Altman v. Shaw
| Decision Date | 10 March 2021 |
| Docket Number | 6156-16 |
| Parties | Candedia L. ALTMAN, Plaintiff, v. Michael SHAW, Johnson & Johnson and Jamel R. Gibson, Defendants. |
| Court | New York Supreme Court |
Edward P. Ryan, Esq., Attorney for Plaintiff, 38 Eagle Street, Albany, New York 12207
Goldberg Segalla LLP, James F. Faucher II, Esq., Attorneys for Defendants Michael Shaw and Johnson & Johnson, 8 Southwoods Boulevard, Suite 300, Albany, New York 12211
Kelly & Leonard, LLP, Thomas E. Kelly, Esq. Attorneys for Defendant Jamel R. Gibson, 20 Fenwick Street, Ballston Spa, New York 12020
In this claim for damages arising from a three-car, chain reaction accident, plaintiff moves to compel defendants to accept expert disclosure of plaintiff's orthopedic physician and to permit him to appear and testify at trial regarding plaintiff's ankle injury. Defendants Michael Shaw and Johnson & Johnson (hereinafter the Shaw defendants) oppose and move in limine for an order precluding plaintiff from presenting any testimony or documentary evidence, or making any mention of any evidence, of injuries not related to plaintiff's alleged cervical injury under the significant limitation of use category. Defendant Jamel Gibson filed an attorney affirmation in support of the Shaw defendants’ motion, adopting all arguments made by them and joining in their motion. For the reasons that follow, plaintiff's motion is granted, and the Shaw defendants’ motion is denied.
On September 10, 2015, plaintiff was operating her 2014 Buick Encore in stop-and-go, rush-hour traffic on Central Avenue, in the Town of Colonie. While fully stopped, plaintiff's vehicle was rear-ended in a chain reaction collision involving two other vehicles. The middle vehicle was a 2014 Subaru Legacy sedan operated by defendant Michael Shaw and owned by defendant Johnson & Johnson. The rear vehicle was a 2006 Honda Accord operated by defendant Jamel Gibson.
In 2016, plaintiff commenced this action alleging that she sustained serious injuries within the meaning of Insurance Law § 5102 (d) as a result of the accident. Issue having been joined, discovery completed, and the note of issue filed, the Shaw defendants moved for summary judgment on the issue of liability and, alternatively, on the ground that plaintiff did not suffer a serious injury as the result of the accident. Gibson took no position on the Shaw defendants’ motion regarding the issue of their liability, but he joined in that portion seeking summary judgment on the ground that plaintiff did not suffer serious injury as a result of the accident.
Plaintiff cross-moved for partial summary judgment on the issue of liability and otherwise opposed defendants’ motions, claiming that she suffered a serious injury under Insurance Law § 5102 (d) because (1) her injuries prevented her from performing all of the material acts of her usual daily activities for at least 90 days of the 180 days after the accident; (2) she suffers from a significant limitation of use of a body function or system; and (3) she suffers from a permanent consequential limitation of use of a body organ or member.1
By decision and order dated September 27, 2019, the Court denied the Shaw defendants’ motion on the issue of liability; denied the defendants’ motions on the issue of serious injury as it pertained to plaintiff's cervical spine injury in the significant limitation of use category, but otherwise granted that portion of the motion; denied plaintiff's cross motion for partial summary judgment on the issue of liability as it pertained to the Shaw defendants; and granted plaintiff's cross motion for partial summary judgment on the issue of liability as it pertained to defendant Gibson.
The Shaw defendants appealed the Court's September 27, 2019 decision and order (see Altman v. Shaw , 184 A.D.3d 995, 126 N.Y.S.3d 526 [3d Dept. 2020] ). On appeal, the Shaw defendants asserted, as is relevant here, that this Court erred in allowing plaintiff's claim relating to her cervical spine injury to move forward because "plaintiff's expert failed to address and distinguish plaintiff's preexisting conditions from any injury caused by the subject accident" ( Altman v. Shaw , 184 A.D.3d at 996, 126 N.Y.S.3d 526 ). In opposition, plaintiff contended that "her sworn affidavit and the medical report of Thomas M. McCormack, her neurosurgeon, establish[ed] that she did not suffer from cervical spinal issues before the accident and, thus, a triable issue of fact ha[d] been raised that support[ed] denial of the Shaw defendants’ motion" ( id. at 996, 126 N.Y.S.3d 526 ). The Appellate Division affirmed, finding that "plaintiff's proof was sufficient to raise a triable issue of fact regarding whether plaintiff's cervical spine condition was a serious injury caused by the accident and, therefore, [this Court] properly denied the Shaw defendants’ motion in this regard" ( id. at 998, 126 N.Y.S.3d 526 ).
On February 7, 2020, plaintiff served upon defendants an expert disclosure for David J. Dixon, M.D., plaintiff's attending orthopedic physician. Plaintiff expected Dr. Dixon to testify that her pre-existing ankle/Achilles tendon injury was aggravated by the accident; that the car accident, which occurred five months after surgical repair of her ankle, had "caused her Achilles to not heal as well;" and that she was limited by her ankle injury. Counsel for the Shaw defendants rejected plaintiff's expert disclosure.
Plaintiff now moves to compel defendants to accept Dr. Dixon's expert disclosure and permit him to appear at trial. Plaintiff contends that the "practical significance of [her ankle] injuries and aggravation of the pre-existing condition is that it impaired her rehabilitation from [her] prior tendon surgery, extended her disability and made it more difficult to be on her feet, particularly at work as a Physician's Assistant; this, in turn, has contributed to her economic damages."
Defendants oppose and the Shaw defendants, joined by defendant Gibson, move in limine for an order precluding plaintiff from presenting any testimony or documentary evidence, or making any mention of any evidence, of injuries not related to the alleged cervical injury under the significant limitation of use category. Defendants argue that plaintiff's proof regarding her ankle injury should be precluded because it does not comport with facts established on summary judgment, which constitute law of the case.
"[A] grant of summary judgment establishes the law of the case as to the issues essential to that determination" ( Dukett v. Wilson , 31 A.D.3d 865, 868, 818 N.Y.S.2d 337 [3d Dept. 2006] [internal quotation marks and citation omitted]; see CPLR 3212 [g] ). "The law of the case doctrine generally precludes relitigating an issue decided in an ongoing action where there previously was a full and fair opportunity to address the issue" ( Town of Massena v. Healthcare Underwriters Mut. Ins. Co. , 40 A.D.3d 1177, 1179, 834 N.Y.S.2d 736 [3d Dept. 2007] ; see People v. Evans , 94 N.Y.2d 499, 502-504, 706 N.Y.S.2d 678, 727 N.E.2d 1232 [2000] ; Gitman v. Martinez , 169 A.D.3d 1283, 1284-1285, 95 N.Y.S.3d 427 [3d Dept. 2019] ).
Relying on the law of the case doctrine, defendants argue that plaintiff should be precluded from presenting any evidence relating to injuries purportedly sustained or exacerbated by the accident, other than her cervical spine injury in the significant limitation of use category, because such claims were previously dismissed on summary judgment. It is true that this Court held in its September 27, 2019 decision and order that plaintiff failed to raise a triable issue of fact with regard to whether any injuries to her ankle were serious physical injuries caused by the accident. And to that extent, the law of the case doctrine precludes plaintiff from relying on injuries to her ankle or exacerbation of a prior ankle injury for purposes of establishing the Insurance Law threshold for serious physical injury.
Indeed, plaintiff does not argue to the contrary. Rather, plaintiff argues that because the Court determined that plaintiff's cervical spine injury met the serious injury threshold, it "opened the gate" to evidence of any injury plaintiff sustained in the accident for purposes of establishing damages. Relying on Rubin v. SMS Taxi Corp., 71 A.D.3d 548, 898 N.Y.S.2d 110 (1st Dept. 2010), plaintiff contends that she can be compensated for all injuries suffered from the accident, provided that she establishes causation. In Rubin v. SMS Taxi Corp. , the First Department noted that when " ‘a prima facie case of serious injury has been established and the trier of fact determines that a serious injury has been sustained, [the] plaintiff is entitled to recover for all injuries incurred as a result of the accident’ " ( 71 A.D.3d at 549, 898 N.Y.S.2d 110, quoting Obdulio v. Fabian , 33 A.D.3d 418, 419, 822 N.Y.S.2d 276 [1st Dept. 2006] ). The Court explained, "once an alleged claim meets at least one of the serious injury thresholds, the statute's gatekeeping function, to reduce caseloads by limiting what the courts adjudicate, is satisfied [and] judicial economy is no longer a reason to preclude plaintiff from presenting to the jury all injuries causally related to the accident" ( id. at 549-550, 898 N.Y.S.2d 110 ). Thus, "[o]nce a jury determines that [a] plaintiff has met the threshold for serious injury, the jury may award damages for all of [the] plaintiff's injuries causally related to the accident, even those not meeting the serious injury threshold" ( id. at 549, 898 N.Y.S.2d 110 ). This Court agrees, at least under the facts and circumstances of this case, that plaintiff is entitled to introduce evidence that the accident caused or exacerbated injuries to her ankle for the purposes of assessing damages.
Defendants seek to distinguish Rubin on the ground that the defendant there relied on the severity of the plaintiff's injury in...
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