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A "Threshold" Motion and Doctor Affidavit Needs Specifics, even for a De Minimis Injury (NY)

September 20, 2018

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If you are a Defendant in a motor vehicle injury case, and move for summary judgement on the "threshold"  grounds (that plaintiff did not sustain a “serious injury” under the New York Insurance Law) a proper expert report is critical to make a prima facie showing that the Plaintiff did not sustain a serious injury. Sometimes, defendants learn the hard way.

In <em><a href="http://blog.wcmlaw.com/wp-content/uploads/2018/09/Cabrera-Verduzo-v.-Shortis.pdf">Cabrera-Verduzo v. Shortis</a></em>, a case concerning a chain-reaction, rear-end motor vehicle accident, all the defendants moved for summary judgement claiming that both Plaintiffs did not sustain serious injuries. The courts in New York have been clear that when filing summary judgement motions the defendants bear the burden of showing that the Plaintiff did not sustain a “serious injury” under New York Insurance Law §5120(d). In the case at bar, the court concluded that the defendants failed to make a prima facie showing that both of the Plaintiffs did not sustain a serious injury.

First up was the Plaintiff, Maria Cabrea Verduzo. Specifically, this Plaintiff claimed to have injured her right knee. She claimed in her bill of particulars that she was confined to her home for approximately four months and that during that time period she was totally incapacitated. Cabrera-Verduzo also testified at her deposition that she missed approximately four and a half to five months of work. Dr. David Weissberg, defendants' examining orthopedist, examined this Plaintiff approximately five years after the accident and did not say that any of his findings were related to the time period immediately after the subject accident.  The court said that the defendants failed to meet their initial burden by failing to negate the issue of fact as to the 90/180 claim. Therefore, the motion was denied.

As for the second Plaintiff, Mr. Montenegro, the court came to the same conclusion. Mr. Montenegro claimed to have injured his right knee and that he suffered appendicitis as a result of the motor vehicle accident. The defendants had two medical experts examine this Plaintiff. Dr. Raymond Shebairo, an orthopedist, did many tests regarding Mr. Montenegro’s right knee, but failed to effectively discuss Plaintiff’s claim of appendicitis. Dr. Ilan Weisberg, a gastroenterologist, concluded that it is “more likely to be coincidental to, rather than caused by the subject accident.” However, he does not back that claim up with any actual evidence. The court stated that this conclusion was extremely speculative. Therefore, they denied this part of the motion as well.

This case illustrates that defendants and their clients should take a second look at their expert medical reports, particularly before moving for SJ on "threshold" grounds. If the reports cannot meet the initial burden, the motion may not be worth the paper its written on.  Thanks to Marc Schauer for his contribution to this post.  Please contact Brian Gibbons by <a href="mailto:bgibbons@wcmlaw.com">email</a> or on Twitter @bgibbons35 with any questions.

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