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Make Sure Your Expert Backs Up Their Findings (NY)

November 18, 2022

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In <em><a href="https://www.wcmlaw.com/wp-content/uploads/2022/11/Augustus-v.-Negron.pdf">Augustus v. Negron</a>,</em> 2022 NY Slip Op 06255 (2<sup>nd</sup> Dep’t, Nov 9, 2022), plaintiff brought suit after a motor vehicle accident. Pursuant to New York State Insurance Law, a plaintiff has to establish that he/she suffered a serious injury pursuant to Insurance Law § 5102(d). A failure to do so in motor vehicle accident means the plaintiff would not be able to sustain a lawsuit in New York.

After Justin Augustus brought suit to recover for his personal injuries, the defendants moved for summary judgment stating plaintiff failed to establish he suffered a serious injury within the meaning of Insurance Law § 5102(d), and presented evidence of the independent medical examination in support.  The motion was granted by the trial court.

On appeal, the plaintiff argued the defense failed to proffer competent medical evidence that the plaintiff did not sustain a serious injury causing either permanent consequential limitation of use or significant limitation of use categories under the Insurance Law. This argument was not persuasive to the Second Department.   Specifically, the Second Department held defendant’s expert, although finding that there were no significant limitations, “failed to substantiate his belief that the limitations were self-imposed.” As it applied to the back injuries allegedly suffered, the defendants were found to have similarly failed to make a showing that the injury was not caused by the accident.

As such, the court did not even review plaintiff’s appealing papers, and granted plaintiff’s appeal, overturning the initial grant for summary judgment. Thus, it is imperative to ensure that the expert reports do far more than merely stating the injury sustained was not casually related, or that the injury is self-limiting in nature. The IME doctor, particularly in his/her report, must provide a sufficient medical explanation for how they made such a determination, otherwise summary judgment may not be in the cards.

Thanks to Christopher Palmieri for his assistance with this article.  Should you have any questions, please contact <a href="mailto:tbracken@wcmlaw.com">Tom Bracken</a>.

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