Opinion
01 Civ. 7856 (GWG)
October 25, 2002
Alan M. McLaughlin, O'Donnell McLauglin, Attorney for Plaintiff.
Kent B. Dolan, Lifflander Reich Smith LLP, Attorney for Defendants
OPINION AND ORDER
Plaintiff Patrick F. Madden sues to recover damages for injuries sustained in an automobile accident. Madden originally filed his complaint in the Supreme Court of New York County. The defendants removed the case to this Court pursuant to 28 U.S.C. § 1441 based on diversity of citizenship. The parties have consented to the disposition of this action by a United States Magistrate Judge pursuant to 28 U.S.C. § 636. Defendants have now moved for summary judgment dismissing Madden's claims for failure to prove a "serious injury" within the meaning of New York Insurance Law § 5104. For the reasons stated below, the motion is denied.
I. BACKGROUND
A. Factual History
This case arises out of an automobile accident that occurred at Fifth Avenue and 26th Street in Manhattan on July 3, 1999. Madden's car was struck by a car rented and driven by Jeong Yi Lee and owned by the Hertz Corporation. Defendants' Local Rule 56.1 Statement, filed August 8, 2002 ("Def 56.1 Statement"), at ¶ 4. Madden claims to have experienced back and neck pain soon after the accident. See Deposition of Patrick F. Madden, dated November 30, 2001 (reproduced in Def 56.1 Statement Exhibit F) ("Madden Dep."), at 45-46. Madden admitted himself to the emergency room of Cabrini Hospital in Manhattan later that day with complaints relating to his back and neck. See Cabrini Medical Center Outpatient Face Sheet (reproduced in Def 56.1 Statement Exhibit G), at 1. An X-ray examination of his back taken at that time was negative for any injuries. See Cabrini Medical Center Emergency Physician Record (reproduced in Def. 56.1 Statement Exhibit G), at 2.
On August 3, 1999, Madden went to see Dr. Douglas Sankar, a neurologist associated with Our Lady of Mercy Medical Center. Dr. Sankar conducted a physical examination and noted a 10 degree limitation of Madden's head movement to the right associated with spasms in his right cervical paraspinal musculature. Notes of Douglas D. Sankar, M.D., dated August 3, 1999 (reproduced in Def. 56.1 Statement Exhibit H) ("Sankar August 3, 1999 notes"), at 2. Dr. Sankar also noted spasms in the lumbosacral paraspinal musculature on the right side. Id. Madden was able to fully raise his left leg, but experienced pain when raising his right leg 65-75 degrees. Id. Dr. Sankar ordered Magnetic Resonance Imaging ("MRI") testing be done to investigate further. Id. The doctor diagnosed Madden as "suffering from cervical and lumbosacral pain. . . related to a recent motor vehicle accident." Id.
On August 13, 1999, Madden underwent an MRI of his lumbar and cervical spine. The MRI revealed a herniation in the L3-4 region of his spine as well as a disc ridge in the C5-6 region. Letter from Magnetic Resonance Imaging of NYU Medical Center to Douglas Sankar, M.D., dated August 13, 1999 (reproduced in Def. 56.1 Statement Exhibit H), at 1. Dr. Sankar conducted an electromyogram ("EMG") test of Madden on August 23, 1999 The EMG was "abnormal, " revealing a minimal cervical radiculopathy in an upper root as well as carpal tunnel. Notes of Douglas Sankar, M.D., dated August 23, 1999 (reproduced in Def. 56.1 Statement Exhibit H), at 2. Dr. Sankar diagnosed Madden as suffering from a "[[m]inimal right cervical radiculopathy and bilateral carpal tunnel syndrome and musculoskeletal low back pain." Id. at 1.
An electromyogram is a "graphic representation of the electric currents associated with muscular action." Steadman's Medical Dictionary, 576 (27th ed. 2000).
A radiculopathy is defined as a "[d]isorder of the spinal nerve roots." Steadman's Medical Dictionary, 1503 (27th ed. 2000).
Beginning on November 3, 1999, Madden started physical therapy. During his initial consultation the physical therapist noted 50% front flexion in Madden's cervical range of motion, limited by pain in the right trapezius; right rotation was 75% limited with right cervical pain; left rotation was 10% limited. Orthopaedic and Sports Therapy Center Initial Evaluation Form, dated November 3, 1999 (reproduced in Def. 56.1 Statement exhibit 1), at 1. Madden continued physical therapy through March 3, 2000.
After he filed this lawsuit, Madden was examined by defendants' doctor, Dr. Daniel J. Feuer, on January 21, 2002. Dr. Feuer conducted a neurological examination of Madden finding no spasm in either the cervical or lumbosacral spine areas. Letter from Daniel J. Feuer, M.D. to RubinBaum LLP, dated January 21, 2002 (reproduced in Def. 56.1 Statement Exhibit L) ("Feuer Rpt."), at 2. The doctor also found Madden had a full range of motion in his neck and that straight leg testing was negative bilaterally. Id. Dr. Feuer reported Madden suffered neck and back pain as well as numbness in his hands and legs. Id. at 3. However, Dr. Feuer concluded that Madden did not "demonstrate any objective neurological disability or neurological permanency, which is causally related to the accident of July 3, 1999." Feuer Rpt. at 3.
On May 7, 2002, Madden went to see Dr. Sankar again. The physical examination noted continued mild limitation in Madden's motion in the cervical spine as well as a mild spasm in the right paraspinal muscles. Notes of Douglas D. Sankar, M.D., dated May 7, 2002 (reproduced in Plaintiff's Local Rule 56.1 Statement, filed August 30, 2002, ("Pl. 56.1 Statement") Exhibit B) ("Sankar May 2002 notes"), at 1. Dr. Sankar's impression was that Madden
has not significantly improved following his motor vehicle accident. . . he appears to have suffered an L3-4 disc herniation. . . [and] he has a right C7 radiculopathy as evidenced by EMG, as well as similar complaints developing on the left upper extremity. Given the history and MRI findings of a CS-6 disc-ridge complex, the radiculopathy was caused when the C7 nerve roots were compressed with the dynamics of the patient's movements during the motor vehicle accident. As this accident is three years ago, at this point, it is likely the damage to the C7 root is permanent.Id. at 2-3.
Madden returned to Dr. Sankar on June 11, 2002. Dr. Sankar found that Madden had an active range of motion of 75 degrees with the head turned to the left and 30 degrees with the head turned to the right. Notes of Douglas D. Sankar, M.D., dated June 11, 2002 (reproduced in Pl. 56.1 Statement Exhibit B) ("Sankar June 2002 notes"), at 1. Madden's passive range of motion permitted his head to turn 80 degrees to the left and 45 degrees to the right. Id. He continued to have spasms in the right paraspinal muscles. Id. Dr. Sankar again concluded that Madden had a C7 radiculopathy and a disc ridge in the low cervical spine with lower back pain. Id. As part of the briefing on this motion, Dr. Sankar submitted an affidavit detailing his examinations, as well as the EMG and MRI test results. See Affidavit of Douglas D. Sankar, M.D., dated June 21, 2002 (reproduced in Pl. 56.1 Statement Exhibit E) ("Sankar Aff"), ¶¶ 2-8. Dr. Sankar concludes that Madden has sustained permanent injuries that prevent him from conducting his daily activities. Id. ¶ 9.
B. Madden's Employment History
______Madden has worked for the New York City Police Department for the past 18 years. Madden Dep. at 10. Prior to the July 3, 1999 accident Madden worked as a physical education and tactics instructor at the New York Police Academy. Id. at 71. As an instructor, Madden taught various physical activities to recruits related to police work. Id. Madden was moved from this position after the accident due to complaints about his back and neck pain. Id. Currently, Madden holds a position as a curriculum coordinator for the physical training tactics department at the Academy. Id. at 8. His duties require ensuring that the curriculum taught to police recruits is up-to-date. Id. He works 40 regular hours per week and approximately 24 hours of overtime per month. Id. at 9.
Madden has practiced martial arts since 1969 and holds a fifth degree black belt in karate. Id. at 71-72. In 1986, Madden started a karate school, Pat Madden's Karate Academy, in Brooklyn. Id. at 11-12. Since the accident, however, Madden has been unable to practice karate and has closed the karate school. Id. at 12, 72. Madden formerly taught a firearms tactics course for guards at the Olinville Correctional Facility and a law enforcement training class at Pace University. Id. at 13-14. He has been unable to perform these jobs since the accident. Id.
II. DISCUSSION
The defendants have moved for summary judgment on the ground that, under New York Insurance Law § 5104(a), Madden has not suffered a "serious injury" — a prerequisite to an action such as this alleging negligence in the operation of a motor vehicle.
A. Standard of Review
Summary judgment is appropriate only when no genuine issues of material fact remain disputed and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Burt Rigid Box. Inc. v. Travelers Property Cas. Corp., 302 F.3d 83, 90 (2d Cir. 2002). "Whether a fact is material depends on the substantive law of the claim and "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment."' Burt Rigid Box, 302 F.3d at 90-91 (quoting Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248 (1986)). If the moving party meets its initial burden of demonstrating the absence of a genuine issue as to the material facts, the non-moving party may avoid summary judgment only by introducing evidence that could allow a jury to find in that party's favor. Burt Rigid Box, 302 F.3d at 91; Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995). On a motion for summary judgment, the Court must view the evidence in the light most favorable to the non-movant and draw all inferences in the non-movant's favor. See Sologub v. City of New York, 202 F.3d 175, 178 (2d Cir. 2000).
Because this action is based on diversity jurisdiction, the substantive law of the State of New York applies. See e.g. Klaxton Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496-97 (1941); Lee v. Bankers Trust Co., 166 F.3d 540, 545 (2d Cir. 1999). New York's "no-fault" insurance laws place limits on any recovery by a person involved in an automobile accident. The governing statute states
Notwithstanding any other law, in any action by or on behalf of a covered person against another covered person for personal injuries arising out of negligence in the use or operation of a motor vehicle in this state, there shall be no right of recovery for non-economic loss, except in the case of a serious injury, or for basic economic loss.
N.Y. Ins. L. § 5104(a). The purpose of the statutory scheme is to eliminate frivolous automobile accident claims and "limit recovery to significant injuries." Dufel v. Green, 84 N.Y.2d 795, 798 (1995) (citations omitted). A serious injury under this statute is defined as
[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 or 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.
N.Y. Ins. L. § 5102(d).
Madden argues that he has established a serious injury under four of these categories: permanent loss 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 or system; and inability to perform substantially of the material acts of his usual daily activities for more than 90 days within the 180 immediately following the accident. See Plaintiff's Memorandum of Law, filed August 30, 2002 ("Pl. Mem"), at 7-14.
To demonstrate a serious injury, plaintiff cannot rely only on subjective complaints of pain. See Toure v. Avis Rent A Car Sys. Inc., 98 N.Y.2d 345, 350 (2002); Gaddy v. Eyler, 79 N.Y.2d 955, 957-58 (1992);Scheer v. Koubek, 70 N.Y.2d 678, 679 (1987). Rather, the plaintiff must submit medical reports detailing the injury based on objective medical determinations. See Toure, 98 N.Y.2d at 350; Dufel, 84 N.Y.2d at 798;Lopez v. Senatore, 65 N.Y.2d 1017, 1020 (1985). Objective medical evidence can include diagnostic tests (such as an EMG or MRD, see e.g.,Toure, 98 N.Y.2d at 353, or a numeric assessment of lost range of motion. See id. at 350; Dufel, 84 N.Y.2d at 798; Lopez, 65 N.Y.2d at 1020. Bulging or herniated discs, while not per se constituting a serious injury, can support a claim under the statute. See e.g., Toure, 98 N.Y.2d at
353 n. 4; Duldulao v. City of New York, 284 A.D.2d 296, 297 (2d Dep't 2001).
Here, defendants have met their initial burden of demonstrating the absence of a genuine issue as to the existence of a "serious injury" through their submission of Dr. Feuer' s report and other evidence. Therefore, in order to avoid summary judgment, Madden must demonstrate through admissible evidence that an issue of fact exists as to whether he suffered a "serious injury" because of the car accident. Each of the categories of "serious injury" relied on by Madden is discussed below.
B. Permanent Loss of a Body Organ. Member. Function or System
Madden argues that he has suffered a "permanent loss" due to a limitation in the range of motion in his neck. Pl. Mem. at 8-9. In support of this contention, he contends that to "prove a permanent loss, it is not necessary to establish a total loss." Id. at 7 (citing cases). The New York Court of Appeals, however, has squarely held that "to qualify as a serious injury within the meaning of the statute, "permanent loss of use' must be total." Oberly v. Bangs Ambulance Inc., 96 N.Y.2d 295, 299 (2001). Oberly reasons that the Legislature did not intend a partial loss to qualify under the statute because there would have been no need for the other categories of serious injury, such as consequential and significant limitations of the use of a bodily function. Id.
Dr. Feuer, after an examination of Madden and reviewing some of his medical history, concludes that Madden has not "demonstrate[d] any objective neurological disability or neurological permanency." Feuer Rpt. at 4. Dr. Sankar concludes only that Madden suffered a permanent limitation of motion in his neck and back, without any statement that this limitation is "total." See Sankar Aff. ¶ 9. As was held inOberly, however, a limitation (even if permanent) must be "total" to come within this portion of the statute. See Crespo v. Kramer, 295 A.D.2d 467 (2d Dep't 2002); Geloso v. Monster, 289 A.D.2d 746, 748-49 (3d Dep't 2001); Ceruti v. Abernathy, 285 A.D.2d 386 (1st Dep't 2001); Sewell v. Kaplan, 2002 WL 31172182, at *1 (4th Dep't Oct. 1, 2001). Therefore, Madden has failed to demonstrate a serious injury through the permanent loss of use of a body organ or member.
C. Permanent or Significant Limitation on the Use of a Body Function or System
Whether the limitation on the use of a body function is "permanent" or "significant" requires a determination of the qualitative nature of the injury in relation to the use of the body part. See Toure, 98 N.Y.2d at 353. A "minor, mild or slight limitation" does not qualify as a serious injury. Licari v. Elliot, 57 N.Y.2d 230, 236 (1982).
Dr. Feuer found that Madden had no loss of range of motion in his neck, though he does not address Madden's claim regarding the loss of range of motion in his back. See Feuer Rpt. at 2. Dr. Sankar, however, determined that Madden has sustained permanent injuries that limited movement of Madden's neck and lower back. See Sankar Aff. ¶ 9. Dr. Sankar's conclusion is based on his personal observation of a restriction in the range of motion in Madden's back and neck, as well as EMG and MRI testing. See id. ¶¶ 4-8.
In Toure, as here, the plaintiff's doctor based his opinion regarding the neck and back limitations of the plaintiff on MRI tests and observations of spasm and limitations of range of motion in the plaintiff's back. See 98 N.Y.2d at 352-53. The Court of Appeals in Toure makes clear that a showing of limitations in neck and back motions, where supported by objective medical evidence, is sufficient to demonstrate a "siguificant" or "consequential" limitation under the statute. See 98 N.Y.2d at 353. As was true in Toure, this Court "cannot say that the alleged limitations of plaintiff's back and neck are so "minor, mild or slight' as to be considered insignificant within the meaning of Insurance Law § 5102(d)." Id. at 353 (quoting Licari, 57 N.Y.2d at 236) (citations omitted).
Defendants attempt to attack Dr. Sankar's conclusions on two main grounds. First, defendants note that Dr. Sankar' s report reflects that Madden's injuries arise from the C7 nerve root in his back see Sankar Aff. ¶ 7, while Madden's Response to Defendants' Interrogatories (which is unsworn) states that the C4-C5 roots are the source of the injuries. See Def Mem., Ex. A, ¶ 8. Where evidence is in conflict, however, only the trier of fact may resolve the disputed issue. The Court cannot conclude that a reasonable trier of fact would necessarily reject Dr. Sankar's findings based on the interrogatory responses.
Second, defendants argue that Dr. Sankar's conclusions are based on subjective evidence and are unsupportable in light of Madden's physical therapy and Dr. Feuer's examination. See id. at 13. Dr. Sankar' s conclusions, however, are based on personal examinations and diagnostic tests — both of which constitute objective medical evidence See e.g., Toure, 98 N.Y.2d at 351-53. In addition, Dr. Sankar has consistently found limitations in Madden's range of motion. See Sankar August 3, 1999 notes at 2; Sankar May 2002 notes at 1; Sankar June 2002 notes at 1. Defendants' argument at bottom amounts to an attack on the credibility of Dr. Sankar's conclusions. Credibility determinations, however, must be made by a jury — not by the Court on a motion for summary judgment. See, e.g., Anderson, 477 U.S. at 255; accord George v. Thomas, 888 F. Supp. 41, 43 (S.D.N.Y. 1995) ("The doctor's testimony. . . may well be subject to attack on the ground that she lacks an adequate basis upon which to ground an opinion. . . But this is not an appropriate basis upon which to grant summary judgment.") (citations omitted). Accordingly, defendants' motion for summary judgment with respect to these categories of "serious injury" is denied.
D. Performance of Usual and Customary Activities
The "90/180" category requires a plaintiff to show an impairment that prevents him or her from performing "substantially all of the material acts which constitute such person's usual and customary daily activities" for more than 90 days during the 180 days that follow the injury. N.Y. Ins. L. § 5102(d). This provision requires the plaintiff to demonstrate that he "has been curtailed from performing his usual activities to a great extent rather than some slight curtailment."Licari, 57 N.Y.2d at 236. Furthermore, a plaintiff must "present objective evidence of "a medically determined injury or impairment of a non-permanent nature"' that has prevented him from performing his usual activities. Toure, 98 N.Y.2d at 357 (quoting N.Y. Ins. L. § 5102(d)).
Madden testified at his deposition that as a result of his injuries he has changed his job duties see Madden Dep. at 71, lost his karate schoolsee id at 12 and no longer teaches the firearms and law-enforcement courses he taught before the accident. See id. at 13-14. Under New York law, Madden's deposition testimony by itself would not constitute evidence sufficient to avoid summary judgment. See Morris v. Pascall, 259 A.D.2d 602 (2d Dep't 1999). But Dr. Sankar has also stated that Madden's injuries from the automobile accident prevented him from performing his usual activities. See Sankar Aff ¶ 9. While an affidavit that merely states a conclusory allegation without an objective medical basis is not enough to prevent summary judgment, see Gaddy, 79 N.Y.2d at 958, Dr. Sankar's conclusions were based on objective medical evidence. See Section II.C above. That Madden's subjective input regarding his prior activities may have been a factor in Dr. Sankar's evaluation does not invalidate the doctor's conclusion. See Dugan v. Sprung, 280 A.D.2d 736, 737-38 (3d Dep't 2001); Cowley v. Crocker, 186 A.D.2d 939, 940 (3d Dep't 1992).
Defendants argue that because Madden continued to work full time after the accident he is unable to meet the "90/180" definition of serious injury. See Def. Mem. at 14. Under the statute, however, it is not relevant whether Madden continued to be employed. see, e.g., Nigro v. Penree, 238 A.I).2d 908, 909 (4th Dep't 1997) ("The fact that plaintiff returned to work after two weeks is not dispositive of whether he could perform his usual and customary activities at work.") (citations omitted); Vasquez v. Weiss, 234 A.D.2d 658, 659 (3d Dep't 1996) ("the mere fact that plaintiff was able to return to work in some capacity is not necessarily fatal to her claim of serious injury") (citations omitted). Instead, the issue is whether Madden could pefform his usual "activities, " including activities previously required for his job. See Rath v. Shafer, 267 A.D.2d 565, 566 (3d Dep't 1999) (injury that caused the owner of a horse farm to be unable to attend to the horses, and eventually led to her selling the farm, sufficient to avoid summary judgment); Nigro, 238 A.D.2d at 909 (tennis coach's inability to play tennis or demonstrate strokes to students sufficient to avoid summary judgment). Madden's prior usual activities included his Police Academy training functions, his karate school and his service as an instructor in the law enforcement courses. These were inherently physical and athletic in nature and evidence has been submitted that Madden was unable to perform them because of the accident.
Nor can the Court accept defendants' argument, Def. Mem. at 14, that Madden has not shown that he curtailed his activities to a "great extent" as required under case law. See, e.g., Licari, 57 N.Y.2d at 236. Accepting as true the evidence presented by Madden, he was completely unable to perform these activities.
In sum, if Dr. Sankar's medical evidence and Madden's deposition testimony are accepted, a jury could reasonably conclude that Madden's injuries caused him to be unable to conduct his prior usual activities to a great extent during at least 90 out of the first 180 days following the accident.
III. CONCLUSION
For the reasons stated above, defendants' motion for summary judgment is denied.