for summary judgment provides an interesting look into the thought process of a working judge. In his decision placed on the record, the Honorable John R. Higgitt, J.S.C., granted the defendants' motion for summary judgment and dismissed plaintiff's personal injury complaint that arose out of the parties' motor vehicle accident.

Plaintiff had alleged damage to her lumbar spine and discs in connection with a September 11, 2011 collision. She was 65 years old at the time of her accident. Her doctor examined her six years after the accident and six weeks after defendant moved for summary judgment. He reported, conclusorily, that her injuries were not degenerative in nature but were caused by a traumatic injury.

Defendants moved for summary judgment on the basis of their experts' reports, those of an orthopedist and a neurologist. Neither of these physicians found new limitations in range of motion or limitations in plaintiff's ability to conduct activity of daily living. Her MRIs were reviewed by a radiologist who found that plaintiff's lumbar spine showed chronic degenerative changes, unrelated to any traumatic injury. Plaintiff contended that dueling reports created issues of fact as to qualitative range of motion and causation.

This presented a discrete legal issue for the Court to wrestle with: what must a plaintiff's expert report contain when a defendant's expert shows a pre-existing condition, such as degeneration?

The transcript in this case includes the Court's observations about approaches to the problem; whether what was termed a "general causation opinion" might be enough to rebut the defendant's experts' conclusions; and how the record in this matter indicated degenerative conditions. (Transcript pp. 5 - 7).

The Court, in a decision made on the record, held that plaintiff failed to raise a triable issue of fact. Plaintiff's osteopath did not sufficiently address the findings of degeneration in an MRI report made six years prior. Nor did he explain why plaintiff's lumbar spine deficits were not caused by pre-existing degenerative conditions. In addition, plaintiff's own testimony established that her alleged injuries did not prevent her from performing substantially all of the material acts and constituted her usual and customary daily activities for at least 90 of the 180 days immediately following the accident.

Plaintiff's claimed injuries to her cervical spine and right shoulder were not asserted in her bill of particulars, thus were waived.

AGF&J associate Jay S. Gunsher briefed the motion and associate Seth Nirenberg argued it to the Court.