Perpall v. Pavetek Corp.

• Decision Date: 27 March 2017
• Docket Number: 12-CV-0336 (PKC)
• Parties: BARBARA ANN PERPALL and PAUL U. PERPALL Plaintiffs, v. PAVETEK CORP., RICHARD A. WHEELER, and WILLIAM STILPHEN, Defendants.
• Court: U.S. District Court — Eastern District of New York

BARBARA ANN PERPALL and PAUL U. PERPALL Plaintiffs, v. PAVETEK CORP., RICHARD A. WHEELER,and WILLIAM STILPHEN, Defendants.

12-CV-0336 (PKC)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

March 27, 2017

MEMORANDUM & ORDER

PAMELA K. CHEN, United States District Judge:

This diversity action arose out of a motor vehicle accident that occurred on December 9, 2010 (the "2010 accident") in Brooklyn, New York. Plaintiffs Barbara Perpall ("Perpall" or "Plaintiff") and Paul Perpall commenced this against Defendants Pavetek Corp. ("Pavetek"), Richard Wheeler ("Wheeler"), and William Stilphen ("Stilphen") in connection with the accident. Plaintiffs allege that Wheeler was driving a car, to which a trailer was attached, and that the trailer hit the car that Perpall was driving. (Dkt. 15 ("Am. Compl.") ¶ 17, 24.) Plaintiffs allege that the car driven by Wheeler and the trailer were owned by Pavetek and Stilphen. (Am. Compl. ¶ 17-19, 27.) Perpall alleges that Defendants' negligence caused severe and serious emotional harm and physical injuries to her head, neck, back, and both shoulders. (Dkt. 15, Am. Compl. ¶¶ 27, 29-30.) Paul Perpall claims loss of consortium. (Am. Compl. ¶ 34.)

Before the Court is Defendants' motion for summary judgment on the grounds that (1) the December 9, 2010 accident did not proximately cause Perpall's injuries, and (2) Perpall cannot show that she sustained "serious injury" as defined by New York Insurance Law § 5102(d). Plaintiffs oppose this motion. For reasons explained below, the Defendants' motion for summary judgment is GRANTED in part and DENIED in part.

BACKGROUND

I. LOCAL CIVIL RULE 56.1

Neither party has fully complied with Local Rule 56.1. Under the Local Rule, a party moving for summary judgment must submit "a separate, short and concise statement, in numbered paragraphs, of the material facts as to which the moving party contends there is no genuine issue to be tried." Local Civ. R. 56.1(a). "Each statement by the movant or opponent pursuant to Rule 56.1(a) and (b), including each statement controverting any statement of material fact, must be followed by citation to evidence which would be admissible, set forth as required by Fed. R. Civ. P. 56(c)." Local Civ. R. 56.1(d) (emphasis added). "The purpose of Local Rule 56.1 is to streamline the consideration of summary judgment motions by freeing the district courts from the need to hunt through voluminous records without guidance from the parties." Holtz v. Rockefeller & Co., 258 F.3d 62, 74 (2d Cir. 2001). Contrary to Local Rule 56.1 (d), Defendants failed to cite to the record in support of Paragraphs 29, 31, 32, 33, and 35 in their Rule 56.1 Statement. (See Dkt. 73-1.)

In addition, Local Rule 56.1 requires Plaintiffs to either admit or deny Defendants' 56.1 statements with citations to admissible evidence. Local Civ. R. 56.1(c) ("Each numbered paragraph in the statement of material facts set forth in the statement required to be served by the moving party will be deemed admitted for purposes of the motion unless specifically controverted by a correspondingly numbered paragraph in the statement required to be served by the opposing party."). In Plaintiffs' Rule 56.1 Counter-Statement, they do not admit or deny Paragraphs 7, 29, 30, 31 of Defendants' Rule 56.1 Statement. (See Dkt. 75-1.) The Court therefore deems the facts in Paragraphs 7 and 30 as undisputed. See Local Civ. R. 56.1 (c).¹ Intheir 56.1 Counter-Statement, Plaintiffs also improperly make legal arguments, refer the Court to discussions in their Memorandum of Law, and even resort to exclamatory rants. (See Dkt. 75-1 ("Pl. 56.1") at ¶¶ 18,² 20, 23,³ 34⁴.)

Other submissions by the parties are similarly deficient. For example, both parties' memoranda often fail to cite to the record, even when making fact-based arguments. (See e.g., Dkt. 73-10, ("Def. Mem") at ECF⁵ 18-19⁶; Dkt. 75-2, ("Pl. Opp.") at ECF 14⁷). It is completely unhelpful to the Court and the party's argument to cite to an entire exhibit when that exhibit consists of fifty pages of medical office visit notes and billing documentation. Defendants, at times, discuss material that is not even in the record,⁸ and both parties have submitted documentswith inconsistent dates—where the date on the first page of a doctor's notes is followed by pages with different dates.⁹

The Court is under no obligation to sift through the parties' voluminous materials to find support for their arguments that they have failed to point out. See Monahan v. New York City Dep't of Corrections, 214 F.3d 275, 292 (2d Cir. 2000) ("While the trial court has discretion to conduct an assiduous review of the record in an effort to weigh the propriety of granting a summary judgment motion, it is not required to consider what the parties fail to point out." (citation and quotations omitted)); see also 24/7 Records, Inc. v. Sony Music Entertainment, Inc., 429 F.3d 39, 46 (2d Cir. 2005). As it is, the parties' woefully haphazard and sloppy work has imposed an undue burden on the Court in its effort to ensure that both parties ultimately receive fair consideration of their arguments.

II. PLAINTIFF'S MEDICAL HISTORYAND PRIOR ACCIDENT

A. Plaintiff's Pre-2010 Lower Back Surgeries

Prior to the 2010 accident, Perpall had two lower back surgeries: one in 1991 and another in 1992. (Dkt. 73-4, Def. Ex. F, ("Perpall Dep. I") at 28:13-18; Dkt. 73-9, Def. Ex. N, ("Back Op. Rec.") at ECF 2, 6.) Both surgeries involved Perpall's L4-L5 lumbar spine region. (Dkt. 73-9, Def. Ex. N, Back Op. Rec. at ECF 4, 6.) In 1991, Perpall received a laminectomy and a diskectomy at L4-L5 right and a foraminotomy in the same area. (Id. at ECF 4.) In 1992,Perpall underwent another laminectomy and discectomy at the right side of L4-L5, a bilateral lateral fusion at L4-L5, and a segmental fixation at the same level. (Id. at ECF 6.)

B. 2005 Accident & Resulting Medical Treatment

In 2005, Perpall was in a car accident.¹⁰ (Perpall Dep. I at 29:22-23; Def. 56.1 ¶ 23.) Perpall was subsequently treated by multiple doctors. (See Dkt. 73-9, Def. Ex. O, Dr. Irving Friedman's notes; Dkt. 73-9, Def. Ex. P, Dr. Jack Schweitzer's notes; Dkt. 73-9, Def. Ex. Q, Dr. Appasaheb Naik's notes.) Perpall testified that, after the accident, she received medical treatment for her "whole back" and her left shoulder, that she hired the same attorney who is now representing her in the instant suit, and that the case eventually settled. (Dkt. 73-4, Def. Ex. F, ("Perpall Dep. I") at 20:4-21, 30:8-10.) She testified that she underwent two years of physical therapy for her pain following the 2005 accident. (Id. at 20:1-3.)

1. Dr. Irving Friedman

On July 13, 2005, the day after Perpall's 2005 accident, Perpall consulted with her long-time treating physician, Dr. Irving Friedman, a neurologist. (Dkt. 73-9, Def. Ex. O at ECF 15.) Her chief complaints that day were headaches, violent neck pain that radiated into her left shoulder, and persistent low back pain. (Id.) After conducting a physical examination, Dr. Friedman concluded that Plaintiff had sustained acute post-traumatic injuries to her cervical and lumbar spine, and that—even though Perpall had a long history of lumbar spine pain—the accident "dramatically exacerbated" her lower back condition. (Id. at ECF 16.) Dr. Friedman also concluded that Perpall had post-traumatic left shoulder syndrome and noted the need to "rule out rotator [cuff injury]" and "impingement." (Id.) Perpall followed-up with Dr. Friedman throughout 2005 and 2006. (Id. at ECF 24.)

In a January 22, 2007 narrative report, Dr. Friedman summarized the history of Perpall's consultation with him up to that point regarding cervical spine and left shoulder pain.¹¹ While Perpall's right shoulder was near full range of motion, her left shoulder had a markedly diminished range of motion. (Id. at ECF 27.) He noted under the heading "CAUSALITY" that "[t]he [ ] multiple neuro-spinal-ortho deficits are directly and causally related to the injuries sustained on July 12, 2005 . . . ." (Id.) He further stated, "The patient's prognosis for any further functional improvement is extremely poor in view of the chronicity of her symptoms and her multiple [ ] clinical, radiographic, and electrophysiologic abnormalities . . . The above [ ] deficits are to be considered permanent in nature and causally related. The patient's prognosis remains guarded." (Id. at ECF 28.)

Perpall has not pointed to any evidence that she was seen by Dr. Friedman between January 2007 and December 20, 2010.¹²

2. Dr. Jack Schweitzer¹³

Perpall also saw Dr. Jack Schweitzer, a neurologist, on August 4, 2005, soon after her 2005 accident. (Dkt. 73-9, Def. Ex. P at ECF 30.) She saw Dr. Schweitzer throughout 2005 and 2006 mainly for her neck pain, headaches, and left shoulder pain. (See id. at ECF 54.) Dr. Schweitzer's notes dated September 22, 2005, state that Perpall's "MRI of the left shoulder was not consistent with any rotator cuff tear" and that there was evidence of "acromioclavicular productive changes without impingement noted." (Dkt. 75-12, Pl. Ex. J, Dr. Schweitzer's notes at ECF 4.) Dr. Schweitzer's February 9, 2006 notes state that Perpall had undergone, in January 2006, a manipulation of the left shoulder under an intraarticular block. (Dkt. 73-9, Def. Ex. P at ECF 45.) Dr. Schweizter also noted "[s]uspicion of impingement syndrome left shoulder with internal derangement left shoulder." (Id.) By April 3, 2006, Dr. Schweitzer had diagnosed Perpall with, among other things, impingement syndrome and internal derangement in her left shoulder. (Id. at ECF 46.) According to Dr. Schweitzer's July 7, 2006 notes, Perpall reported that, while the pain in her left shoulder persisted, the level of pain had improved; she also reported that the left shoulder ranges of motion had improved subsequent to the manipulation. (Id. at ECF 52.)

3. Dr. Appasaheb Naik

On May 14, 2007, Perpall consulted with Dr. Appasaheb Naik. (Dkt. 73-9, Def. Ex....