ASHQUABE v. McCONNELL (2006)

Plaintiff commenced this action to recover damages for injuries allegedly sustained in a motor vehicle accident.   Defendant moves for summary judgment dismissing the complaint on the grounds that plaintiff did not suffer a “serious injury” within the meaning of Insurance Law § 5102(d).  Plaintiff has cross-moved for an order granting partial summary judgment on the issue of liability and for the dismissal of certain affirmative defenses.

This case presents certain issues which should be addressed in the wake of the Court of Appeals' decision in Pommells v. Perez, 4 N.Y.3d 566, 797 N.Y.S.2d 380, 830 N.E.2d 278 [2005].   Specifically, these issues are:  (1) is latent degenerative disc disease a “pre-existing condition” under Pommells;  and (2) if so, is it sufficient under Pommells for the defendant on a summary judgment threshold motion to rely solely on that type of pre-existing condition to shift the burden to the plaintiff to come forward with evidence addressing defendant's claimed lack of causation?   For the reasons set forth below, this Court answers the first question in the affirmative, but the second question in the negative.

It is well established that the trial courts are the gatekeepers in evaluating on summary judgment motions whether the admissible evidence warrants a jury trial on the issue of serious injury (Licari v. Elliott, 57 N.Y.2d 230, 237-238, 455 N.Y.S.2d 570, 441 N.E.2d 1088 [1982] ).   The Courts thereby fulfill the legislative intention of weeding out cases which involve only minor or trivial injuries from the trial process (Montgomery v. Daniels, 38 N.Y.2d 41, 51, 378 N.Y.S.2d 1, 340 N.E.2d 444 [1975];  Lopez v. Senatore, 65 N.Y.2d 1017, 1020, 494 N.Y.S.2d 101, 484 N.E.2d 130 [1985] ).

It is likewise well established that there is a burden shifting analysis for summary judgment motions and that this analysis applies to threshold motions (Gaddy v. Eyler, 79 N.Y.2d 955, 582 N.Y.S.2d 990, 591 N.E.2d 1176 [1992] ).   A defendant seeking to dismiss an action on the threshold question must make a prima facie showing that plaintiff's alleged injuries fail to establish a serious injury (Pommells, 4 N.Y.3d at 574, 797 N.Y.S.2d 380, 830 N.E.2d 278;  Brannan v. Brownsell, 23 A.D.3d 1106, 804 N.Y.S.2d 217 [4th Dept. 2005];  Bowen v. Dunn, 306 A.D.2d 929, 762 N.Y.S.2d 465 [4th Dept. 2003];  Thousand v. Hedberg, 249 A.D.2d 941, 672 N.Y.S.2d 579 [4th Dept. 1998];  Green v. Gloede, 222 A.D.2d 1066, 635 N.Y.S.2d 878 [4th Dept. 1995] ).   The defendant must affirmatively demonstrate the merits of its defense and does not meet this burden by noting gaps in the plaintiff's proof (Edwards v. Arlington Mall Assocs., 6 A.D.3d 1136, 1137, 775 N.Y.S.2d 673 [4th Dept. 2004] ).

Until the movant establishes its entitlement to judgment as a matter of law, the burden does not shift to the opposing party to raise an issue of fact and the motion must be denied (Loveless v. Am. Ref-Fuel Co. of Niagara, LP, 299 A.D.2d 819, 820, 750 N.Y.S.2d 705 [4th Dept. 2002] ).   However, once the moving party establishes its entitlement to judgment through the tender of admissible evidence, the burden shifts to the non-moving party to raise a triable issue of fact (Gern v. Basta, 26 A.D.3d 807, 808, 809 N.Y.S.2d 724 [4th Dept. 2006], lv. denied 6 N.Y.3d 715, 823 N.Y.S.2d 355, 856 N.E.2d 919 [2006] ).

Courts must be cognizant of the rule that summary judgment is a drastic remedy and that there is a “considerable reluctance to grant it in negligence actions” (Pomietlasz v. Smith, 31 A.D.3d 1173, 818 N.Y.S.2d 709 [4th Dept. 2006] ).   Courts also are required upon a defendant's motion for summary judgment to view the evidence in the light most favorable to the plaintiff (Evans v. Mendola, 32 A.D.3d 1231, 821 N.Y.S.2d 323 [4th Dept. 2006];  Esposito v. Wright, 28 A.D.3d 1142, 1143, 814 N.Y.S.2d 430 [4th Dept. 2006];  Haist v. Town of Newstead, 27 A.D.3d 1133, 1135, 811 N.Y.S.2d 518 [4th Dept. 2006] ).

The record before the Court establishes that the motor vehicle accident occurred on April 8, 2004.   Plaintiff's vehicle was rear-ended by the defendant who was then traveling approximately 40 to 45 miles per hour.   Plaintiff was driven into the vehicle in front of him despite having his foot on the brake.   Plaintiff did not hear any noises prior to what he described as a “huge impact.”

After the accident, plaintiff initially went home and then later that same day to the emergency room.   He complained of numbness in his jaw and pain in his shoulder.   The pain radiated down his neck and from his back to his front.   Plaintiff also had a headache.

Within a week after the accident, plaintiff sought treatment with Dr. Jerry Tracy with Gosey & Associates Pain Treatment Center.   Plaintiff complained of numbness in his jaw, pain radiating from his neck, and pain from the right side of his chest and his shoulder. Plaintiff received a prescription for pain management drugs.

Later that same year, plaintiff sought treatment from Dr. Edward D. Simmons, an orthopaedic surgeon.   Plaintiff complained of neck and shoulder pain and numbness in his jaw.   Plaintiff was then sent for chiropractic therapy and treated with Dr. Anthony Bianchi.   Plaintiff also received physical therapy.   Approximately eighteen (18) months after the accident, plaintiff saw Dr. Jeffrey Lewis, another orthopaedic surgeon, who ultimately recommended surgery.   Other than the day of the accident, plaintiff did not miss any work as a result of the accident.

Plaintiff was fifty-three (53) years old at the time of the accident.   He never had any prior complaints of pain pertaining to the back or neck.   There is no evidence in the record that plaintiff had any prior injuries to his back or neck or that he needed any prior treatment for back or neck conditions.   There are no pre-accident medical records in the information presented to the Court.

Defendant relies on the affirmed Independent Medical Examination (“IME”) report of Dr. S. David Miller and the sworn transcript from plaintiff's examination before trial.   Dr. Miller's report indicates that he personally reviewed the MRI images of plaintiff's cervical spine dated May 4, 2004 and August 30, 2005.   Dr. Miller reports that both sets of images reveal that:  “there is evidence of degenerative disc disease/spondylosis involving the C5/6 and C6/7 levels” and that there is “mild disc bulging at these levels.”   Dr. Miller further finds that these images do not bear any evidence of “focal disc herniation.”   Dr. Miller concludes that the mild disc bulging is associated to the degenerative disc disease/spondylosis and that “the abnormalities identified on MRI of the cervical spine are degenerative in nature and unrelated to the motor vehicle accident of 4/8/04.”

Defendant's papers do not include the radiologists' reports of the MRI's but rely solely on Dr. Miller's own interpretation of the films.   The radiologists' reports are attached in admissible form to the plaintiff's answering/cross-motion papers.   The radiologist who interpreted the films on May 4, 2004 (twenty-six [26] days after the accident) found disc bulges at three levels of the cervical spine and does not use the word “degenerative” in his report.   Additionally, while the radiologist report dated August 30, 2005 refers to “degenerative disc disease” at C5/6, it makes no reference to degeneration in relation to the C6/7 disc herniation.

Plaintiff's papers also include in admissible form the reports of Dr. Simmons dated June 24, 2004, Dr. Lewis dated August 23, 2005, and Dr. Lewis dated June 21, 2006.

Defendant asserts that plaintiff's degenerative cervical disc disease is a “pre-existing condition” under Pommells, thereby shifting the burden to the plaintiff on this basis alone to address this evidence of degeneration and explain how the subject accident caused plaintiff's injuries.   Given that plaintiff did not have any symptoms or other evidence of a cervical injury before the accident, plaintiff's cervical spine appears to have had what the courts refer to as a latent condition as opposed to an asymptomatic condition which was patent or known prior to the accident.   The Pattern Jury Instructions and the courts also seem to recognize some distinction between a known asymptomatic condition subject to aggravation (PJI 2:282 [2006];  Miller v. Sansone, 127 A.D.2d 569, 511 N.Y.S.2d 369 [2d Dept. 1987];  Schaming v. Saunders Constr. Carriers, 172 A.D.2d 957, 568 N.Y.S.2d 239 [3d Dept. 1991] ), and a latent or quiescent condition which is triggered by an accident (PJI 2:283 [2006];  Schou v. Whiteley, 9 A.D.3d 706, 780 N.Y.S.2d 659 [3d Dept. 2004];  Martin v. Volvo Cars of N. Am., 241 A.D.2d 941, 661 N.Y.S.2d 338 [4th Dept. 1997];  Pacella v. Masone, 262 A.D.2d 291, 691 N.Y.S.2d 557 [2d Dept. 1999];  Bartolone v. Jeckovich, 103 A.D.2d 632, 481 N.Y.S.2d 545 [4th Dept. 1984] ).   However, these same decisions also treat both latent and patent problems as “pre-existing” conditions.   Moreover, the decision in Pommells contains no basis upon which to distinguish between the two for causation purposes.   Accordingly, this Court must conclude that latent degenerative disc disease is a pre-existing condition within the meaning of Pommells.

At oral argument, defense counsel argued that Dr. Miller's opinion that plaintiff's bulging discs are degenerative in nature and therefore not causally related to the accident is a sufficient basis under Pommells upon which to shift the burden to the plaintiff on this motion.   As discussed below, that is not how this Court reads Pommells and this Court also is of the opinion that this is not a proper or practical conclusion.

Pommells is a trilogy of cases, two of which are relevant here:  Carrasco v. Mendez and Brown v. Dunlap.   In Carrasco v. Mendez, the Court of Appeals affirmed dismissal of the plaintiff's complaint on the threshold issue and held:

․ with persuasive evidence that plaintiff's alleged pain and injuries were related to a pre-existing condition, plaintiff had the burden to come forward with evidence addressing defendant's claimed lack of causation.

(4 N.Y.3d at 579, 797 N.Y.S.2d 380, 830 N.E.2d 278) (emphasis added).   The “persuasive evidence” submitted by the defendant in Carrasco included an affirmed report from one of the plaintiff's treating physicians which acknowledged the existence of a pre-existing degenerative condition and that a return to pre-accident status had been achieved (4 N.Y.3d at 578, 797 N.Y.S.2d 380, 830 N.E.2d 278).

In Brown, while the Court found that the defendant had met its initial burden on the motion (at least with respect to the alleged “gap in treatment”), it also held as to the alleged pre-existing condition that a chiropractor's “conclusory notation” is “itself insufficient to establish that plaintiff's pain might be chronic and unrelated to the accident” (4 N.Y.3d at 577, 797 N.Y.S.2d 380, 830 N.E.2d 278).   The Court of Appeals clearly drew a contrast between the evidence presented in Brown and the evidence presented Carrasco.   Thus, it appears that a “conclusory notation” by a defense doctor as to a pre-existing condition is insufficient whereas “ persuasive evidence” comprised at least in part of an admission by plaintiff's treating physician as to a degenerative condition is sufficient for a defendant to carry its burden on a summary judgment motion.

 Here, all that is present is Dr. Miller's conclusory notation that the plaintiff's bulging discs are merely degenerative in nature. Dr. Miller does not address the herniation at C6/7 found in the MRI report dated August 30, 2005.   Dr. Miller also does not explain how it is plaintiff experienced no cervical pain before the accident, but consistently experienced it since the accident.   Thus, based on this Court's review of Pommells, Dr. Miller's opinion, in and of itself, is insufficient to shift the burden to the plaintiff.

 Furthermore, any conclusion that a finding of a degenerative condition is in itself sufficient for a defendant to carry its burden on a motion for summary judgment is neither a proper nor practical result.   The Court takes judicial notice of the notorious and indisputable fact, as is commonly proved before the Court at trial, that many adults over the age of 30, and most adults over the age of 50, have degenerative changes in their spine and that many such changes are asymptomatic (Hunter v. New York, Ontario & Western R.R. Co., 116 N.Y. 615, 23 N.E. 9 [1889];  Erie County Bd. of Social Welfare v. Holiday, 14 A.D.2d 832, 220 N.Y.S.2d 679 [4th Dept. 1961] ).   If the establishment of degenerative changes in the spine is sufficient in itself for a defendant to meet its burden on a summary judgment threshold motion, that burden will be met in virtually every case.   If merely establishing degenerative changes in the spine is enough, plaintiffs-at least those over the age of 30-will almost always be required to provide the explanation of causation required by Pommells.   Until there is further clarification on the issue from an appellate court, this Court will not come to such a broad holding.   Rather, a finding of degeneration in the spine must be accompanied by something more such as pre-accident radiological tests establishing the pre-accident degenerative changes or more “persuasive evidence” than provided in this case.

The better view is demonstrated by the decision in Jaramillo v. Lobo, 32 A.D.3d 417, 820 N.Y.S.2d 608 [2d Dept. 2006], as well as in the dissenting opinions in Perez v. Rodriguez, 25 A.D.3d 506, 513, 809 N.Y.S.2d 15 [1st Dept. 2006] [Saxe, J., dissenting] and Ciocca v. Park, 21 A.D.3d 671, 674, 799 N.Y.S.2d 677 [3d Dept. 2005] [Lahtinen, J., dissenting]. These decisions essentially stand for the proposition that competing testimony between an asymptomatic pre-existing degenerative disc condition and a symptomatic post-accident aggravation of such a condition in itself creates a triable issue of fact.   Once a defense physician concludes that there is a degenerative disc problem and there is an asymptomatic history of back or neck problem with no pre-accident objective evidence of a degenerative condition, there is a sufficient basis on which to determine that there is a triable question of fact.   When this alone is the basis for the defendant's motion, the defendant has failed to meet its burden (Gentile v. Snook, 20 A.D.3d 389, 799 N.Y.S.2d 230 [2d Dept. 2005] ).   Again, without more, the instant motion must fail.

This is parallel to the rule that, in response to a defense motion for summary judgment, it is insufficient for a plaintiff to merely establish the existence of a disc herniation (Pommells, 4 N.Y.3d at 574, 797 N.Y.S.2d 380, 830 N.E.2d 278).

This Court acknowledges the existence of a series of cases from other departments which seem in very broad terms to indicate that evidence of degenerative changes in the spine is sufficient for a defendant on a threshold summary judgment motion to carry its burden on the motion (Cardillo v. Xenakis, 31 A.D.3d 683, 820 N.Y.S.2d 85 [2d Dept. 2006];  Zarate v. McDonald, 31 A.D.3d 632, 819 N.Y.S.2d 288 [2d Dept. 2006];  Gomez v. Epstein, 29 A.D.3d 950, 818 N.Y.S.2d 101 [2d Dept. 2006];  Legendre v. Bao, 29 A.D.3d 645, 816 N.Y.S.2d 495 [2d Dept. 2006];  Faulkner v. Steinman, 28 A.D.3d 604, 813 N.Y.S.2d 529 [2d Dept. 2006];  Kaplan v. Vanderhans, 26 A.D.3d 468, 809 N.Y.S.2d 582 [2d Dept. 2006];  Jimenez v. Rojas, 26 A.D.3d 256, 810 N.Y.S.2d 449 [1st Dept. 2006];  Mullings v. Huntwork, 26 A.D.3d 214, 810 N.Y.S.2d 443 [1st Dept. 2006];  Agard v. Bryant, 24 A.D.3d 182, 805 N.Y.S.2d 348 [1st Dept. 2005];  Giraldo v. Mandanici, 24 A.D.3d 419, 805 N.Y.S.2d 124 [2d Dept. 2005];  Montgomery v. Pena, 19 A.D.3d 288, 798 N.Y.S.2d 17 [1st Dept. 2005] ).   However, none of the decisions specifically address the underlying facts of the cases and none of them deal with the wide-ranging practical effect that such a holding would cause in this field of the law.

Two recent Fourth Department decisions also do not appear to require a different answer here.   In Clark v. Perry, 21 A.D.3d 1373, 801 N.Y.S.2d 645 [4th Dept. 2005], while there was evidence of a degenerative condition, the record on appeal reflects that the pre-existing condition was known and treated before the accident involved there occurred.   In Caldwell v. Grant, 31 A.D.3d 1154, 818 N.Y.S.2d 700 [4th Dept 2006], the Court had plaintiff's medical records available to it which showed a “preexisting degenerativeinjury ” to plaintiff's cervical spine (emphasis added).

Defendant's papers also are insufficient for two other reasons.   First, Dr. Miller relies substantially on unsworn medical reports from Dr. Tracy which are not in the record here.   This requires denial of the motion (Jackson v. Colvert, 24 A.D.3d 420, 805 N.Y.S.2d 424 [2d Dept. 2005];  Bycinthe v. Kombos, 29 A.D.3d 845, 815 N.Y.S.2d 693 [2d Dept. 2006] ).   Second, Dr. Miller performed range of motion tests which proved abnormal but noted that plaintiff, while under general observation, moved more normally.   On this basis, Dr. Miller appears to have concluded that plaintiff was faking his limitations during the examination.   This is a credibility determination by Dr. Miller which cannot be resolved on this motion (Clause v. E.I. du Pont De Nemours & Co., 284 A.D.2d 966, 726 N.Y.S.2d 317 [4th Dept. 2001];  Rivera v. Majuk, 263 A.D.2d 841, 695 N.Y.S.2d 158 [3d Dept. 1999];  Kaplan v. Gak, 259 A.D.2d 736, 685 N.Y.S.2d 634 [2d Dept. 1999] ).

For all of the foregoing reasons, the defendant's motion for summary judgment is denied.   The Court must then turn its attention to the plaintiff's cross-motion.   At oral argument, defense counsel agreed that, if the Court did not grant the defendant's motion, the defendant did not oppose the entering of an order granting plaintiff's motion finding that the defendant was negligent, but otherwise denying the motion as to liability.   Similarly, the defendant has acceded to the motion to strike the first, second and third affirmative defenses.   Plaintiff's cross-motion is therefore granted to the extent of determining that defendant was negligent as a matter of law and dismissing the first, second and third affirmative defenses.   The issues of serious injury and whether defendant's negligence was the proximate cause of any such injuries remain open for trial.

Plaintiff's counsel should settle the Order with defense counsel.

JOHN M. CURRAN, J.