New York’s No-fault scheme often frustrates defendants, when a seemingly minor limitation in range of motion can create a “triable issue of fact” that defeats a motion to dismiss, for failure to meet the serious injury “threshold” under New York Insurance Law §5104.

Conversely, plaintiffs sometimes find themselves frustrated by dismissals for more serious injuries, if there is a disruption in the causal connection between the accident and the present injury.  In Sciarrone v Juliano, the U.S. District Court for the Eastern District of New York granted a defendant’s motion for summary judgment that the plaintiff did not sustain a “serious injury” pursuant to New York Insurance Law §5104 (a) despite the plaintiff presenting medical evidence of concussion, white matter brain lesions, a herniated disc and an ankle fracture.

The case arose from a motor vehicle accident in which the plaintiff was rear-ended by the defendant on December 22, 2011.  An MRI of her brain taken after the accident was interpreted as showing white matter lesions but the defendant discovered an MRI pre-dating the accident with a similar finding.  The federal court cited Pommels v. Perez, 4 N.Y.3d 566, 572 (2005) to support the finding that a pre-existing condition can interrupt the chain of causation.

Further, the Plaintiff’s doctors failed to adequately address the prior MRI in their affidavits, and medical evidence of her concussion symptoms following the accident was overpowered by her prior medical records which showed a history of migraine headaches and disorientation.

The plaintiff’s arguments that an objective finding of disc herniation at T-7/8 and neck and shoulder pain were indicative of a serious injury were defeated by her deposition testimony that she had no pain or limitations in her middle back and defendant’s expert finding that her range of motion in her neck and shoulder was normal. Again, the plaintiff’s doctors failed to address pre-existing degenerative changes in her cervical and thoracic MRIs in their reports.  Finally, the plaintiff’s fractured ankle was disregarded as not related to the accident since the cause of the fracture was her falling at home due to alleged symptoms from her concussion 13 months after the accident.

The lesson for plaintiffs is to have their treating doctors adequately address pre-existing medical records.  Otherwise, they risk failing to overcome the serious injury “threshold” under §5104 (a).

Thanks to Jim Rogers for his contribution to this post.