Articles Posted in Car Accidents

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The No-Fault Law has a remedial purpose, i.e., to reduce insurance premiums by weeding out frivolous claims and limiting recovery to significant injuries. This law is in derogation of a common-law right of an injured person to bring an action for injuries sustained in an automobile accident caused by the wrongful conduct of another motorist. Being remedial in nature, the No-Fault Law must be accorded a liberal interpretation and the widest application in order to carry out reforms intended. However, that law, being in derogation of common-law rights, also involves the “rule of strict construction,” which requires, therefore, an interpretation of the No-Fault law which “makes no further innovation upon common law rights than the particular case requires.” Courts are thus confronted with a conundrum caused not only by the above conflicting statutory requirements, but also by what often seems like an impossible task: to discern, on motion, the false and frivolous and to distinguish “minor, mild or slight” injury from appropriate claims. These impairments, though unobservable, can cause genuine quality of life changes in those who really suffer same. These are usually issues which are presented to jurors at trial, who have the benefit of live testimony and can make credibility determinations. The task of deciding these issues on “papers” are, at best, extremely difficult.

There are those who harbor a flawed assumption that judges (on papers), rather than medical scientists and jurors, are more able and equipped to discern and distinguish the false, frivolous and/or insignificant claims of serious injury from those which can cause legitimate, sometimes profound and “more than frivolous” limitations, pain and quality of life impairments. This legislatively imposed task has caused more than a season of judicial discontent and frustration, it has resulted in an extremely difficult and flawed process which results too often in an inconsistent and unfair application of the law.

This court is not sufficiently prescient to determine whether this plaintiff actually, as claimed, has ongoing significant cervical and lumbar pain, limitations and quality of life impairments. Certainly these kinds of injury and limitations can be feigned and/or exaggerated. When genuinely significant, however, cervical and lumbar injuries can be insidious and their syndrome is characterized by periods of remission and exacerbation which is not readily observable by others. Certainly if plaintiff’s injuries have continued to effect his relationship with his wife and preclude him from lifting anything heavy, playing soccer or volleyball, and assisting his wife with ordinary chores, such as grocery shopping, then, this court would certainly not conclude that the claim is frivolous or that the injuries are insignificant. But since the court cannot infallibly predict what the plaintiff’s future course may be, it must make its decision on this motion based upon the examples and standards (clues) promulgated by appellate authority to assist it in making its determination. This obligation, as discussed above, can be exceedingly difficult and frustrating.

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The proponent of a motion for summary judgment must tender sufficient evidence to show the absence of any material issue of fact and the right to judgment as a matter of law. In the present action, the burden rests on defendant to establish, by the submission of evidentiary proof in admissible form, that plaintiff has not suffered a “serious injury.” When a defendant’s motion is sufficient to raise the issue of whether a “serious injury” has been sustained, the burden shifts, and it is then incumbent upon the plaintiff to produce sufficient prima facie evidence in admissible form to support the claim of “serious injury”.

A plaintiff cannot defeat a motion for summary judgment and successfully rebut a prima facie finding that he did not sustain a “serious injury,” merely by relying solely on documented subjective complaints of pain, or by the mere submission of an MRI report demonstrating the existence of a bulging or herniated disc, absent medical proof of a significant physical limitation related thereto.

Claims of “serious injury” under the “permanent consequential limitation” category and under the “significant limitation” category are the most difficult for trial and appellate courts to assess. As noted above, these terms are not defined and many times are used interchangeably. In an effort to assist the trial courts, and to better implement the “legislative intent to weed out frivolous claims and limit recovery to significant injuries,” the Court of Appeals.

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Defendant’s counsel usually submits at least two (sometimes three) affirmations of so-called “independent”1 medical experts (an orthopedist, a neurologist, and radiologist, usually from the same stable of defense medical experts), each of whom examine the plaintiff and/or the reports and tests submitted by plaintiff, and then by affirmation refute plaintiff’s claim to have sustained a serious injury. These examinations usually take place years after the automobile accident which has been alleged to cause injury, and each of the defendant’s medical experts conclude that plaintiff is no longer impaired or injured; that all tests and findings are normal; that if originally injured, said injuries have resolved; and that, in any event, all of plaintiff’s claimed limitations or impairments have been caused, not by the accident, but by degenerative (normal aging process) changes in the cervical and lumbar regions. Except for the dates and the unique peripheral circumstances presented by each case, these medical reports and affirmations submitted by defendant’s chosen medical experts, are virtually identical. Plaintiff’s submissions, made in opposition to a defendant’s motion, are no less boilerplate.

The issue in this case is whether plaintiff sustained serious injury.

This case, like all other “serious injury” cases, presents the court with the ongoing and frustrating conundrum of deciding when a plaintiff’s injury qualifies as significant within the meaning of the No-Fault Law.

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A Bronx Estate Litigation Lawyer said that, defendants move for summary judgment pursuant to CPLR 3212 and dismissal of the complaint against them, for the failure of the plaintiff to prove that he has sustained a “serious injury,” as that term is defined in section 5102 of the Insurance Law.

The accident underlying this case occurred on December 21, 2004 at approximately 12:45 P.M. at the intersection of E. 188th St. and Cambreleng Avenue in the Bronx, at which time and place the vehicles owned and driven by the plaintiff and defendant collided. The 33-year-old plaintiff, who did not lose consciousness, and was not bleeding, was removed from the scene of the accident by ambulance and taken to St. Barnabas Hospital. At the hospital, he complained of pain in his chest, neck and back, and he stated that, even though he was wearing a seatbelt, his chest hit the steering wheel. X rays were taken of the cervical spine and of the chest, both of which were determined to be negative. Thereafter, he was released the same day.

A Bronx Estate Lawyer said that, on December 30th, nine days post accident; plaintiff came under the care of an internist. The underlying treatment records, and the empirical data contained therein, were provided and reviewed by the defendants’ physicians, but were not submitted to the court. All of the information concerning the substance of plaintiff’s care and treatment is gleaned from the affirmation of the internist, dated April 21, 2008, which was submitted in opposition to defendants’ motion to dismiss. In any event, on plaintiff’s first visit to the internist, the plaintiff reported that after the accident he had ringing in his ears and nausea; and he complained of neck pain radiating down to his shoulders with numbness; periods of dizziness when turning his head; shooting pain in his arms when turning his neck, especially on the left side; and lower back pain which gets worse on physical exertion and which spreads to the right buttocks, right thigh and leg, with a tingling sensation. On that occasion the internist conducted a neurological and physical examination which, with the use of a goniometer, included cervical and lumbar range of motion tests and measurements; and he found that plaintiff “suffered from a limited range of motion of the cervical and lumbar spines,” and diagnosed the plaintiff with “traumatic nerve root injury, plexopathy due to plexus stretching of compression pain by injured muscles, referred nociceptive pain, myofascial pain syndrome with cervical and lumbar spine trigger points and a lumbosacral sprain.” Despite the use of the goniometer, the numerical measurements of the limitations are not set forth anywhere in the plaintiff’s submissions. The internist does state in his affirmation, however, that they were “less than the normal range of motion.”

Based on all of the above, plaintiff was started on a course of aggressive physical therapy (which continued from December 30, 2004 until May 27, 2005), and he was “sent for MRI and other diagnostic testing,” including nerve conduction velocity (EMG/NCV) tests. However, only the results of the MRI, which was conducted on January 17, 2005, are presented to the court on this motion. The MRI testing of plaintiff’s lumbar and cervical spine was conducted by a radiologist, who in an affirmation dated April 15, 2008 states that the plaintiff “suffered a posterior disc herniation at L5-S1 into the epidural fat abutting the interior sac margin and anterior disc bulges into the prevertebral soft tissues at L2-3 and L4-5; and posterior disc bulges at C3-4, C4-5 and C5-6 all of which impinge on the thecal sac.”

In the MRI report, attached to the affirmation dated January 17, 2005, the following additional relevant findings are set forth: a straightening of the lumbar curvature, and a mild loss in the signal intensity of the L2-3, L4-5, and L5-S1 intervertebral discs “which reflect mild and slight loss in fluid content respectively.” On February 8, 2005, after a review of his own records together with the MRI results, the internist concluded that plaintiff’s cervical and lumbar injuries “were caused as a result of plaintiff’s motor vehicle accident of December 21, 2004”; and “it was determined that the best course of treatment would be continued physical therapy,” which, as noted above, lasted until May 16, 2005.

In May of 2005, the physical therapy sessions were discontinued because the plaintiff’s “no-fault benefits were terminated” and the internist determined that, in any event, “any further physical therapy would have only been palliative in nature.”

The defendants’ motions and plaintiffs’ responses have become almost assembly line, “cookie cutter” prototypes; and attorneys for defendants (and most plaintiffs) have become expert on how to present or attack a serious injury claim. Defendants are very adept at providing prima facie proof demonstrating that a plaintiff has not suffered a serious injury; proof at the very least sufficient to meet their “initial burden” to present competent evidence that plaintiff has no cause of action. Plaintiffs, too, have become quite conversant with the requirements to defeat a defendant’s motion.

To Be Cont…
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In the first instance, and contrary to the defendants’ contention, the notice of claim was sufficient to enable the defendants to investigate the allegations contained therein. The notice of claim was sufficient for the defendant to locate the place, fix the time, and understand the nature of the accident. Further, there is no merit to the defendants’ contention that the plaintiff changed his theory of recovery from a claim that he was hit by a bus designated as number 9167, as set forth in the notice of claim, to a generalized claim at trial that he was merely hit by a bus. The theory propounded by the plaintiff at trial, and as charged to the jury, was that the plaintiff was hit by a bus operated by JA, and that the particular bus operated by Arroyo was designated as number 9167. Accordingly, the plaintiff did not rest his action on a theory that was not asserted in the notice of claim.

Additionally, we reject the defendants’ contentions that, based on the evidence adduced at trial, the jury’s findings that the defendants were negligent and that the plaintiff’s injuries constituted a serious injury, as well as the jury’s apportionment of fault between the plaintiff and the defendants, were not rationally based on a valid line of reasoning and permissible inferences drawn from that evidence.

Moreover, it is for the jury to make determinations as to the credibility of the witnesses, and it is accorded great deference, as it had the opportunity to see and hear the witnesses. A jury verdict in favor of a plaintiff may not be set aside as contrary to the weight of the evidence unless the evidence so preponderates in favor of the defendants that the verdict could not have been reached on any fair interpretation of the evidence. Here, the jury verdicts on the issues of the defendants’ negligence and the apportionment of fault were not contrary to the weight of the evidence, since they were based upon a fair interpretation of the evidence.

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In an action to recover damages for personal injuries, the defendants appeal from a judgment of the Supreme Court, Kings County dated May 27, 2008, which, upon a jury verdict on the issue of liability finding that they were 80% at fault in the happening of the automobile accident and that the plaintiff was 20% at fault in the happening of the accident, upon a jury verdict on the issue of damages, and upon an order of the same court dated February 26, 2008, denying their motion pursuant to CPLR 4404(a), inter alia, to set aside the verdicts on the issues of liability and damages and for judgment as a matter of law or, in the alternative, for a new trial is in favor of the plaintiff and against them in the principal sum of $2,375,871.

On September 22, 2003, the plaintiff, LR, allegedly was injured when he was struck by a bus owned by the defendant New York City Transit Authority (hereinafter NYCTA) and operated by JA, sued herein as John Doe, as the plaintiff was crossing Gates Avenue at its intersection with Franklin Avenue in Brooklyn.

After serving a notice of claim upon NYCTA, and thereafter commencing this action, the plaintiff served a verified bill of particulars dated June 4, 2003, alleging that he sustained permanent, serious personal injuries including, inter alia, L5–S1 disc protrusion with impingement on the proximal right S1 nerve root and L4–5 disc bulge. On July 27, 2006, he underwent surgery consisting of right-sided hemilaminotomy, L5–S1 and right-sided partial disectomy L5–S1. The plaintiff did not claim aggravation of any preexisting condition or prior injuries. After the trial on the issue of liability, the jury found the defendants 80% at fault in the happening of the accident and the plaintiff 20% at fault.

After the trial on the issue of damages, the jury found that the plaintiff, as a result of the accident of September 22, 2003, sustained a significant limitation of use of body function or system. The jury awarded the plaintiff the sums of $200,000 for past pain and suffering, $1,210,000 for future pain and suffering for 25 years, $60,000 for past loss of earnings, and $905,871 for future loss of earnings over 17 years.

The defendants moved, pursuant to CPLR 4404(a), inter alia, to set aside the jury verdict on the issues of liability and damages, and for a judgment as a matter of law, arguing, among other things, that several of the plaintiff’s injuries were not proximately caused by the subject accident, and that those injuries which may have been caused by the accident did not meet the threshold of serious injury required by Insurance Law § 5102(d). In an order dated February 26, 2008, the Supreme Court denied the defendants’ motion. A judgment in favor of the plaintiff was subsequently entered. The defendants appeal. We reverse, and grant a new trial on the issues of causation and, if necessary, damages.

A postverdict motion pursuant to CPLR 4404(a) for judgment as a matter of law, made on the ground that a jury verdict is not supported by legally sufficient evidence, may be granted only if the court concludes that there is simply no valid line of reasoning and permissible inferences which could possibly lead rational persons to the conclusion reached by the jury on the basis of the evidence presented at trial.

To Be cont….
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The primary difficulty, however, with the future loss-of-earnings award is the evidence, presented by Plaintiff’s own witness, that, even after the accident, Plaintiff was able to do other work. Indeed, both before and after the accident, Plaintiff developed a tax preparation business that yielded the same compensation for four-months’ effort that driving a taxi yielded for eight months, even assuming he was not doing both during January through April. And, even assuming that Plaintiff’s tax preparation business could not be extended beyond that four-month period, it demonstrates Plaintiff’s ability to earn by doing work other than taxi driving that could provide even higher compensation.

Plaintiff testified to no efforts made after the accident to replace his income from taxi driving, although, to be fair, he was not asked by either his counsel or Defendants’. The question is, was it Plaintiff’s burden to introduce evidence that he would be unable to replace the income from taxi driving, in order to show loss in fact, or was it Defendants’ burden in an effort to mitigate damages that necessarily would follow?

A litigant who seeks recovery for diminution of future earnings is obligated to submit some evidence showing the difference between what he is now able to earn and what he could have earned if he had not been injured. Here, Plaintiff’s evidence as to “what he is now able to earn” is limited to the four-month period during which he provides tax preparation services.

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At the core of lost earnings assessment is the focus, in part, on the plaintiff’s earning capacity both before and after the injury. When future loss of earnings is claimed, reasonable certainty must be based upon future probabilities. An expert vocational economic analyst is permitted to provide an opinion as to future lost earnings, since the process of calculating such damages is beyond the general knowledge of the average juror. Where the plaintiff is an infant, expert opinion of that type might be required.

The lost earnings claim, therefore, is comprised of several interrelated elements, on each of which the plaintiff bears at least the burden of coming forward with evidence: medical evidence of disability, depending upon the nature of the injury; proof of causation in fact, primarily the difference between the plaintiff’s earning capacity before and after the accident and proof of the amount of the loss, including necessary documentation and fair calculation.

An injured plaintiff, moreover, is obligated to mitigate damages by endeavoring to seek alternate employment.

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As previously noted, the jury awarded Plaintiff $87,500 for past lost earnings, and $300,000 for future lost earnings, intended to compensate Plaintiff for 30 years. Defendants challenge both awards, but on different grounds. As for the award for past lost earnings, Defendants contend that the evidence does not support an award of $87,500 for the three and a half year period from the date of the accident until trial. Rather, according to Defendants, at the annual rate of approximately $19,000, the verdict could have been approximately $70,000.

Defendants also point out that Insurance Law § 5104 [a] precludes recovery of basic economic loss which does not exceed $50,000.00.

As for the award for future lost earnings, Defendants contend that it must be vacated in its entirety. Defendants argue that the claim of plaintiff and Dr. CK that plaintiff is unable to return to driving a taxi is not a sufficient basis to justify an award of future lost earnings; rather, plaintiff must establish that Mr. MM is precluded from engaging in any wage earning activity.

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On December 3, 2008, at the conclusion of the liability phase of a bifurcated trial in this action, arising out of auto accident collision on June 5, 2005, the jury determined that defendants R.W. Express LLC and AW were solely at fault in causing the collision. On December 9, 2008, at the conclusion of the liability phase of the trial, the jury determined that Plaintiff MM had sustained a serious injury within the meaning of Insurance Law § 5102 (d), and awarded him damages in the total amount of $517,500; representing $30,000 for past pain and suffering; $100,000 for future pain and suffering, intended to compensate for a period of 30 years; $87,500 for past loss of earnings; and $300,000 for future loss of earnings, again intended to provide compensation for a period of 30 years.

Defendants R.W. Express LLC and AW now move for an order setting aside portions of the verdict, presumably pursuant to CPLR 4404 (a), although no statutory provision is cited in the Notice of Motion or the Affirmation in Support. Plaintiff understands the motion as seeking relief pursuant to CPLR § 4404 urging that the jury verdict deviates materially from what would be reasonable compensation, although the material deviation standard is found in CPLR 5501 (c). As will appear, both CPLR 4404 (a) and CPLR 5501 (c) figure prominently in the review of jury verdicts awarding damages for personal injury, both for economic loss and non-economic loss.

Defendants do not seek review of the awards for past and future pain and suffering. The motion is limited to the awards for loss of earnings, past and future, seeking reduction of the former and the setting aside of the latter. As to the award for future loss of earnings, Defendants do not state whether they seek judgment as a matter of law on that part of the verdict, or a new trial. The tenor of Defendants’ argument, however, is that Plaintiff is not entitled to any compensation for future loss of earnings.

Plaintiff MM was 34 years old on the date of the accident, June 5, 2005, and was 37 years old at trial. Prior to 2005, and after he immigrated to the United States, Plaintiff worked only as a taxi driver, although he was also involved, without pay, with an organization that provided aid to persons in Bangladesh and immigrants from that country. Defendants maintain that the evidence at trial would support a finding of pre-accident earnings from taxi driving of approximately $ 19,000 each year, which is actually more than the amount proferred by Plaintiff.

Beginning in 2005, Plaintiff has provided income tax preparation services, for which he has earned approximately $19,000 to $ 20,000 each year. Plaintiff testified at trial that, before the accident, he intended to both continue to drive a taxi and to provide tax preparation services, the latter during the months January to April, when such services are usually required.
Plaintiff also testified that, after the injury, he tried to continue driving a taxi, but found that he could not. After the accident, Plaintiff treated for approximately eight months at Metro Medical, P.C. No one from Metro Medical testified at trial, but its records were admitted into evidence, and they were reviewed by Plaintiff’s subsequent treating physician, Dr. CK, who did testify.

Dr. CK first saw Plaintiff on May 17, 2006 and last examined him on August 20, 2008. Based upon MRI studies of Plaintiff’s cervical spine and lumbar spine taken, respectively, October 25 and October 28, 2007, i.e., more than two years after the accident, Dr. CK testified that Plaintiff sustained two small bulging discs in his cervical spine, and two herniated discs in his lumbar spine. Dr. CK also testified to other positive findings, including restricted range of motion in the cervical spine and the lumbar spine.

Most important for present purposes is Dr. CK’s testimony concerning Plaintiff’s ability to work, since he provided the only evidence, other than Plaintiff’s testimony, to support the claim for past and future loss of earnings. Dr. CK recounted his understanding of Plaintiff’s work history after the accident.

Upon cross-examination, Dr. CK acknowledged that on June 15, 2006 Plaintiff apparently told one of the other doctors in Dr. CK’s practice that he was then working part-time as a taxi driver.
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