Jung v. Kelly

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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MIDEUM JUNG, :

: DECISION AND ORDER

Plaintiffs, :

: 16-CV-6097 (PK)

-against- :

:

DIANE D. KELLY and MERCK & CO., INC., :

:

Defendants. :

:

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Peggy Kuo, United States Magistrate Judge:

Mideum Jung (“Plaintiff”) brought this action against Diane D. Kelly and Merck & Co., Inc.

(“Defendants”), alleging a “serious injury” under New York Insurance Law Section 5102(d) to

recover for injuries suffered as a result of a motor vehicle collision.1

Before this Court is Defendants’ motion for summary judgment (the “Motion”) (Dkt. 43),

pursuant to Federal Rule of Civil Procedure 56. For the reasons stated herein, the Motion is granted

in part and denied in part.

BACKGROUND

I. Factual Background

The following facts are drawn from Defendants’ Statement of Material Facts Pursuant to

Local Rule 56.1 (“Def. 56.1 Stmt.,” Dkt. 44), Plaintiff’s Counter-Statement of Material Facts (“Pl.

56.1 Stmt.,” Dkt. 50), its supporting documents, the Declaration of Alex M. Temple, Esq. in

Support of the Motion (“Temple Decl.,” Dkt. 45), and its supporting documents.

A. The Collision

On September 14, 2015, defendant Kelly was driving a vehicle during the course of her

1 Plaintiff Hannah Jung and defendant Wheels LT were originally named but dismissed from the case on

March 8, 2019. (Dkts. 41–42.)

employment with defendant Merck & Co., Inc., when it came into contact with the vehicle driven by

Plaintiff on or near a ramp to the New Jersey-bound entrance to the Holland Tunnel. (Def. 56.1

Stmt. ¶¶ 2, 4; Ex. G to Pl. 56.1 Stmt., Plaintiff Mideum Jung’s Affidavit (“Jung Aff.”) ¶ 2, Dkt. 50-7.)

No airbags deployed during the collision. (Def. 56.1 Stmt. ¶ 12.) Plaintiff was wearing his seat belt

and it remained fastened. (Id. ¶ 10.) Defendant Kelly testified that her vehicle was traveling at a rate

of less than one mile per hour immediately before the collision (Ex. D to Def. 56.1 Stmt., Kelly

Deposition Transcript at 51, Dkt. 45-4) and characterized the contact between the vehicles as

“extremely light” (id. at 54). Plaintiff testified that he believes his vehicle was stopped at the time of

the collision. (Ex. E to Def. 56.1 Stmt., Jung Deposition Transcript (“Jung Dep.”) at 63, Dkt. 45-5.)

After speaking with the police, Plaintiff drove home. (Def. 56.1 Stmt. ¶ 14.) He testified at his

deposition to first feeling pain in his right shoulder that evening, and on his back and neck “within

that week [or] three or four days later.” (Jung Dep. at 90-91.) He later asserted that he “immediately

[…] began to suffer from severe and persistent pain on the right shoulder, neck and lower back.”

(Jung Aff. ¶ 3.)

B. Plaintiff’s Medical Treatment

1. Immediate Medical Treatment

Beginning September 17, 2015 and continuing through January 8, 2016, Plaintiff received

massage therapy, chiropractic treatment, and acupuncture treatment approximately three times per

week at Apple Pain Management & Rehab (“Apple”). (Pl. 56.1 Stmt. at 5, ¶ 2; Jung Aff. ¶ 4.)

Plaintiff stopped treatment because his no fault benefit was terminated and he could no longer

afford treatments. (Jung. Aff. ¶ 4.)

An MRI of Plaintiff’s lower back and neck on November 3, 2015 revealed several bulging

discs, and an MRI of the right shoulder on November 5, 2015 revealed an anterior superior lubral

tear, a deltoid tear, and “[p]artial tears of the subscapularis, supraspinatus and infraspinatus

tendons.” (Jung Aff. ¶¶ 10-12; Ex. B. to Pl. 56.1 Stmt., Dkt. 50-2.)

To treat his lumbar spine injuries, Jung received lumbar injections on February 5 and 6,

2016. (Pl. 56.1 Stmt. at 7, ¶¶ 14–16.) The post-operative diagnosis for the February 5, 2016

procedure was “myofascial pain” (Ex. A to Pl. 56.1 Stmt., Dkt. 50-1 at 6) and the post-operative

diagnosis for the February 6, 2016 procedure was several injuries to the lumbar spine. (Id.)

Between June 17, 2016 and August 4, 2016, Plaintiff sought treatment at Northern Physical

Therapy, Chiropractic and Acupuncture, PLLC approximately once a week. (Pl. 56.1 Stmt. at 5, ¶ 3;

Jung Aff. ¶ 4.)

2. Dr. Arden Kaisman Treatment

Dr. Arden Kaisman2 examined Plaintiff on June 2, 2016. (Pl. 56.1 Stmt. at 11, ¶ 27; Ex. F to

Pl. 56.1 Stmt. (“Kaisman Aff.”) ¶ 10, Dkt. 50-6.) Dr. Kaisman performed a range of motion test

using a goniometer on the cervical spine and found that Plaintiff was restricted (from a normal

range) in forward flexion by 15 degrees, extension by 20 degrees, right and left lateral bending by 15

degrees, and right and left lateral rotation by 40 degrees. (Kaisman Aff. ¶¶ 11.) Plaintiff’s biceps

reflexes were slightly decreased, but Dr. Kaisman found normal triceps reflexes and normal motor

strength in the upper extremities. (Id.) There was mild-to-moderate pain and spasms in the cervical

spine. (Id.) Range of motion in the lumbar spine was restricted (from the normal range) in forward

flexion by 35 degrees, extension by 30 degrees, right and left lateral bending by 5 degrees, right and

left lateral rotation by 20 degrees. (Id. ¶ 15.) Palpation revealed some pain and spasms. (Id.)

Because more conservative treatment measures had failed, on June 10, 2016, Dr. Kaisman

performed a percutaneous discectomy on Plaintiff’s lumbar spine. (Pl. 56.1 Stmt. at 7, ¶ 12; Jung

Aff. ¶ 7; Ex. I to Pl. 56.1 Stmt., Dkt. 50-9; Kaisman Aff. ¶ 5.) The post-operative diagnosis was

bulging discs and lumbar radiculopathy. (Kaisman Aff. ¶ 7.)

2 Defendants describe him as an anesthesiologist and pain management specialist. (Defs.’ Memo of Law at 4.)

On June 24, 2016, again due to the failure of more conservative therapy, Dr. Kaisman

performed a percutaneous discectomy on Plaintiff’s cervical spine. (Pl.’s 56.1 Stmt. at 6, ¶ 10; Jung

Aff. ¶ 7; Ex. I to Pl. 56.1 Stmt. at 4; Kaisman Aff. ¶ 5.) The post-operative diagnosis was bulging

discs and cervical radiculopathy. (Kaisman Aff. ¶ 6.)

3. Dr. Mark McMahon Treatment

Dr. Mark McMahon, a licensed doctor of orthopedic surgery, examined Plaintiff on

September 16, 2016. (Pl. 56.1 Stmt. at 8, ¶ 17; Jung Aff. ¶ 4; Ex. D to Pl. 56.1 Stmt. (“McMahon

Aff.”) ¶ 2, Dkt. 50-4.) At this initial examination, Dr. McMahon performed a range of motion test

and found Plaintiff’s right shoulder elevation was restricted by 5 degrees and his internal rotation

was restricted to T12 (where normal is T10). (McMahon Aff. ¶ 13.)

On October 21, 2016, Dr. McMahon performed arthroscopic surgery on Plaintiff’s right

shoulder. (Pl. 56.1 Stmt. at 6, ¶ 8; Jung Aff. ¶ 8; Ex. H to Pl. 56.1 Stmt., Operative Report of Dr.

Mark McMahon, Dkt. 50-8 at 2.) Dr. McMahon’s post-operative diagnosis was a labral tear and

additional partial tears. (McMahon Aff. ¶ 14.)

Plaintiff returned to Dr. McMahon’s office on November 1, 2016 for suture removal. (Id. ¶

15.) Dr. McMahon found Plaintiff’s elevation restricted by 10 degrees, internal rotation limited to

L4 (where normal is T10), and external rotation restricted by 10 degrees. (Id.)

C. July 4, 2017 Car Collision

On July 4, 2017, Plaintiff was in a second car collision. (Pl. 56.1 Stmt. ¶ 39; Jung Aff. ¶ 13.)

Plaintiff sustained an injury to his right knee. (Jung Aff. ¶ 13.) When asked if he felt any increased

pain in his neck, lower back or right shoulder as a result of that accident, Plaintiff testified, “I don’t

think so.” (Ex. E to Temple Decl., “Jung Dep.” at 130-131.) Both Dr. Kaisman and Dr. McMahon

affirm that Plaintiff sustained injuries to his right knee stemming from this accident. (Kaisman Aff.

¶ 9; McMahon Aff. ¶ 10.) After this collision, Plaintiff sought treatment at Gaon Rehab & Wellness

Clinic for his right knee. (Ex Q to Temple Decl. (“Gaon Records”) at 45-46, Dkt. 45-17.)3 Records

from Comprehensive Medical Office, P.C., dated August 9, 2017, show that Plaintiff “felt immediate

pain in the wrist and the knee area. Mild neck and low back pain has subsided right away. Pain

causes limited movements of the wrist and both knees. Prolonged standing causes pain in both

knees.” (Ex. R to Temple Decl., Dkt. 45-18 at 5-6.)

D. Further Examination by Dr. McMahon

Plaintiff was examined again by Dr. McMahon on October 2, 2017. (Pl. 56.1 Stmt. at 8, ¶

17; Jung Aff. ¶ 4.) Dr. McMahon performed range of motion tests on Plaintiff’s right shoulder,

cervical spine, and lumbar spine, using a goniometer and “actively moving the affected area by

hand.” (McMahon Aff. ¶¶ 16, 20, 24.) With respect to the right shoulder, Dr. McMahon again

found that elevation was restricted by 15 degrees, internal rotation was limited to T12 (where normal

is T10), and external rotation was restricted by 20 degrees. (Id. ¶ 16.) Related to the cervical spine,

Dr. McMahon found that flexing was restricted by 15 degrees, extending by 20 degrees, and bending

to the left and right by 20 and 10 degrees, respectively. (Id. ¶ 19.) With respect to the lumbar spine,

Plaintiff was restricted in flexing by 5 degrees. (Id. ¶ 23.)

Based on his review of Plaintiff’s medical records, including the MRI films, his examinations

of September 16, 2016, November 1, 2016, and October 2, 2017, and the arthroscopic surgery he

performed on October 21, 2016, Dr. McMahon reached the following diagnoses: (1) “[r]ight

shoulder tear of the deltoid ligament, SLAP tear of the labrum, synovitis and a partial tear of the

subscapularis tendon … (2) [c]ervical spine bulging discs at C5-6 and C6-7 encroaching on the canal

… and (3) “[l]umbar spine disc bulges at L3-4, L4-5 and L5-S1 narrowing the L1 neural foramina

3 In the initial evaluation for physical therapy following this accident, Plaintiff’s left shoulder—in addition to

his knee—is identified as a “Chief Complaint,” and there are markings on a diagram indicating complaints at

the left shoulder, the neck, and the right knee. In addition, there is reduced range of motion to the left

shoulder. (Gaon Records at 45-46.)

bilaterally and the L3-4 right neural foramen.” (Id. ¶ 27.) In his undated affirmation prepared after

the October 2, 2107 examination, Dr. McMahon describes a “poor” prognosis for Plaintiff, finding

that Plaintiff’s injuries, specifically to the right shoulder, lumbar spine and cervical spine, are

“permanent in nature to a reasonable degrees [sic] of medical certainty and have resulted in the

permanent consequential limitation of use of a body organ or member,” as well as a “significant

limitation of use of the body function or system.” (Id. ¶¶ 28, 33.) Dr. McMahon opines “within a

reasonable degree of medical certainty” that these injuries are “solely caused by the September 14,

2015 accident and not from [a] degenerative condition.” (Id. ¶¶ 28, 34.) Dr. McMahon also stated

that Plaintiff’s injuries “have prevented him from performing many of the material acts which

constitute his usual and customary daily activities since the date of the motor vehicle accident of

September 14, 2015. Plaintiff [] was therefore advised to discontinue from engaging in any

strenuous activities.” (Id. at ¶ 32.)

E. Examination by Defendants’ Medical Experts

1. Dr. Richard Lechtenberg

Plaintiff submitted to an independent neurologic examination performed by Dr. Richard

Lechtenberg, a licensed neurologist, at the request of Defendants, on October 30, 2017. (Ex. N to

Temple Decl. (“Lechtenberg Eval.”), Dkt. 45-14.) The range of motion examination included visual

observation and goniometric measurements. (Id. at 3.) Dr. Lechtenberg found Plaintiff’s range of

motion to be normal, including of the cervical spine, thoracic spine, lumbar spine and shoulders.

(Lechtenberg Eval. at 3-4.) Dr. Lechtenberg noted that Plaintiff’s MRI reports from November 3,

2015 and November 5, 2015 describe disc bulging in the lumbar spine and cervical spine, but he

found “no objective, clinical, neurologic deficits” in his examination of Plaintiff “correlating with

these reported findings.” (Id. at 5.) Dr. Lechtenberg concluded, “My impression is that this man

had no objective, clinical, neurologic deficits on my examination. From a neurologic standpoint he

is not disabled and is currently working. The neurologic prognosis is good.” (Id. at 4.)

2. Dr. Edward A Toriello

At the request of Defendants, Plaintiff was also evaluated by Dr. Edward A. Toriello, a

board-certified orthopedic surgeon, on November 14, 2017. (Ex. M. to Temple Decl. (“Toriello

Eval.”), Dkt. 45-13.) Dr. Toriello performed an orthopedic evaluation, assessing visually and

through a goniometer or inclinometer, and found the results of the testing of Plaintiff’s cervical

spine, right shoulder, left shoulder, and lumbar spine all to be normal, including “full, pain-free

range of motion” of the cervical spine and lumbar spine, and “full, pain free abduction and flexion”

of the right and left shoulders within normal ranges. (Id. at 2-3.) Dr. Toriello reviewed the MRIs of

the lumbar spine, cervical spine, and right shoulder and found a partial rotator cuff tear in the right

shoulder, and no abnormality of the cervical spine or lumbar spine. (Id. at 3.) His diagnosis was that

Plaintiff’s cervical strain, low back strain and right shoulder contusion were all resolved. (Id. at 4) In

addition, he found that Plaintiff has “no objective evidence of continued disability,” “is able to work

and perform his normal daily living activities without restriction,” and has an “excellent” prognosis.

(Id.) Dr. Toriello concluded that “based on the fact that the MRIs of the neck, lower back and right

shoulder that were done shortly after the accident revealed no evidence of any causally related

traumatic injury to these body parts that would have required surgery,” Plaintiff “did not sustain any

injury to his neck, lower back or right shoulder on 09/14/15 that would have required surgical

intervention.” (Id.)

F. Further Examination by Dr. Kaisman

Plaintiff was examined again by Dr. Kaisman on November 16, 2017. (Jung Aff. ¶ 4;

Kaisman Aff. ¶ 10.) Dr. Kaisman performed range of motion tests with a goniometer on Plaintiff’s

lumbar spine and cervical spine. With respect to the lumbar spine, Dr. Kaisman found that Plaintiff

was limited from normal range by 40 degrees for forward flexion, 10 degrees for extension, 10

degrees for lateral bending, and 30 degrees for lateral rotation. (Kaisman Aff. ¶ 16.) Dr. Kaisman

found that Plaintiff’s cervical spine was limited by 10 degrees for forward flexion, 15 degrees for

extension, 15 degrees for lateral bending, and 30 degrees for lateral rotation. (Id. ¶ 12.) Dr. Kaisman

also noted that palpation of the cervical spine resulted in Plaintiff experiencing mild-to-moderate

pain and spasm. (Id.)

In his undated affirmation, Dr. Kaisman found that the prognosis for Plaintiff “is guarded at

this time.” (Id. ¶ 20.) He concludes that injuries to Plaintiff’s cervical spine and lumbar spine “are

permanent in nature to a reasonable degree of medical certainty and have resulted in the permanent

consequential limitation of use of a body organ or member,” and also constitute a “significant

limitation of use of the body function or system.” (Id. ¶ 25.) Dr. Kaisman states his opinion,

“within a reasonable degree of medical certainty, that the symptomologies and injuries to the lumbar

spine and cervical spine that the patient presently exhibits are solely caused by the September 14,

2016 [sic] accident and not from [a] degenerative condition.” (Id. ¶ 26.) Dr. Kaisman also states that

these injuries “have prevented [Plaintiff] from performing many of the material acts which constitute

his usual and customary daily activities since the date of the motor vehicle accident…. and [Plaintiff]

was therefore advised to discontinue from engaging in any strenuous activities.” (Id. ¶ 24.)

G. Effects of Injuries on Plaintiff’s Life

In his affidavit of June 3, 2019, Plaintiff stated that he continues to “suffer from daily pain in

my right shoulder, lower back and neck due to the subject accident of September 14, 2015.” (Jung.

Aff. ¶ 16.) In addition, due to the injuries, he “can no longer engage in the same activities as [he]

used to engage in prior to the accident,” for example, “sports activities such as indoor soccer,

basketball, running and tennis.” (Id. ¶ 18.) He stated, “my daily life has been significantly altered as

a result.… Due to the pain, I had to stop working as a waiter in a restaurant because the work at the

restaurant was too laborious.” (Id.) He further stated that the injuries “played a role in me changing

my college major from civil engineering to economic[s] because the engineering major would have

required me to go out to field [sic] too often.” (Id.) He also stated that since the accident he has

“difficulties doing any strenuous work and activities, sleeping and lifting heavy objects.” (Id.)

H. Defendants’ Biomechanics Expert Affidavit

Defendants submitted the affidavit of Samuel Wordeman, Ph.D., a biomechanist, who

reviewed the crash report; photographs, repair estimates, and data reports of the two vehicles

involved; data sheets of the model and make of the vehicles; deposition transcripts of Plaintiff and

Defendant Kelly; and Plaintiff’s medical records. (Ex. L to Temple Decl., Affidavit of Samuel L.

Wordeman, Ph.D. (“Wordeman Aff.”), Ex. 1 at 2, Dkt. 45-12.) Dr. Wordeman concluded that “[n]o

significant motion of the plaintiff’s body relative to the interior of his vehicle would have occurred

as a result of the subject accident.” (Wordeman Aff. ¶ 6.) Dr. Wordeman concluded “[t]o a

reasonable degree of biomedical and scientific certainty” that the accident “did not create the injury

mechanisms necessary to cause” an injury to the cervical spine, lumbar spine, or shoulder.

(Wordeman Aff. ¶¶ 7-9.)

II. Procedural Background

Plaintiff filed the Complaint in the Supreme Court of New York, Queens County, and on

November 2, 2016, the case was removed to this court based on diversity of citizenship. (Dkt. 1.)

The parties consented to Magistrate Judge jurisdiction.

After the conclusion of discovery, Defendants filed the Motion,4 moving for summary

judgment on the basis that Plaintiff has not met his threshold burden of establishing a casually

related “serious injury” under New York Insurance Law Section 5102(d). (Dkt. 43.) Plaintiff filed

an opposition (Dkt. 49-52), and Defendants filed a reply (Dkt. 53).

4 The Motion erroneously named Wheels LT even though it was dismissed from this case on March 8, 2019.

DISCUSSION

I. Legal Standard

Rule 56 provides that a “court shall grant summary judgment if the movant shows that there

is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(a). To defeat a motion for summary judgment, a party must show

something more than “some alleged factual dispute.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

247 (1986) (emphasis in the original). “Only disputes over facts that might affect the outcome of

the suit under the governing law will properly preclude the entry of summary judgment.” Id. at 248.

The nonmoving party must “make a sufficient showing on an essential element of [the nonmoving

party’s] case with respect to which [the nonmoving party] has the burden of proof.” Celotex Corp. v.

Catrett, 477 U.S. 317, 322-23 (1986). Without such a showing, summary judgment will be entered

because there is “no genuine issue as to any material fact… [A] complete failure of proof concerning

an essential element of the nonmoving party’s case necessarily renders all other facts immaterial.”

Id. (internal quotations omitted).

A “genuine” dispute is one in which “the evidence is such that a reasonable jury could return

a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. “It is the movant’s burden to show

that no genuine factual dispute exists….” Giannullo v. City of New York, 322 F.3d 139, 140 (2d Cir.

2003). The party opposing summary judgment must set forth evidence demonstrating a genuine

issue for trial and may not rely only on allegations in its pleadings. See Salahuddin v. Goord, 467 F.3d

263, 273 (2d Cir. 2006) (“[T]he nonmovant cannot rest on allegations in the pleadings and must

point to specific evidence in the record to carry its burden on summary judgment.”).

A court resolving a motion for summary judgment draws all reasonable inferences and

resolves all ambiguities in favor of the nonmoving party. Anderson, 477 U.S. at 255; Pinto v. Allstate

Ins. Co., 221 F.3d 394, 398 (2d Cir. 2000).

II. New York’s “No Fault” Insurance Law

New York Insurance Law Section 5104(a) precludes plaintiffs from recovering for non-

economic loss resulting from a motor vehicle accident unless they have suffered a “serious injury.”

Section 5102(d) defines “serious injury” as any of nine categories of personal injury. Here, Plaintiff

has alleged (1) permanent loss of use of a body organ, member, or function, (2) permanent

consequential limitation of use of a body organ or member; (3) significant limitation of use of a body

function; and/or (4) a medically determined injury or impairment of a non-permanent nature which

prevents the injured person from performing substantially all of the material acts which constitute

such person’s usual and customary daily activities for not less than ninety days during the one

hundred eighty days immediately following the occurrence of the injury or impairment (hereinafter,

the “90/180-day category”). (“Pl. Memo of Law”, Dkt. 51 at 4.)

“To recover for non-economic losses under the No-Fault law, plaintiffs must show both

that they sustained a serious injury and that the injury was ‘proximately caused by the accident at

issue.’” Kang v. Romeo, 18-cv-4033 (ARR)(SMG), 2020 WL 4738947, at *8 (E.D.N.Y. Aug. 14, 2020)

(quoting Evans v. United States, 978 F. Supp. 2d 148, 164 (E.D.N.Y. 2013)).

A. Serious Injury

“[A] court should decide the threshold question of whether the evidence would warrant a

jury finding that the injury qualifies as a ‘serious injury.’” Yong Qin Luo v. Mikel, 625 F.3d 772, 777

(2d Cir. 2010) (citing Licari v. Elliott, 57 N.Y.2d 230, 236 (N.Y. 1982)). In deciding a summary

judgment motion, courts apply a burden-shifting framework. Id. “A defendant must first establish a

prima facie case that the plaintiff did not sustain a “serious injury” that was causally related to the

accident … [and] the plaintiff is then required to establish a prima facie case that he sustained a

serious injury ….” Id. (quoting Barth v. Harris, 00-cv-1658, 2001 WL 736802, at *2 (S.D.N.Y. June

25, 2001)).

Defendants moving for summary judgment may meet their initial burden “by providing a

physician’s report that concludes, based upon objective evidence, that the plaintiff either has no

injuries or has recovered from them.” Kang, 2020 WL 4738947 at *9 (internal quotations omitted).

In rebutting a defendant’s prima facie case and showing that there is a material issue of fact,

plaintiffs “must present objective proof of injury, as subjective complaints of pain will not, standing

alone, support a claim for serious injury.” Yong Qin Luo, 625 F.3d at 777. A plaintiff may rely upon

quantitative measurements, such as “a numeric percentage of a plaintiff’s loss of range of motion”,

or “qualitative assessment[s] … provided that the valuation has an objective basis …” Id. (quoting

Toure v. Avis Rent A Car Sys., Inc., 98 N.Y.2d 345, 350 (N.Y. 2002). If a plaintiff presents “sufficient

objective evidence from which a jury could find that she sustained a serious injury, summary

judgment must be denied ‘notwithstanding some contrary probative evidence.’” Ruffin v. Rana, No.

11-CV-5406 (MHD), 2013 WL 4834368, at *7 (S.D.N.Y. Sept. 4, 2013) (quoting Nasrallah v. Helio

De, 96-CV-8727(SS), 1998 WL 152568, at *8 (S.D.N.Y. Apr. 2, 1998)).

B. Causation

The same burden-shifting framework applies to the causation analysis. “When moving for

summary judgment on the ground that the collision did not cause a serious injury, a defendant must

submit adequate medical evidence supporting that contention.” Cross v. Lambombard, 9 N.Y.S.3d

416, 415 (N.Y. App. Div. 3d Dept. 2015).

Courts routinely allow defendants to rely upon biomechanical expert testimony regarding the

forces in a collision to establish causation, though not on the medical causes of injury. See, e.g.,

Manlapig v. Jupiter, 14-CV-235 (LGS), 2016 WL 916425, at *3 (S.D.N.Y. Mar. 10, 2016) (collecting

cases); Malave v. Fernandez, 16-cv-8100 (KPF), 2018 WL 3967665, at *7 (S.D.N.Y. Aug. 17, 2018)

(defendants’ biomechanical expert testimony created material issue of fact); Seales v. United States,

2019 WL 7753451, *11-15, 27 (E.D.N.Y. Oct. 21, 2019) (allowing and crediting testimony of

biomechanical expert at trial); Plate v. Palisade Film Delivery Corp., 39 A.D.3d 835, 837 (N.Y. App. 2nd

Dept. 2007) (holding that lower court erred when it excluded biomechanical expert’s testimony

regarding “force of the impact in the subject accident [and whether it] could have caused a serious

injury…”).

If the defendant meets its burden of showing a lack of causation, “the burden shifts to the

plaintiff to come forward with evidence addressing the defendant’s claimed lack of causation.”

Perpall v. Pavetek Corp., 12-cv-0336 (PKC), 2017 WL 1155764, at *12 (E.D.N.Y. Mar. 27, 2017)

(quotations and citations omitted); see also Cross, 9 N.Y.S.3d at 415 (“plaintiff then has the burden to

come forward with objective medical evidence sufficient to create a question of fact regarding the

existence of a serious injury caused by the accident.”); Pommells v. Perez, 4 N.Y.3d 566, 574 (N.Y.

2005) (after defendant establishes its prima facie case, “plaintiff [has] the burden to present objective

medical proof of a serious injury causally related to the accident in order to survive summary

dismissal.”)

An expert’s opinion or a plaintiff’s statements cannot establish causation unless supported

by objective evidence. See, e.g., id.; Toure, 98 N.Y.2d at 351 (“an expert’s opinion unsupported by an

objective basis may be wholly speculative…”). Conclusory statements as to causation are not

sufficient. See Kang, 2020 WL 4738947 at *8 (“… a plaintiff’s self-serving and conclusory statements

regarding causation are insufficient to raise a triable issue of fact if not corroborated by objective

medical evidence.”) (and collecting cases). An expert’s opinion on causation is “conclusory” where

the expert “opines, in conclusory fashion, that [a p]laintiff's … injury is ‘causally related’ to the []

accident, but offers no explanation or rationale for that opinion.” See Manzi v. Davey Tree Expert Co.,

977 F. Supp. 2d 150, 158 (E.D.N.Y. 2013).

III. Analysis

Defendants argue that there is no evidence in the record to support either that Plaintiff

suffered a serious injury or that the September 14, 2015 collision caused his injuries, and thus

summary judgment is warranted. (“Defs.’ Memo of Law”, Dkt. 46 at 10.) Plaintiff argues in

opposition that Defendants have failed to meet their prima facie burden on either the absence of a

serious injury or causation, and even if they did meet their burden, Plaintiff’s evidence raises material

questions of fact such that summary judgment is not warranted. (See generally Pl. Memo of Law.)

A. Serious Injury

1. Permanent Loss of Use of a Body Organ, Member, Function, or System

To succeed on a claim of permanent loss of use of a body organ, member, function, or

system, a plaintiff must show “total loss of use.” Oberly v. Bangs Ambulance Inc., 96 N.Y.2d 295, 297

(N.Y. 2001).

While Defendants argue that the “permanent loss” category of serious injury requires the

“total loss of use of some body part or bodily function” (Defs. Memo of Law at 13), they do not

expressly analyze that standard as it applies to the facts here. Nevertheless, Defendants argue that

their expert reports “concluded that there were no permanent or significant orthopedic or

neurological impairments resulting from the soft-tissue injuries alleged [by Plaintiff].” (Id. at 17.)

Indeed, Defendants’ medical experts opined that Plaintiff suffered “no objective, clinical, neurologic

deficits” (Lechtenberg Eval. at 5) and that there was “no objective evidence of continued disability”

(Toriello Eval at 4). Defendants thus established their prima facie case with respect to permanent loss

of use.

Plaintiff provides no evidence or analysis that supports total permanent loss of use of any

body part or bodily function.5 While the medical reports indicate that Plaintiff’s injuries resulted in

5 Plaintiff argues in opposition that total loss is not necessary for permanent loss, citing to several

intermediate New York appellate court decisions that pre-date Oberly. (Pl. Memo of Law at 18-19.) Even if

these cases supported Plaintiff’s contention, the later-decided New York Court of Appeals decision

unambiguously requires total loss, and that decision controls.

permanent consequential limitations on use of a body organ or member, they do not indicate a total

loss of such use. (See Pl. Memo of Law at 20.) As such, Plaintiff has failed to rebut Defendants’

prima facie case, and summary judgment is granted with respect to the permanent loss of use category.

2. Permanent Consequential Limitation of Use of a Body Organ or Member

“[T]to show a ‘permanent consequential limitation of use of a body organ or member,’

plaintiff must present evidence that []he has suffered a permanent limitation that, though not total, is

of sufficient severity to be deemed consequential in comparison to [his] prior non-injured

condition.” Ruffin, 2013 WL 4834368 at *12. Consistent with the plain meaning of the statute, the

injury must be “permanent.” See Oberly, 96 N.Y.2d at 299.

In evaluating whether an injury constitutes a permanent “consequential limitation” under the

no-fault law, courts apply the same standard as for a “significant limitation,” with the only difference

between the two categories of serious injury being whether the injury is permanent or not. See

Avlonitis v. United States, 16-cv-2521 (PKC)(SMG), 2020 WL 1227164, at *6 (E.D.N.Y. Mar. 13, 2020)

(“’With the exception that the plaintiff prove permanence to satisfy the ‘consequential limitation’

definition, ‘significant limitation’ is essentially identical.’”) (quoting Williams v. United States, 09-cv-933

(GLS)(CFH), 2014 WL 11460892, at *8 (N.D.N.Y. Jan. 28, 2014); see also Toure, 98 N.Y.2d at 352-

353 (analyzing the two categories of serious injury together). “Whether a limitation of use or

function is ‘significant’ or ‘consequential’ (i.e., important) relates to medical significance and involves

a comparative determination of the degree or qualitative nature of an injury based on the normal

function, purpose and use of the body part.” Toure, 98 N.Y.2d at 353 (quoting Dufel v. Green, 84

N.Y.2d 795, 798, (N.Y. 1995). The injury must be “more than minor, mild, or slight, and the claim

must be supported by medical proof based upon credible medical evidence of an objectively

measured and quantified medical injury or condition.” Evans, 978 F. Supp. 2d at 165 (quoting Oved v.

Salotti, 98-cv-5628 (BSJ), 2000 WL 1099926, at *1 (S.D.N.Y. Aug. 7, 2000). An expert’s description

of the percentage loss of range in motion and other objective qualitative assessments of significant

injuries can establish a consequential limitation. See Toure, 98 N.Y.2d at 353.

To support their prima facie case, Defendants submitted reports of their medical experts who

conducted independent medical examinations of Plaintiff and “concluded that there were no

permanent or significant orthopedic or neurological impairments resulting from the soft-tissue

injuries alleged.” (Def. Memo at 17.) Dr. Lechtenberg based his conclusion on visual and

goniometric inspection and wrote that Plaintiff had “no objective, clinical, neurologic deficits” and

had a “good” neurologic prognosis. (Lechtenberg Eval. at 4-5.) Dr. Toriello, using visual inspection

and a “handheld goniometer or an inclinometer,” concluded that Plaintiff “did not sustain any injury

to his neck, lower back or right shoulder … that would have required surgical intervention.”

(Toriello Eval. at 5.) Thus both Dr. Lechtenberg and Dr. Toriello concluded that Plaintiff did not

suffer a consequential limitation of use of any body organ or member.

Both of Defendants’ experts also concluded based on objective medical evidence that at the

time of their examinations of Plaintiff that he did not suffer from any ongoing limitations, and thus

he suffered from no permanent limitations. (Lechtenberg Eval. at 4-5; Toriello Eval at 5.)

Defendants established their prima facie case. Their experts relied upon objective medical

evidence to conclude that, to the extent Plaintiff suffered any injuries, they did not cause a

permanent consequential limitation in any body part. See, e.g., Komar v. Showers, 227 A.D.2d 135, 136

(N.Y. App. 1st Dept. 1996) (sprains or strains not sufficient to establish serious injury); Shepley v.

Helmerson, 306 A.D.2d 267, 268 (N.Y. App. 2nd Dept. 2003) (cervical strain and mildly diminished

range of motion insufficient to establish significant limitation); Shinn v. Catanzaro, 1 A.D.3d 195, 197

(App. Div. 1st Dept. 2003) (defendant met her initial burden by submitting sworn affirmation of

examining chiropractor who concluded that neither plaintiff was seriously nor permanently injured).6

Plaintiff has rebutted Defendants’ prima facie case with objective evidence. Based on range of

motion tests using a goniometer that specified a numerical reduction in range of motion, surgical

exams, palpation, and MRI reviews, Dr. McMahon concluded that Plaintiff’s injury to his right

shoulder, cervical spine, and lumbar spine will have lifelong impacts and cause Plaintiff “pain,

[present] difficulty with activities of daily living, and [require] activity and lifestyle modifications.”

(See McMahon Aff. ¶¶ 27-29.) Dr. Kaisman similarly concluded based on his examinations on June

2, 2016, June 14, 2016, and November 16, 2017, a review of Plaintiff’s relevant medical records,

including MRI films, and the percutaneous discectomies performed on June 10, 2016 and June 24,

2016, that “[Plaintiff] will likely have lifelong problems including: pain, difficulty with activities of

daily living, and activity and lifestyle modifications …” (Kaisman Aff. ¶¶ 20-21.) Both experts

advised Plaintiff to “discontinue from engaging in any strenuous activities” and that he would suffer

“significant limitation of use of [his] right shoulder, lumbar spine and cervical spine.” (McMahon

Aff. ¶¶ 32-33; Kaisman Aff. ¶¶ 24-25.) These expert findings are sufficient to raise a question of

fact that precludes summary judgment. See Toure, 98 N.Y.2d at 353; see also Williams v. Ritchie, 139 F.

Supp. 2d 330, 340 (E.D.N.Y. 2001) (“a medical affidavit specifying ‘the degree of restriction of

movement suffered’ and ‘the objective tests performed to determine such restriction of movement’”

is sufficient to establish consequential limitation) (quoting Merisca v. Alford, 243 A.D.2d 613, 663

6 Plaintiff argues that Defendants failed to make their prima facie case because their medical experts “failed to

conduct necessary objective test[s] such as Spurling or Compression test[s] to assess Plaintiff’s spine injuries.”

(Dkt 51 at 7.) The cases Plaintiff cites do not hold that those particular tests are necessary to establish

Defendants’ prima facie case. Compare Florez-Bossio v. Rodriguez, No. 601317/09, 2011 WL 6297916, at *4 (N.Y.

Sup. Ct. Nov. 28, 2011); Perez v. Rodriguez, 25 A.D.3d 506, 510 (2006); Vincent v. Metropolitan Suburban Bus

Authority, No. 8137/10, 2011 WL 6332404, at *1 (N.Y. Sup. Ct. Dec. 06, 2011); Altman v. The New York Transit

Authority, No. 400604/2010, 2011 WL 6936620 (N.Y. Sup. Ct. Dec. 19, 2011). Defendants provided other

objective evidence as described above. Similarly, Plaintiff challenges Dr. Toriello’s failure to review Plaintiff’s

“MRI film, as opposed to reviewing just a MRI report.” (Pl. Memo of Law at 8.) Dr. Toriello’s report notes

that he “reviewed the MRI” of Plaintiff’s cervical and lumbar spine and right shoulder. (Toriello Eval. At 4.)

In any event, Plaintiff cites to no law suggesting that that MRI film review is necessary to carry Defendants’

burden or that Dr. Toriello’s review of the objective MRI reports is insufficient.

N.Y.S.2d 853, 854 (N.Y. App. 2d Dept. 1997)).

The Court finds that Plaintiff has sufficiently rebutted Defendants’ prima facie case for a

serious injury based on permanent consequential limitation of use of a body organ or member, and

therefore denies summary judgment on this category of serious injury.

3. Significant Limitation of Use of a Body Function or System

Because the significant limitation category is essentially the same as the category of

permanent consequential limitation, but without the requirement of permanence, see Avlonitis, 2020

WL 1227164 at *6, Defendants have met their prima facie burden for the same reasons as above, and

Plaintiff has rebutted with material issues of fact. The Court therefore denies summary judgment as

to the serious injury category of significant limitation of use of a body function or system.

4. The 90/180-Day Category

To establish a serious injury under the 90/180-day category, Plaintiff is not required to show

that an injury was “significant” or “consequential.” Toure, 98 N.Y.2d at 357. However, Plaintiff

must show that the injury prevented him from engaging in “substantially all the material acts” of his

“usual and customary activities” for ninety out of the first 180 days following the collision. See Yong

Qin Luo, 625 F.3d at 779. Plaintiff must show that the medically determined injury “curtailed [him]

from performing his usual activities to a great extent rather than some slight curtailment.” Licari v.

Elliott, 57 N.Y.2d 230, 236 (N.Y. 1982). “[T]he ninety days requirement must be taken literally.”

Kang, 2020 WL 4738947 at *32 (internal quotations omitted, alteration in original).

Defendants have established their prima facie entitlement to summary judgment on the

90/180-day category. Defendants do not rely on their medical experts to establish their prima facie

case on this category. Defendants instead refer to Plaintiff’s testimony at his deposition to argue

that he was not prevented from performing substantially all his usual daily activities for ninety of the

180 days following the accident. (Def. Memo of Law at 18-19; Dkt. 53 ¶¶ 13-14.) Defendants cite

to record evidence that Plaintiff’s home confinement was limited to at most three days following the

accident and three to four days after each of his procedures. (Def. Memo of Law at 18; Jung Dep. at

140, 142.) Although Plaintiff testified at his deposition that his pain made him fearful of and led

him to stop participating in sports, there were no contemporaneous records from his treating

physician urging him to give up those activities. (Def. Memo of Law at 19; Jung Dep. at 127-28.)

Defendants also refer to Plaintiff’s deposition testimony in which Plaintiff explains that he was

enrolled at Hunter College studying accounting at the time of the accident, and that he transferred

back to City College not because of the car accident, but because he “didn’t like accounting.” (See

Def. Memo of Law at 18; Jung Dep. at 14.) Defendants also cite to Plaintiff’s deposition testimony

to show that he rode the subway, worked at several restaurants following the collision, and never

required assistance with home care or made any physical modifications to his home to accommodate

his injuries. (Def. Memo of Law at 18-19; Jung Dep. at 14-16, 32-33, 111, 126.) Defendants have

met their initial burden.

Plaintiff fails to rebut Defendants’ prima facie case. Plaintiff argues in opposition that Dr.

Kaisman and Dr. McMahon7 found, based on review of objective evidence, including MRI results

and Plaintiff’s medical treatment history following the collision, that Plaintiff’s injuries prevented

him from performing many of the material acts that constituted his usual and customary daily

activities since the date of the collision. (Pl. Memo of Law at 11; McMahon Aff. ¶ 32; Kaisman Aff.

¶ 32.) Both Drs. Kaisman and McMahon advised Plaintiff “to discontinue from engaging in any

strenuous activities.” (McMahon Aff. ¶ 32; Kaisman Aff. ¶ 32.) But these conclusions do not

address the strict requirement that Plaintiff have been unable to engage in “substantially all the

material acts” of his “usual and customary activities” for ninety of the 180 days immediately

7 Plaintiff’s memorandum references Defendants’ experts by name but cites to the affidavits of his own

doctors. The reference to Defendants’ experts is assumed to be a typographical error.

following the collision. N.Y. Ins. Law 5102(d).

There is no evidence in the record that Plaintiff was prevented from working for ninety days

in the immediate 180 days following the accident. While Plaintiff states that he could no longer

work as a waiter after the accident (Jung. Aff. ¶ 18), he does not specify when this change occurred,

whether it was within 180 days following the accident, and how long it lasted. Likewise, there is no

evidence in the record that Plaintiff was unable to attend school for ninety of the 180 days following

the accident. While he states that the accident played a role in his decision to change his college

major from civil engineering to economics (Jung. Aff. ¶ 18), Plaintiff does not state whether this

change occurred within the 180 days following the accident, or how it constituted an inability to

perform substantially all his usual and customary activities for 90 days during this time period.

Finally, although Plaintiff states that “after the accident of September 14, 2015, I have

difficulties doing any strenuous work and activities, sleeping and lifting heavy objects” (Jung Aff. ¶

18), he fails to specify that any of these difficulties occurred for ninety days during the 180 days

following the accident. The affirmations from Drs. Kaisman and McMahon, while undated, are

from sometime after their examinations of Plaintiff in 2017, and do not specify that their advice to

Plaintiff not to engage in strenuous activities occurred within the 180-day period immediately

following the accident.

Construing the record in the light most favorable to the Plaintiff, he has only shown

incapacity for, at most, three days following the accident (Jung Dep. at 142) and four days following

surgery on October 21, 2015 (Dkt. 50-1 ¶ 16(c)).8 Assuming this home confinement meets the

statutory requirements for the 90/180-day category, it is only for a total of, at most, seven days.

Given this minimal home confinement within the relevant period and given the absence of any

8 Plaintiff’s other surgeries and subsequent home confinement were after March 12, 2016, the end of

the 180-day window. (Cf. Dkt. 50-1 ¶ 16)

additional evidence that he was unable to perform substantially all his usual and customary daily

activities during this time period, Plaintiff has failed to rebut Defendants’ prima facie case.

Summary judgment is therefore granted on the 90/180-day category.

B. Causally Related

Defendants establish their prima facie case that the accident did not cause Plaintiff’s serious

injury. Defendants do not argue or put forth any objective medical evidence that there was some

alternative cause of Plaintiff’s injuries following the collision. Instead, Defendants rely on Dr.

Wordeman’s biomechanical analysis, which states that the accident could not have caused Plaintiff’s

alleged injuries. (Def. Memo of Law at 17.) Dr. Wordeman’s affidavit concludes, based on the

objective evidence he reviewed, including the crash report; photographs, repair estimates, and data

reports of the two vehicles involved; data sheets of the model and make of the vehicles; deposition

transcripts of Plaintiff and Defendant Kelly; and Plaintiff’s medical records and his expert

knowledge of “the laws of physics … that [because of the collision] plaintiff would have moved

slightly leftward and rearward relative to the interior of the vehicle.” (Wordeman Aff. ¶¶ 3-6.) He

further concludes that “the subject accident did not create the injury mechanisms necessary to

cause” Plaintiff’s injuries. (Id. ¶¶ 7-9.) Compare Malave, 2018 WL 3967665 at *7 (defendants’ burden

upheld on summary judgment based in part on defendants’ biomechanist finding that low-speed

crash did not create necessary injury mechanisms to cause plaintiff’s injuries).

Plaintiff’s bare arguments challenging Dr. Wordeman’s analysis either require credibility

determinations, which are not appropriate on summary judgment, or are incorrect. Contrary to

Plaintiff’s assertion that Dr. Wordeman provides no basis for his findings (Pl. Memo of Law at 15),

Dr. Wordeman does specify what records he relied upon in coming to his conclusions. (Wordeman

Aff. ¶ 3; Dkt. 45-12 at 7.) Plaintiff’s contention that biomechanical analysis is “junk science” (Pl.

Memo of Law at 16) has been squarely rejected by New York courts. Guerra v. Ditta, 127 N.Y.S.3d

148, 150 (N.Y. App. 2d Dept. 2020) (“… biomechanical engineering is a scientific theory accepted in

the field”). Plaintiff cites no case law supporting his contention that Dr. Wordeman was required to

perform any in-person inspection of the vehicles or Plaintiff, rather than relying on evidence in the

record. Dr. Wordeman’s expert report and affidavit are proper support for Defendants’ Motion,

and Defendants’ biomechanical expert testimony satisfies their initial burden.

Defendants argue that Plaintiff fails to rebut Defendants’ prima facie case because he failed to

put forward “competent medical evidence linking the diagnosis to the accident at issue (and

scientifically eliminating other causes)…” (Def. Memo of Law at 16.) Contrary to Defendants’

arguments, however, Plaintiff does provide objective medical evidence that links Plaintiff’s injuries

to the accident, satisfying his rebuttal burden at this stage. As Plaintiff correctly notes, Drs.

Kaisman and McMahon were not required to specifically refute Defendants’ biomechanical expert as

to the forces involved in the accident in order to meet his burden. Instead, Plaintiff’s experts

provided medical testimony based on objective evidence, including Plaintiff’s medical history, MRI

films, and their own procedures and examinations to conclude that Plaintiff’s injuries were caused by

the collision. See, e.g., Altman v. Shaw, 184 A.D.3d 995, 997-98 (N.Y. App. 3d Dept. 2020) (plaintiff

met burden to withstand summary judgment based solely on medical reports even where defendant

offered biomechanist evidence). Defendants do not argue that the injuries were caused by a

degenerative condition; and in any event, Drs. Kaisman and McMahon both state that the injuries

were not so caused. (Kaisman Aff. ¶¶ 23, 269; McMahon Aff. ¶¶ 31, 34.)

Defendants contend that Plaintiff’s medical experts fail to address Plaintiff’s gap in

treatment or Plaintiff’s 2017 collision. (Def. Memo of Law at 17-18.) However, Dr. McMahon does

address the gap in treatment and acknowledges, consistent with Plaintiff’s affirmation, that Plaintiff

9 Dr. Kaisman’s affidavit incorrectly states that the accident occurred on September 14, 2016. This is

assumed to be a typographical error, and that Dr. Kaisman intended to refer to the September 14, 2015

accident.

stopped treatment because his no fault benefit was terminated and he could no longer afford

treatment. (McMahon Aff. ¶ 4.) With respect to the 2017 collision, both of Plaintiff’s experts

reference the collision in their affirmations, and state that the injuries resulting from that collision

were not related to the injuries Plaintiff alleges here. (Kasiman Aff. ¶ 9; McMahon Aff. ¶ 10.)

Whether the factfinder chooses to credit Defendants’ biomechanical expert, Plaintiff’s

medical experts, or something else entirely is not for the Court to resolve at this stage. For purposes

of summary judgment, Plaintiffs have raised a triable issue of fact as to causation, and summary

judgment is denied.

CONCLUSION

Based on the foregoing, the Court finds that Defendants are entitled to summary judgment

as to the permanent loss of use and 90/180-day categories of serious injury. Summary judgment is

denied for the significant limitation and permanent consequential limitation categories, and is denied

with respect to causation.

SO ORDERED:

Peggy Kuo

United States Magistrate Judge

Dated: Brooklyn, New York

November 30, 2020