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Pre-existing Injuries Present Hurdle to Plaintiff Proving Serious Injury "Threshold"

April 6, 2017

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In <em><a href="">Khan v. Goldman Hacking Corp.</a></em>, the Appellate Division, First Department unanimously reversed the Supreme Court’s denial of defendant’s summary judgment motion, stemming from a BI motor vehicle accident case.
Plaintiff alleged  serious injuries in a rear-end motor-vehicle accident, including cervical bulges, lumbar and thoracic sprains, and dysfunction of the jaw.  Defendants met their prima facie burden of showing that plaintiff did not suffer permanent consequential or significant limitations of the use of his jaw or his cervical, thoracic, and lumbar spine through affirmed reports of a dentist and neurologist.  Defendants also relied on plaintiff’s medical records that indicated he complained of back pain less than a month before the accident and was diagnosed with thoracic strain and sprain.
In reversing the lower court's denial of defendant's "threshold" motion, the First Department found that plaintiff failed to raise an issue of fact as to causation regarding plaintiff’s cervical and thoracic spine because he failed to address the findings of degeneration in plaintiff’s own MRI by offering another, legally sufficient, cause for the claimed spinal injuries.  The Court found that plaintiff’s expert’s opinion that the alleged accident itself caused the alleged injuries was insufficient to raise an issue of fact as the expert first examined plaintiff approximately six years after the accident.
While plaintiff’s expert acknowledged plaintiff’s prior diagnosis of thoracic strain, he did not offer any opinion as to how the claimed thoracic injury differed from the pre-existing condition.  Further, plaintiff did not submit objective medical evidence of lumbar spine injury as the MRI was performed more than five years after the accident which was too remote to show a causal connection to the accident, and incidentally were not part of the record.
This decision emphasizes the importance of counsel zealously pursuing all records of a plaintiff’s pre-accident condition in defending a matter.  Further, this decision highlights the importance of carefully parsing a plaintiff’s expert’s opinion and attacking its logical and evidentiary gaps, particularly as to causation.  Generally, "threshold" motions are difficult to win -- but holding a plaintiff to his burden can sometimes be fruitful.  Had plaintiff and his expert crafted a more tailored affidavit alleging exacerbation of the pre-existing condition, we suspect the First Department would have affirmed the lower court's ruling.  Thanks to Justin Pomerantz for his contribution to this post.  Please email <a href="">Brian Gibbons</a> with any questions.


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