Opinion
300194/2007.
Decided July 18, 2008.
Plaintiff was represented by Christopher L. Vargas of Bader, Yakaitis Nonnenmacher, LLP and the defendant was represented by Thomas J. Solomon, of counsel to Karen E. Cigna.
After summary judgment as to liability was granted in favor of the plaintiff, a damages trial was tried before a jury in March 2008. Plaintiff claims that as a result of a motor vehicle accident, dated July 2, 2003, she sustained serious injuries to her neck and back, including herniated discs at C4-C5 and C5-C6, a bulging disc at L5-S1 and an L5-S1 radiculopathy. The jury returned a unanimous verdict in favor of the plaintiff. They found that the plaintiff sustained a significant limitation of use of a body, function or system, for which she was awarded past pain and suffering in the amount of $25,000.00 and future pain and suffering in the amount of $10,000.00.
The parties submitted timely post-trial memorandum regarding defendant's motions for a directed verdict based upon gap in treatment, range of motion limitations and causation; motion for judgment notwithstanding the verdict based upon degeneration and motion to set aside the verdict as against the weight of the evidence.
From the outset, it is clear to this Court that the plaintiff failed to offer one scintilla of convincing evidence to rebut defendant's gap in treatment argument. At best, plaintiff testified that she performed "home exercises" from the time of the accident until the date of the trial. Tellingly, Dr. Jeffrey Schwarz, plaintiff's treating physician at the time, failed to offer further evidence to substantiate her story. The plaintiff's reliance upon her performance of home exercises, without more, misses the mark. It is pellucidly clear that it is plaintiff's burden to proffer an explanation as to why she did not receive any treatment from January 2004 (the end of her physical therapy treatments) to August 2005 (the next time she saw Dr. Schwartz), altogether, a twenty-month period. Pommells v. Perez , 4 NY3d 566 , 797 NYS2d 380 (2005); Cruz v. Calderone , 49 AD3d 798 , 853 NYS2d 909 (2nd Dept. 2008); Ferraro v. Ridge Car Service, 2008 NY Slip Op. 01914 (2nd Dept. 2008); Doherty v. Ajaib , 49 AD3d 800 , 853 NYS2d 908 (2nd Dept. 2008).
Upon this Court's review of the testimony from the plaintiff's experts, Drs. Irving Friedman and Jeffery Schwarz, it is clear that the foraminal compression test; Spurling's sign test; Kemp's test; and straight-leg raising test, all performed by Dr. Schwarz, were originally found to be positive in July 2003. However, as of August 2005 those findings were negative. Thus, the range of motion testing is the sole means by which the plaintiff must establish that she sustained a serious injury.
It is well-established that a physician must set forth the objective testing used to determine his findings. In this matter, Drs. Schwartz and Friedman failed to set forth the objective tests utilized to establish the plaintiff's ranges of motion. Duke v. Saurelis , 41 AD3d 770 , 840 NYS2d 88 (2nd Dept. 2007); Casas v. Montero , 48 AD3d 728 , 853 NYS2d 358 (2nd Dept. 2008); Laurriet v. Gutterman, 37 AD3d 424, 832 NYS2d 44 (2nd Dept. 2007); Vazquez v. Basso , 27 AD3d 728 , 815 NYS2d 626 (2nd Dept. 2006); Thai v. Butt , 34 AD3d 447 , 824 NYS2d 131 (2nd Dept. 2006); Schacker v. County of Orange , 33 AD3d 903 , 822 NYS2d 777 (2nd Dept. 2006); Agathe v Tun Chen Wang , 33 AD3d 737 , 822 NYS2d 766 (2nd Dept. 2006); Walters v. Papanastassiou , 31 AD3d 439 , 819 NYS2d 48 (2nd Dept. 2006).
Furthermore, a physician must quantify his range of motion findings as well as normal findings in order to establish that the plaintiff sustained a serious injury. Teodoru v. Conway Transportation Service, Inc., 19 AD3d 479 (2nd Dept. 2005); Kennedy v. Brown , 23 AD3d 625 (2nd Dept. 2005); Vazquez v. Basso, supra . Again, plaintiff failed to shoulder this burden.
Dr. Friedman testified that he examined the plaintiff twice. In January 2008, plaintiff's cervical range of motion was exactly the same as when he examined her in June 2007. "She has two-thirds movement, one-third restriction. the lumbar was slightly improved as far as the degree that I could push her to get movement." Regarding his June 2007 examination, Dr. Friedman testified that plaintiff's cervical flexion was 30 degrees and normal is 45 degrees; cervical extension was 30 degrees and normal is 45 degrees; and cervical rotation was 60 degrees and normal is 90 degrees. Dr. Freidman failed to quantify plaintiff's lumbar spine ranges of motion.
Dr. Schwarz testified that he also examined the plaintiff twice. In August 2005, he found plaintiff's cervical flexion was 55 degrees and normal is 60 degrees; cervical extension was 55 degrees and normal is 60 degrees; right rotation was 65 degrees and normal is 80 degrees; left rotation was 65 degrees and normal is 80 degrees; right lateral flexion was 35 degrees and normal is 40 degrees; left lateral flexion was 35 degrees and normal is 40 degrees. Plaintiff's lumbar forward flexion was 65 degrees and normal is 90 degrees; forward extension was 25 degrees and normal is 30 degrees; right lateral flexion was 30 degrees and normal is 30 degrees; left lateral flexion was 30 degrees and normal is 30 degrees.
But during his initial evaluation of the plaintiff, which occurred on July 10, 2003, eight days after plaintiff's accident, Dr. Schwarz testified that it was medically impossible to measure plaintiff's ranges of motion due to the pain she was experiencing. Dr. Schwarz simply indicated that her range of motion was "severe". Dr. Schwarz did not testify that plaintiff's range of motion was 1 degree or 3 degrees or 7 degrees or even 0 degree. Indeed, Dr. Schwarz failed to indicate how he attempted to measure plaintiff's range of motion in order to conclude that it was "severe". Therefore, this Court finds Dr. Schwarz' explanation that plaintiff's range of motion was "severe" to be woefully insufficient. Hence, plaintiff's evidence does not comport with the prevailing caselaw in this Department, which requires a plaintiff's range of motion to be established contemporaneously with the accident. Tapia v. Lazen, 19 Misc 3d 133(A), 2008 NY Slip Op. 50688(U) (App. Term 2nd 11th Jud. Dists. 2008); Perdomo v. Scott , 50 AD3d 1115 , 857 NYS2d 212 (2nd Dept. 2008); Shvartsman v. Vildman , 47 AD3d 700 , 849 NYS2d 600 (2nd Dept. 2008); Ferraro v. Ridge Car Service , 49 AD3d 498 , 854 NYS2d 408 (2nd Dept. 2008); Scotto v. Suh , 50 AD3d 1012 , 857 NYS2d 185 (2nd Dept. 2008); Morales v. Daves , 43 AD3d 1118, 841 NYS2d 793 (2nd Dept. 2008); Astrel v. Yarborough , 31 AD3d 356 , 817 NYS2d 642 (2nd Dept. 2006); Peguillan v. Berrios, 2008 NY Slip Op. 31472(U) (Sup.Ct. Suffolk County 2008); Ford v. Bruschini, 2008 NY Slip Op. 31084(U) (Sup. Ct. Nassau County 2008); Letizia v. Domi, 2008 NY Slip Op. 31478(U) (Sup.Ct. Suffolk County 2008); Coleman v. New Ridgewood Car Service, 19 Misc 3d 1136(A), 2008 NY Slip Op. 51029(U) (Sup.Ct. Kings County 2008).
It should be noted that Dr. Schwartz went on to testify that normal ranges of motion of the cervical spine were as follows: forward flexion 35-40 degrees, right and left rotation approximately 75 degrees, right and left lateral flexion is approximately 45-55 degrees. He did not set forth the normal ranges of motion for the lumbar spine. Curiously, Dr. Schwarz' opinion as to the normal ranges of motion for the cervical spine changed dramatically from the year 2003 to the year 2005.
Defendant's experts, Drs. Audrey Eisenstadt and Sarasavani Jayaram, both testified that the MRI films of plaintiff's cervical and lumbar spine revealed degeneration. Thus, the plaintiff was obligated to address those findings. Plaintiff's failure to do so rendered her claim that her injuries were causally related to the subject accident speculative. Byam v. Waltuch , 50 AD3d 939 , 857 NYS2d 605 (2nd Dept. 2008); Cornelius v. Cintas Corp. , 50 AD3d 1085, 857 NYS2d 637 (2nd Dept. 2008); Cruz v. Calderone, supra; Peguillan v. Berrios, supra .
Considering the foregoing findings, defendant's motions for a directed verdict and a judgment notwithstanding the verdict are granted. Plaintiff's complaint is hereby dismissed.
This constitutes the decision and order of the Court.