Marta Alvarez, Appellant,v.NYLL Management Ltd., et al., Respondents.

Brief

N.Y.February 11, 2015

BAKER, McEVOY, MORRISSEY & MOSKOVITS, P.C. ATTORNEYS AT LAW Steven J. Baker One Metrotech Center John P. McEvoy Brooklyn, NY 11201 Colin F. Morrissey (212)-857-8230 Ronit Z. Moskovits Fax (212)-857-8287 December 23, 2014 FED EX OVERNIGHT Andrew W. Klein, Esq. Clerk of the Court State of New York Court of Appeals 20 Eagle Street Albany, NY 12207-1095 Re: Alvarez v. NYLL Management APL-2014-00256 Dear Mr. Klein: We represent Defendants-Respondents NYLL Management Ltd. and Leoncio Peguero in the above-referenced appeal. This matter was selected, pursuant to § 500.11 of the Court of Appeals Rules of Practice, for alternative review. The appeal is before this Court by right, as two Justices of the Appellate Division, First Department dissented from the opinion and order of the that court. As set forth below, the majority opinion of the Appellate Division, First Department correctly held that the opinion of plaintiff‘s treating surgeon that the plaintiff‘s alleged injuries were caused in the subject accident, was conclusory and speculative, as it failed to address evidence of degenerative conditions, objective evidence of multiple pre-existing conditions, and it was contradicted by numerous objective findings made by own treating physicians showing that no trauma occurred in the accident. This expert opinion evidence was, therefore, not probative on the dispositive issue of causation. Since this conclusory and insufficient expert opinion was the plaintiff‘s sole evidence on the issue of causation, Andrew W. Klein, Esq. December 23, 2014 Page 2 plaintiff failed to raise a triable issue of fact. For the reasons that follow, this Court should affirm the Appellate Division‘s Decision and Order and grant the Defendants- Respondents such other relief as this Court deems just and proper. CORPORATE DISCLOSURE STATEMENT Defendant NYLL Management is a New York corporation, with no parents, subsidiaries or affiliates. BRIEF STATEMENT OF FACTS Plaintiff was operating her vehicle, wearing a seatbelt, when it was contacted from the rear by defendants‘ vehicle, on April 4, 2009 (R. 64, 158, 162). An ambulance was called to the scene and the plaintiff advised Emergency Medical Service (EMS) technicians that she had a ―slight headache‖ and that she was ―basically really nervous‖ (R. 105). They noted no observable signs of swelling, bruising, cuts or scrapes, and no complaints at all relative to the plaintiff‘s right shoulder, right knee, or neck. (R. 105) Additionally, the EMS workers reported that there was no observed damage to the plaintiff‘s vehicle, and plaintiff later confirmed that damage to her car amounted to two broken taillight bulbs costing $45. (R. 105, 171-172) The EMS technicians took the plaintiff to the St. Barnabas Hospital Emergency Department. The plaintiff advised her Emergency Room (ER) physician that she had a headache and right shoulder pain, and informed him/her of a past medical history (PMH) including thyroid condition, arthritis, depression, and anxiety. The ER physician performed a ―musculoskeletal‖ examination, and noted that plaintiff‘s range of motion in extremities (EXT) was ―intact‖, while recording that there were no observable signs of swelling or deformity to the right shoulder or right knee, and noting no observed skin findings (e.g. redness or deep tissue injury), on any part of plaintiff‘s body. (R.108, 111) A CT scan was done of the plaintiff‘s brain, which was normal, and she was discharged from the hospital (R. 111). The supervising ER physician diagnosed the plaintiff with a headache and right shoulder sprain. (R. 108). The plaintiff did not seek any further medical treatment for 10 days. Dr. Ketan Vora examined the plaintiff on April 14, 2009 (R. 123-130). Like she did at the accident scene, the plaintiff continued to make complaints of headaches (R. 123). Unlike the day of the accident, however, 10 days post-accident the plaintiff was complaining of pain in her chest, back, neck, right shoulder , and both knees (R. 13). Dr. Vora found restrictions in motion in the plaintiff‘s cervical spine as well her Andrew W. Klein, Esq. December 23, 2014 Page 3 lumbar spine – although plaintiff claimed no injury to her lumbar spine. (R. 125, 126) Dr. Vora noted ―normal‖ range of motion in both knees. (R . 126) Interestingly, Dr. Vora found identical restriction in both shoulders, even though the plaintiff only complained of pain in her right shoulder (R. 126). Dr. Vora recorded multiple negative clinical tests on the cervical spine, right shoulder and right knee. (R. 125-127) Moreover, Dr. Vora noted that radiological studies of the plaintiff‘s right shoulder, left shoulder, right knee, left knee, cervical spine, thoracic spine, and lumbosacral spine performed on April 14, 2009 were all normal (R. 131-137). Dr. Vora diagnosed the plaintiff with sprains and strains (R. 128). On April 17, 2009 the plaintiff underwent an MRI on her right knee (R. 140). The MRI was normal (R. 140). The plaintiff underwent an MRI of her cervical spine on April 25, 2009 (R. 141). The radiologist identified disc desiccation and bulges at C2- C5 (R. 141). An MRI of the plaintiff‘s right shoulder was performed on May 1, 2009 (R. 138). A bone spur, which is a non-traumatically induced growth, was found to be impinging on the supraspinatus muscle tendon complex (R. 138). Notably, none of these radiology reports addressed the issue of what caused the radiologis t‘s findings (R. 138, 140, 141). The plaintiff then began treating with Dr. McMahon. Since this case revolves around the issue of causation, the defendants will not summarize the findings of restrictions of motion herein. The defendants would note, however, that Dr. McMahon was only treating the plaintiff for the alleged injuries to her right shoulder and right knee (R. 143). On June 23, 2009 and August 6, 2009, Dr. McMahon performed arthroscopic surgery on the plaintiff‘s right shoulder and knee respectively (R. 246). The plaintiff commenced a personal injury action alleging that the injuries to her right knee, right shoulder, and cervical spine were ―serious injuries‖ (R. 66 -67). According to the Bill of Particulars the plaintiff was confined to her home for a total of 6 weeks (R. 67), although she later testified that she was confined to her home for only two weeks (R. 50). The defendants moved for summary judgment seeking dismissal of the plaintiff‘s complaint because she did not suffer a ―serious injury‖ as defined by Insurance Law § 5102(d) that was causally related to the subject accident. In support of their motion the defendants relied on the plaintiff‘s medical records and the opinions of two experts. Dr. Peter Ross, a board certified radiologist, reviewed the MRIs of the plaintiff‘s right shoulder, right knee, cervical spine, and lumbosacral spine (R. 75-85). As to the plaintiff‘s right shoulder Dr. Ross concluded that there was no radiological evidence of Andrew W. Klein, Esq. December 23, 2014 Page 4 a rotator cuff or labral tear. There was, however, radiological evidence of degeneration in the form of a bone spur in the shoulder, causing impingement. Additionally, there was radiological evidence that the plaintiff had supraspinatus tendinosis , which is caused by degenerative chronic impingement changes in the shoulder (R. 76). With regard to the plaintiff‘s right knee, Dr. Ross noted only degenerative findings, and explaining that the ―absence of patellar fractures, bone bruises, retinaculum tears, or abnormal fluid collections in the surrounding soft tissues argues against these findings being acute or subacute in nature‖ (R. 80). As to the plaintiff‘s cervical spine, Dr. Ross concluded there was no evidence of disc bulges and merely evidence of degenerative desiccation (R.81-82). Finally, although plaintiff claimed no lumbar spine injury, Dr. Ross reviewed MRI films taken of her lumbar spine, that were degenerative findings which could not have occurred in the 1 month between the date of the accident and the performance of the MRI (R. 84-84). Dr. Edward Decter, an orthopedist, reviewed the plaintiff‘s medical records , including the MRI films (R. 87-88). His personal review of the MRI films revealed no evidence of an injury and even led him to question whether surgery was appropriate in this case (R. 87-88). Accordingly, he requested -- if available – to review any intraoperative photographs that might exist, because the MRI films and Dr. McMahon‘s surgical reports did not justify surgical intervention (R. 87-88). Dr. Decter performed a physical examination and found no positive (i.e. abnormal) clinical tests results, and no evidence of restrictions in ranges of motion, noting that, ―it is best to compare normal and affected sides.‖ (R. 89-91). Based upon the absence of signs of trauma in the radiological films, and the presence of nothing but degenerative findings (i.e. a subacromial bone spur and tendinosis in the shoulder, mild patellar changes in the knee, and desiccation in the cervical discs), as well as his own exam observations, test results and findings, Dr. Decter concluded that there was no causal relationship between the accident and the plaintiff‘s claimed injuries. In opposition to the defendant‘s summary judgment motion the plaintiff submitted an affirmation from Dr. McMahon. Dr. McMahon only treated plaintiff for her right shoulder and right knee, although he later examined an opined about her cervical spine to oppose the defendants‘ motion, and his entire opinion on the issue of causation can be found in one sentence, ―[i]t is my opinion that all of the above injuries are causally related to the motor vehicle accident on April 4, 2009 and are not degenerative changes‖ (R. 249). After reviewing the factual record and the arguments of the parties the Supreme Court, Bronx County (Owen Stinson, J.) issued a 15 page order granting summary judgment to the defendants (R. 5-20). The Supreme Court concluded, based upon the medical evidence summarized above, that the defendants Andrew W. Klein, Esq. December 23, 2014 Page 5 established, prima facie, that the plaintiff‘s injuries were either minor or completely unrelated to the subject accident (R. 18). The Supreme Court then addressed the plaintiff‘s unsuccessful attempt to raise an issue of fact. The Supreme Court noted that in an affidavit in opposition, the plaintiff claimed that she felt pain in her neck and right knee ―immediately‖ after the accident yet she made no such complaints to EMS workers at the accident scene or the staff at the emergency room (R. 19). Additionally, the Supreme Court noted that 10 days after the accident the plaintiff had full range of motion in her knees, and her supposedly injured right shoulder had the same limitations of motion as her uninjured left shoulder (R. 19). Finally, the Supreme Court correctly rejected Dr. McMahon‘s opinion on causation and held: Based on plaintiff‘s subjective complaints and initial MRI reports containing no opinion as to causation, Dr. McMahon concluded that her claimed injuries were serious, significant and permanent, matching the language of the statute. This statement is inconsistent with his earlier statement, in the same affirmation, that plaintiff‘s prognosis is guarded ―without additional treatment‖. He also concluded, with no further explanation, that plaintiff‘s injuries, such as they were, were caused by the subject motor vehicle accident, ignoring all evidence from the emergency room which did not record any complaints of knee or neck injury, or from Dr. Vora‘s examination finding full range of motion in plaintiff‘s knees and the same restrictions in both her shoulders, and the opinion of Dr. Ross who found degenerative conditions in plaintiff‘s neck, right shoulder and right knee. A failure to address these latter findings, other than with simple conclusory statement that plaintiff‘s injuries were ―not degenerative‖, is fatal to plaintiff‘s case. It is also inconsistent with plaintiff‘s own statement to emergency room personnel that her medical history was positive for arthritis. (R. 19-20). The plaintiff unsuccessfully appealed from the Supreme Court‘s order. A majority of Justices concluded that Dr. McMahon‘s failure to address the opinions asserting degenerative conditions (by plaintiff & defendants‘ reviewing experts), as Andrew W. Klein, Esq. December 23, 2014 Page 6 well as the findings of the plaintiff‘s other treating physicians which conflicted with his opinion (i.e. normal knee range of motion and the same range of motion in both shoulders) warranted dismissal of the plaintiff‘s complaint. Two Justices dissented in part. The dissenting Justices agreed that the plaintiff did not raise an issue of fact as to the 90/180 category of Insurance Law § 5102(d). The dissenting Justices also agreed that the defendants met their prima facie burdens on the other statutory categories of ―serious injury.‖ Where the dissenting Justices differed with their colleagues is whether Dr. McMahon‘s opinion was sufficient to raise a triable issue of fact. In the opinion of the dissenting Justices, Dr. McMahon‘s reliance on the plaintiff‘s self-reported negative history and his examination findings were a sufficient basis to deem his opinion reliable as to causation. Additionally, the dissenting Justices noted that the examination performed 10 days after the accident found restriction of motion in the plaintiff‘s cervical spine and right shoulder. (albeit equal to the uninjured shoulder) ARGUMENT The Defendants Met Their Prima Facie Burden The plaintiff contends that the reports of the defendants‘ experts were insufficient to establish their prima facie burden. One issue that all five of the Appellate Division Justices, as well as the Supreme Court Justice who determined the motion, could agree upon was that the defendant‘s met their prima facie burden. It is well established that the submission of the opinion of a radiologist who explains that the plaintiff‘s injuries were not caused by a motor vehicle accident is sufficient to establish a defendant‘s prima facie burden (see Henry v. Hartley, 119 A.D.3d 528 [2 nd Dept. 2014]; Henry v. Sorge, 90 A.D.3d 1355 [3 rd Dept. 2011]; Amamedi v. Archibala, 70 A.D.3d 449 [1 st Dept. 2010]). Here, as discussed above, Dr. Ross provided detailed explanations to support his opinion that the plaintiff‘s alleged right shoulder and cervical spine injuries pre-dated the accident, and that there was no right knee injury appearing on MRI. In an attempt to attack the accuracy of Dr. Ross‘ opinion as to the right shoulder claim, the plaintiff argues that he failed to address the report of the plaintiff‘s radiologist who, according to plaintiff, concluded that plaintiff had a supraspinatus tear. The flaw in the plaintiff‘s argument is that it is premised on a misstatement of fact. What the plaintiff‘s radiologist actually opined was that there was ―focal increased signal in the supraspinatus tendon consistent with partial tear or tendinosis‖ (R. 277). Dr. Ross concluded, among other things, that ―[t]here are Andrew W. Klein, Esq. December 23, 2014 Page 7 supraspinatus tendinosis changes present, as well as tendinosis changes in the region of the conjoined supraspinatus and infraspinatus tendons‖ (R. 76). Dr. Ross went on to explain that these changes are degenerative in nature, and the result of chronic impingement which pre-dated the subject accident (R. 76). Dr. Ross opined that the plaintiff‘s cervical spine conditions were also part of a longstanding chronic process, and not associated with a one-time traumatic event. (R.82) As to the right knee, Dr. Ross opined that the MRI showed no signs of recent traumatic insult, but rather pre- existing degenerative conditions (R. 79). Thus, contrary to the plaintiff‘s contention, Dr. Ross‘ opinion about the shoulder MRI was consistent with the differential diagnosis of plaintiff‘s own radiologist, and his opinions as to the cervical spine and right knee were sufficient to establish that those allegations were not causally related to trauma incurred during the accident. The detailed opinions of Dr. Ross were, therefore, sufficient to meet the defendant‘s prima facie burden. Dr. Decter‘s report was also sufficient to meet the defendant‘s prima facie burden on the issue of causation. As listed in his report Dr. Decter reviewed nearly all of the plaintiff‘s medical records (R. 86-88,94-97). Had Dr. Decter not reviewed any of the plaintiff‘s medical records his reports finding full ranges of motion when combined with Dr. Ross‘ opinions on causation would also have been sufficient to meet the defendants‘ prima facie burden (see Barry v. Arias, 94 A.D.3d 499 [1 st Dept. 2012] [―The physicians‘ failure to review plaintiffs‘ medical records does not require denial of defendants‘ motion, as the doctors detailed the objective tests they employed during the examinations to find full ranges of motion, and the radiologist‘s finding of absence of recent trauma was based on an independent review of the MRI films‖]). Additionally, and contrary to the plaintiff‘s contention, Dr. Decter‘s request for intraoperative photographs does not render his opinion invalid in any way. Dr. Decter requested these photographs because the plaintiff‘s medical records did not provide a justification for surgery such that Dr. Decter requested the photographs to determine why a physician would even operate on the plaintiff (R. 88). Moreover, the plaintiff assumes that such photographs existed for Dr. Decter‘s review, and Dr. McMahon does not note he created such photos. Dr. Decter‘s request for these photographs does not render his opinions incomplete, it merely reaffirms his opinion that there is no evidence of a causal relationship between this accident and the plaintiff‘s alleged injuries. The plaintiff has incorrectly argued that the defendants failed to meet their prima facie burden. The reports of Drs. Decter and Ross combined with the plaintiff‘s own medical records establish that the plaintiff‘s injuries were not caused by the subject accident. The burden was shifted to plaintiff to prove, with objective medical evidence that her injuries were caused by the subject accident. As discussed below, she failed to meet her burden and summary judgment was appropriately granted. Andrew W. Klein, Esq. December 23, 2014 Page 8 The Opinion Of Dr. McMahon Is Wholly Conclusory And Insufficient To Raise A Triable Issue Of Fact The plaintiff incorrectly claims that the opinion of the majority of Justices of the Appellate Division is ―an erosion‖ of this Court‘s holdings in Perl v. Meher (18 N.Y.3d 208 [2011]) and Linton v. Nawaz (14 N.Y.3d 821 [2010]). To the contrary, the opinion of the dissenting Justices would not only erode this Court‘s decisions in the arena of the serious injury threshold, but the standard for admissibility of expert opinion evidence generally. The dissenting Justices were of the opinion that a medical expert who observes an injury and states in a conclusory fashion that there is a causal relationship between an accident and an injury is sufficient to raise an issue of fact. Stated differently, the dissenting justices opine Dr. McMahon raises an issue of fact by saying nothing more than the conclusory opinion that the injuries were caused by the accident. A reversal of the majority‘s opinion in this case would be a dramatic shift from the current standard that does not allow the opponent of summary judgment to rely on conclusory expert opinion to a new lower standard where experts can simply state conclusions without any factual support, and have it deemed reliable admissible expert opinion evidence. While the all of the Justices of the Appellate Division focused, correctly so, on the issue of causation the plaintiff is of the opinion that the issue of causation is not dispositive. The plaintiff has argued before this Court that ―[a]lthough not necessary, Dr. McMahon affirmed that the plaintiff‘s injuries are not degenerative in origin‖ (Pltfs. Letter Brief, pg. 6 [emphasis]). First, and foremost, it is absolutely necessary for the plaintiff to present expert evidence on the issue of causation. Second, the plaintiff‘s recitation of Dr. McMahon‘s opinion , which is as sparse as the doctor‘s opinion itself, only highlights how the plaintiff failed to raise a triable issue of fact. The plaintiff‘s incorrectly argues that Dr. McMahon does not mention the presence of the spur in plaintiff‘s right shoulder and, therefore, the spur does not exist. However, Dr. McMahon plainly stated that he observed a ―subacromial spur impinging upon the supraspinatus tendon complex‖ (R. 247). The record is replete with references to the bone spur in the plaintiff‘s shoulder beyond Dr. McMahon‘s report. First, the plaintiff‘s own radiologist identified the spur and noted that it was impinging on the plaintiff‘s supraspinatus tendon (R. 276). Second, the plaintiff actually claims the spur as an injury in her Bill of Particulars (R. 66). Third, her attorney claimed that bone spur was a ―serious injury‖ in opposition to the defendant‘s summary judgment motion (R. 216). Fourth, the fact that the plaintiff‘s allegedly injured and uninjured shoulders had identical restrictions of motion indicates that there is a non-traumatic process Andrew W. Klein, Esq. December 23, 2014 Page 9 causing the plaintiff‘s restriction of motion. Thus, Dr. McMahon acknowledged the presence and import of the bone spur, without disputing that it is degenerative, yet does not explain how this finding impacts his opinion of causation. This itself makes clear that his opinion as to causation of the shoulder injuries was conclusory and unsupported by the facts. It is axiomatic that a conclusory opinion of an expert is insufficient to raise a triable issue of fact. ―Where the expert states his conclusion unencumbered by any trace of facts or data, his testimony should be given no probative force whatsoever‖ (Amatulli v. Delhi Const. Corp., 77 N.Y.2d 525, 533 n.2 [1991]). In the area of ―serious injury‖ a plaintiff‘s expert affidavit is insufficient when i t fails to adequately address a plaintiff‘s preexisting condition and provide a foundation or objective medical basis for the expert‘s conclusions (see Franchini v. Palmieri, 1 N.Y.3d 536 [2003]). It is these basic tenets of summary judgment practice that have been overlooked by both the plaintiff and the dissenting Justices. Dr. McMahon claims the accident caused the plaintiff‘s alleged injuries without any explanation as to why he reached his conclusion. Additionally, he failed to address why he ignored or otherwise discounted the plaintiff‘s medical records which on their face are contrary to his opinion. An opinion such as Dr. McMahon‘s, which is bereft of any factual support is not sufficient to raise an issue of fact. While plaintiff argues that a treating physician should not have to address troublesome inconsistent and contradictory objective medical facts, even where they are apparent in the plaintiff‘s own treatment records, that view is contrary to this Court‘s standards for assessing the probative value, and thereby the admissibility, of such expert opinion evidence. In personal injury cases where the primary evidence on the determinative issue of causation is expert opinions, those expert opinions should only be deemed probative where they are premised upon a reasonably thorough review of the known facts and data, and provide explanation as to why the experts reached their conclusions. This is the test of ‗reliability‘ which this Court has indicated is necessary. (See, Matott v. Ward, 48 N.Y.2d 455 [1979]). In Matott, the plaintiff‘s initial treating physician, who was familiar with and considered all the facts involved, presented the court with an explanation of why he came to a conclusion that was consistent with the facts contained in the record. This opinion was held to be sufficiently detailed to be considered by the court. The law is clear: an expert must point to the substantive facts and the underlying reason for the proffered opinion, as opposed to merely stating an opinion in a certain but conclusory fashion. In this case, Dr. McMahon‘s expert opinion is premised on a few select facts from his own exams and surgeries – which were not contemporaneous to the accident, Andrew W. Klein, Esq. December 23, 2014 Page 10 coupled only with his reliance on plaintiff‘s subjective reported history. Yet the record showed, and the lower court painstakingly pointed out, that there was much more relevant, objective, significant evidence available – which he failed to review or address. Dr. McMahon‘s conclusion as to causation, which was properly rejected by the majority below, was fatally flawed because he never considered, much less explained, the numerous objective medical facts contained in the contemporaneous exams and testing of the plaintiff – which specifically contradicted his conclusion. A failure to address the prior inconsistent range of motion findings, contradictory or inconsistent findings by other treating physicians, and/or evidence of degenerative or pre-existing conditions or diseases including MRI evidence, are defects in the formulation of the opinion – which expose the expert‘s rationale as plainly speculative and conclusory. (see, Pommels v. Perez, 4 N.Y.3d 566 [2005]) Even if Dr. McMahon‘s opinion was not conclusory, it still lacks a factual foundation. A primary basis for Dr. McMahon‘s opinion is that the plaintiff simply told him that she had no prior history of injuries (R. 245-246). Here, there is no dispute that Dr. McMahon did not begin treating the plaintiff until after the accident. There is also no indication that he reviewed the plaintiff‘s pre-accident medical records. Given the numerous pieces of evidence showing the existence of preexisting injuries it was insufficient for Dr. McMahon to simply take the plaintiff‘s word that she had no history of injury (see Edwards v. Devine, 111 A.D.3d 1370, 1371-1372 [4 th Dept. 2013], quoting Kwitek v. Seier, 105 A.D.3d 1419-1421 [4 th Dept. 2013] [―Although plaintiff submitted the affidavit of the physician who treated him for his back and neck injuries, that affidavit was purely speculative and thus insufficient to raise an issue of fact as to causation because the physician began treating plaintiff after the accident and did not review plaintiff‘s pre-accident medical records‖]). Simply put, Dr. McMahon‘s opinions are wholly conclusory and insufficient to raise a triable issue of fact. The majority of Justices correctly observed that Dr. McMahon expressed no reliable basis to opine that there was a causal relationship between the plaintiff‘s alleged injuries and the accident. . The Majority Opinion Does Not Depart From The Precedents Of This Court The plaintiff is attempting to stretch this Court‘s Perl and Linton decisions to lengths not intended by this Court. In Perl, this Court noted ―that many courts, including ours, approach claims that soft-tissue injuries are ‗serious‘ with a ‗well- deserved skepticism‘‖ (Perl, 18 N.Y.3d at 214, quoting Pommells, 4 N.Y.3d at 571). Andrew W. Klein, Esq. December 23, 2014 Page 11 The plaintiff in this case focuses so much on the result in Perl that she forgets the nature of the evidence that this Court held was sufficient to support the Perl plaintiff‘s position. Unlike in this case, the plaintiff‘s physician in Perl was presented with only the opinion of a radiologist who concluded that the radiological studies of the p laintiff -- while presenting evidence of degeneration -- were not sufficient to rule out trauma, and that the etiology could best be determined by the treating physician – in view of all the facts (id. At 219). Thus, this Court looked to the affirmation of the plaintiff‘s treating physician who concluded there was a causal connection between the plaintiff‘s injuries and the accident based on the plaintiff‘s lack of prior medical conditions ( id.). In Perl, there was no other objective medical evidence in the record which was relevant to the causation issue, and no evidence which the treating physician failed to address. For example, there was no evidence documenting a complete lack of trauma --- as is glaringly present in this case in the form of the EMS findings and the ER findings – where plaintiff did not even complain of the right shoulder and right knee. There was also no prior inconsistent range of motion findings, nor MRI evidence confirming the presence of pre-existing non-traumatic conditions such as a bone-spur or arthritis. So the record in Perl stands in stark contrast to that presented here. The plaintiff‘s reliance on Linton is also misplaced. This Court‘s decision in Linton did not expound on which facts the plaintiff presented to raise a triable issue of fact. The majority opinion of the Appellate Division (62 A.D.3d 434 [1 st Dept. 2009]), however, describes a record that is significantly different from the one currently before this Court. The Linton defendant was only able to come forth with reports from a radiologist that addressed some of the plaintiff‘s allegedly injured body parts, and the defendant‘s expert‘s opinions were in conflict with the reports of the treating radiologist (Linton, 62 A.D.3d at 435-436). Additionally, the first medical treatment of the plaintiff in Linton found significant restrictions of motion and positive clinical tests of injury - 8 days after the accident, unlike in this case. Moreover, there was no EMS or ER evidence documenting an absence of complaint, much less trauma, and there were no prior inconsistent range of motion findings. In other words, the Linton plaintiff explained that there were questions of fact on causation and did not merely state, without explanation, that the plaintiff‘s injuries were not degenerative. Here, however, the same Appellate Division found that plaintiff‘s doctor‘s conclusions were conclusory and unsupported by objective medical evidence — a determination based on the specific facts presented, and not based on an ‗over-stepping‘ reconstruction of, or change in, the law. Andrew W. Klein, Esq. December 23, 2014 Page 12 As this Court has repeatedly recognized, Insurance Law s.5102(d) was enacted to allow the courts to weed out frivolous cases that are not supported by competent evidence. If the position of the plaintiff, and the amicus, were adopted, however, the Court would not be able to exercise its gatekeeping function at all, as it could never dismiss a case on written submissions, notwithstanding the complete lack of competent, objective, admissible evidence. Instead, although plaintiffs would still require defendants to present competent, admissible, objective evidence, a plaintiff would be relieved of their burden and could defeat a motion merely by making a self-serving statement that their complaints started with the accident, without laying bare any proof or offering competent, objective, admissible evidence. In other words, the Court would have to ignore the rules about laying bare one‘s proof and presenting competent evidence in opposition to a summary judgment motion, and, instead, allow incompetent, inadmissible statements to suffice when it is a personal injury action. Simply put, plaintiff‘s position not only would drastically change the law as to burden of proof, but would defeat the threshold statute‘s purpose, as nearly every case would have to proceed to trial, when a plaintiff claims, without explanation, that the accident caused their injuries. The application of this Court‘s rules for admissibility of expert opinion – requiring review and explanation of the available medical facts, is not onerous and burdensome. It is fair and just, and prevents the danger of speculative and conclusory testimony being presented to juries with the imprimatur of the court on a well-credentialed expert. It is a reasonable common law rule applicable in all civil cases, and not a constitutional by which plaintiffs are deprived of a right to jury trial, nor an example of infringement on the legislative function. The role of the Courts in this state has been to enforce rules of evidence -- almost all of them common law created --- under the principles of relevance and probative value. That is not altered by mere fact that the legislature enacted Article 51. Contrary to the plaintiff‘s arguments, the majority‘s opinion in this case does not reduce the standards set forth in Perl and Linton. The majority‘s opinion merely recognizes there is a distinction between the existence of an injury and a cause of an injury. To the extent the plaintiff‘s expert in Perl had only a little evidence from which to opine – it was in no way a pronouncement by this Court that every expert need only cite to a little evidence – to make a reliable opinion. The majority in this case applied this Court‘s evidentiary standards for the probative value of an expert opinion – consistent with this Court‘s precedents. The plaintiff, and the dissenters, urge a lower standard, one which would appear to perfunctory in practice. The dissent in Perl wisely cautioned against such a path, especially in view of the concerns about fraud which pervade New York‘s motor-vehicle no-fault system. Andrew W. Klein, Esq. December 23, 2014 Page 13 We submit that to the extent plaintiff claims that the Appellate Division failed to follow this Court‘s case law, her argument is without merit and should be rejected. Accordingly, for the reasons set forth above and in the Respondent‘s brief to the Appellate Division, we submit that the Order below should be affirmed, together with costs and disbursements Dated: December 23, 2014 Respectfully submitted, ____________________________________ Colin F. Morrissey, Esq. Baker, McEvoy, Morrissey & Moskovits, P.C. Attorneys for Defendants-Respondents NYLL Management Ltd. & Leonicio Peguero One Metrotech Center Brooklyn, NY 11201 212-857-8230