Kyreese L. Franklin, Appellant,v.Carmen Rosa Gareyua, et al., Respondents.

Brief

N.Y.March 21, 2017

MAURO I LILLING I NAPARTYu.r More Them Just Ap/Jellatc Counsel Via FedEx John P. Asiello, Esq. Chief Clerk and Legal Counsel to the Court State of New York Court of Appeals 20 Eagles Street Albany, New York 12207 Re: Franklin v. Gareyua Case No.: APL 2016-00193 Dear Mr. Asiello: December 19, 20 16 This firm is appellate counsel to Baker, McEvoy, Morrissey & Moskovits, PC, attorneys for Defendants-Respondents, Carmen Rosa Gareyua and Mensch Management Inc. in the above-referenced matter. This matter was selected, pursuant to § 500.11 of the Court of Appeals Rules of Practice, for alternative review. This case is before this Court pursuant to the Order of the Appellate Division, First Department which granted pJaintiff's motion for leave pursuant to CPLR 5602. This is the third case during the last two years where panels of the Appellate Division, First Department have issued 3-2 decisions with regard to the burden of proof a plaintiff has when attempting to rebut a defendant's prima facie showing that the plaintiff's injuries were caused by degeneration (by showing an absence of a traumatic injw·y) as opposed to a car accident (see Alvarez v NYLL Management LTD., 120 AD3d 1043 [1st Dept 2014], affd 24 NY3d 1191 [2015]; Rivera v Fernandez & Ulloa Group, 123 AD3d 509 [1st Dept. 2014], affd 25 NY3d 1222 [2015]). Alvarez and Rivera put forth a simple rule: when a plaintiff's own medical records contain findings 100 Crossways Park Drive West, Suite 310 Woodbury, NewYork 11797 [T]5 16.487.5800 [F) 516.487.5811 mlnappeals.com John P. Asiello, Esq. Court of Appeals Re: Franklin v. Garey ua December 19, 2016 I'·JAURO I LILLING I NAPARTYLLP that an injury is caused by degeneration, the plaintiffs expert must address the records when rendering an opinion that the injuries were traumatically induced. Here, with regard to plaintiff's left shoulder, the radiologists who interpreted plaintiffs X-ray and MRL at plaintiff's surgeon's request found that there was no evidence of trauma and, instead, found evidence of degeneration (R. 54, 58). In opposition to defendants ' motion plaintiff relied on the opinion of his treating surgeon who only reviewed the MRI but not the opinions of the radiologists who interpreted the X-ray and MRl (R. 189- 190). The dissenting Justices acknowledged that plaintiff's treating surgeon did not address the opinions of the treating radiologists that plaintiffs left shoulder injuries were caused by degeneration. But they concluded that such a showing is not required. "Given the substantial nature of the proof proffered by Dr. Rose, he was not required, as the majority suggests, to reconcile his conclusion with findings reach by two of plaintiff's radiologists who detected no signs of acute traumatic injury in the left shoulder upon initial imaging (cf. Alvarez v NYLL Mgt. Ltd., 120 AD3d 1043, 1044 [1st Dept 2014], affd 24 NY3d 1191 [2015])" (Franklin v Gareyua, 136 AD3d 464, 468 [1st Dept 2016] [Gische, J. dissenting]). Tt is respectfully submitted that the dissent's position is directly in conflict with this Court's decisions in Alvarez and Rivera. In order to avoid applying the straight forward rule of Alvarez and Rivera, plaintiff attempts to create a split of authority. This purpmted split, however, has been resolved by Alvarez and Rivera. Accordingly, the certified question of the Appellate Division should be answered in the affirmative and the order affirmed 1• 1 Notwithstanding this Court's recent decisions in Alvarez and Rivera affirming, on 500.11 review, the rule acknowledged and applied by the majority in this case, we find ourselves once again with a 3-2 decision on the identical issue. Therefore, it is respectfully submitted that full briefing is warranted in this case to afford this Comt the opportunity to elaborate on its previous holdings, and dispel once and for all the notion that there is still an unresolved split in Appellate Division authority. Alternatively, if this Court should agree with plaintiffs suggestion that there does remain a split, full briefing and oral argument would likewise be warranted. 2 John P. Asiello, Esq. Court of Appeals Re: Franklin v. Gareyua December 19,2016 1' 111/\URO I LILUNG I NAPARTYLLP CORPORATE DISCLOSURE STATEMENT Defendant Mensch Management Inc. is a New York Corporation with no parents or subsidiaries or affiliates. BRIEF FACTUAL STATEMENT Plaintiff alleged several injuries as a result of a car accident where defendant's vehicle made contact with the rear of plainti ffs vehicle. Defendants moved to dismiss plaintiff's claims as he did not suffer a "serious injury" as defined by Insurance Law § 5102(d) (R. 16-17f In support of their motion defendants relied, in part, on the report of Dr. Jeffrey Lang who reviewed several X -rays at the request of plaintiff's treating surgeon (R. 56-57). With regard to plaintiff's left shoulder Dr. Lang concluded: There is no evidence of fracture or other focal osseous abnormality. There is no dislocation. The glenohumeral and acromioclavicular joints are preserved. No prearticular soft tissue calcification ts seen. IMPRESSION: No osseous abnormality in the left shoulder. (R. 56). Additionally, defendants relied upon the opinion Dr. Jack Lyons who reviewed an MR1 of plaintiff's left shoulder at the request of plaintiff's treating surgeon (R. 58). Dr. Lyons found: There is mild AC joint arthrosis and malalignment of the AC joint with impingement upon the underlying supraspinatus muscle. There is no 2 As discussed in more detail below, the Supreme Court dismissed plaintiffs claims with regard to his left shoulder only. The majority opinion of the Appellate Division affirmed this order. For the sake of brevity, therefore, the statement of facts will only discuss the evidence with regard to plaintiff's left shoulder injury (i.e. tears to the glenoid labrum and rotator cuff). 3 John P. Asiello, Esq. Court of Appeals Re: Franklin v. Gare)l110 December 19, 2016 MAURO I LILLING I NAPARTYLLP evidence of fracture, dislocation, or bone marrow abnormalities to be suspicious for bone contusions, stress fractures, or acute trabecular microfractures. Impression: MILD AC JOINT ARTHROSIS AND MALALIGNMENT WITH IMPINGEMENT MILD CONJOINED TENDON TENOSYNOVITIS/ B URSITIS. MILD SUBSCAPULARIS TENDONOPATHY AND BURSITIS. (R. 58 [capitalization and emphasis in original]). In addition to the opinions of plaintiffs own radiologists defendants relied on the opinion of Dr. Alan Crystal who they retained to examine plaintiff and review plaintiffs medical records (R. 46-55). With regard to plaintiff's left shoulder Dr. Crystal reviewed the operative report prepared by his treating surgeon Dr. Louis Rose (R. 55). Dr. Crystal noted that Dr. Rose made surgical findings consistent with the rotator cuff being impinged by the bones in plaintiffs shoulder, which is not a finding consistent with an acute trauma such as a motor vehicle accident (R. 55). Similarly, Dr. Crystal also noted that the findings of Drs. Lyons and Lang indicated degeneration instead of traumatic injury (R. 55). Accordingly, Dr. Crystal concluded that plaintiffs left shoulder injury was not caused by the subject accident (R. 55). Defendants also had a radiologist, Dr. A. Robert Tantleff, review the MRl of plaintiff' s left shoulder. Dr. Tantleff found " ... no findings casually related to the date of the incident of 11 /3/11" (R. 45). Instead, and like Dr. Lyons, Dr. Tantleff found "mild age related osteoarthritic changes of the acromioclavicular joint without evidence of subacromial/subdeltoid bursi tis" (R. 45). In opposition to defendants' showing with regard to the cause of plaintiff's left shoulder injury plaintiff principally relied upon the opinion of Dr. Rose. In support of his opinion, Dr. Rose relied upon plaintiff's hospital records, his review of the MRl of plaintiff's left shoulder, and his treatment of plaintiff (R. 189-191). There is no indication that Dr. Rose reviewed the opinions of Drs. Lyons and Lang (R. 189-191). Dr. Rose's opinion on causation is contained in one paragraph: 4 John P. Asiello, Esq. Court of Appeals Re: Franklin v. Gareyua December 19,2016 1'1/\URO I LILLING I NAPARTYLLP Based on the Patient's left shoulder MRI which I reviewed, his operative findings, which I performed and my physical examination and treatment of Kyreese Franklin for a period of two years, it is my opinion to a reasonable degree of medical certainty that Kyreese Franklin sustained left shoulder, neck and back injuries requiring surgery including malalignrnent of the AC joint with impingement, bursitis, internal derangement, tear of the glenoid labrum and tear of the rotator cuff requiring arthroscopy of the left shoulder, debridement of the glenoid labrum and hypertrophic synovium ... as a result of the forceful rear end automobile accident on November 3, 2011. (R. 193). Additionally, Dr. Rose did not explain Dr. Crystal's observations that the findings of Dr. Lyons (as expressed by Dr. Lyons's own report) are inconsistent with signs of trauma. Based upon this evidence the Supreme Court, Bronx County (Tapia, J.) dismissed plaintiffs claim with regard to his left shoulder injury. With regard to plaintiffs attempt to raise a triable issue of fact the trial court held " ... Dr. Rose never addressed the defendants' prima facie showing that plaintiffs left shoulder condition was degenerative or pre-existing. Therefore, plaintiff failed to establish a causal connection between the MRI findings and the accident" (R. 12 [internal citations omitted]). Plaintiff appealed to the Appellate Division, First Department. In a 3- 2 decision the Appellate Division affirmed the Supreme Court's order (see Franklin v Gareyua, 136 AD3d 464 [1st Dept 2016]). The majority of Justices focused on the opinions of plaintiffs radiologists. "The plain import of the reports by Dr. Lang and Dr. Lyons-both of which, to reiterate, were prepared at the request of plaintiffs treating orthopedic surgeon and are included within his own medical records-is that the X-ray and MRI of his left shoulder showed no evidence of traumatic injury but only of degenerative conditions such as arthrosis and bursitis" (Franklin, 136 AD3d at 465-466 [emphasis added]). The majority also concluded that Dr. Rose's 5 John P. Asiello, Esq. Court of Appeals Re: Franklin v. Gareyua December 19,2016 1"1AURO I LILLING I NAPARTYLLP failure to address the opinions of Drs. Lang and Lyons and his failure to explain how plaintiff's left shoulder injury was not caused by degeneration rendered his opinion insufficient to raise a triable issue of fact (id. at 466). The dissent, however, concluded that Dr. Rose's opinion was adequate to raise an issue of fact. The dissenting Justices first focused on a perceived di.spute between Dr. Rose and the defendants' experts as to plaintiffs diagnosis. "While defendants' medical professionals diagnosed osteoarthritis of the AC joint and opined that the surgical findings and symptomology were consistent with chronic impingement syndrome, Dr. Rose diagnosed tears to the labrum and rotator cuff' (is!. at 467). As noted by the majority, however, that there is no factual disagreement between the doctors with regard to the injury that plaintiff has but rather the distinction is limited to the cause of the injury (id. at 466 ("Nothing in the record supports the assumption that the conditions diagnosed by the defense experts do not result in tears to the labrum and rotator cuff']). In a depruture from this Court's holdings in Alvarez and Rivera the dissent concluded that Dr. Rose was under no obligation to comment on the reports of Drs. Lang and Lyons which were in his file. Rather, the dissent concluded that: .. . Dr. Rose ... attributed the injuries to an entirely different etiology by chronicling his initial examination of plaintiff the day after the accident, his consequent need for surgery, during which time Dr. Rose personally observed and repaired tears, and the persisting deficit limitation in the years since. Dr. Rose's opinion that the left shoulder condition was consistent with traumatic injury resulting from the accident signifying an unmistakable rejection of defendants' experts' theory is entitled to equal weight and sufficed to raise a triable issue of fact." (id. at 468, quoting Linton v Nawaz, 62 AD3d 434, 443 (1st Dept 2009], affd 14 NY3d 821 [2010] [internal quotation marks omitted]). 6 John P. Asiello, Esq. Comt of Appeals Re: Franklin v. Gareyua December 19, 20 16 r"'AURO I LILLING I NAPARTYLLP As a result of a motion made by plaintiff the Appellate Division, First Department issued an order certifying the following question of law: "[ w ]as the order to the Supreme Court, as affirmed by this Court, properly made?" This Court selected this matter for alternative review pursuant to Rule 500.11. ARGUMENT Dr. Rose's Opinion Was Insufficient To Raise An Issue Of Fact As To The Cause Of Plaintiffs Left Shoulder Injuries What plaintiff is seeking in this case is to lower the burden of proof on the issue of causation in the context of motor vehicle accident cases. To do so, however, would be directly contrary to the purpose of the No-Fault law (see Toure v Avis Rent A Car Systems, Inc., 98 NY2d 345 [2002]). Dr. Rose is attempting to engage in differential diagnostic decision making, but in doing so has chosen to ignore evidence in his possession. Simply stated, Dr. Rose says that the claimed injuries were caused by trauma, but does not explain why he ruled out degeneration. As this Court has explained: Differential diagnosis is a generally accepted methodology by which a physician considers the known possible causes of a patient's symptoms, then, by utilizing diagnostic tests, eliminates causes from the list until the most likely remains. In short, differential diagnosis requires physicians to both rule in and rule out the possible causes of the patient's symptoms through accepted scientific reasoning and diagnostic tests. (Cornell v 360 West 51st Street Realty, LLC, 22 NY3d 762, 784-758 [2014], quoting Jazairi v Royal Oaks Apt. Assoc. L.P., 2005 WL 6750570, *9 [SD Ga. 2005], affd 217 Fed Appx 895 [11th Cir 2007] [internal quotation marks omitted]). 7 John P. Asiello, Esq. Court of Appeals Re: Franklin v. Gareyua December 19,2016 MAURO I LILLING I NAPARTYLLP Plaintiff is attempting to shift this CoUit's focus to the conclusions of the parties' experts rather than the foundation of Dr. Rose's opinion. This Court should hold, as it has done on two previous occasions, that a plaintifrs expert must address information contained in plaintifrs medical records with regard to evidence of degeneration. To hold otherwise is to allow an expert to simply ignore evidence that is readily available in order to cherry pick facts to support a particular conclusion. Such an approach is not permitted in any other context of personal injury law, and it especially should not be permitted in the context of automobile accidents governed by a regulatory scheme designed to weed out meritless claims. Although plaintiff and the dissent ignore this Comt's decision in Rivera, it is controlling in this case. In Rivera, plaintiff alleged he sustained a serious left knee injury as a result of a car accident. Defendants moved for summary judgment, annexing a radiologist and an orthopedist's affirmed reports opining plaintiff had a chronic condition and that the accident did not cause plaintiff's injuries. In addition, plaintifrs own medical records, a post- accident MRI, included degenerative findings. In opposition, the Rivera plaintiff annexed an affirmation from plaintifrs orthopedic surgeon opining that the accident caused plaintiffs knee injury. The trial court granted summary judgment, and in affirming the majority of the First Department's Rivera panel held: [T]he surgeon's opinion failed to raise an issue of fact since the surgeon not only failed to address or contest the opinion of defendants' medical experts that any condition was chronic and unrelated to the accident, but also failed to address or contest the finding of degenerative changes in the MRI report in plaintiffs own medical records .... (Rivera, 123 AD3d at 509-51 0). Two Justices of the First Department dissented, concluding that the affirmation raised a triable issue of fact because the expert opined that the accident caused plaintiffs knee injury and noted that plaintifrs prior medical history was "noncontributory." According to the dissent: 8 John P. Asiello, Esq. Court of Appeals Re: Franklin v. Gareyua December 19,2016 l'-'11\1 JRO I LILLING I NAPARTYLLP [t]he affirmation of plaintiff's surgeon, attributing the injury to the accident as opposed to any other cause, suffices to raise a triable issue of fact. The fact that defendants' experts attribute the injury to degenerative causes is of no moment. We have held, repeatedly, that it is unnecessary for a plaintiff's expert to specifically refute defense evidence as to degeneration; attributing the injury to another, equally plausible cause, i.e. the accident, is sufficient to raise a triable issue of fact. (Rivera at 511 [Manzanet-Daniels, J., dissenting]). The majority opinion specifically disagreed with the dissent: Our dissenting colleague overlooks that recent precedents of this Court establish that a plaintiff cannot raise an issue of fact concerning the existence of a serious injury under the No-Fault Law where, as here, the plaintiff's own experts fail to address indications from the plaintiff's own medical records ... that the physical deficits in question result from a preexisting degenerative condition rather than the subject accident. (id. at 510). The Rivera plaintiff appealed to this Court, which affirmed the First Department's maJonty opm10n, refusing to adopt the dissent's reasoning (Rivera v Fernandez & Ulloa Auto Group, 25 NY3d 1222][20 15]). In Alvarez, the majority of Justices of the First Department held that the opinion of the plaintiffs expert was insufficient to raise a triable issue of fact because: Her orthopedic surgeon's conclusory opinion that plaintiff's shoulder, knee and spine conditions were caused by the accident, and not degeneration, was insufficient to raise an issue of fact as to 9 John P. Asiello, Esq. Court of Appeals Re: Franklin v. Gareyua December 19,2016 I'-1/\URO I LILLING I NAPARTYLLP causation. 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 plaintiffs own radiologists. Moreover, the surgeon's failure to address plaintiffs history of arthritis, or the earlier, conflicting findings by plaintiffs other physician of normal knee range of motion and the same range of motion in both shoulders, waiTants summary judgment dismissing those serious injury claims. (Alvarez, 1 20 AD 3d at 1043 [internal citations omitted]). This Court affirmed Alvarez v NYLL Management Ltd., (21 NY3d 1191 [2015]). The nearly identical evidentiary posture is present in this case for the third time, and this Court should affirm for the third time. The rule set forth in Alvarez and Rivera is straightforward and important: a plaintiffs doctor who relies on the plaintiffs medical records must address degeneration found in those records in order to establish that there is an adequate foundation for the doctor's opinion. As the state of the record stands now this Court is unable to determine if Dr. Rose considered the opinions of Drs. Lang and Lyons, let alone why Dr. Rose would reject those opinions if he did consider them. Instead, all this Court can possibly determine is that Dr. Rose considered less than all of the information available to him and reached a conclusion that may or may not have been supported by the complete record. This is not sufficient to raise a triable issue of fact. It was incumbent on Dr. Rose to explain if or why he disagreed with Drs. Lang and Lyons. He fai led to do so and, as a result, plaintiff fai led to raise a triable issue of fact. Plaintiff, however, seeks a new rule that, while at first blush, seems rather detailed, is in fact so generic as to be near meaningless. Plaintiff seeks a rule: ... that a non-conclusory affirmation of a treating physician which is based on substantial evidence, including such factors as a history of no prior 10 John P. Asiello, Esq. Court of Appeals Re: Franklin v. Gareyua December 19,2016 i" IAURO I ULLING I NAPARTYLLP InJUry or complaints to the affected area, the physician's personal review of an MRI or CT Scan, the physician's personal observation of the damaged areas during surgery, the physician's observations of the patient over the course of treatment, and the physician's measurements of limitations of range of motion, creates a question of fact whether or not it directly rebuts contrary evidence of degeneration. (Plaintiffs Letter Brief, pgs. 15-16). Plaintiff s rule suggests nothing more than a doctor should be allowed to pick and choose what information he or she relies upon in coming to an opinion even if the doctor's own chart contains information that is diametrically opposed to the doctor's conclusion. Stated differently, plaintiff requests this Court, in the context of automobile accidents, allow doctors to perform half of a differential diagnosis by explaining why they ruled in trauma without explaining why they ruled out degeneration. Simply put, plaintiffs rule focuses only on what the doctor elected to review and not what he or she could have and should have reviewed when coming to a conclusion. An expert medical opinion, however, must consider all of the available medical evidence not just self-selected parts of it (see Mattot v Ward, 48 NY2d 455 [1979]). Plaintiff has put forth no reason for this Court to retreat from its holdings in Alvarez and Rivera which are nothing more than consistent reflections of its prior decisions (see Mattot, supra; Pommells v Perez, 4 NY3d 566 [2005]). To the contrary, plaintiff has done nothing more than establish that the rule in Alvarez and Rivera is well-reasoned and worthy of protection. In this case, plaintiff had Dr. Rose prepare an affirmation to oppose summary judgment. He did not, as many plaintiffs do, rely on a physician's affirmed treatment reports. Dr. Rose, therefore, had every opportunity to address the evidence of degeneration contained in his own chart. Instead, Dr. Rose elected to remain silent on the issue. Though Dr. Rose reviewed plaintiffs left shoulder MRI he does not explain what his review of the MRI revealed and/or why he disagreed with the treating radiologist who reviewed it. Nor did he explain what he observed during surgery that would refute the findings of the MRI. His opinion as to the MRI is, therefore, impermissibly conclusory. "Where the expert states his II John P. Asiello, Esq. Court of Appeals Re: Franklin v. Gareyua December 19,2016 I'~'U\URO I LILUNG I NAPARTYLLP conclusion unencumbered by any trace of facts or data, his testimony should be given no probative force whatsoever" (AmatulJi v Delhi Const. Cmp., 77 NY2d 525, 533 n.2 [1991]). Dr. Rose has done nothing to explain why he ruled out degeneration other than to say he ruled in trauma. This is not scientifically valid and his opinion failed to raise a triable issue of fact (see Cornell, supra). The Appellate Division's order, therefore, should be affirmed. The uSplit" Identified By Plaintiff Does Not Exist, But If This Court Does Perceive A Split In Authority Then It Should Resolve The Split By Requiring Plaintiff's' Experts To Address Degeneration From Any Source Plaintiff cites to cases from all four departments of the Appellate Division which have held that either: (1) a plaintiff's expert was required to explicitly address evidence of degeneration in the form of a defendant's expert opinion; or (2) that a plaintiff's expert's opinion finding causation as a result of trauma was sufficiently detailed that the expert did not need to specifically address the opinion of defendant's expert. As discussed above, if there ever was a split in authority, Alvarez and Rivera have resolved it by requiring plaintiffs' experts to address degeneration found in a plaintiff's own medical records. In the event, however, that this Court determines that Alvarez and Rivera did not harmonize this supposed split in authority then this Court should resolve it by requiring a plaintiff's experts to address evidence of degeneration regardless of its source. Such a rule would ensure that there are genuine issues of material fact instead of assuming that a plaintiff's expert would continue to hold an opinion on causation if he or she had considered the opinions and findings of the defendant's expert. The Appellate Division, First Department's decision as affirmed by this Court in Linton v Nawaz (62 AD3d 434 [1st Dept 2009], affd 14 NY3d 821 [20 1 0]) is instructive on this issue. In Linton, the evidence of degeneration came from the opinion of a radiologist retained by the defendant. Plaintiff's expert did not address the opinion of the defendant's radiologist but instead based his opinion "on a full physical examination of plaintiff made within days of the onset of pJaintiff's complaints of pain and other symptoms, which plaintiff told him ensued after he was involved in a 12 John P. Asiello, Esq. Court of Appeals Re: Franklin v. Gareyua December 19,2016 ~tJAURO I LILLING I NAPARTYLLP traumatic accident" (Linton, 62 AD3d at 439). The Linton defendant argued that the plaintiffs expert was required to explicitly address the opinion of the defense radiologist. The majority of the Linton court disagreed. "However, Dr. Fleischer's [plaintiffs expert's] affirmation did reject Dr. Eisenstadt's [defendant's expert's] opinion by attributing the injuries to a different, yet altogether equally plausible cause, that is, the accident" (id.). It is respectfully submitted that Linton, and similar cases, allow matters to proceed to trial by allowing a plaintiff to raise questions of fact by remaining silent. Such rulings undermine the very purpose of summary judgment. This case provides an apt example of how cases such as Linton are employed to identify questions of fact because it is presumed there is a true battle of the experts. Here, Dr. Crystal reviewed Dr. Rose's surgical report and concluded that its findings are consistent with tears being caused by degeneration (R. 55). Dr. Rose prepared an affirmation for the purposes of litigation (presumably the affirmation was drafted by counsel for plaintiff) yet he did not address any ofDr. Crystal's findings (R. 188-194). Under the Linton analysis Dr. Rose is not required to address why he made findings that are not consistent with trauma. Instead, a court can merely presume that the tears Dr. Rose observed were caused by the accident not because Dr. Rose eliminated degeneration but because he chose not to address it. Presumption, however, is not the same as creating a question of fact (see Pommells, 4 NY3d at 579 [2005] ["In this case, with persuasive evidence that plaintiff s alleged pain and injuries were related to a preexisting condition, plaintiff had the burden to come forward with evidence addressing defendant's claimed lack of causation"]). Dr. Rose's opinion, therefore, is insufficient. The notion that an expert only needs to attribute an injury to an accident which is an "equally plausible" cause of an injury as degeneration is also contrary to evidentiary rules made by this Court since Linton. Merely ruling in the "equally plausible" accident as a cause of an injury would not satisfy this Court's rules with regard to differential diagnosis under Cornell, (supra)3. In this case, the majority panel noted "[n]othing in the record 3 Moreover, the notion that a car accident is an equally plausible cause of in injury in every case such that an expert does not need to address evidence of degeneration is incorrect. Each case should be judged by its own record (see Cornell, 22 N.Y.3d at 786 ["As a result, this case does not (and indeed cannot) stand for the proposition that a 13 John P. Asiello, Esq. Court of Appeals Re: Franklin v. Gareyua December 19,2016 i'V\URO I ULLING I NAPARTYLLP supports the assumption that the conditions diagnosed by the defense experts do not result in tears to the labrum and rotator cuff' (Franklin, 136 AD3d at 466). The majority correctly recognized that which Linton and other similar cases fail to take into account. The existence of tears, bulges and herniations do not automatically mean that such injuries were caused by a car accident. Because defendants have shown that plaintiffs injuries were caused by degeneration it should be incumbent on plaintiffs expert, who prepared an affirmation for the purposes of litigation, to address defendants' evidence regardless of whether it comes from the opinions of an expert or plaintiffs own medical records. "Summary judgment is inappropriate in any case where there are material issues of fact in dispute or where more than one conclusion may be drawn from the established facts" (Friends of Thayer Lake LLC v Brown, 27 NY3d 1039, 1043 [2016]). Here, applying the Linton rule, a question of fact would exist not because more than one conclusion may be drawn from the medical facts, but rather, a question of fact would exist because one side's expert refused to address another cause of injury. To allow such a tactic to continue is to lower the bar for summary judgment in the context of automobile accident litigation when the Legislature has enacted a legislative scheme designed to reduce such litigation. This record is replete with evidence of degeneration from multiple sources yet plaintiff would rely on cases such as Linton to avoid addressing any of it. Importantly, and contrary to plaintiffs assertion before this Court, all of the evidence of degeneration was submitted to Supreme Court as part of defendant's initial moving papers (R. 21-22, 56-60). Plaintiff, therefore, was aware of all the evidence of degeneration at the time Dr. Rose prepared his affirmation (or plaintiffs counsel prepared it for him) and there was nothing preventing Dr. Rose from addressing the evidence. cause-and-effect relationship does not exist between exposure to indoor dampness and mold and the kinds of injuries that Cornell alleged. Rather, Cornell simply did not demonstrate such a relationship on this record"]). Linton, and other similar cases, allows plaintiffs to bootstrap the records of prior cases to allow courts to assume that a plaintiff's expert will never accept degeneration as a cause of an injury. As a result, according to plaintiff, there is never a need for the expert to discuss evidence of degeneration as the law has assumed that a car accident is always a plausible cause of an injury to the point that an expert's mere say so, without explanation, is sufficient to raise a triable issue of fact. 14 John P. Asiello, Esq. Court of Appeals Re: Franklin v. Gareyua December 19,2016 MAU r'.J I LILLING I NAPARTYLLP Instead, plaintiff would have experts for both parties issue opinions that are like ships passing in the night and assume that when these opinions meet at trial a genuine difference of opinion will remain. There is nothing in this record to suggest that Dr. Rose would maintain his opinion on causation if he read the opinions of Drs. Lyon and Lang. Nor is there anything in the record to suggest that Dr. Crystal is inconect in noting that Dr. Rose's findings are consistent with degeneration. At bottom, all Dr. Rose says is he observed tears and plaintiff gave a history which, in Dr. Rose's opinion, means that plaintiff s injuries were caused by trauma. It is nothing more than an assumption that he can maintain his opinion if he considers the opinions of three radiologists and can explain away Dr. Crystal' s point that Dr. Rose's surgical findings are consistent with degeneration. It is respectfully submitted that cases such as Linton are inconsistent with other decisions of this Court and ought to be overruled. Alternatively, this Court should hold to its rulings in Alvarez and Rivera and find that plaintiff failed to raise an issue of fact as Dr. Rose failed to consider evidence of degeneration identified by plaintiff's other doctors rendering Dr. Rose's opinion insufficient. CONCLUSION For the reasons set forth above and in the Respondent 's brief to the Appellate Division, we submit that the Order below should be affitmed, together with costs and disbursements. cc: Matthew J. McMahon, Esq. 15 STATE OF NEW YORK ) ss.: ) COUNTY OF NASSAU ) AFFIDAVIT OF SERVICE I, SHANNON DOUGHERTY, being sworn, say: I am not a party to the action, am over 18 years of age and reside in Nassau County, New York. On the 19th day ofDecember, 2016 I served the within LETTER BRIEF by depositing a true copy thereof enclosed in a post-paid wrapper in an official depository under the exclusive care and custody of the United States Postal Service within New York State, addressed to each of the following persons at the last known address set forth after each name: Matthew J. McMahon, Esq. McMahon & McCarthy Attomeysjor Plaintiff-Appellant 25 East 233rd Street Bronx, New York 10470 Sworn to before me this 19th day of December, 2016. ZAMEEN B. DINDYAL Notary Public, State of New York No. 01014961709 Qualified in Queens County Commisslon Expires : June 30 , 2018