In order for plaintiffs to recover for noneconomic losses as a result of a car accident, they must prove that they suffered a “serious injury” as defined by Insurance Law Section 5102 (see Insurance Law Section 5104 [a]).  That “serious injury” must be caused by the accident as opposed to a pre-existing or degenerative condition (see Pommells v. Perez, 4 NY3d 566 [2005]). In many cases, the parties’ experts have conflicting opinions on this issue. A defense expert will contend, based upon radiological studies, medical record reviews and physical examination that a plaintiff’s injuries were not caused by the subject accident.  

Many times, plaintiffs will submit the opinions of their post-accident treating physicians who base their opinions on their treatments of the plaintiff. It is also common for a plaintiff’s treating physician not to address either the defendant’s expert’s opinion directly or the notations in plaintiff’s medical records that indicate the existence of a degenerative condition.