Kyreese L. Franklin, Appellant,v.Carmen Rosa Gareyua, et al., Respondents.BriefN.Y.March 21, 2017To Be Argued By: Colin F. Morrissey New York County Clerk's Index No. 20308112E .Jlttu !loth .j,uprtmt ctourt APPELLATE DIVISION - FIRST DEPARTMENT KYREESE L. FRANKLIN, against CARMEN ROSA GAREYUA and MENSCH MANAGEMENT INC., Plaintiff-Appellant, Defendants-Respondents. BRIEF FOR DEFENDANTS-RESPONDENTS Of Counsel: Colin F. Morrissey BAKER, MCEVOY, MORRISSEY & MOSKOVITS, P.C. Attorneys for Defendants-Respondents I MetroTech Center North, 8th Floor Brooklyn, New York 11201 212-857-8230 Ikhan@bm31aw.com Printed on Recycled Paper TABLE OF CONTENTS TABLE OF CASES & AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 COUNTER-PRELIMINARY STATEMENT.................................. 3 COUNTER-ISSUES PRESENTED FOR REVIEW........................... 5 COUNTER-STATEMENT OF FACTS....................................... 6 ARGUMENT....................................................................... 11 CONCLUSION.................................................................. 16 1 TABLE OF CASES AND AUTHORITIES STATUTES N.Y. Insurance Law Section 5102(d) ....................................................... 6 CASE LAW Alvarez v. NYLL Management. 120 A.D.3d 1043 (1st Dept. 2014) ...................... 12 Angeles v. Versace Inc., 124 A.D.3d 544 [1st Dept. 2015] ..................................... 13 Ocean v. Hossain, 127 A.D. 3d 402 [1st Dept. 2015] .............................................. 13 Rivera v. Fernandez & Ulloa Auto Group, 123 A.D.3d 509 [1st Dept. 2014] ......... 13 Vaughan v. Leon. 94 A.D.3d 646 (1st Dept. 2012) ................................................. 11 Yuen v. Arka Memory Cab Corp., 80 A.D.3d 481 (1st Dept. 2011) ...................... 11 2 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION- FIRST DEPARTMENT -------------------------------------------------------------------------)( KYREESE L. FRANKLIN, Plaintiff-Appellant, -against- CARMEN ROSA GAREYUA and MENSCH MANAGEMENT, INC., Defendants-Respondents. --------------------------------------------------------------------------)( BRIEF OF DEFENDANTS-RESPONDENTS: CARMEN ROSA GAREYUA and MENSCH MANAGEMENT, INC. COUNTER-PRELIMINARY STATEMENT In this action for damages for personal injuries arising out of a motor vehicle accident, Defendants-Respondents Carmen Rosa Gareyua and Mensch Management, Inc., (hereinafter 'defendants') respond to the appeal by plaintiff- appellant (hereinafter 'plaintifr) from that part of the Order of the Supreme Court, Bronx County (Hon. Fernando Tapia), entered June 17, 2014, which granted, in part, the defendant's motion for summary judgment, and dismissed plaintiff's allegations of injury to his left shoulder from the trial of this matter. Defendants contend that the lAS Court correctly determined that the lone physician's affirmation offered by plaintiff was conclusory and speculative on the causation issue, as it pertained to the alleged left shoulder injuries, because it failed 3 to consider or address the affirmed MRI report of defendants' reading radiologist noting a degenerative condition in the plaintiffs left shoulder, which condition was acknowleged in the MRI report from plaintiffs own treating radiologist. Plaintiffs physician failed to address or contest the specified arthritic degenerative condition, apparent in plaintiffs own medical records as well defendants' expert's report, as a possible cause of the plaintiffs left shoulder complaints. Moreover, the plaintiffs physician's opinion was made speculative and conclusory in that it failed to cite any objective medical evidence consistent with trauma, which might support his theory that a traumatic insult occurred to the plaintiffs left shoulder during the accident. Defendants respectfully submit that the lAS Court's determination on the motion should be affirmed. 4 COUNTER-QUESTION PRESENTED Question: Did the lower court properly find that plaintifr s physician's opinion as to causation of the alleged left shoulder complaints was speculative and conclusory, where it failed to address the findings of arthritis made by both defendants' reviewing radiologist, as well as by plaintifrs own treating radiologist; and additionally where it failed to cite any objective medical evidence consistent with a conclusion that the alleged conditions were caused traumatically at the time of the accident, and where the opinion did not address the testimony of plaintiff in which he admitted that he did not hit his left shoulder during the accident? Answer: Yes, plaintifrs physician's opinion as to causation ofthe alleged left shoulder injuries was speculative and conclusory, where it failed to address or consider the obvious and undisputed assertions of arthritic conditions in the plaintiff's left shoulder made by both plaintiff's own treating radiologist and defendants' reading radiologist; and was furthermore speculative and conclusory where it failed to cite any objective evidence consistent with acute trauma, and was contradicted 5 by plaintiff's own admission that he did not hit his left shoulder during the accident. COUNTER-STATEMENT OF THE FACTS This action for personal injuries arises out of a motor-vehicle accident on November 3, 2011. (R 35i Plaintiff was 34 years old at the time of the accident (R 35, 68), and was stopped at a red light on East Bedford Park Blvd at its intersection with Villa Avenue, in the Bronx, when defendants' vehicle rear ended his vehicle. (R35) Plaintiff testified he was driving his own large SUV vehicle- a 2003 Ford Expedition and that he was a wearing a seat-belt which functioned properly, holding him back during the accident. (R 77, 79, 100) Plaintiff testified that the impact was 'very solid', but admitted that his vehicle was not pushed forward at all. (R 99) He further admitted that no part of his body struck any part of the interior of the vehicle as a result of the impact. (R 1 0 1) Defendants moved for Summary Judgment on the ground that Plaintiff did not sustain a serious injury under Insurance Law 5102(d). (R18-24) Addressing the left shoulder injury, defendants submitted the above noted sworn testimony from the plaintiff, confirming that he did not strike his shoulder against any part of the vehicle during the accident. (R 77, 79, 99-101) 1 The Record on Appeal is referenced by an "R" followed by the page or pages in the Record 6 Defendants also submitted an MRI report from plaintiffs own treating radiologist, Dr. Jack Lyons, stating that the left shoulder MRI films taken 27 days after the accident showed, inter alia, "AC joint arthrosis"2 and "malalignment of the AC joint with impingement", as well as "no evidence ... of ... dislocation, or bone marrow abnormalities to be suspicious of bone contusions ... ". (R 58) Dr. Lyons report further made no mention of having observed any evidence of soft tissue swelling, edema, or hematoma. (R 58) Defendants also submitted an affirmed report from their reviewing radiologist, Dr. Robert Tantleff, who personally reviewed the same MRI films. (R 45) Like Dr. Lyons, Dr. Tantleff similarly opined that the there was "osteoarthritic change"3 in the AC joint. And also noted that the films revealed, " ... no evidence of soft tissue swelling, edema or hematoma", and " ... no evidence of bone marrow edema or contusion ... " Based on the absence of such findings, Dr. Tantleff concluded there was no, " ... evidence of acute or recent injury" to the left shoulder. Defendants also submitted an X-ray report made by another treating radiologist, Dr. Jeffrey Lang, interpreting a left shoulder x-ray taken the day after the accident. (R 56) Dr. Lang reported that the left shoulder x-ray showed no 2 "Arthrosis" defined: "Degenerative joint changes; Synonym(s): osteoarthritis", Farlex Partner Medical Dictionary, 2012. 3 "Osteoarthritis" defined: "Arthritis characterized by erosion of articular cartilage; Synonym(s): arthrosis", Farlex Partner Medical Dictionary, 2012. 7 osseous abnormalities, and no dislocation. (R 56) Dr. Lang made no mention of any observed soft tissue swelling. Defendants further submitted the affirmed report of their examining Orthopedic Surgeon, Dr. Alan Crystal, wherein he noted review of the above reports from plaintiffs treating radiologists- Dr. Lyons and Dr. Lang. (R 46-55) Without disputing any of the findings made by plaintiffs treating radiologists, Dr. Crystal noted that Dr. Lang's report did not find "soft tissue swelling that would accompany a shoulder injury", nor "bone marrow abnormalities", such that it did not present " ... any finding that is associated with trauma." Finally, Dr. Crystal reviewed the operative report of plaintiffs treating Orthopedic Surgeon-- Dr. Louis Rose, and without disputing any of the fmdings made therein, opined that the operative findings as described were, " ... compatible with chronic impingement, and not acute trauma." In further explanation of that conclusion, Dr. Crystal stated that the specific nature of this particular accident, as directly described and reported by plaintiff, created no mechanism of injury during this accident, which could cause an "acute rotator cuff tear or labral tear." (R55) Plaintiff submitted opposition to the defendants' motion, relying solely on the affirmation of his treating Orthopedic Surgeon, Dr. Louis Rose. (R 188-196) Dr. Rose stated that he first examined plaintiffs left shoulder the day after the accident. (R 189) He noted that on clinical examination the shoulder "exhibited 8 tenderness to palpation at the acromio-clavicular joint and rotator cuff insertion with a positive impingement test." (R189) He noted that this pain report was causing limitations in range of motion, and he diagnosed "impingement syndrome of the left shoulder."4 (R189) Dr. Rose noted no clinical fmdings of reported pain associated with the labrum, made no clinical fmdings related to instability of the labrum, nor any injury diagnosis related to the labrum. Dr. Rose noted that he referred plaintiff for an MRI of the left shoulder, but made no mention of the report by the treating radiologist Dr. Jack Lyons, a report which was specifically addressed to Dr. Rose (R58). Dr. Rose states he reviewed the film and noted precisely the same findings as contained in Dr. Lyons' report--- verbatim, with the exception of the glaring omission of any mention (or dispute) as to the presence of the "AC joint arthrosis" found by Dr. Lyons. (R 190) Dr. Rose noted he performed arthroscopic surgery on January 19, 2012, to correct the diagnosed "impingement syndrome". (R191) Dr. Rose noted on 'recent' exam in November of2013, that plaintiffs pain complaints still continued in the same vein, with plaintiffs pain and tenderness 4 "Impingement Syndrome" in the shoulder is a common term in medical vernacular, anatomically described as " ... mechanical impingement ofthe rotator cufftendon beneath the anteroinferior portion ofthe acromion ... ". (WebMD) Anatomically, the space between which the rotator cuff (supraspinatus) tendon passes, is compressed by the underside of the bony acromion process, and as the tendon moves back and forth, repetitively, over time, the compression results in thinning, degeneration, and eventually fraying or tearing of that tendon. This is why it is commonly known as a "syndrome" --- as opposed to an injury. It is a process that occurs over time, not all at once in a one-time traumatic event. 9 being reported at the rotator cuff. (R192-193) Dr. Rose nevertheless concluded that the accident had caused the "impingement syndrome" and the resulting tears he identified operatively, explaining that his clinical and operative findings were "consistent with" the plaintiff's complaints, and therefore "attributable" to the accident, since plaintiff claimed he had no prior complaints. (R193) The lower court, in reviewing the record as to the left shoulder, noted the findings of arthritis in the defendant's evidence, and also that Dr. Rose did not mention it at all in his affirmation. (R 12) The lower court therefore ruled that his opinion was speculative as to causation, as to the left shoulder, in accord with cited precedents of this court. (R 12) The lower court denied defendants' motion as to all of plaintiff's other allegations of injury, and dismissed only the left shoulder injury claims. (R 12-13) The case remains on the trial calendar, awaiting a trial date. Plaintiff appeals, as limited by his brief, from only that portion of the order the dismissing his left shoulder injury claims. Plaintiff's sole argument, as limited by his brief, is that a plaintiff's expert is not required to 'rebut' findings of degeneration by a defense expert. 10 ARGUMENT Plaintiff sole argument is that the lower court erred in finding plaintifrs expert's opinion insufficient due to a failure to address the findings of degeneration made by defendant's radiology expert. Plaintiff cites to a number of cases from this court in which the only evidence of any asserted 'degenerative' conditions in the record came solely from an expert retained by the defendant. See, Yuen v. Arka Memory Cab Corp., 80 A.D.3d 481 (1st Dept. 2011); See, Vaughan v. Leon. 94 A.D3d 646 (1st Dept. 2012). In those cases, the issue of degenerative conditions being an alternative cause of plaintifrs complaints was raised solely by the defense experts, not the plaintiff's own treatment records. In that singular factual circumstance, this court found that it was not necessary for a plaintiff's expert to specifically address such opinion, where the plaintiff's experts had offered an opinion premised on objective evidence from their own treatment records, supporting the opinion that the alleged injuries were trauma occurring during the accident. These cases are easily distinguished from the instant case, and the many other decisions of this court, as well as the Court of Appeals, which have repeatedly held that where evidence of those degenerative conditions are present in the plaintiff's own medical records, the plaintiff's expert offering an opinion on causation must address them, or the opinion is to be deemed speculative. This 11 court's recent decision in Alvarez v. NYLL Management. 120 A.D.3d 1043 (1st Dept. 2014) was determined on just such grounds. The majority in that case found the plaintifrs expert's opinion speculative and insufficient because it failed to address or contest, inter alia, clear evidence of degenerative conditions acknowledged in plaintiffs own radiology report: "Indeed, the surgeon failed to address or contest the detailed findings of preexisting degenerative conditions by defendants' experts, which were acknowledged in the reports of plaintiff's own radiologists. Moreover, the surgeon's failure to address plaintifrs history of arthritis or the earlier, conflicting findings by plaintifrs other physician of normal knee range of motion and the same range of motion in both shoulders, warrants summary judgment dismissing those serious injury claims" (Alvarez v. NYLL Management, 120 A.D.3d 1043 [1st Dept. 2014] [internal citations omitted] [emphasis added]) The dissenting opinion took the view that plaintiff argues here -that any medical opinion attributing an injury to a car accident is perforce 'equally plausible', irrespective of obvious and/or compelling evidence in plaintifrs own treatment records which contradict, or render implausible, such a conclusion. The Court of Appeals resolved the question, affirming the majority position, and rejecting the minority view as error. Alvarez v. NYLL Management, 24 12 N.Y.3d 1191 (2015)5 This court has followed the Alvarez decision multiple times, on the same grounds. See. Ocean v. Hossain, 127 A.D. 3d 402 [1st Dept. 2015]; Angeles v. Versace Inc., 124 A.D.3d 544 [1st Dept. 2015]; Rivera v. Fernandez & Ulloa Auto Group, 123 A.D.3d 509 [1st Dept. 2014]). In all of these cases, the issue of the sufficiency of the plaintiffs' experts' opinion primarily revolved around the expert addressing facts documented in the plaintiffs' own medical records, including acknowledgement of degenerative condition(s) posited by a defense expert. Plaintiff's expert in this case failed to address or contest the "AC joint arthrosis" fmding made by plaintiff's treating radiologist, Dr. Lyons, a finding which is synonymous with arthritic degeneration in the acromioclavicular joint of plaintiff's left-shoulder; and which plainly acknowledged the concurrent opinion of defendant's reading radiologist, Dr. Tantleff, who described "osteoarthritis of the acromioclavicular joint" on review of the same MRI film. Accordingly, Dr. Rose's opinion that the plaintiffs complaints and his operative findings were attributable to an alleged one-time trauma occurring in the accident, was speculative as a matter of law, because he gave no consideration to, nor did he at all address or contest these obvious degenerative arthritic findings in the plaintiffs left shoulder 5 Plaintiffs argument that the Court of Appeals decision in Perl v. Maher [18 NY3d 208 (2011)] held that a lower standard of evidentiary proof on the causation issue is sufficient in all cases, is necessarily inaccurate, as is made clear by the decision in Alvarez. 13 noted in plaintiffs own medical records. While the lower court may not have specifically described the failure as one in addressing the defendant's radiological evidence of the degenerative arthritic condition, and acknowledged in the report of plaintiffs radiologist, the record on appeal nevertheless makes it clear that the court's determination was correct under the existing law. Additionally, the record here further makes it clear that Dr. Rose's opinion also failed to address or explain the absence of objective contemporaneous evidence that a traumatic insult actually occurred to plaintiff's left shoulder in this vehicle, during this accident. As per Alvarez, an expert opinion is to be deemed speculative for failure to address or consider facts in the plaintiff's medical records which are inconsistent with, or contradict, the expert's conclusions. It is not sufficient to merely hypothesize in general that a plaintiffs clinical symptoms and operative findings are "consistent with" the accident, and thereby conclude as a general matter that they are "attributable" to the accident, as plaintiffs expert did in this case. Dr. Rose failed to address the absence of any contemporaneous objective evidence of any traumatic insult to plaintiff's left shoulder having occurred in the vehicle, which was plainly his theory as to a mechanism injury to the shoulder from this accident. Yet plaintiff's own admissions plainly established that there was no such traumatic insult to the shoulder caused in the accident, as he testified 14 that he did not hit his shoulder on any part of the interior of his vehicle during the accident, nor did he sustain any cuts, scrapes, or bruising in the shoulder. Moreover, the x-ray report of Dr. Lang, taken a day after the accident, established that the left shoulder exhibited no swelling, an indication that no traumatic insult or injury had occurred- as explained by the defense Orthopedist. The MRI evidence, from both plaintiff's and defendant's radiologists, showed that the shoulder exhibited no indications of a bone contusion, bone marrow edema, or any sign consistent with a recent traumatic insult to the shoulder - as explained by the defense Orthopedist. In point of fact, the plaintiff's testimony made clear that there was no mechanism of injury created in this specific accident, as there was no evidence to support a theory that a traumatic insult to the shoulder had occurred, as posited by plaintiff's expert. In sum, all this objective contemporaneous evidence was plainly inconsistent with and contradicted Dr. Rose's theory and opinion. His failure to address or explain any of this evidence therefore further confirmed that his opinion as to the cause of the plaintiffs left shoulder complaints was mere speculation. Although the lower court did not articulate this line of reasoning as a basis for its decision, it is apparent from the record that these facts were further justification for the lower court's determination--- and consistent with, and warranted by, the rule in Alvarez. 15 CONCLUSION We submit that the lAS Court correctly determined the issues on the motion below. Plaintiffs brief makes clear that the lone issue is on this appeal is the sufficiency of his expert's opinion as to the causation of the alleged shoulder injuries and complaints. Plaintiffs contention that the lower court's determination was error, under the law, is not accurate; as the lower court's decision comports with the existing law of the Court of Appeals and this court. For the foregoing reasons, defendants respectfully request that the Order of the lAS Court be affirmed, in all respects. DATED: August 10, 2015 Brooklyn, NY Respectfully Submitted, By: Colin F. Morrissey Baker, McEvoy, Morrissey & Moskovits, P.C. Attorneys for Defendant-Respondents One Metrotech Center, 8th Fir. Brooklyn, NY 11201 (212)-857-8230 16 PRINTING SPECIFICATIONS STATEMENT Pursuant to 22NYCRR Rule §600.10(d) (1) (v) of the Appellate Division, First Department It is hereby certified that the information below sets forth the specifications by which this computer-generated brief complies with Rule §600.10(d) (1) (v) of this Court The foregoing brief was prepared on a computer. A proportionally spaced typeface was used, as follows: Name oftypeface: Point size: Line spacing: Time New Roman 14 Double spaced The total number ofwords in the brief, inclusive of point headings and footnotes and exclusive of pages containing the table of contents, table of citations, proof of service, certificate of compliance, or any authorized addendum containing statutes, rules, regulations, etc., is 2, 717. 17