Noble v. Ackerman

• Decision Date: 09 July 1998
• Citation: 675 N.Y.S.2d 86,252 A.D.2d 392
• Parties: , 1998 N.Y. Slip Op. 6904 Carmelo NOBLE, Plaintiff-Respondent, v. Calvin ACKERMAN, etc., Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 86

675 N.Y.S.2d 86

252 A.D.2d 392, 1998 N.Y. Slip Op. 6904

Carmelo NOBLE, Plaintiff-Respondent, v. Calvin ACKERMAN, etc., Defendant-Appellant.

Supreme Court, Appellate Division First Department.

July 9, 1998.

Robert C. Agee, for plaintiff-respondent.

Steve S. Efron, for defendant-appellant.

SULLIVAN, J.P., RUBIN, MAZZARELLI and ANDRIAS, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, Bronx County (Janice Bowman, J.), entered March 11, 1997, which, upon a jury verdict, awarded plaintiff damages in the principal sum of $700,000, reversed, on the law, the facts and in the exercise of discretion, without costs, and the matter remanded for a new trial.

Plaintiff, 55 years old, alleges that on August 31, 1992 he sustained serious injuries when his parked car was struck from behind by defendant's decedent's vehicle. He commenced this action for personal injuries in June 1993, asserting he had sustained serious injury as defined in Insurance Law § 5102(d), including sprains to the cervical and lumbar spines with radiculopathy, bulging discs at L3/L4 and L4/L5 and restriction and limitation of motion of the head and neck with pain. At the conclusion of plaintiff's case at trial, defendant moved to dismiss for failure to make a prima facie showing of serious injury under Insurance Law § 5102(d). The trial court denied that motion, and further refused defendant's request to submit the issue of serious injury to the jury as a question of fact. The court stated that the fact that plaintiff suffered a herniated disc established the statutory threshold as a matter of law, and the only issue for the jury to decide was causation. The jury returned a verdict in favor of the plaintiff of $350,000 for past pain and suffering and $350,000 for future pain and suffering, and judgment was entered thereon.

On appeal, defendant argues that the serious injury threshold was not met, and, alternatively, that the court erred in not submitting the issue to the jury. The trial evidence established that immediately after the accident, plaintiff was examined in the emergency room, given pain medication and released. Since he continued to experience neck, back and shoulder pain, he sought treatment at the Neuro Care Center, where he was diagnosed with spasm and tenderness in the cervical spine and lumbar spine, with diminished range of motion. The results of X-rays, an EEG and MRI tests were all normal, except that the MRI revealed some straightening of the normal lordotic curvature. A CAT scan showed "no evidence of a herniated disc" but revealed a diffuse bulging of the disc with compression of the thecal sac at L3/L4 and L4/L5. As plaintiff continued to experience neck, back and shoulder pain "like a sharp pain, hot going through my body," he continued to receive treatment and therapy from Neuro Care until the time of trial.

Plaintiff was first treated by Dr. Waltz, who testified as his expert medical witness at trial, in March 1995. Dr. Waltz found that plaintiff had spinous muscle spasms, a "decrease to sensation over the L-5 dermatome bilaterally," and a decrease in motion of the head, neck and lumbar spine because of the pain he was suffering, and that his straight-leg raising was "positive at about thirty-five degrees." Dr. Waltz's diagnosis was cervical and lumbosacral radiculopathy.

However, an MRI performed on September 21, 1995 revealed a left-sided herniated disc at C5/C6 that was "subtly deforming the cord on the left." Dr. Waltz surgically removed the herniated disc on January 4, 1996. At trial, Dr. Waltz testified that the plaintiff's injuries were caused by the accident and were permanent in nature. He further testified that after the surgery plaintiff continued to suffer back pain and cervical discomfort, which he collectively characterized as chronic "vertebrogenic" pain.

Plaintiff testified that the pain resulting from the injury disrupted his sleep, and interfered with his prior activities such as going on weekend trips, going out to restaurants, cooking and going out dancing with his wife. However, he admitted performing household chores, and that he did not do much dancing prior to the instant accident because of a disabling leg injury in 1980, which required him to walk with a cane. Dr. Waltz also testified that he did not place any restrictions on plaintiff's activities, nor did he know of any restrictions.

Defendant called three medical witnesses who had examined plaintiff prior to trial. Two of the doctors confirmed that plaintiff had a disc injury, and that he had a decrease in range of motion of the neck, shoulder and lumbosacral spine. However, both of these doctors also opined that these problems, especially the disc injury, were more likely the product of the normal aging process, and that the limitations on plaintiff's range of motion were difficult to assess in light of plaintiff's assertions of pain. A third physician gave his opinion that plaintiff was "prevaricating."

In light of the above evidence, we quickly reject defendant's first argument that the court should have dismissed the action after plaintiff's case for failure to demonstrate a prima facie case of serious injury. Plaintiff's bill of particulars alleged that plaintiff suffered a serious injury under Insurance Law § 5102(d), to wit, "permanent consequential limitation of use of a body organ or member" and/or a "significant limitation of use of a body function or system." The testimony by plaintiff and Dr. Waltz provided evidence of injuries to plaintiff's cervical spine and disc, resulting in chronic pain and a decreased range of motion. It was asserted that the injuries were caused by the accident involving this defendant, and were permanent in nature. This evidence, if believed, was plainly sufficient to establish a prima facie case of serious injury (see, Florez v. Diaz, 243 A.D.2d 607, 663 N.Y.S.2d 620; Huggins v. Daniels, 237 A.D.2d 491, 492, 655 N.Y.S.2d 593; Puma v. Player, 233 A.D.2d 308, 649 N.Y.S.2d 461; Thomas v. Hulslander, 233 A.D.2d 567, 649 N.Y.S.2d 252; Parker v. Defontaine-Stratton, 231 A.D.2d 412, 647 N.Y.S.2d 189).

It was error, however, to refuse defendant's request to submit the question of whether plaintiff sustained serious injury under the Insurance Law to the jury as a question of fact (Cooper-Fry v. Kolket, --- A.D.2d ----, 666 N.Y.S.2d 775; Reynolds v. Burghezi, 227 A.D.2d 941, 942, 643 N.Y.S.2d 248; Quaglio v. Tomaselli, 99 A.D.2d 487, 488, 470 N.Y.S.2d 427; see also, Brown v. Stark, 205 A.D.2d 725, 613 N.Y.S.2d 705; Perez v. Rousseau, 190 A.D.2d 1040, 1041, 594 N.Y.S.2d 477). Contrary to the view of the trial court, the existence of a herniated disc does not per se constitute serious injury (see, Jackson v. United Parcel Service, 204 A.D.2d 605, 612 N.Y.S.2d 186; see also, Cacaccio v. Martin, 235 A.D.2d 384, 652 N.Y.S.2d 74; Schultz v. Von Voight, 216 A.D.2d 451, 628 N.Y.S.2d 388, affd. 86 N.Y.2d 865, 635 N.Y.S.2d 167, 658 N.E.2d 1040; Syrkett v. Burden, 176 A.D.2d 938, 575 N.Y.S.2d 550). Even accepting that plaintiff's disc and cervical spine injuries were medically verified, it was still incumbent upon plaintiff to provide objective evidence of the extent or degree of the alleged physical limitations resulting from the injuries and their duration (see, Parker v. Defontaine-Stratton, supra; Mickelson v. Padang, 237 A.D.2d 495, 496, 655 N.Y.S.2d 592; Rodriguez v. Tsui, 233 A.D.2d 382, 650 N.Y.S.2d 568; David v. Green, 233 A.D.2d 476, 477, 650 N.Y.S.2d 970).

The evidence adduced by plaintiff was clearly insufficient to grant him a directed verdict on the issue of serious injury (Cooper-Fry v. Kolket, supra ). Where conflicting medical evidence is offered on the issue of whether the plaintiff's injuries are permanent or significant, and varying inferences may be drawn therefrom, the question is one for the jury (Cooper-Fry v. Kolket, supra; Reynolds v Burghezi, supra; Greene v. Frontier Cent. School Dist., 214 A.D.2d 947, 627 N.Y.S.2d 491). Subjective expressions of pain alone will not suffice to establish serious injury (see, Scheer v. Koubek, 70 N.Y.2d 678, 679, 518 N.Y.S.2d 788, 512 N.E.2d 309; Cacaccio v. Martin, supra ). The plaintiff must specify how the pain limits the use of a body function or organ, or affects his or her routine daily activities (see, Cruz v. Calabiza, 226 A.D.2d 242, 641 N.Y.S.2d 255).

In the case at bar, plaintiff's testimony concerning his physical limitations was unspecific and partially impeached, and his own expert, Dr. Waltz, admitted that he placed no restrictions on plaintiff's activities, nor did he know of any (see, Lashway v. Groshans, 241 A.D.2d 832, 661 N.Y.S.2d 67). Moreover, the testimony of the defense experts strongly suggested that the limitations in range of motion were not objectively verifiable, and were supported only by plaintiff's subjective expressions of pain. In these circumstances, the jury should have been permitted to decide whether plaintiff suffered a serious injury within the meaning of Insurance Law § 5102(d). Additionally, we note that the jury's finding that plaintiff's herniated disc at C5/C6 was proximately caused by the accident involving defendant's decedent is barely supportable by the medical evidence adduced at trial (see, CPLR 4404[a]; David v. Green, supra ).

We also agree with defendant that it was an improvident exercise of discretion to preclude the introduction of video surveillance tapes. The tapes, taken by defense investigators, depict plaintiff engaged in activities such as carrying a ladder and tool...