Settlement Reached During Mediation for Ossining Driver Rear-Ended by Bimbo Bakeries Truck

For the last few weeks, we have been posting about our efforts to get money for a young lady who was stopped in traffic when she was rear ended by a bread truck. Our three prior posts are herehere, here and here. While the motion to dismiss was pending, the parties tried to resolve the case through mediation.

In preparation for the mediation session, we prepared a persuasive document containing the most important evidence. In our prepared materials, we described our case in the most favorable terms possible, so that the mediator would be impressed with the relative strength of our case and would push the bread truck’s insurance company to make a fair settlement offer.

We also prepared our injured client to tell her story to the mediator in the most persuasive manner possible. Having a prepared and persuasive client also served another purpose: to show the insurance company that, if it did not settle our case, our client would make an excellent witness on her own behalf in front of a jury. On this day, our strategy was successful. The mediation resulted in a settlement.

Following that mediation, Martin + Colin, P.C. announced the settlement of this personal injury car accident case.  This time, the bodily injury car crash victim had been injured in a car accident on Route 9A in the Village of Briarcliff Manor, County of Westchester.

Our client, Ms. Calderon Ortega, who had suffered two disc herniations, straightening of the lumbar curvature/lordosis and an annular tear of L4-L5, was left with a permanent partial disability.  But now, as a result of the settlement through mediation, Ms. Calderon Ortega had some funds to move on with her life. What did she do? She packed her bags and headed to Cali, Colombia to continue her studies. She enrolled in college and will return to Westchester, sometime in the future, with a college degree.

And, as is often the case, our client preferred the certainty of settlement rather than the risk of trial.

For this client, whose life was turned upside down the day she was involved in a rear-end collision with a Bimbo Bakeries truck, the injury lawyers at Martin + Colin, P.C. were able to apply their expertise handling similar auto accident cases to resolve her case successfully.

We are experienced car accident and personal injury lawyers.  Call us now at (914) 771 7711 and let us apply our expertise to your case.

CALL US NOW AT (914) 771 7711 AND LET US APPLY OUR EXPERTISE TO YOUR CASE.

Mediation Submission

For the last few weeks, we have been posting about our efforts to get money for a young lady who was stopped in traffic when she was rear ended by a bread truck. Our three prior posts are here, here, and here.

While the motion to dismiss was pending, the parties tried to resolve the case through mediation. In preparation for our day with the mediator, we prepared a mediation packet containing the most important evidence. In our prepared materials, we tried to describe our case in the most favorable terms possible, so that the mediator would be impressed with the relative strength of our case and would push the bread truck’s insurance company to make a fair settlement offer.

Here is the mediation submission, without exhibits, in its entirety. I hope it helps you in your effort to understand your own case.

MARTIN + COLIN, P.C.
(914) 771 7711
44 Church Street
White Plains, NY  10601

SETTLEMENT PURPOSES ONLY

NOT TO BE USED FOR ANY OTHER PURPOSE

                                                                        July 7, 2016

Luke Voit, Esq.

Arbitrator

NAM (National Arbitration and Mediation)

990 Stewart Avenue, First Floor

Garden City, New York 11530

   Re:               Mediation Submission

  Client:         Selena Calderon Ortega, Plaintiff

                       Calderon Ortega v. Riley Baumes et ano

                        Supreme Court, Westchester County, Index No.:  52648/2015

D/Accid:        September 16, 2017

Dear Mediator Voit:

Mediation Submission

            The following serves as our review and analysis of this case and includes documentation to support our reasonable demand for settlement in the amount of $100,000.  The facts and data in this letter, together with the attached exhibits and documents, are intended to be utilized and discussed in the mediation conference.  This letter is intended to be used solely for purposes of mediation and settlement of this claim, and is therefore not admissible in any subsequent trial or proceedings.

FACTS

           On September 16, 2014 at approximately 11:11 am, the plaintiff, then 19-year-old Selena Calderon Ortega was stopped in traffic when her vehicle was struck from behind by the defendant.  Selena had been traveling southbound on Route 9A in the Village of Briarcliff Manor, County of Westchester, when the defendant, Riley Baumes, driving a delivery truck, rear ended the plaintiff’s vehicle (see Police Report annexed hereto as Exhibit “1”). 

           The impact caused extensive damage to Ms. Calderon Ortega’s vehicle, smashing the rear body and bending the bumper and breaking it off the car (see damage photos annexed hereto as Exhibit “2”).  The impact was so severe that Ms. Calderon Ortega’s vehicle, which had been stopped at the moment of impact, was shoved forward into the car directly in front of her car.  Ms. Calderon Ortega remained at home in pain for several days until, on September 23, 2014, Ms. Calderon Ortega went to the Phelps Memorial Hospital Center Emergency Department complaining of increasing back pain.  After examination she was discharged with the instructions to take 3 Advil every 6 hours as needed, to avoid strenuous activity, and to follow up with her doctor.

LIABILITY

           Liability in this case clearly lies with the defendants.  At the time of the accident, defendant was operating his vehicle southbound on Route 9A at a speed not reasonable and prudent and did not allow for enough stopping distance, causing his vehicle to strike the plaintiff’s car in the rear. Thus, since Ms. Calderon Ortega’s vehicle was rear ended by the defendant, liability rests with the defendant. See Plummer v. Nourddine, 82 A.D.3d 1069, 1069-1070, 919 N.Y.S.2d 187 (2d Dept. 2011) ( “[A] rear-end collision establishes a prima facie case of negligence on the part of the operator of the rear vehicle, thereby requiring that operator to rebut the inference of negligence by providing a non-negligent explanation for the collision.”).

VTL 1129(a) states, “The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway.” The failure of a driver to do so constitutes negligence as a matter of law, entitling the plaintiff lead driver whose vehicle was rear-ended to summary judgment on the issue of liability in the absence of an adequate non-negligent explanation (see Inzano v Brucculeri, 257 AD2d 605 [2nd Dept 1999]; Aromando v City of New York, 202 AD2d 617 [2nd Dept 1994]).  VTL 1129 imposes upon drivers the duty to be aware of traffic conditions, including vehicle stoppages.  Johnson v. Phillips, 261 A.D.2d 269 (1st Dept. 1999).

           The defendant did not provide a non-negligent explanation for the collision.  An assertion that the lead vehicle “stopped suddenly” is insufficient to rebut the presumption of negligence on the part of the offending vehicle.  Francisco v. Schoepfer, 2006 NY Slip Op 04966 (Sup Ct, NY Couny 2006), citing Woodley  v. Ramirez, 25 AD3d 451, 452 (2006); Malone v. Morillo, 6 AD3d 324 (2004).  While the defendant claims that Ms. Calderon Ortega’s vehicle “stopped suddenly”, the defendant also testified at his Examination Before Trial that prior to the collision he saw plaintiff’s brake lights, that he applied his brakes before the moment of impact and that he moved his vehicle to the right to try to avoid the impact.  See EBT of Riley Baumes annexed hereto as Exhibit “3”, pg. 23-24.

DAMAGES

           As stated above, due to the accident, Ms. Calderon Ortega’s vehicle sustained substantial damage to the rear end and had to be repaired.  Due to the fact that the parties were traveling on a limited access road, and the speed limit was 45 mph, the cars were traveling at a fairly high speed at the time of the impact, causing serious damage to Ms. Calderon Ortega’s vehicle.  The extent of the vehicle damage is evidence of the violent and substantial nature of the impact.

Ms. Calderon Ortega’s injuries clearly meet the serious injury threshold.  It Is well settled that the defendant in a personal injury case involving a motor vehicle accident is entitled to summary judgment if the defendant can show that “the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d)”. Gutierrez v. Yonkers Construction Co., 2009 NY Slip Op 03135, No. 2008-02304 (2d Dept. April 21, 2009).  However, after the defendant establishes the initial burden of showing that the plaintiff did not suffer serious injuries, the burden shifts to the plaintiff to show that a triable issue of genuine fact exists by submitting admissible medical evidence of plaintiff’s serious injury. Shinn v. Catanzaro, 1 A.D.3d 195, 107, 767 N.Y.S.2d 88 (1st Dept.  2003).

After the accident, Ms. Calderon Ortega went home and remained there.  Her back began to hurt and, after failing to recover after several days, Ms. Calderon Ortega sought treatment at Phelps Hospital Emergency Department (see Hospital Records annexed hereto as Exhibit “4”).  During this visit, Ms. Calderon Ortega complained of increasing back pain.

Shortly after the accident, on October 16, 2014, Ms. Calderon Ortega began treating with neurologist Maxwell Dolan.  (Exhibit “5”).  Plaintiff presented complaining of middle and lower back pain with muscle spasms.  (Exhibit “5”).  Ms. Calderon Ortega treated regularly and consistently with Dr. Dolan following the accident.  Ms. Calderon Ortega also began physical therapy treatments in attempts to relieve the pain.

Ms. Calderon Ortega had an MRI of her lumbar spine performed on November 12, 2014.  Recently, the MRI images were reviewed by a board certified radiologist, Dr. Charles J. Burns, M.D.  Dr. Burns states in his affirmed report dated April 7, 2016 regarding Ms. Calderon Ortega’s lumbar spine:

The MRI of the lumbar spine was performed on 11/12/2014 following the injury of 9/16/2014.  It was performed on a mid-field strength unit with excellent resolution and technique.  It demonstrated the loss of the normal lumbar curvature as seen on T2 weighted sagittal images.  This latter structural change is due to traumatic soft tissue injury, muscle spasm, or pain that caused straightening to the lumbar alignment.  They are accompanied by chronic disk herniations at L3-L4 and L4-L5 noted on the axial and sagittal T2 weighted images.  These changes resulted in bilateral neural foramina narrowing at L4-L5 and L5-S1 which were precipitated by the loss of the lumbar curvature/lordosis.  Accompanying the prior change is the annular tear of L4-L5, which is a definite cause for back pain.  These myriad of findings all contribute to the patient clinical symptoms.  There were no accompanying fractures, dislocation, or metastatic changes detected.

Thus, the above findings confirm traumatic soft tissue injury as indicated by annulus tear and loss of lumbar curvature.  The above findings are superimposed on chronic disk herniations of the lumbar spine as confirmed by the MRI performed after injury on 11/14/2014.  The findings are directly and causally related to the date of loss of 9/16/2014 in my professional opinion.  The clinical outcome depends on the natural evolution of her clinical symptoms and if surgery will be necessary. (Exhibit “7”).

Ms. Calderon Ortega followed up with Dr. Dolan on November 13, 2014, following the MRI of her lumbar spine.  As noted in the attached reports, Dr. Dolan diagnosed thoracic muscle spasms; lumbar spine injury with signs of radiculopathy; L3-L4 disc bulge; L4-L5 & L5-S1 disc herniation.  Dr. Dolan observed Ms. Calderon Ortega’s limitation with bending and lifting, and determined that Ms. Calderon Ortega was totally disabled as a result of the accident.  Dr. Dolan prescribed continued physical therapy treatments, Flexeril 10 mg for pain and stiffness caused by the muscle spasms, and Mobic 7.5 mg for pain relief.  (Exhibit “5”). 

At Ms. Calderon Ortega’s January 22, 2015 office visit with Dr. Dolan, four months after the accident, Ms. Calderon Ortega was still complaining to her treating physician that the pain hurt her so much that although she was going to physical therapy, she could not do the exercises.  In addition, Ms. Calderon Ortega complained to Dr. Dolan that her back hurt her so much that her sleep was interrupted from the pain.  Ms. Calderon Ortega also complained to Dr. Dolan that the pain so severely affected her daily life, causing her to feel angry.  Also, Dr. Dolan observed that the Ms. Calderon Ortega was walking with an antalgic gait due to the pain in her back.  Based on all of these observations, Dr. Dolan found Ms. Calderon Ortega to be totally disabled, with her limitations and functional disabilities causally related to the accident.  (Exhibit “5”). 

Ms. Calderon Ortega continued treating continuously with Dr. Dolan until she left the country to study abroad, over a year after the date of the accident.  At her last appointment with Dr. Dolan in October 2015, Ms. Calderon Ortega continued to complain of severe back pain which interrupted her sleep.  Ms. Calderon Ortega reported feeling anxious as a result of her injury.  Once again, Dr. Dolan personally observed limitations in Ms. Calderon Ortega’s range of motion, lumbar spine injury with signs of radiculopathy, as well as spasm and tenderness of the paraspinal muscles.  Dr. Dolan opined that Ms. Calderon Ortega was partially disabled as a result of the accident.  (Exhibit “5”). 

           Ms. Calderon Ortega has been diagnosed with disc herniations at L3-4 and L4-5, bilateral neural foramina narrowing at L4-L5 and L5-S1, loss of the lumbar curvature/lordosis, and annular tear of L4-L5.  See Report of the MRI of the Lumbrosacral Spine annexed hereto as Exhibit “6”.  These findings, by a duly licensed neurologist and duly licensed radiologist, standing alone, are sufficient to defeat a motion for summary judgment based on the serious injury threshold.  For example, in Gutierrez v. Yonkers Construction Co., the appellate court held that the defendant was not entitled to summary judgment based on the serious injury requirement of Insurance Law § 5102(d) where plaintiff submitted a medical report stating plaintiff suffered from a single disc herniation and lumbar spine range of motion limitations.  2009 NY Slip Op 03135, No. 2008-02304 (2d Dept. April 21, 2009).  

           However, due to this accident, Ms. Calderon Ortega suffered from two disc herniations, straightening of the lumbar curvature/lordosis, annular tear of L4-L5, and has a permanent partial disability.  Ms. Calderon Ortega is experiencing muscle spasms in her cervical, thoracic and lumbar spine, and has decreased range of motion in the cervical and lumbar regions.  See Narrative Report of Dr. Dolan annexed hereto as Exhibit “5”.  Ms. Calderon Ortega was found to be totally disabled from the date of the accident to the date of the August 2015 exam by her neurologist Dr. Dolan, and permanently partially disabled by Dr. Dolan at his October 2015 exam.  These findings, and Ms. Calderon Ortega’s deposition testimony, establish that Ms. Calderon Ortega was prevented from performing her usual and customary daily activities for not less than 90 during the 180 days immediately following the accident.  Since Ms. Calderon Ortega has suffered more serious injuries than the plaintiff in the Gutierrez case, and such injuries have been document and diagnosed by Ms. Calderon Ortega’s physician, it is clear that the Defendants would not prevail on a motion for summary judgment and that Ms. Calderon Ortega’s injuries are substantial, permanent, and life-altering. 

SETTLEMENT DEMAND

The Plaintiff makes a mediation settlement demand of $100,000.00.  Our legal research suggests that if we proceed to trial, we would likely get a verdict in excess of $300,000.00, even in a more conservative county.  Therefore, our pre-trial value of this case would more nearly approximate $200,000.00.

Awards based on similar physical injuries:

  • Jury verdict in excess of $350,000 affirmed on appeal from Orange County where plaintiff suffered “‘flexion extension’ injuries, a herniated disc at the C5-C6 level of the cervical spine, and a bulging disc at the L-5/S-1 vertebra of the lumbar spine” due to a car accident.  Orris v. West, 189 A.D.2d 866, 593 N.Y.S.2d 58 (2d Dept. 1993);
  • On appeal from Queens County, after jury awarded $426,000 for four bulging discs of the cervical spine and two bulging discs of the lumbosacral spine, appellate court ordered new trial unless parties stipulated to reduce damages to $175,000. The reduced award consisted of $100,000 for past pain and suffering and $75,000 for future pain and suffering. Maisonaves v. Friedman, 255 A.D.2d 494, 680 N.Y.S.2d 619 (2d Dept. 1998);
  • On appeal from Kings County, after jury awarded $400,000.00 for bulging disc in the lower back with attendant pain in the lower back, neck, and legs (no herniation), appellate court ordered new trial unless parties stipulated to reduce damages to $150,000.00, representing past pain and suffering of $60,000 and future pain and suffering $90,000. Tariq v. Miller, 240 A.D.2d 395, 657 N.Y.S.2d 769 (2d Dept. 1997).

At the time of the accident, Ms. Calderon Ortega was 19-years-old.  She had never treated for back pain prior to the date of the accident.  However, after the accident, she continued to complain of pain to her treating physician for over a year.  The pain Ms. Calderon Ortega experiences interrupts her sleep and causes her to feel angry.  Ms. Calderon Ortega continues to feel the pain in her back every day.

Based on the above cases, it is clear that Ms. Calderon Ortega would be awarded much more than $100,000.00 at trial.  For all the foregoing reasons, our mediation settlement demand is $100,000.00.

Respectfully submitted,

                                                                       MARTIN + COLIN, P.C.

                                                                        WILLIAM MARTIN

WM/cr

Enclosures

Sworn Statement of a Radiologist in Support of Our Client’s Claim That She Was Injured – Part 3 of 3

As discussed two posts ago, located here, and in our most recent post, located here, a defendant who had slammed his bread truck into the rear of our client’s automobile, causing physical injuries to her, filed a written motion requesting the court dismiss the lawsuit on the grounds that, even though my client said she was in pain, the medical records failed to show an objectively verifiable injury.

We opposed the defendant’s request to dismiss the case. Our papers were in three parts: a sworn affidavit from one of our attorneys; a sworn affidavit from a treating physician; and a sworn affidavit from a radiologist.

All three sworn affidavits submitted in support of our client’s case will now be posted to this website. This post constitutes part three of three. Printed below is the sworn affidavit from a radiologist, in its entirety:

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF WESTCHESTER

—————————————————————————x

SELENA CALDERON ORTEGA,

                                                           Plaintiff,                AFFIRMATION OF

                                                                                          CHARLES J. BURNS, M.D.

                        -against-

                                                                                           Index No: 09648/2017

RILEY BAUMES and

WOLFGANG LINE HAUL, LP,

                                                            Defendants.

—————————————————————————x

           CHARLES J. BURNS, M.D., a physician duly licensed to practice medicine in the State of New York, hereby affirms under penalty of perjury pursuant to CPLR 2106 the following to be true:

  1. I am a physician licensed to practice medicine in the State of New York.  My area of specialty is radiology and nuclear medicine.  I maintain an office at 1 Brockway Place, White Plains, New York.  I make this affirmation at the request of the attorneys for the plaintiff Selena Calderon Ortega.
  2. I affirm that the medical records attached are true and accurate copies of the records kept by me in the ordinary course of business.  I affirm the authenticity and truthfulness of the records under penalties of perjury.
  3. I have reviewed the CT scan images of plaintiff’s abdomen performed on 9/16/2016 at Phelps Memorial Hospital Center and on 9/22/2016 at Westchester Medical Center.  I have reviewed the CT scan images themselves as well as the reports of the initial reviewing radiologists who found fractures of the left 10th and 11th ribs.  My opinion is that the injuries appearing on the CT scan images are causally related to the accident. 
  4. In my opinion, these findings are consistent with Ms. Calderon Ortega’s symptomatology and correlate with the mechanics of the accident.  As a result of the accident, Ms. Calderon Ortega sustained rib fractures on the left, and permanent scarring on the liver and spleen.
  5. It is my opinion that Ms. Calderon Ortega has suffered multiple left rib fractures as a result of the September 16, 2016 accident. 
  6. Based on all of the above, my review of the diagnostic testing, it is my opinion, with reasonable medical certainty, that Ms. Calderon Ortega sustained rib fractures on the left, traumatic posterior liver laceration consistent with grade 4 injury, and laceration to the superior pole of the spleen with a small subscapular hemorrhagic component as a result of the September 16, 2016 motor vehicle accident.

Dated: White Plains, New York

April 7, 2016

                                                                        __________________________________

                                                                       CHARLES J. BURNS, M.D.

Sworn Statement of Our Client’s Physician in Support of Her Claim of Bodily Injury – Part 2 of 3

As discussed in the previous post, recently a defendant who had slammed his bread truck into the rear of our client’s automobile, causing physical injuries to her, filed a written motion requesting the court dismiss the lawsuit on the grounds that, even though my client said she was in pain, the medical records failed to show an objectively verifiable injury.

We opposed the defendant’s request to dismiss the case. Our papers were in three parts: a sworn affidavit from one our our attorneys; a sworn affidavit from a radiologist; and a sworn affidavit from a treating physician.

All three sworn affidavits submitted in support of our client’s case will now be posted to this website. This post constitutes part two of three. Printed below is the sworn affidavit from our client’s treating physician, in its entirety:

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF WESTCHESTER

—————————————————————————x

SELENA CALDERON ORTEGA,

                                                           Plaintiff,                AFFIRMATION OF

                                                                                           MAXWELL DOLAN, M.D.

                        -against-

                                                                                           Index No: 09648/2017

RILEY BAUMES and

WOLFGANG LINE HAUL, LP,

                                                            Defendants.

—————————————————————————x

            MAXWELL DOLAN, M.D., a physician duly licensed to practice medicine in the State of New York, hereby affirms under penalty of perjury pursuant to CPLR 2106 the following to be true:

  1. I am a physician licensed to practice medicine in the State of New York.  My area of specialty is neurology.  I maintain an office at 38 Brockway Place, White Plains, New York.  I make this affirmation at the request of the attorneys for the plaintiff Selena Calderon Ortega.
  2. I affirm that the medical records attached are true and accurate copies of the records kept by me in the ordinary course of business.  I affirm the authenticity and truthfulness of the records under penalties of perjury.
  3. I examined Selena Calderon Ortega on October 16, 2016; November 13, 2016; January 22, 2016; February 26, 2015; May 4, 2015; August 13, 2015; and October 12, 2015.
  4. I first examined Selena Calderon Ortega on October 16, 2016.  She reported that she was the restrained driver of a vehicle that was rear ended on September 16, 2016.  She reported no head injury and no loss of consciousness.  Ms. Calderon Ortega reported that after a week of back pain she went to Phelps Memorial Hospital emergency room, where she was evaluated, x-rayed, and released.  She presented complaining of middle and lower back pain with muscle spasms.
  5. Thoracic spine examination on October 16, 2016 revealed spasm and tenderness of the muscles.  Lumbar spine examination on October 16, 2016 revealed decreased range of motion.  Lumbar spine flexion-extension to seventy five degrees, right and left lateral flexion to twenty degrees.  Lumbar spine examination revealed spasm and tenderness of the paraspinal muscles.  On October 16, 2016, my diagnosis was:  Thoracic paraspinal muscle spasms; Lumbar spine injury with signs of radiculopathy.  The patient had limitations with lifting and bending.  I recommended that the patient obtain an MRI of the lumbar spine and to schedule a follow up examination.
  6. I next examined Ms. Calderon Ortega on November 13, 2016.  The patient continued to complain of back pain with difficulty in walking.  Examination on November 13, 2016 revealed antalgic gait due to back pain; straight leg raising was normal to ninety degrees on the left and elicited pain at seventy five degrees on the right.  Thoracic spine examination revealed spasm and tenderness of the muscles.  Lumbar spine examination revealed decreased range of motion; flexion-extension to seventy five degrees, right and left lateral flexion to twenty degrees; spasm and tenderness of the paraspinal muscles.  MRI of the Lumbar Spine performed November 12, 2016 revealed L3-L4 disc bulge, L4-L5 and L5-S1 disc herniation.  My diagnosis was:  Thoracic paraspinal muscle spasms; Lumbar spine injury with signs of radiculopathy; L3-L4 disc bulge; and L4-L5 & L5-S1 disc herniation.  The patient had limitations with lifting and bending.  After examination of the patient on November 13, 2016, it was my opinion, with a reasonable degree of medical certainty, that the patient was totally disabled, with her limitations and functional disabilities causally related to the aforementioned accident.  I recommended that the patient continue with Physiatry and physical therapy treatments, and to schedule a follow up examination.  I prescribed Flexeril 10mg (once a day for pain & stiffness caused by muscle spasms) and Mobic 7.5 mg (once a day for pain relief). 
  7. I next examined Ms. Calderon Ortega on January 22, 2015.  The patient continued to complain of back pain.  The patient stated that she is unable to exercise, that she has interrupted sleep, and that she is feeling angry.  Examination on January 22, 2015 revealed antalgic gait due to back pain; straight leg raising elicited pain at seventy five degrees bilaterally.  Cervical spine examination revealed spasm and tenderness of the muscles.  Thoracic spine examination revealed spasm and tenderness of the muscles.  Lumbar spine examination revealed decreased range of motion; flexion-extension to seventy five degrees, right and left lateral flexion to twenty degrees; spasm and tenderness of the paraspinal muscles.  MRI of the Lumbar Spine performed November 12, 2016 revealed L3-L4 disc bulge, L4-L5 and L5-S1 disc herniation.  My diagnosis was:  Thoracic paraspinal muscle spasms; Lumbar spine injury with signs of radiculopathy; L3-L4 disc bulge; and L4-L5 & L5-S1 disc herniation.  The patient had limitations with lifting and bending.  After examination of the patient on January 22, 2015, it was my opinion, with a reasonable degree of medical certainty, that the patient was totally disabled, with her limitations and functional disabilities causally related to the aforementioned accident.  I recommended that the patient continue with pain management and continued physical therapy treatments, as well as continue on prescribed Flexeril 10mg (once a day for pain & stiffness caused by muscle spasms) and Mobic 7.5 mg (once a day for pain relief).  I asked that she schedule a follow up examination.
  8. I next examined Ms. Calderon Ortega on February 26, 2015.  The patient complained of persistent low back pain and with continued inability to do her exercises.  She also had trouble sleeping.  Examination on February 26, 2015 revealed straight leg raising elicited pain at seventy five degrees bilaterally.  Lumbar spine examination revealed decreased range of motion; flexion-extension to seventy five degrees, right and left lateral flexion to twenty degrees; spasm and tenderness of the paraspinal muscles.  MRI of the Lumbar Spine performed November 12, 2016 revealed L3-L4 disc bulge, L4-L5 and L5-S1 disc herniation.  My diagnosis was:  Thoracic paraspinal muscle spasms; Lumbar spine injury with signs of radiculopathy; L3-L4 disc bulge; and L4-L5 & L5-S1 disc herniation.  The patient had limitations with lifting, bending, and prolonged standing.  After examination of the patient on February 26, 2015, it was my opinion, with a reasonable degree of medical certainty, that the patient was totally disabled, with her limitations and functional disabilities causally related to the aforementioned accident.  I recommended that the patient continue with pain management for epidural steroid injections, to continue physical therapy treatments, to continue on prescribed Flexeril 10mg (once a day for pain & stiffness caused by muscle spasms) and Mobic 7.5 mg (once a day for pain relief), and to schedule a follow up examination. 
  9. I next examined Ms. Calderon Ortega on May 4, 2015.  The patient complained of persistent back pain.  Examination on May 4, 2015 revealed straight leg raising elicited pain at seventy five degrees bilaterally.  Lumbar spine examination revealed decreased range of motion; flexion-extension to seventy five degrees, lateral flexion to twenty degrees bilaterally accompanied by spasm and tenderness of the paraspinal muscles.  MRI of the Lumbar Spine performed November 12, 2016 revealed L3-L4 disc bulge, L4-L5 and L5-S1 disc herniation.  My diagnosis was:  Thoracic paraspinal muscle spasms; Lumbar spine injury with signs of radiculopathy; L3-L4 disc bulge; and L4-L5 & L5-S1 disc herniation.  The patient had limitations with lifting, bending, and prolonged standing.  After examination of the patient on May 4, 2015, it was my opinion, with a reasonable degree of medical certainty, that the patient was totally disabled, with her limitations and functional disabilities causally related to the aforementioned accident.  I referred the patient to Dr. Shea for pain management, and recommended the patient continue with pain management for epidural steroid injections, to continue physical therapy treatments, to continue on prescribed Flexeril 10mg (once a day for pain & stiffness caused by muscle spasms) and Mobic 7.5 mg (once a day for pain relief), and to schedule a follow up examination. 
  10. I next examined Ms. Calderon Ortega on August 13, 2015.  The patient stated that she felt the pain was better during the day, but it was severe at night and interfered with her sleep.  Examination on August 13, 2015 revealed straight leg raising elicited pain at seventy five degrees bilaterally.  Cervical spine examination revealed spasm and tenderness of the paraspinal muscles.  Thoracic spine examination revealed spasm and tenderness of the paraspinal muscles.  Lumbar spine examination revealed decreased range of motion; flexion-extension to seventy five degrees, lateral flexion to twenty degrees bilaterally accompanied by spasm and tenderness of the paraspinal muscles.  MRI of the Lumbar Spine performed November 12, 2016 revealed L3-L4 disc bulge, L4-L5 and L5-S1 disc herniation.  My diagnosis was:  Thoracic paraspinal muscle spasms; Lumbar spine injury with signs of radiculopathy; L3-L4 disc bulge; and L4-L5 & L5-S1 disc herniation.  The patient had limitations with lifting, bending, and prolonged standing.  After examination of the patient on May 4, 2015, it was my opinion, with a reasonable degree of medical certainty, that the patient was totally disabled, with her limitations and functional disabilities causally related to the aforementioned accident.  I recommended the patient should obtain an EMG/NCV of the lower extremities to evaluate lumbar motor root involvement, to follow up with Dr. Shea for pain management, to continue physical therapy treatments, to continue on prescribed Flexeril 10mg (once a day for pain & stiffness caused by muscle spasms) and Mobic 7.5 mg (once a day for pain relief), and to schedule a follow up examination. 
  11. At the most recent examination on October 12, 2015, Ms. Calderon Ortega reported that she had been suffering from back pain, she had difficulties sleeping, and she reported feeling anxious.  The patient was well developed, oriented x3 and cooperative.  Speech was clear and coherent with no language disturbance noticed.  On mental status exam, there was no evidence of cognitive impairment or manifest mood disturbance.  The patient’s head was normocephalic with no evidence of recent trauma or bruits.  Cranial nerves revealed normal fundi and full visual fields.  There was full extraocular movements with no nystagmus.  The pupils were isocoric, symmetrically reactive to light and accommodation.  Facial sensation was normal with corneal reflexes being symmetrical and normoactive.  There was no gross paresis of the seventh nerve.  The patient’s hearing was within normal limits, with the Rinne and Weber test being physiologic.  The ninth through twelfth nerve were intact. 
  12. Motor examination on October 12, 2015 revealed adequate strength and tone in all major groups 5/5.  Sensory was intact to touch, pain, position, and vibration sense.  Deep tendon reflexes were normal and symmetrical.  Plantar reflexes were flexor.  There were no cortical release signs.  Coordination testing including finger to finger, finger to nose, rapid alternating movements and tandem gait were normal.  Gait was normal including tandem, on toes, and on heels.  The Station and Romberg test were negative.  Straight leg raising was normal to ninety degrees bilaterally.  Cervical spine examination revealed normal range of motion. 
  13. Thoracic spine examination on October 12, 2015 revealed spasm and tenderness of the paraspinal muscles.  Lumbar spine examination on October 12, 2015 revealed spasm and tenderness of the paraspinal muscles. 
  14. As noted on earlier reports, MRI of the lumbar spine (11/12/2016) revealed disc bulge of L3-L4 flattening the sac.  At L4-L5 there is a subligamentous central and bilateral disc herniation lateralizing to the right giving mild mass effect on the anterior aspect of the sac with mild productive changes of the facet joints.  At L5-S1 there is a small central and bilateral disc herniation lateralizing to the right reaching the sac and the right S1 root. 
  15. The patient has limitations with lifting, bending, and prolonged standing. 
  16. My diagnosis is: Thoracic paraspinal muscle spasms; Lumbar spine injury with signs of radiculopathy; L3-L4 disc bulge; L4-L5 & L5-S1 disc herniation.  With a reasonable degree of medical certainty, it is my opinion that the patient is partially disabled.  Her limitations and functional disabilities are causally related to the aforementioned incident.
  17. In addition, I have reviewed a narrative report affirmed by Charles Burns, M.D., radiologist, who reviewed the MRI of the lumbar spine performed November 12, 2016 at White Plains Radiology and concluded that the MRI demonstrated the loss of the normal lumber curvature as seen on T2 weighted sagittal images.  Dr. Burns concluded this latter structural change is due to traumatic soft tissue injury, muscle spasm, or pain that caused straightening to the lumbar alignment.  Dr. Burns observed they are accompanied by chronic disk herniations at L3-L4 and L4-L5 noted on the axial and sagittal T2 weighted images.  Dr. Burns concluded these changes resulted in bilateral neural foramina narrowing at L4-L5 and L5-S1 which were precipitated by the loss of the lumber curvature/lordosis.  Dr. Burns observed accompanying the prior change is the annular tear at L4-L5, which is a definite cause for back pain.  Dr. Burns affirmed that these myriad of findings all contribute to the patient’s clinical symptoms.  Dr. Burns affirmed that the above findings confirm traumatic soft tissue injuries as indicated by annulus tear and loss of lumbar curvature, are superimposed on chronic disk herniations of the lumbar spine as confirmed by the MRI performed on 11/14/2016.  Dr. Burns affirmed the findings are directly and causally related to the date of loss of 9/16/2016 in his professional opinion.   
  18. Based upon my clinical examinations of Selena Calderon Ortega that have taken place over the last year plus, the objective diagnostic tests described above, as well as my review of Dr. Burns’s affirmation, I have formed an opinion with reasonable medical certainty regarding Selena Calderon Ortega’s injuries.  The automobile accident of September 16, 2016 caused her body to be thrust forward and back.  This caused sudden extension and flexion of the neck and back.  This sudden movement caused thoracic spine injury and lumbar spine injury, affecting the nerves, causing signs of radiculopathy indicated in my clinical diagnosis.
  19. This injury correlates to the body mechanics of the accident, and Selena Calderon Ortega’s complaints are those to be expected from this type of condition.  The pain that results from this condition causes limitations in lifting, bending and prolonged standing.  Since this condition has persisted for over a year, it is my opinion that this is a permanent condition.  Surgery may be an option, but that is too fraught with many risks, and success is never guaranteed.
  20. In my opinion, with reasonable medical certainty, Selena Calderon Ortega has sustained significant limitation of use of her thoracic and lumbar spine as a result of the accident of September 16, 2016.  The natural range of motion in the thoracic spine and lumbar spine has been compromised and limited by the pain caused by this accident.  Moreover, since Selena Calderon Ortega has displayed these symptoms over the course of over a year, it is my opinion that this is a permanent condition.
  21. Therefore, it is also my opinion with a reasonable degree of medical certainty, that Selena Calderon also sustained a permanent consequential limitation of use of a body organ as a result of the September 16, 2016 accident.  As a result of this accident, the thoracic and lumbar spine can no longer move naturally through its full range of motion without causing pain, thereby limiting the normal use of the spine. 
  22. Lastly, based on the records available to me, and the medical history provided by the plaintiff Selena Calderon Ortega, that for at least three months after the accident she was unable to leave the house, it is also my opinion that she has sustained a medically determined injury that prevented her from performing substantially all of her material acts that constituted her customary daily activities for not less than ninety days during the one hundred eighty days immediately following the accident.
  23. I affirm under penalty of perjury pursuant to CPLR 2106 that the statements contained in this affirmation are true and accurate with reasonable medical certainty.

Dated: White Plains, New York

May 6, 2016

                                                                        __________________________________

                                                                        MAXWELL DOLAN, M.D.

The Bread Truck Driver Hit Our Car from the Rear. Now, He Does Not Want to Pay for the Harms and Losses He Caused. Part 1 of 3

Introduction

Recently, we found ourselves sitting with a client discussing the defendant’s summary judgment motion. You see, the defendant had already slammed his bread truck into the rear of our client’s automobile, causing physical injuries to our client and lots of property damage to her car. We had filed a lawsuit on her behalf and now, after all her medical records were exchanged and reviewed, the bread truck driver had filed a written motion requesting the court dismiss my client’s lawsuit on the grounds that, even though my client said she was in pain, the medical records failed to show an objectively verifiable injury. What nonsense.

We filed papers opposing the defendant’s request to dismiss the case. Our papers were in three parts: a sworn affidavit from one our our attorneys; a sworn affidavit from a radiologist; and a sworn affidavit from a treating physician.

All three sworn affidavits submitted in support of our client’s case will now be posted to this website. This post constitutes part one of three. Printed below is the sworn affidavit from one of our attorneys, in its entirety:

Attorney Affirmation


SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF WESTCHESTER

——————————————————————-x                                                               

SELENA CALDERON ORTEGA,                           

                               Plaintiff,                       AFFIRMATION IN OPPOSITION

                                                                       TO DEFENDANTS’ MOTION

                       –against–                              FOR SUMMARY JUDGMENT

RILEY BAUMES and

WOLFGANG LINE HAUL LP, Index No.: 09648/2017

                                                Defendants.                            

——————————————————————-x

            WILLIAM MARTIN, an attorney admitted to practice in the State of New York, affirms the following under the penalties of perjury:

I am an attorney with the law firm of MARTIN + COLIN, P.C., the attorneys of record for the plaintiff.  I am thoroughly conversant with the facts and circumstances herein based upon my review of the contents of the plaintiff’s file maintained by this office. 

I make this affirmation in opposition to the summary judgment motion of the defendants brought pursuant to CPLR 3212 and Insurance Law 5102.  The following exhibits are attached hereto: 

Exhibit “1”      May 6, 2016 affirmation of Maxwell Dolan, M.D.

Exhibit “2”      April 7, 2016 affirmed report of Charles J. Burns, M.D.

For all the reasons that follow, I ask that this motion be denied in all respects.

This action arises from a rear-end collision that occurred on September 16, 2016 at approximately 11:11 a.m. on Route 9A at or near the intersection of Chappaqua Road in the village of Briarcliff Manor, County of Westchester, State of New York, wherein defendant, Riley Baumes, drove his vehicle, a delivery truck, into the rear-end of plaintiff’s vehicle. 

On September 23, 2016, Ms. Calderon Ortega went to the Phelps Memorial Hospital Center Emergency Department complaining of increasing back pain.  After examination she was discharged with the instructions to take 3 Advil every 6 hours as needed, to avoid strenuous activity, and to follow up with her doctor.

Subsequently, on October 16, 2016, Ms. Calderon Ortega began treating with neurologist Maxwell Dolan.  (Exhibit “1”).  Plaintiff presented complaining of middle and lower back pain with muscle spasms.  (Exhibit “1”). 

As set forth above, as recently as October 2015, which was the last time Ms. Calderon Ortega saw Dr. Dolan, Ms. Calderon Ortega continued to complain of severe back pain which interrupted her sleep.  Ms. Calderon Ortega reported feeling anxious as a result of her injury. Dr. Dolan continued to observe limitations in Ms. Calderon Ortega’s range of motion, spasm and tenderness of the paraspinal muscles.  Dr. Dolan opined that Ms. Calderon Ortega was partially disabled as a result of the accident.

Ms. Calderon was required to be examined by the defendant’s doctor on December 4, 2015.  Days later, after Ms. Calderon Ortega’s October 2015 visit to Dr. Dolan, she left the country to study abroad in Colombia.  The plaintiff continues to attend school in Colombia. It is for this reason and this reason alone that Plaintiff has not continued to treat with Dr. Dolan. There is nothing in Dr. Dolan’s medical records to suggest that plaintiff has fully recovered from the accident.  While it is clear that she has made some improvement, her recovery is far from complete.

Ms. Calderon Ortega treated with Dr. Dolan for over a year from her initial appointment in October 2016, as discussed in Dr. Dolan’s attached affirmation, until she left the country to study abroad (Exhibit “1”). 

While it is true that plaintiff Selena Calderon Ortega testified at her deposition on November 20, 2017 that she was not employed at the time of the accident and was not a student, that does not mean that she was not injured.  (Exhibit “D”, p. 48-49). 

While it is true that plaintiff Selena Calderon Ortega testified at her deposition that she was not involved in athletic activities prior to the accident, was not a member of an exercise facility, and did not play sports prior to the accident, that does not mean that she was not injured.  (Exhibit “D”, p. 52-53). Those facts do not support defendants’ contention that she was not injured as a result of this accident. 

Although plaintiff may not have been leading the most active and energetic lifestyle prior to the accident, it is conclusively established by these papers that, within days of the accident until the time that she left for Colombia, Ms. Calderon Ortega was continuously treating with Dr. Dolan.  (Exhibit “D”, p. 40). Plaintiff further testified that she was regularly attending physical therapy two days per week (Exhibit “D”, p 43).

In other words, it is not fair to say that because plaintiff was not doing much prior to the accident, the accident could not have possibly altered her life that much.  Defendants seem to be arguing that because she was not doing much prior to the accident, not much has changed as a result of the accident, and therefore, she doesn’t meet the serious injury threshold.

The real issue is how much pain and injury does plaintiff have as a result of the accident, and how much does it affect her daily life.  Here, plaintiff Selena Calderon Ortega testified that she continues to have lower back pain every day and that she tries to relax and take it easy to relieve the pain.  (Exhibit “D”, p. 51).  Plaintiff testified that she still takes the strong prescription medication prescribed by Dr. Dolan for her continued pain.  (Exhibit “D”, p. 52).

While the defendants try to make much of the fact that plaintiff was not that active prior to the accident, they were also very selective about the questions they asked during Plaintiff’s deposition.  For example, defendants did not ask her at her deposition about the ways that her daily life has changed.  Defendants did not ask her at her deposition about activities that she now has difficulties with.  Defendants did not ask her at her deposition about activities that she can no longer do at all.

Defendants Presented No Prima Facie Case for Summary Judgment

As a preliminary matter, in order to prevail on a motion for summary judgment, the defendants must make a prima facie substantive showing.  The New York State Court of Appeals has held that summary judgment must be denied if the moving party fails to make a prima facie showing of entitlement to judgment as a matter of law, regardless of the sufficiency of the opposing papers.  Winegrad v. N.Y.U. Medical Center, 64 N.Y.2d 851, 487 N.Y.S.2d 316 (1985).

Where the record contains objective diagnostic proof, in admissible form establishing a disc injury, causally related to the subject accident, along with objectively measured quantified range of motion limitations, and qualified limitations, clinically correlated to the disc injury, the motion must be denied.  Perl v. Meher, 18 N.Y.3d 208, 936 N.Y.S.2d 655 (2011); Toure v. Avis, 98 N.Y.2d 345, 746 N.Y.S.2d 865 (2002). 

When the proof submitted by defendants “in support” of the motion by defendants demonstrates questions of fact, the motion must be denied. E.g., Astudillo v. MV Transportation, 84 A.D.3d 1289, 923 N.Y.S.2d 722 (Second Dept. 2011).

The defendant as the party seeking summary judgment must demonstrate absence of genuine issues of material fact on every relevant issue raised by the pleadings, including any affirmative defenses.  Aimatop Restaurant Inc. v Liberty Mut. Fire Ins. Co., 74 A.D.2d 516, 425 N.Y.S.2d 8 (First Dept. 1980).  Since the records submitted with the motion raise questions of fact, the motion must be denied.

In the present matter, defendants’ expert Ronald L. Munn, M.D., acknowledged that, when he met the plaintiff fifteen months after the accident, the plaintiff was still taking prescription pain medication in order to cope with the pain.   Defendants’ expert then went on to state that the plaintiff had no disability and had fully recovered from her injuries as a result of the accident. However, defendants’ expert had to concede that Ms. Calderon Ortega’s demonstration of a full recovery was made while she was on prescription medication.  Had Dr. Munn claimed that she was fully recovered without the continued need for prescription medication, one could argue that defendants’ met their prima facie burden.  However, they did not.  Ms. Calderon Ortega could only demonstrate her physical condition, which Dr. Munn found to be fully recovered, while she was on prescription medication to relieve her ailments. 

For Dr. Munn to acknowledge that Ms. Calderon Ortega continues to require prescription medication in order to function normally, then he must also implicitly acknowledge that there is a licensed medical doctor that is writing the prescriptions for her.  He must also implicitly acknowledge that the doctor prescribing the medication would only do so after physical observation, and a finding that the remedial effect of the medication outweighs the side effects.  Therefore, by definition, the defendants have not met their prima facie burden.

Stated differently, defendants’ expert is essentially saying the following:  A full fifteen months after the accident, Selena Calderon Ortega continues to seek medical treatment from a physician.  Said licensed medical provider is examining her and determining that, a) she has the complaints; and b) that she requires prescription medication to address the complaints. The doctor has further determined that he will write her the prescription because he has determined that the plaintiff is suffering so much pain that the benefits of the prescription will outweigh the side effects.  Therefore, Dr. Munn must acknowledge that the prescribed medication has been prescribed out of medical necessity, and that there must be a continued medical necessity as Ms. Calderon Ortega continues to require the medication.  Thus, when Dr. Munn says that the patient is fine (while on prescription medication), he is implicitly acknowledging that she continues to suffer, seek medical treatment, receive medical treatment, and require a powerful prescription drug to address her ailments.

As such, the affidavit of defendants’ own expert witness fails to make out a prima facie case for summary judgment in favor of the defendant.  On that ground alone, the defendants’ motion must be denied in all respects.

QUESTIONS OF FACT

Insurance Law 5102(d) defines the term “serious injury” in relevant part:

(d) “Serious injury” means 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 of 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.

Insurance Law 5102(d).  (Emphasis added).

90/180

In Refuse v. Magloire, 83 A.D.3d 685, 919 N.Y.S.2d 886 (Second Dept. 2011), the Appellate Division held:

The plaintiffs demonstrated their entitlement to judgment as a matter of law by establishing, prima facie, that they each sustained a serious injury within the 90/180-day category of serious injury under Insurance Law 5102(d) (citations omitted.)  In opposition, the defendant failed to raise a triable issue of fact as to whether the plaintiffs, who both alleged that they sustained serious injuries to, inter alia, the cervical and lumbar regions of their spines, each had a medically-determined injury that prevented them from performing substantially all of the material acts constituting their usual and customary daily activities during not less than 90 days during the first 180 days immediately following the subject accident (see Insurance Law 5102[d]).  In his reports detailing his medical findings from his recent examinations of the plaintiff, the defendant’s expert orthopedic surgeon, Alan J. Zimmerman, failed to relate those findings to the plaintiff’s 90/180-day serious injury claims, which were clearly set forth in the bill of particulars.  Thus, the reports were not sufficient to raise a triable issue of fact in opposition to the plaintiffs’ prima facie showing (citations omitted).  Accordingly, the Supreme Court properly granted the plaintiffs’ motion for summary judgment on the issue of serious injury

83 A.D.3d 685, 919 N.Y.S.2d 886. (Emphasis added). 

Similar to Refuse, supra, in the present matter, defendants’ examining medical expert, Ronald L. Munn, M.D. (Defendants’ Exhibit “E”) did not comment on the 90/180 category, which was clearly set forth in plaintiff’s bill of particulars.  (Defendants’ Exhibit “C”).  See, also, Hoisington v. Santos, 48 A.D.3d 333, 851 N.Y.S.2d 528 (First Dept. 2008); Thompson v. Ramnarine, 40 A.D.3d 360, 835 N.Y.S.2d 566 (First Dept. 2007); Toussant v. Claudio, 23 A.D.3d 268, 803 N.Y.S.2d 564 (First Dept. 2005); Burford v. Fabrizio, 8 A.D.3d 784, 777 N.Y.S.2d 810 (First Dept. 2004); Loesburg v. Jovanovic, 264 A.D.2d 301, 694 N.Y.S.2d 362 (First Dept. 1999). 

It is worth noting that CPLR Rule 3212 states “If it shall appear that any party other than the moving party is entitled to summary judgment, the Court may grant such judgment without the necessity of a cross-motion.”  CPLR Rule 3212(b).

Based on the preceding, plaintiff has established a prima facie case for “serious injury” under the 90/180 category.  Defendants have utterly failed to address this category.  Therefore, the defendants’ motion should be denied in all respects.

SIGNIFICANT LIMITATION and PERMANENT CONSEQUENTIAL LIMITATION

Whether a limitation of use qualifies as “significant” or “consequential” relates to medical significance and involves a qualitative or quantitative assessment based on the normal function of the body part or system.  In Toure v. Avis Rent A Car Systems, Inc., 98 N.Y.2d 345, 756 N.Y.S.2d 865 (2002), the Court of Appeals stated:

In order to prove the extent or degree of physical limitation, an expert’s designation of a numeric percentage of a plaintiff’s loss of range of motion can be used to substantiate a claim of serious injury (citations omitted).  An expert’s qualitative assessment of a plaintiff’s condition also may suffice, provided that the evaluation has an objective basis and compares the plaintiff’s limitations to the normal function, purpose and use of the affected body organ, member, function or system. 

Toure, supra, 98 N.Y.2d 350, 746 N.Y.S.2d 868.

In the Manzano v. O’Neil decision within Toure, supra, the Court of Appeals held that expert testimony that the plaintiff suffered a herniated disc as a result of an automobile accident, based upon his interpretation of MRI films and correlating the herniated discs with her inability to perform certain normal tasks was sufficient to establish that plaintiff had sustained a serious injury.

In this case, plaintiff presented the testimony of her treating physician, Dr. Dolan, who opined that plaintiff suffered two herniated cervical discs as a result of the automobile accident.  His conclusion was supported by objective evidence introduced at trial, namely, the MRI films that he interpreted.  Although this medical expert did not assign a quantitative percentage to the loss of range of motion in plaintiff’s neck or back, he described the qualitative nature of plaintiff’s limitations based on the normal function, purpose and use of her body parts.  In particular, Dr. Dolan correlated plaintiff’s herniated discs with her inability to perform certain normal, daily tasks.  These limitations are not so insignificant as to bar plaintiff’s recovery under the No-Fault Law. 

Toure, supra, 98 N.Y.2d 355, 746 N.Y.S.2d 871.

In Perl v Meher, 18 N.Y.3d 208, 936 N.Y.S.2d 655 (2011) the Court of Appeals clarified the rule espoused by that Court in Toure, supra, regarding quantitative assessment of injury:

Toure, however, imposed no such requirement of “contemporaneous” quantitative measurements, and we see no justification for it.

There is nothing obviously wrong or illogical about following the practice that Bleicher followed here- observing and recording a patient’s symptoms in qualitative terms shortly after the accident, and later doing more specific, quantitative measurements in preparation for litigation.

* * *

We agree with the Appellate Division dissenters in Perl that a rule requiring “contemporaneous” numerical measurements of range of motion could have perverse results.  Potential plaintiffs should not be penalized for failing to seek out, immediately after being injured, a doctor who knows how to create the right kind of record for litigation.  A case should not be lost because the doctor who cared for the patient initially was primarily, or only, concerned with treating the injuries.  We therefore reject a rule that would make contemporaneous quantitative measurements a prerequisite to recovery.

Toure, supra, 18 N.Y.3d 217-218.

Where the defendant’s physician disputes the veracity of plaintiff’s examination, implying that he or she is malingering, the question of credibility must go to the jury.  Perl v. Meher, 18 N.Y.3d 208, 219, 936 N.Y.S.2d 655 (2011).

In the case of plaintiff herein, the medical interpretations made by Dr. Dolan included objective testing, including MRIs, the actual observation of muscle spasms in her back at 7 office visits, and the observed limitations in plaintiff’s range of motion, revealed disc injuries and radiculopathies causally related to the car crash of September 16, 2016.  Dr. Dolan has correlated the plaintiff’s limitations and losses to these injuries, and opined that they are significant, consequential, and permanent.

Summary judgment may only be granted where it has been clearly ascertained that there is no triable issue of fact.  Issue finding, rather than issue determination, is the function of the Court in determining a summary judgment motion.  Suffolk County Dept. of Social Services v. James M., 83 N.Y.2d 178, 608 N.Y.S.2d 940 (1994).  It must be clear that no material triable issue of fact is presented.  Kornfeld v. NRX Technologies, Inc., 62 N.Y.2d 686, 476 N.Y.S.2d 523 (1984). 

“Even the color of a triable issue forecloses the remedy” of summary judgment.  Rudnitsky v. Robbins, 191 A.D.2d 488, 489, 594 N.Y.S.2d 354 (2nd Dept. 1993); see Matter of Cuttitto Family Trust, 10 A.D.3d 656, 657, 781 N.Y.S.2d 696 (2nd Dept. 2004).  Moreover, in deciding a summary judgment motion, the evidence must be construed in a light most favorable to the party opposing the motion.  See, Pearson v. Dix McBride, LLC, 63 AD3d 895, 883 N.Y.S.2d 53 (2nd Dept. 2009); Mosheyev v. Pilevsky, 283 A.D.2d 469, 725 N.Y.S.2d 206 (2nd Dept. 2001).

The proof herein establishes that plaintiff has met the serious injury requirement for three categories.  The defendants’ proof, at best, raises questions of fact.  Therefore, this Court cannot grant dismissal as a matter of law.  Thus, the motion should be denied and the matter scheduled for trial.

WHEREFORE, it is respectfully requested that the defendants’ motion be denied in its entirety, and that such other and further relief be granted as this Court deems just and proper.

Dated:  White Plains, New York

             May 27, 2018

                                                                        ____________________________________

                                                                        WILLIAM MARTIN

Legal Arguments to Obtain Insurance Company File – December 2017

In a recent car accident bodily injury case, the owner of the car that hit our client claimed that, at the time of the accident, the driver of her car was using her vehicle without her permission.

Why does it matter?  It matters because her car insurance will only be required to pay our claim if the car was being operated with her permission at the time of the accident.  For that reason, it is essential that we prove “permissive use” of the offending vehicle by the driver who struck our injured client.

Here are the legal arguments made in support of our motion to disclose the other car owner’s conversation with her insurance company.

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
——————————————————————————x
MAURA G. DAVIS,
Plaintiff,                                            Index No.: 02888/2012

                        -against-

  DONALD W. WALLACE and DONNA P. WALLACE,
Defendants.
——————————————————————————x

 PLAINTIFF’S MEMORANDUM OF LAW

 IN SUPPORT OF MOTION TO

 COMPEL COMPLIANCE WITH SUBPOENA

MARTIN + COLIN, P.C.

Attorneys for Plaintiff

44 Church Street

White Plains, New York 10601

(914) 771 7711       phone

(914) 206 3619       fax

[email protected]

 

TABLE OF CONTENTS

  

Page

 

PRELIMINARY STATEMENT                                         1

STATEMENT OF FACTS                                            1

ARGUMENT                                                    2

  1. DEFENDANT DONNA WALLACE HAS CHOSEN TO WAIVE

ANY PRIVILEGE THAT MAY EXIST BETWEEN HER

AND PROGRESSIVE INSURANCE COMPANY                        2

  1. DEFENDANT DONNA WALLACE HAS PLACED

PERMISSIVE USE OF THE MOTOR VEHICLE “AT ISSUE”      4

  • DEFENDANT DONNA WALLACE IS ESTOPPED FROM

CLAIMING LACK OF PERMISSIVE USE                         8

  1. DEFENDANT DONNA WALLACE’S CURRENT CONTENTION

THAT HER SON DID NOT HAVE PERMISSION TO USE

HER VEHICLE IS ABSURD                                    9

CONCLUSION                                               14

 

 

PRELIMINARY STATEMENT

Plaintiff moves for disclosure of those portions of the Progressive Insurance Company file concerning permissive use of the vehicle.  Plaintiff’s motion should be granted because:

  • Defendant Donna Wallace consented to the disclosure of her insurance file;
  • Defendant Donna Wallace herself made the insurance company file an issue in this case and in doing so waives any privilege;
  • Defendant Donna Wallace is estopped from asserting any conditional privilege; and
  • Defendant Donna Wallace’s recent claim that her vehicle was operated without her permission or consent is absurd.

STATEMENT OF FACTS

See Affirmation of William Martin dated September 4, 2015, accompanying this motion, for a full recitation of the relevant facts.

ARGUMENT

 

POINT I

DEFENDANT DONNA WALLACE HAS CHOSEN TO WAIVE

ANY PRIVILEGE THAT MAY EXIST BETWEEN HER

AND PROGRESSIVE INSURANCE COMPANY

At the Examination Before Trial of defendant Donna Wallace held on August 7, 2015, Ms. Wallace testified that she had verbally told her insurance company, Progressive Insurance, that her son, defendant Donald Wallace, did not have permission to operate her vehicle, and that she thinks she may have also written it down and provided same to Progressive.  Counsel for plaintiff asked Defendant Donna Wallace if she had any objection to plaintiff’s counsel looking at the Progressive file, to which she had no objection.  (see EBT transcript pages 30, 31 attached hereto as Exhibit “7”).   The relevant portion of the transcript is as follows:

Page 30

Q:  As you sit here today, do you specifically recall telling them that – that your son did not have your permission to operate your vehicle?

A: I’m probably sure, yes.

Q:  And did you ever put that in writing, or was that just verbal?

A:  I think I put it in writing.

Q:  Okay.  Approximately when?

A:  I don’t know.  Could have been months later, once I got paperwork from them.  I don’t remember.

Page 31

Q:  Okay.  Do you have a copy of that writing?

A:  I might.  I don’t know.

Mr. Martin:  Okay.  I would ask you to look for it.  If you have it, I would like to see it.

(Production Request)

Q:  The writing that you gave them, you mailed to them?  That’s how you gave it to Progressive, right; you mailed it?

A:  I might have driven it up to them.

Q:  Okay.  So as you sit here today, you specifically remember verbally telling them, and also you may have written it down and given it to them in writing, as well?

A:  I don’t remember.

Q:  So then you have no objection to me looking at that file, correct?

A:  Correct.

The conditional privilege belongs to Donna Wallace; it does not belong to Progressive.  Thus, with Donna Wallace’s consent to discovery of the Progressive file, the file must be disclosed.

Plaintiff anticipates that Progressive will oppose this motion by arguing that the file is protected by a version of attorney-client privilege, which Plaintiff disputes.  Plaintiff contends that Professor Siegel is correct, that the privilege is not derived from a common law privilege such as the attorney client privilege, but rather is merely protected by CPLR 3101(d)(2) which protects material prepared in anticipation of litigation (see Siegel, New York Practice, §347 [5th Edition]).

In all events, plaintiff concedes that under 3101(d)(2) statements made to one’s automobile insurance carrier have conditional immunity (see Dow v. Vinny’s Diagnostic Service Center, Inc., 2003 WL 1904084 [Sup. Ct., Nassau Cty.], citing Kandel v. Tocher, 22 AD2d 513 [1st Dept. 1965]; Recant v. Harwallace, 222 AD2d 372 [1st Dept. 1995]; Matos v. Akram, 99 AD2d 527 [2d Dept. 1984]).  However, defendant Donna Wallace waived the privilege during her deposition, when she consented to plaintiff’s counsel looking at the file containing the information that plaintiff seeks in the subpoena to Progressive Insurance Company.  It is, after all, Donna Wallace’s privilege, not her insurance company’s privilege.  Her agreement to waive it cannot be objected to or overridden by Progressive.

POINT II

DEFENDANT DONNA WALLACE HAS PLACED

UNAUTHORIZED USE OF HER MOTOR VEHICLE “AT ISSUE”

 

If this Honorable Court somehow rejects plaintiff’s argument that defendant Donna Wallace expressly granted plaintiff access to the Progressive file, plaintiff nonetheless is entitled to disclosure of the relevant portions of the Progressive file because Donna Wallace’s recent claim that she “told” Progessive Insurance that her son did not have her permission to operate her vehicle places the contents of the Progressive file “at issue” and the well settled “at issue” doctrine prohibits the application of the privilege on these facts.

It must be remembered at that the time that the defendants Donna Wallace and Donald Wallace filed their original answer, defendants did not deny that the vehicle was being operated by defendant Donald Wallace with permission and consent of defendant Donna Wallace.  In fact, in the first answer filed in this action, Donna Wallace expressly admitted that Donald Wallace had her permission to drive the car (see original answer, annexed hereto as Exhibit “5”).  Then, two a half years after the date of the accident, and after defendants had filed their original answer which admitted permissive use, defendant Donna Wallace asserted (for the very first time in the legal papers) that her son was operating the vehicle without her permission and consent (see affidavit of Donna Wallace, sworn to on June 18, 2014, annexed hereto as Exhibit “6”).  At her subsequent deposition, she asserted that from the day she reported the accident to Progressive until today, she has always stated that her son was operating her vehicle without her permission.  Therefore, as the defendant Donna Wallace herself is now placing permissive use “at issue” in this case, disclosure trumps the conditional privilege.

As the defendant Donna Wallace has sworn under oath, on two separate occasions, that she has repeatedly informed Progressive that her son did not have her permission to drive her car, the Progressive file is now subject to discovery.  Defendant is the one placing her prior statements to Progressive “at issue”, not plaintiff.  Defendant cannot now use the attorney-client privilege as a sword; only as a shield.  As defendant Donna Wallace is the one claiming that she has always told her insurance company that her son did not have her permission to operate her vehicle, then plaintiff is entitled to disclosure as to whether the Progressive file corroborates her current contentions, or whether the Progressive file contradicts her current contentions.

The principle set forth herein by plaintiff is known as the “at issue” doctrine, and it is well settled.  Under the well settled “at issue” doctrine, privilege is a shield and must not be used as a sword (see American Re-Insurance Co. v. U.S. Fidelity + Guar Co., 40 AD3d 486, 492 [1st Dept. 2007]).  Where a party places the subject matter of a normally privileged communication or document at issue, or, where invasion of the privilege is required to determine the validity of the claim or defense and the application of the privilege would deprive the adversary of vital information, fairness requires the finding of waiver of the privilege (see Century Indem. Co. v. Brooklyn Union Gas Co., 22 Misc3d 1109(a), 880 NYS2d 222 [Sup. Ct., N.Y. Cty. 2008], citing G.D. Searle + Co. v. Penne + Edmonds L.L.P., 308 AD2d 404 [1st Dept. 2003]; New York TRW Tit. Ins. Inc. v. Wade’s Canadian Inn and Cocktail Lounge, Inc., 225 AD2d 863 [3d Dept 1996]; Bank Brussels Lambert v. Credit Lyonnais (Suisse SA), 210 FRD 506 [SDNY 2002]).

CPLR 3101(d)(2) provides that materials prepared in anticipation of litigation or for trial may be obtained only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means.  Plaintiff has met that standard herein.

In a case contemplating facts virtually identical to the facts herein, Judge Palmieri, Nassau Supreme, decided Dow v. Vinny’s Diagnostic Service Center, Inc., __ NYS2d __, 2003 WL 1904084 (N.Y.Sup.), 2003 N.Y. Slip Op. 50664(U).  In Dow, as in the instant action, the issue is whether or not the driver of the vehicle had the owner’s permission to drive it.  Therefore, any communications between owner and insurance company on this issue are extremely relevant to this issue and are impossible to obtain anywhere else.  Thus, plaintiff has met her burden requiring disclosure.

Moreover, both Dow and Professor Siegel declare that it is error for the Supreme Court to exempt documents from disclosure on the grounds of privilege and/or preparation for litigation without first reviewing them in camera (see Siegel, New York Practice, §347 [5th Edition]; see also Dow v. Vinny’s Diagnostic Service Center, Inc., id., citing State of New York v. Sand + Stone Associates, 282 ADd 513 [3d. Dept. 2001]).

POINT III

DEFENDANT DONNA WALLACE IS ESTOPPED FROM

MAINTAINING HER CURRENT CONTENTION

Donna Wallace is Estopped from Claiming Progressive Should Not Pay Out on Plaintiff’s Claim Because She Already Permitted Progressive to Pay Out on Her Claim.

Donna Wallace’s Mercedes was damaged during this accident with the plaintiff.  Donna Wallace permitted Progressive to pay out on her claim to have her own vehicle repaired at Progressive’s expense.  Sometime after that, Donna Wallace announced that her insurance company (Progressive) should not pay out on plaintiff’s claims from this accident because at the time of the accident the driver did not have her permission to operate her vehicle.

It is very sneaky that Donna Wallace waited until after Progressive paid out on her own property damage claim, and only then did she declare that Progressive should not be paying any claims as a result of this accident because the operator of her vehicle did not have her permission.  However, this maneuver is more than just sneaky, it is also prohibited under the equitable principles of estoppel.

Stated differently:  Because Donna Wallace affirmatively submitted her own property damage claim to Progressive for payment, she is now estopped from arguing that Progressive should not pay out on plaintiff’s claim because her driver did not have her permission to use her car.

POINT IV

DEFENDANT DONNA WALLACE’S CURRENT CONTENTION

THAT HER SON DID NOT HAVE PERMISSION TO USE

HER VEHICLE IS RIDICULOUS

Defendant Donna Wallace’s contention that she has always told Progressive that her son did not have her permission to operate the vehicle is ridiculous and without merit for multiple reasons.

Unauthorized use of motor vehicle does not appear anywhere in the police documents surrounding this accident and the arrest arising therefrom.  It appears that Ms. Wallace is now asserting that the police were informed that Donald Wallace was operating the vehicle without her permission or consent, but that they omitted it from any and all records and reports following thereafter.  The police did not forget to ask her.  There was an accident between two cars.  Her son, operating her car, was arrested for driving while intoxicated, aggravated unlicensed operation of a motor vehicle in the second degree, and leaving the scene of the personal injury accident without reporting.  He admitted to driving his car while intoxicated, was convicted of violating VTL 1192.3 and was sentenced to one year in jail.  Thus, his operation of the vehicle caused the accident.

The White Plains Police did a thorough investigation.  They did not just arrest him and charge with DWI.  They did a thorough investigation, lasting over a month.  They took statements from several critical witnesses.  Among others, they took a statement from Donna Wallace.  She told police her son Donald was operating her vehicle.  She did NOT tell police that he was operating her vehicle without her consent.

Further, upon information and belief, the Progressive claims representative did not forget to ask Ms. Wallace if she gave her son permission and consent to operate the vehicle.  Progressive Insurance Company ranks #157 in the Fortune 500 ranking of U.S. companies for 2014.  Upon information and belief, Progressive did not climb to #157 best company in the entire United States by defending car accident cases that it did not have to defend; or by sending lawyers to court appearances in car accident cases without proper investigation.  And it the instant case, Progressive Insurance took fifteen (15) months to investigate.

The Progressive claims lawyers did not draft and file an answer without asking Ms. Wallace if she gave her son permission and consent to operate the vehicle.  Plaintiff submits that no insurance company as successful as Progressive Insurance would get involved in litigation regarding an accident which involves a felony DWI driver who fled the scene without first doing its own investigation into the matter.  After taking fifteen (15) months to investigate the matter and file their answer, defendant’s Verified Answer admitted that defendant Donna P. Wallace’s vehicle was being operated by the defendant Donald W. Wallace with her permission and consent.

It is plaintiff’s contention that Progressive did not rise to #157 biggest company in the country without standard protocols that require employees to contact the insured when a new claim is made; and to record the conversations or to take comprehensive notes while investigating a new claim.  Further, we believe that Progressive must have asked defendant Donna P. Wallace expressly whether or not her son, defendant Donald W. Wallace, had her permission to operate her motor vehicle.  As such, plaintiff is seeking an Order from this Court compelling production of the insurance file.

In addition, New York State Insurance Regulations require that Progressive send Ms. Wallace written notification that they were paying for the repairs to her Mercedes.  If it really was her contention, at that time, that her son did not have permission to operate her vehicle, she should have notified Progressive again when she received the paperwork for her car repairs that Progressive should not be paying for her repairs.  More importantly, New York State Insurance Regulations require that Progressive send Ms. Wallace written notification that they were paying for the plaintiff’s car repairs (see repair estimate on Progressive letterhead annexed hereto as Exhibit “8”).  If it really was her contention, at that time, that her son did not have permission to operate her vehicle, she should have notified Progressive again when she received the paperwork for plaintiff’s car repairs that Progressive should not be paying for those car repairs.  But she did not.  And the reason that she did not notify Progressive again when she received that car repair paperwork is because her claim that her son did not have her permission to operate her vehicle is a recent fabrication.

Once again, this dispute proves the point that disclosure of the insurance company file is critical to this case.  Where, as here, a party (i.e., Donna Wallace) places the subject matter of a normally privileged communication or document at issue (i.e., the Progressive claim file), or, where invasion of the privilege is required to determine the validity of the claim or defense (i.e., Donna Wallace’s recent claim that she always told Progressive that her son did not have her permission to drive her car), and the application of the privilege would deprive the adversary of vital information, fairness requires the finding of waiver of the privilege.

conclusion

Based on the forgoing, plaintiff respectfully requests that this Court compel Progressive Insurance Company to produce the records requested pursuant to subpoena; and for any such other and further relief as this Court deems just.

Dated:  White Plains, New York

September 4, 2015

Respectfully submitted,

MARTIN + COLIN, P.C.

Attorneys for Plaintiff Maura Davis

____________________________

WILLIAM MARTIN

Office + Post Office Address:

44 Church Street

White Plains, New York 10601

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